Written on behalf of Peter McSherry
Ontario’s law is unique in that it allows a person who has been terminated due to actions which may be in violation of the Ontario Human Rights Code to sue civilly or file a human rights complaint with the Human Rights Tribunal. (“HRT”)
For example, a person fired due to age or gender or if he or she has been sexually harassed, may sue civilly for damage plus a claim for wrongful termination or may simply file a complaint with the Human Rights Tribunal.
There are pros and cons of each action. There is no one right or wrong course of conduct. Here are some of the respective advantages and disadvantages.
This refers to the time window in which the action has to be started. Under the HRT, it is one year. There is a two year period for civil actions, even one arguing a breach of the Code. If the one year period has passed, there is no other option but to use the civil court.
The Damage Awards
The claims for damages for emotional harm are the same in either place. This includes past income loss for a human rights violation and a future lost income claim.
This remedy has yet to be awarded by a civil court although there is no reason why it should not be.
The adjudicator under the HRT is a person who is specialized and deals with human rights issues only. A judge in court does not have the same level of expertise. Human rights issues are far different from normal civil cases as the evidence issues are different.
In a human rights case, no costs are awarded to the successful party nor are costs required to be paid by the loser. At first blush, this may seem to a factor which weighs in favour of the civil case.
However, in civil cases, costs are often a serious factor which may cause the plaintiff to reconsider the wisdom of taking his or her case to court. The employer often may make an offer to settle. If the offer is not accepted and the plaintiff wins the case, yet does not recover enough to beat the offer, the plaintiff “loses” the case and must pay the employer’s costs.
The risk of not beating such an offer is often a deterrent against a person going to trial in a civil case.
There is no such barrier in a human rights case. If a person is determined to proceed to a hearing and see their case in “court”, the human rights process may well be the best process.
If the complainant in a human rights case cannot prove adverse treatment due a human rights violation, the case is over and there will be no recovery.
However, in a civil case, the plaintiff can argue “yes, my human rights case failed but I am still entitled to proper severance pay”, as an alternative submission. This may be well be an important argument, particularly where the human rights case is weak.
The standard of review for an “appeal” of a human rights decision is quite high as “deference” must be shown to a human rights adjudicatory. An appeal from a judge’s decision must show only an error of law, which is a lower standard.
Understand the Differences
If you are facing a decision following termination of which avenue of relief to pursue, take legal advice and understand all the issues first.
If you have questions about such employment issues, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation