Friday, February 04, 2011

Ontario Employment Law: Parallel Jurisdiction of the Ontario Human Rights Tribunal and Courts in Dismissal and Discrimination Claims

In a recent case, Salvador v. Genpak LP, an applicant made an application to the Ontario Human Rights Tribunal alleging discrimination in employment on the ground of disability. The respondent employer opposed this application on procedural grounds, aruing that the application should be dismissed since the applicant had already had a parallel civil claim in that he had already filed a Statement of Claim against it in Small Claims Court alleging that he had been wrongfully dismissed.

Section 34(11) of the Ontario Human Rights Code, upon which the employer relied, states:
34 (11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled. 2006, c. 30, s. 5.
The respondent employer essentially argued that because the Small Claims action dealt with the same set of facts as the application before the Tribunal, section 34(11) required dismissal of the Code application.

The Tribunal found that this factual overlap alone was not enough to oust its jurisdiction in this case:

Having reviewed the Application and the Statement of Claim, I find that the applicant has not triggered section 34(11) because he has not raised the Code in his civil action. Similarity in the facts does not amount to duplication of legal issues. The determinative factor in this decision is that the Claim makes no mention of the Code or of any allegations of discrimination. Duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an Application: see Baker v. Sears Canada, 2009 HRTO 1014 (CanLII), 2009 HRTO 1014 (CanLII), at para. 12:

The fact that the case could potentially have been commenced as a single court action alleging both wrongful dismissal and discrimination is a matter of personal choice the legislature has left up to individuals bringing such cases. It is not within the Tribunal’sjurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed. In this case, I find the Tribunal does have jurisdiction over the matter.
If you have been wrongfully dismissed or discriminated against, contact a lawyer to be advised as to your legal rights and entitlements.
- Robert Tanha, Toronto
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