Choosing where to file your human rights claim or complaint

The Human Rights Tribunal of Ontario (HRTO) is an independent, specialized and expert administrative tribunal, set up to process, mediate and decide human rights cases. However, many different courts, tribunals, and other administrative decision makers can also decide human rights issues under the Human Rights Code (Code).

This is because of a legal concept known as concurrent jurisdiction. This means you often have a choice about which legal forum to use to enforce your human rights case. In some cases, you may be able to choose more than one legal forum while, in other cases, you may be able to choose only one.

This issue of concurrent jurisdiction and the availability of multiple legal and other forums that can deal with human rights issues under the Code is a complicated area of law. Every case is different and not every human rights case will necessarily be best decided by a HRTO application.

It is a good idea to get legal advice and information before you decide to pursue a human rights case as there are advantages and disadvantages to the various legal forums that may decide human rights cases. Deciding where to try and enforce your human rights case is a very individual decision and depends on many factors that may need to be considered.

There is more information about where to get legal advice at the end of this guide.

A legal forum is the place where you bring your human rights case to be decided. Using a legal forum involves starting a formal legal process, such as filing an application, filing a complaint, statement of claim or other type of proceeding.

Legal forums other than the HRTO where human rights issues can be raised include the courts (such as the Ontario Small Claims Court or the Superior Court of Justice), other administrative tribunals, agencies or boards (such as the Landlord and Tenant Board), and labour grievance and arbitration procedures.

Here are some examples of where a legal forum other than the HRTO can be used to address human right issues:

• If you are a unionized employee who experiences discrimination or harassment, you could speak to your union about filing a grievance;
• If you are an employee who experiences discrimination but who does not have a union, you can make a human rights claim at civil court if you have another main cause of action (such as a claim of wrongful dismissal);
• If your employer terminates your employment because you took a parental leave, you can file an Employment Standards Act claim with the Ontario Ministry of Labour;
• If you have a complaint about discrimination you experienced when using a health care service, you can use the complaints process of the regulatory college, such as the College of Physicians or Surgeons or the College of Nurses of Ontario; or
• If you experience sexual harassment or sexual violence at work, at school, or in your housing, you can pursue a criminal charge under the Criminal Code by contacting the police.

Again, this is a complicated area of human rights law. You will need to be careful in choosing the legal forum in which you bring your human rights case.

Sometimes you can proceed with your case in more than one legal forum. But you will not always be able to file both a claim at the HRTO and a claim somewhere else about the same, or even related, human rights issue.

Your choice should be guided by your goals in beginning a legal claim or a complaint. Remedies differ from tribunal to court to regulator. For example, the HRTO will not award severance pay if you are let go from your job and the HRTO decides that your disability was a factor in that decision. Examples of HRTO remedies can be found here.

Each case is unique, and the specific circumstances of your case will be very important. You should consider at least the following questions when deciding where to file your human rights claim:

• What results or outcome do you want to achieve?
• Do you want monetary compensation?
• How strong is your claim?
• What evidence will you need?
• Do you want a workplace policy or practice to be changed?
• How long might it take to get a result? and
• Are there costs in bringing your claim?

An important factor for many people is the last one – the cost of bringing a human rights claim. In general, you do not have to pay any fees (or you may pay very low fees) to bring a claim to a tribunal or board. There are no fees at the HRTO.

However, there are fees to bring claims in the courts unless you are eligible for a fee waiver. This does not mean that the courts are not a good option. Sometimes the courts can be a better option as when you wish to bring two legal claims at the same time, such as a claim under the common law or a statute and a human rights claim.

See Partridge v. Botony Dental Corporation, 2015 ONCA 836 (CanLII) where there was both a wrongful dismissal claim and a Code claim of discrimination based on family status brought in the Superior Court of Justice.

In many cases a person has filed in more than one legal forum and there are ongoing concurrent proceedings. For example, an employee may have been fired from her job and made a claim under the Employment Standards Act and then later also applied at the HRTO because she believes she was fired due to becoming pregnant and taking a maternity leave.

There will usually be a preliminary hearing at the HRTO to decide whether your HRTO case should be deferred (i.e. postponed) or dismissed because of the other legal proceeding. If the other legal proceeding is ongoing the HRTO will likely defer your HRTO application. If the other legal proceeding has finished, the HRTO will decide whether your HRTO application should be allowed to continue or be dismissed.

For more information about how the HRTO deals with two legal claims proceeding at once, see the HRLSC self help guides on Deferral of an Application and Early Dismissal of an Application.

Where the other legal proceeding has concluded, the HRTO may decide to dismiss your application. This is because of the doctrine against re-litigation under the common law. It is a basic principle of law that a person may not bring the same legal claim more than once against the same person or organization.

Once a legal claim has been decided, a person may not relitigate the same legal claim unless there is an exceptional reason to allow this, such as when barring the re-litigation would cause an injustice or unfairness.

The HRTO applies the following legal test in deciding whether another legal proceeding has already appropriately dealt with the substance of an HRTO application under section 45.1 of the Code:

1. Were the issues raised in the application decided in the other proceeding?
2. Did the adjudicator in the other proceeding have the jurisdiction to interpret and apply the Code?
3. In the other proceeding, did the applicant know the case to be met, and have an opportunity to meet it? and,
4. If the answer to the above questions is yes, would it be unfair in all the circumstances to dismiss the application?

Important cases in this area of law that you may wish to review include two Supreme Court of Canada decisions – British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII) and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII). These cases provide an in-depth discussion of the general legal principles behind the doctrine against re-litigation.

Another important case is Ontario (Community Safety and Correctional Services) v De Lottinville, 2015 ONSC 3085 (CanLII). This case decided that internal complaints to professional regulatory bodies, like the Ontario College of Physicians and Surgeons, will not stop a subsequent HRTO human rights proceeding.

Again, it is a good idea to get legal advice and information if the HRTO is going to decide if you can continue with your application where there is another legal decision that has been made. The interpretation and application of section 45.1 of the Code and the doctrine against re-litigation is a complicated area of law.

Contact us here at the Human Rights Legal Support Centre if you have questions about the application form. We can also help you with a mediation or hearing at the HRTO.

There are many sources of legal help available. Speaking to a legal professional – a lawyer, paralegal or legal worker – is always a good idea when you are uncertain about how best to pursue your human rights claim and which remedies to pursue.

You can contact the Law Society of Ontario. The LSO will give you the name of a lawyer or licensed paralegal who will provide a free consultation of up to thirty (30) minutes to help you determine your rights and options.

You can contact JusticeNet, a program for people with low or moderate incomes. It connects people with lawyers and paralegals who charge lower legal fees. You can go to their website or call them at 1-866-919-3219 to get names of lawyers or paralegals in your area.

You can contact Pro Bono Ontario, which has a legal advice hotline at 1-855-255-7256. You can get up to thirty (30) minutes of free legal advice and help if you’re representing yourself at the Small Claims Court or Superior Court of Justice.

Community legal clinics across Ontario provide free legal services to people with low incomes. At these clinics, lawyers, community legal workers, and law students help people navigate which legal forum to choose. To get help from a clinic, you must live in the area the clinic serves. The first step is to find your local clinic.

Some community legal clinics help people only with workplace issues at the Workplace Safety and Insurance Board. The Industrial Accident Victims Group of Ontario and the Injured Workers Community Legal Clinic help injured workers.

The Workers’ Health & Safety Legal Clinic helps non-unionized people who are having health and safety problems at work. If you are a unionized employee, you should contact your local steward or bargaining unit representative for help.

The Barbara Schlifer Commemorative Clinic offers legal, counselling and interpretation services to marginalized populations of women who have survived violence, including sexual harassment or assault in the workplace.

If you decide that you want to file a human rights application at the Human Rights Tribunal of Ontario (HRTO), go to their web site for information about the process and to read the application form.