Canada: HRTO Dismisses Discrimination Application Because Of Civil Proceeding

The Ontario Human Rights Tribunal (the "HRTO") recently dismissed an application brought by a former employee (the "Applicant") against his employer in Koufis v. James Campbell Inc. o/a McDonald's Restaurant ("Koufis") because the Applicant had raised the same factual underpinnings in his human rights application and his civil proceeding before the court.

Under the Ontario Human Rights Code (the "Code"), a person cannot file an application if that person has already commenced a civil proceeding before a court on the same facts. The Applicant in Koufis did exactly that. He filed an application with the HRTO alleging that McDonalds had terminated his employment contrary to the Code (the "Application") after he had already commenced a civil proceeding before the court for wrongful dismissal and mental distress damages in relation his termination.

Given these facts, the HRTO sent the Applicant a Notice of Intent to Dismiss. In response, the Applicant filed written submissions arguing that the HRTO should not dismiss the Application because he had not relied on the Code or sought any remedies under the Code in his civil proceeding.

While the HRTO agreed with the Applicant that his civil proceeding did not specifically plead sections of the Code, the HRTO concluded that such explicit reference to the Code was not required if the "exact same facts are pled as the basis for relief" in both proceedings. The HRTO stated that such an interpretation would be "overly technical" and "defeat the purpose of section 34(11)". Instead, the HRTO found that the "determinative question is whether the civil claim explicitly or implicitly raises Code-related interests and seeks remedial redress for those alleged human rights concerns". In Koufis, the HRTO found that the former employee's civil claim did so implicitly and that if the HRTO did hear the application, then the HRTO and the court would both have to assess McDonalds' justification for its decision to terminate the Applicant.

Employers can breathe a sigh of relief, as the decision in Koufis should act as a deterrent to former employees filing both a wrongful dismissal claim and a human rights application based on the same set of facts involving allegations of discrimination.

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