One Swing at Bat

Written by Daniel Standing, LL.B., content editor, First Reference Inc.

You only get one shot. One chance. A single try. No matter how you say it, in 2023 HRTO 1610 (CanLII), the Human Rights Tribunal of Ontario delivered this message to a would-be complainant, dismissing his claim.


The would-be human rights complainant was a former employee alleging his employer failed to accommodate him, and that his termination was discriminatory.

The problem was that the complainant had an ongoing lawsuit involving the same facts and the same allegations.

The Tribunal’s decision

The Tribunal closed its door to the complaint based on s.34(11) of the Human Rights Code (Code), intending to eliminate duplicate proceedings where a Code violation is alleged. It wasn’t critical for the lawsuit to even refer to the Code; there was enough similarity between the two proceedings based on the same events and same arguments. Nor could the complainant convince the Tribunal the discrimination aspects were separate from the wrongful dismissal parts; to the Tribunal, the facts were all part of the same matrix that stood to be considered together.

In short, since a court was fully capable of dealing with all of the allegations as raised, s.34(11) acted as a mandatory bar to the complaint being considered.

Key takeaway

In terms of legal jurisdiction, if a decision maker allows a matter to proceed when another process is adequately dealing with the allegation, it would amount to an abuse of process. The reason for this is obvious: if decision makers faced with the same facts and arguments render divergent decisions, the path forward becomes needlessly complicated.

In Ontario, the Human Rights Tribunal’s decision to decline jurisdiction was made easier through the operation of s.34(11). Employers elsewhere in Canada who face multiple claims from an employee based on the same facts may be able to make a similar argument, depending on the language of their statutes.

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