The Statute
As is well known, Ontario amended its legislation effective June 30, 2008 to allow for civil proceedings to seek a remedy under the Human Rights Code where there is a companion action. This effectively was a legislative intervention to reverse, or at least, modify the 1981 Supreme Court of Canada decision in Seneca College.
The amendment is awkwardly worded. It states what is not allowed, as opposed to the expected affirmative:
Civil remedy
46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:…[deleted]
Same
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I. 2006, c. 30, s. 8.
The substance then is that there must be a companion action commenced within the proceeding to allow the human rights remedy to be pursued. This then raises many issues, such as:
Must the companion action succeed at trial to allow for a human rights remedy to be assessed?
The statute, on its face, does not require such a result. It, rather, mandates that the action be commenced with such a second claim, not that the additional claim succeeds.
There are very few cases which have considered this issue.
One such decision came from the Divisional Court in January of 2020. 1
The appeal to this court came from a Small Claims decision. The plaintiff had sued for a human rights remedy alleging adverse treatment due to age accompanied by a claim for wrongful dismissal.
At trial, the trial judge allowed a modest damage award for wrongful dismissal of $900, and also found in favour of the human rights plea awarding $8,000.
These reasons added, however, that had the court dismissed this companion action, that the court was bound to dismiss the human rights claim.
What follows on this issue is obiter, but yet is instructive.
This aspect of the decision was reversed by the Divisional Court. What was required, this court concluded, relying upon the Ontario Court of Appeal decision of Jaffer, was that the claim is “properly before the court” and whether the claim discloses “a reasonable cause of action that does not arise solely from a breach of the Code”: [efn] Jaffer v York Ontario Court of Appeal 2010. This was not an employment case. [/efn_note]
The trial judge was in error in respect to the second premise of the appellant’s argument. The correct principle was stated by Karakatsanis J.A. (as she then was) in Jaffer, as follows:
Although a person may not commence an action based solely on an infringement of a right under Part I of the [Human Rights] Code, breach of the Code may be properly raised in an action if the claim is otherwise properly before the court. Thus, whether or not a claim for breach of the duty to accommodate disabilities can proceed in the Superior Court depends upon whether or not the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code.
This clearly states, subject to that which follows, that success in the accompanying action is not required for the human rights remedy to be considered. This is the most definitive word on this subject, even though this passage is obiter, the cited decision is not.
Companion Action as an Alternative Plea
In certain situations, the companion action may be pleaded as alternative relief to the human rights remedy and would not be considered, given success in the human rights claim. For example, a claim for reinstatement, although not made to date in any reported cases, if successful, would be inconsistent with a wrongful dismissal remedy. Similarly, where a claim for reinstatement which does not succeed, yet the case for a future lost income claim as a human rights remedy, does win, again there would be no rational claim for a wrongful dismissal remedy.
Claims Without Real Merit
The court in Kideckel did note that there would be exceptions, where the accompanying claim was frivolous, or doomed to fail, or one made in bad faith: 2
Of course, this is not to say that a frivolous claim can be a proper basis for joining a claim under the Human Rights Code: if the predicate claim is doomed to fail and is advanced, in bad faith, solely as a prop to bring a human rights claim into court, then the human rights claim may not be properly before the court pursuant to s.46.1 of the Code.
All this may be rational when the respective claims are assessed at trial.
Example of Claim Doomed to Fail
There is little case law on this issue.
A 2016 case considered the merits of the civil action claiming a human rights remedy. The case was a difficult one as the plaintiff had filed and then withdrawn an application for worker’s compensation benefits. The fundamental theme of that claim and the later civil action was ongoing abuse in the currency of the employment relationship, which was clearly caught by the Workplace Safety and Insurance Act.
The employer moved successfully to dismiss the civil action. The plaintiff then moved to amend her claim to raise a human rights claim which was theoretically to be supported by a tort claim for the intentional infliction of emotional distress. The amendment was denied, the alleged supporting claims dismissed, in addition to the consequential dismissal of the human rights remedy. The case clearly was doomed to fail. 3
Truly Distinct Claims
Note should be taken of a prior 2016 decision, not an employment case. The plaintiff had alleged a Charter violation and a violation of the Human Rights Code, set out as distinct forms of relief. The court found that the respective claims, based on the same facts, amounted to a “drafting sleight of hand” and were not, in essence, two separate and distinct claims:
To allow an alleged Code violation to be adjudicated in court whenever a corresponding Charter violation is alleged would amount to a drafting sleight of hand that would negate the legislative restriction in subsection 46.1(2).
[117] In this case, the same facts underlie both the alleged Charter and Code violations. The requested declaration as to parental authority is designed as a starting point to support the breach as claimed. The declaration and alleged Charter breach do not constitute separate causes of action contemplated by s. 46.1 of the Code, sufficient to open the door to a human rights claim under the Code at common law.
The conclusion followed that the court was thus deprived of jurisdiction to consider the human rights remedy. 4
Timing Issues
The law then will allow the human rights claim to be adjudicated at trial even where the companion action may not succeed, as long as it is brought in good faith and is a reasonable claim.
What then might be the result where the companion action, one which meets the good faith test, is dismissed prior to trial on a summary judgment application or for whatever other reason? Or where the defendant in the course of the litigation concedes the ancillary claim?
Does this then mean that the human rights claim is allowed to proceed to trial ? The case would still meet the test of the statute and subsequent interpretations. This remains to be seen.
Human Rights Process
Should such a claim for human rights relief not be allowed to proceed in the civil case, it may well be outside the one year limitation period set out in the Code. The Code, by s. 34(2) does allow for an application to extend the time period for the filing of the complaint, provided that the delay was incurred in good faith and that there was no substantial prejudice to the opposing party. The test would likely be satisfied, absent unusual facts showing prejudice.
- Kideckel v Gard-x
- To the same end is the decision of the late Echlin, J. in Anderson v Tasco
- Wisotzki v PCL
- E.T. v Hamilton-Wentworth The decision was appealed but not on this issue.