Employment Standards Claim or Human Rights Application: Which one should you file?
You have made an Employment Standards Claim through the Ministry of Labour and you are now told that you cannot pursue your case through any other adjudicatory proceeding. This is false.
You indeed cannot pursue your employment matter both through the courts and the Ministry. However, depending on your particular situation you may be able to file an Employment Standards Claim and pursue a Human Rights Application.
If for example you were wrongfully dismissed and there is a human rights element affecting this dismissal, you may find yourself in a situation where even though you brought your case through the Ministry and succeeded, the Employment Standards Officer (ESO) handling your case did not address the human rights elements. Under those circumstances, you may be in a position to claim additional damages at the Human Rights Tribunal of Ontario (HRTO).
I argued in a case at the Human Rights Tribunal not so long ago, O’Rourke v. Rexall Pharma Plus Pharmacies Ltd., 2020 HRTO 841 (CanLII), that where an ESO rendered their decision an application but failed to address the human rights elements, the employee should not be barred from pursuing the human rights element through the HRTO. I argued that the Human Rights Tribunal as a specialized Tribunal is being asked to look at discrimination in and of itself and should do so without moving swiftly to find that the issues in the HRTO application were already dealt with.
I reasoned in that particular case that the issues addressed by the Employment Standards Officer (ESO) though based upon the same facts are not the same issues that the HRTO is being asked to address. I took the position that where the ESO’s decision had no findings with respect to infringements on the Human Rights Code, the application should not be barred. This is especially so where the Employment Standards Act has no provisions to address the Human Rights element and the ESO did not address those issues.
The HRTO in O’Rourke, stated in its reasoning for their decision to allow the application to proceed that:
While there is substantial overlap in the facts and allegations in the ESA proceeding and the Application, the ESO decision does not consider human rights issues under the Code. Specifically, the ESO decision does not address whether the applicant’s disability or request for accommodation were factors in the respondent’s decision to terminate her employment, in contravention of the Code. In addition, the ESO decision does not preclude a finding under the Code that the applicant’s disability or request for accommodation were factors in the respondent’s decision to terminate her employment, in contravention of the Code.
We find that numerous cases are dismissed at interim proceedings at the HRTO with findings that another proceeding has appropriately dealt with the substance of the application. Although a matter may have been previously adjudicated upon this does not always mean that the other proceeding properly dealt with the material issues raised in your Human Rights application.
If you receive that dreaded email from the Human Rights Tribunal stating you need to proceed to an interim hearing to respond to why your application should not be dismissed, fear not, there may be recourse for you as in other cases I have argued under different circumstances such as Minega v. Ottawa Police Service, 2020 HRTO 939 (CanLII).
It appears that it has become common for a number of applications brought before the Human Rights Tribunal never to reach the mediation stage or a merits hearing because they are dismissed by way of interim decisions.
Before you give up on fighting for your Human Rights that may have been trampled upon with no regard for your dignity, perhaps request a free consultation with someone who practices in this area to see how they may be able to help. Speak up!
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About the Author
Licensed Paralegal and Notary Public
AJ Murray Legal Services P.C.