Tuesday, March 12, 2013

Civil Action vs. Human Rights Tribunal - Get a Legal Opinion

     Many dismissed employees are ofen faced with the question of whether to proceed with a human rights complaint to the Human Rights Tribunal of Ontario (HRTO) or to bring a civil action seeking redress for the violation of their human rights and the wrongful termination of their cmployment.  The recent amendments which now allow plaintiffs to litigate Ontario Human Rights Code violations in the courts has given them a choice of forum for the adjudication of such claims.  The decision is a very serious one and can have profound influence on the type of remedy which one can obtain.  Accordingly, it is a decision which ought not to be approached lightly.  In this post I aim to draw attention to some of the points which  one should consider when faced with this decision.

Limited jurisdiction of HRTO:

     The HRTO is not statutorily empowered to deal with wrongfull dismissals per se.  Their power to deal with dismissals focusses only on those dismissals that flow from a Code violation.  What this means is that the fact that one was wrongly dismissed will not vest the HRTO with jurisdiction to fashion a remedy unless the dismissal or an aspect of it flowed from a breach of the Code.  In Clennon  v.  Toronto East General Hosptital HRTO 1242 the HRTO held that the failure of the employer to follow their performance improvement policy was a violation of the Code but their decision to dismiss was not.  The HRTO found that the employer's production of a series of critical memos purporedly written by emplyees who were not called as witnesses established a non-discriminatory motive for the dismissal. 

     The courts on the other hand have jurisdiction to deal with both aspects of these claims.  In this forum the range of outcomes is increased for the employee. For example, the fact that an employee was fired on account of her sex has been held to be no cause at law and to constitute a wrongful dismissal at common law.  However, the fact that a claim of a Code violation is not successfull is not necessarily fatal to a finding of wrongfull dismissal.   This is so because in the civil action forum there is a high onus on  the employer to establish cause for dismissal.

Right to Examination for Discovery:

     One of the most glaring differences between a court action and a proceeding before the Human Rights Tribunal is the abense of discovery of witnesess in the latter.  In a typical court action the Rules of Civil Procedure provide the parties with a right to question each other under oath on their claims. These examinations can be done by written questions and responses or in person and  recorded by an Examiner who prepares a transcript of the session which can be used at trial to establish admissions or for impeachment. 

     The examination for discovery is where the parties get to truly test the strength or weakness of a case or defence. A meritless claim or defence will often be exposed at the discovery stage.  Indeed, most claims involving wrongful terminations and human rights issues tend to settle post discovery.  This fundamental step is lacking in the HRTO process.  As a result, the parties do not have a forum within which to test the strenght of their case before proceeding to a full hearing on the merits. 


     Administrative tribunals like the HRTO were originally implemented in order to provide a quick and inexpensive forum for the adjudications of human rights claims.  Unlike the civil action forum the HRTO forum does not provide for the awarding of costs to the successfull party.  Human rights claims - especially those involving employment terminations - involve counsel on both sides of the dispute.  The inability to be indemnified for the cost of paying one's lawyer along with the absence of a right to conduct examination of parties and or witnesses makes the civil action a much more effective forum for seeking redress.  While the rationale for prohibiting costs in the HRTO forum was to open up the access to redress for the violation of such rights to everyone regardless of means it does not appear to be working.  In many instances the cost of advancing the litigation exceeds or comes very close to exceeding the recovery.  Indeed, if one was to do a cursory reveiw of the HRTO awards for 2012  I strongly suspect that the numbers would reveal awards that can not reasonable sustain the costs associated with having counsel.

Presumption of expertise:

     The HRTO is presumed by our courts to have expertise in the adjudication of human rights matters.  What this means is that their decisions are shielded from judicial scrutiny except in a very narrow set of circumstances.  For the dismissed employee who proceeds in this forum it inevitably means a trip to the Divisional Court - where the chance of success is very low and often costly.


     An employee who has been dismissed and the dismissal has elements of human rights violations in it is better served by proceeding with a civil action where they can conduct pre-trial examination for discovery of the other party and key witnesses and have all of the facts in their case adjudicated in accordance with law by a Superior Court Judge sitting alone or a judge and jury.  If they have an arguable case the fact that the Rules of Civil Procedure provide for costs means that they will be better able to retain counsel to represent them.  The reality is that the cost of litigating a termination with human rights issues before the HRTO is not only very costly but perhaps more importantly it is a very limited legal issue before a body shieled by great deference in that limited legal area but with otherwise no jurisdiction to deal wih the broader and more subsantive issue - the wrongful dismissal.  The civil action on the other hand covers both issues.

Available for consultation:

   If you have been dismissed from your employment or are experiencing harassment and discrimination on the job Ernest J. Guiste is available for consultation.  Tel. (416) 364-8908
or by E mail - ejguiste@yahoo.com


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