The Canadian Human Rights Act does not contain a provision akin to that of Ontario's Human Rights Code specifically permitting a plaintiff to plead a human rights complaint within the body of its civil suit. However, case law over the last 20 years has seemed to open the door to plaintiffs, allowing them to allege human rights violations within the body of claims for wrongful, or constructive dismissal.

It is arguable that a human rights claim can be made in certain circumstances, where violations of the Canadian Human Rights Act ("CHRA") are alleged. There is no provision in the CHRA granting exclusive jurisdiction to the courts under the legislation, however, section 50(2) of the CHRA states that, "in the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter." Accordingly, one could argue that as long as an independent cause of action is plead, the complaint may form part and parcel of the action as being relevant to the facts and the conduct of the defendant to support the damages claimed.

In Picard v. Air Canada, the Quebec Superior Court took section 46.1 of the Ontario Code as recognition that "it is sometimes inefficient and contrary to the effective administration of justice to force different aspects of a claim to be adjudicated in different forums". This case involved a motion to certify a class action brought by persons with disabilities against Air Canada and WestJet, claiming that requiring them to pay for an additional seat constituted discrimination. The Court rejected the airlines' argument that the matter was within the exclusive jurisdiction of the Canadian Human Rights Commission, and proceeded to certify the class action.

In L'Attiboudeaire v. Royal Bank of Canada, the Ontario Court of Appeal held that a motions court judge had erred in applying the Supreme Court of Canada's ruling in Bhadauria v. Seneca College, in which the Court found that a civil cause of action could not be grounded only in an allegation of a breach of human rights legislation, or public policy. The Court of Appeal in L'Attiboudeaire distinguished Bhadauria, as follows:

"In my view, the motions court judge in the present proceeding erred in applying Bhadauria. The present case is unlike Bhadauria in that the cause of action alleged in it is not based upon a breach of the Canadian Human Rights Act, nor is it "based on" an invocation of the public policy expressed in that Act – in the sense that the action in Bhadauria was based on the Ontario Human Rights Code. The plaintiff in the present case had been in an employment relationship with the defendant and, in order to prove conduct on the part of the defendant which amounted to constructive dismissal (generally, a fundamental breach of the terms of the employment contract) he does not need to invoke the policy of the Canadian Human Rights Act. This does not mean that its terms could not be relevant factors to take into account in assessing the defendant's conduct." (emphasis added).

This view was upheld in the decision, Gnanasegaram v. Allianz Insurance Co. of Canada by the Ontario Court of Appeal:

[8] The law is clear since the Supreme Court of Canada's decision in Bhadauria v. Seneca College of Applied Arts & Technology (1981), 124 D.L.R. (3d) 193 (S.C.C.) that no cause of action lies for breach of the Ontario Human Rights Code or at common law based on an invocation of the public policy expressed in the Code.

[9] In this case as in L'Attiboudeaire the plaintiff had been in an employment relationship with the defendant. To prove conduct on the part of the defendant which amounted to constructive dismissal she does not need to invoke the policy of the Ontario Human Rights Code or the Canadian Human Rights Act. However, to quote from L'Attiboudeaire:

This does not mean that its terms could not be relevant factors to take into account in assessing the defendant's conduct.

[10] For the purposes of pleading discriminatory conduct as a basis for a wrongful dismissal claim I see no principled basis for distinguishing between allegations of direct discrimination aimed at the plaintiff and allegations of systemic racism which target a class or group of which the plaintiff is a member. In either case the allegation is one of discrimination against the plaintiff offered to support the wrongful dismissal claim.

The Court of Appeal provided the same reasoning in its decision in Jaffer v. York University.

The Court in Metz v. Tremblay-Hall elaborated on the L'Attiboudeaire decision at paragraph 21, as follows:

"[I]t is too broad to state that Bhadauria precludes any common law action based on racial harassment or discrimination. In Y.S. v. H. & R. Property Management Ltd., [1999] O.J. No. 5588 (Ont. S.C.J.), at p. 4 Sutherland J. pointed out that where the whole action is based upon the Ontario Human Rights Code, with no pleading of a common law right of action, the decision of the Supreme Court of Canada had determined that recourse was to the Human Rights Commission, exclusively, because the legislation foreclosed recourse to the court for such breaches of the Code, except by way of appeal from the commission. Sutherland J. stated that Bhadauria would not, however, be a bar to a claim of harassment if an independent cause of action was made out, on the authority of L'Attiboudeaire v. Royal Bank of Canada, 1996 CanLII 1411 (ON CA), [1996] O.J. No. 178 (Ont. C.A.). In L'Attiboudeaire the plaintiff brought an action for constructive wrongful dismissal. ... He alleged that he was subject to "racist dehumanizing, derogatory and sexist comments" by the defendant, which conduct resulted in his constructive dismissal. The plaintiff pleaded that the conduct of the defendant was in contravention of, among other things, the Canadian Human Rights Act. The defendant brought a motion to dismiss the action on the basis of Bhadauria. The Court of Appeal distinguished Bhadauria because the cause of action in L'Attiboudeaire was based on breach of the plaintiff's employment contract with the defendant, not on a breach of the Canadian Human Rights Act nor on an invocation of public policy expressed in that Act."). The Ontario Court of Appeal stated in Jaffer v. York University that "this court has expressly upheld pleadings that contained allegations of discrimination in constructive dismissal claims." The Court went on to explain: "In L'Attiboudeaire v. Royal Bank of Canada (1996), 1996 CanLII 1411 (ON CA), 131 D.L.R. (4th) 445, this court was satisfied that the cause of action alleged was not based upon a breach of human rights legislation or on an invocation of the public policy expressed in that legislation. Morden A.C.J.O. explained that in order to prove conduct that amounted to constructive dismissal, the plaintiff did not need to invoke the public policy of the Canadian Human Rights Act. This did not mean that the Act's terms could not be relevant factors to take into account in assessing the defendant's conduct."

The same principles were also upheld in Peng v. Star Choice Television Network Inc. In that case, the Court stated:

"[15] However, in view of the fact that this action is principally a claim for damages for wrongful dismissal, the conduct alleged is said to provide a factual context for the dismissal and thus forms part of the basis for Ms. Peng's argument that the dismissal was wrongful. Ms. Peng further submits that the Defendants' alleged wrongful discriminatory conduct was carried out in bad faith and entitles her to damages for mental distress, an increased period of notice (see: Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701), as well as punitive damages, and is therefore generally relevant to the issue of damages. Such claims have been permitted and recognized, most recently by the Ontario Court of Appeal which countenanced an award of punitive damages as a result of discriminatory conduct in breach of human rights legislation (see: Keays v. Honda Canada Inc., April 3, 2006, Docket No. C43398 (Ont. C.A.))."

"[16] I conclude that Ms. Peng's allegations of discrimination, insofar as they are made in the context of a claim for wrongful dismissal and in light of their relevance to the issues of the alleged wrongfulness of the dismissal, length of reasonable notice and availability of certain heads of damages raised in this particular case, entitles the Court to hear evidence and entertain argument about them within those boundaries. This approach does not, in my view, violate or run counter to the principle and precedent established by Seneca College of Applied Arts and Technology v. Bhadauria, supra, and was explicitly accepted in Keays v. Honda Canada Inc., supra."

Finally, in the decision of Sargeant v. Patterson Dental Canada Inc., relying on L'Attiboudeaire, the Court confirmed that Bhadauria does not oust the jurisdiction of the Court to try an action for damages based upon an independent tort or torts or based on a breach of contract, whether or not there is also a pending human rights complaint.

Conclusion

There is no exclusive provision in the Canadian Human Rights Act permitting a plaintiff to bring a federal human rights complaint within the body of its civil Statement of Claim, in the same manner as provided for at section 46.1 of the Ontario Human Rights Code. However, the case law above seems to indicate that where the human rights violations form part and parcel of a wrongful dismissal or constructive dismissal claim, a plaintiff may allege human rights breaches through the context of their employment relationship. Statutory limits set by the Code, including the need to have an accompanying civil claim and the bar against bringing claims at the Tribunal and in a court concurrently create barriers to some claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.