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Recent Ontario Divisional Court Decision Confirms “You Do Not Get Two Kicks at the Same Set of Facts”

Section 34 (11) of the Human Rights Code, R.S.O. 1990, c. H.19, (the “Code”) effectively prohibits a person from making a human rights application if a civil proceeding relying on the same facts and infringement has been commenced or is already decided. This provision is intended to eliminate duplicate proceedings and inconsistent results. This provision is particularly important in the employment context, where employees may opt to proceed with a civil claim alleging wrongful dismissal and human rights related allegations, but cannot also opt to initiate a human rights application with the Human Rights Tribunal of Ontario (the “HRTO”).

The Divisional Court (the “Court”) in Zheng v. G4S Secure Solutions (Canada) Ltd, 2022 ONSC 93 reaffirmed this principle, holding that a complainant cannot have two proceedings based on the same facts move forward.

This matter arose in the context of an application for judicial review of a HRTO decision. Qun (George) Zheng (“Mr. Zheng”) was dismissed after a workplace investigation. Subsequent to his termination, Mr. Zheng alleged he was subjected to discriminatory treatment through his interactions with his coworkers, management, and the workplace investigator due to his Chinese heritage. During a combined summary/preliminary hearing to determine whether the respondents were the proper parties and whether the matter should proceed, the HRTO observed that Mr. Zheng had commenced a separate wrongful dismissal civil claim against G4S and the personal respondents.

The HRTO found that this triggered s. 34(11)(a) of the Code, which states that a person may not make a human rights application if “a civil proceeding has been commenced in a court in which the person is seeking an order under s. 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn.” In turn, the HRTO dismissed the human rights application, noting that while a statement of claim was issued, and had not yet been served, an action had been effectively commenced. The HRTO concluded that there was a substantial overlap between both the legal issues to be determined and the facts raised by the human rights application and the statement of claim.

On judicial review, Mr. Zheng argued that reliance on s. 34(11) as a ground for the dismissal of the human rights application under the Code was unreasonable. The Court, however, disagreed and concluded that the statement of claim that had been issued dealt with the same set of facts. It further held that the operation of s. 34(11) does not require that an applicant include an explicit reference to s. 46.1 of the Code in the civil claim. Rather, the Court noted that s. 34(11) applies where: (i) the facts and issues in a court action are the same as those in the application; (ii) the applicant has alleged a violation of the Code in the civil claim; and (iii) he or she has sought damages based on that alleged violation.

This decision demonstrates the courts’ general antipathy to multiple proceedings – as simply put within paragraph 37 of the decision, “you do not get two kicks at the same set of facts.”



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