Splitting the Case
When reviewing issues of multiple proceedings through different forums, a further issue to be considered is the prohibition against “case splitting”.
Presuming that the employee argues that the workers’ compensation complainant is, for example, based on work based emotional abuse on account of a human rights protected right, must the employee raise the human rights ground as part of this complaint? Or may they wait for the completion of that process and then initiate a human rights complaint on the same facts?
It is clear that there is concurrent jurisdiction on these facts. However, will the choice to proceed with a workers’ compensation complaint then compel the employee to include the human rights violation in this process? This is a principle which is not dependent on the application of issue estoppel or the statutory ban against duplicative proceedings.
The answer to this question involves a review of the concept of “case-splitting”.
Principles of Case Splitting
In arbitral and common law cases, the employee is not allowed to split the case by putting forward one claim in the first proceeding and then raise a new assertion in the second.
The analysis in this context is not simply whether the same issue was raised in the prior decision but it is more expansive. The question is whether the same question could have been raised. The applicant must put forward its entire case in the first process. They cannot split the case. 1: 2
Parties should not be permitted to restrict Code arguments in one proceeding so that they may pursue a subsequent claim before the Tribunal at a later date, commonly referred to as “splitting one’s case” which is not permitted by the Tribunal. See Taylor v. Ontario (Community Safety and Correctional Services), 2016 HRTO 1306.
[50] In the grievance/arbitration proceeding, the applicant, through his Union had every opportunity to raise Code issues and either failed to do so or they were not accepted.
This principle has been accepted in Ontario in 2026 in the context of an initial workers’ compensation complaint followed by a human rights case. 3
[41] In the WSIB proceeding, the applicant, had every opportunity to raise Code issues and did so but they were not accepted. He had every opportunity in the WSIB proceeding to raise all complaints that he has raised in this Application.
These words appear to be obiter as the employee in this instance did raise allegations of discrimination in the initial workers’ compensation claim. Nonetheless, the argument fits well into the existing case law and is one which will likely succeed.
Certainly, the employee could not raise one allegation of a human rights violation in the workers’ compensation process and then add others in the human rights complaint. 4 5
This defence was also applied in a fact situation in which the initial hearing was one under the Employment Standards Act for severance and termination pay. The Tribunal again repeated the mantra that the first case must raise all issues including a human rights argument in this first application and could not split the case. 6
It is apparent that the law on this subject is well-defined. The same conclusion was made in McNeil v Alpine Forming. The human rights allegations cannot be expanded in the second hearing:
Even if the applicant had narrowed their complaints to exclude Code-related allegations, this Tribunal has found that an applicant who narrows allegations in another proceeding to exclude human rights issues is precluded from later pursuing the human rights issues at the Tribunal. See Cunningham v. CUPE 4400, 2011 HRTO 658.
[23] Parties should not be permitted to restrict Code arguments in one proceeding so that they may pursue a subsequent claim before the Tribunal at a later date. This is commonly referred to as “splitting one’s case” which is not permitted by the Tribunal. See Taylor v. Ontario (Community Safety and Correctional Services), 2016 HRTO 1306 at para. 22.
There remains a further issue should the argument be made that the initial decision of the WC decision maker was flawed. The question then becomes whether the internal appeal process be followed as opposed to re-arguing that allegation before the human rights tribunal. This presumes that there may otherwise by a defence of “issue estoppel” and/or the statutory ban against relitigating the same substantive issue, which as noted, is in serious doubt. See the review of this issue here.
- The citation which follows came from the Human Rights Tribunal after a workplace grievance
- Van Woundenberg v. Sheridan College Institute of Technology and Advanced Learning
- Chang v ABC
- as did occur in certain cases referenced in the anecdotal review referenced here.
- See also where this principle was applied, given an initial submission before the Landlord Tenant Board followed by a Human Rights complaint: Tariq v. Akhtar
- Nowratton v Ital Pasta