Human Rights by Civil Action

Written on behalf of Peter McSherry

The Basic Rule

Ontario law allows for two methods of presenting a human rights complaint. The first is to present the case before the Human Rights Tribunal and the second is to sue for the human rights remedy in civil court. To take this latter step, there must be a “companion” claim then commenced as part of this action. Usually, this is a claim for wrongful dismissal but it could be any other related cause of action, such as defamation.

Complexities of Companion Actions

There are some issues that arise out of this need for a companion action. For example, what will happen to the human rights case if the companion action, such as the wrongful dismissal case, fails at trial? Does this then mean that the human rights case must also fail?

The short answer to this question is “no”. If the companion action is brought in good faith, then the human rights case may still proceed and even succeed, even though the wrongful dismissal action has failed.

This scenario arose recently in the Ontario Divisional Court, on appeal from a Small Claims Court decision. The Court did, however, note that where the companion action is frivolous and “doomed to fail” then it may be struck in which case the human rights case would then lack the necessary foundation. The Court stated:

Of course, this is not to say that a frivolous claim can be a proper basis for joining a claim under the Human Rights Code: if the predicate claim is doomed to fail and is advanced, in bad faith, solely as a prop to bring a human rights claim into court, then the human rights claim may not be properly before the court pursuant to s.46.1 of the Code.  However that situation clearly does not arise in this case: the trial judge held for the plaintiff on wrongful dismissal.  This court has upheld part of the trial judge’s award, and the portion of the decision that was set aside cannot be said to have been doomed to fail: there was an argument available worthy of adjudication on that issue, an issue that was “properly before the court” and “disclose[d] a reasonable cause of action”. 

Essentially this means that where the companion action has reasonable merit and is brought in good faith, its success is not required for the human rights case to proceed.

An Action in Good Faith but Without Merit

All this being said, suppose that the employer, as the Respondent in a companion action, moves successfully on a summary judgment motion to strike the companion action as one without merit. The case may well have been brought in good faith but now has been dismissed. What then is the status of the human rights complaint? Must its survival be dependent on an existing valid companion action or will it now fail? This issue has yet to be decided.

Timing is Important

The limitation period for a human rights complaint before the Tribunal is one year. The time for the filing of a civil action, even one for a human rights remedy, is two years. If the summary judgment context referenced above leads to the dismissal of the human rights remedy by civil action, counsel must keep their eye on the time clock as the one year limitation period with respect to a Tribunal proceeding may also be in jeopardy.

Employees’ Take Away

Before bringing a civil action seeking a human rights remedy along with a companion action, seek the advice of experienced employment counsel to ensure the action has a chance of success. In addition, be sure to seek advice quickly, paying attention to limitation periods as they apply to the various potential claims.

Let Legal Advice Guide Your Actions

If you are considering a human rights remedy, get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.