Prior to amendments to the Human Rights Code (“Code”) in 2008, Ontario’s civil courts did not have jurisdiction to hear human rights cases. The courts’ power was limited to hearing appeals of Ontario Human Rights Tribunal decisions by way of judicial review.
Section 46.1 of the Code now permits a party to bring human rights claims directly before the civil courts, on the condition that they have also have separate issue that is normally within the jurisdiction of the civil courts. In other words, if the claimant’s only issue is an alleged human rights breach, and the claimant does not have a civil lawsuit as well, the claimant cannot pursue the human rights issue in the civil courts, and must instead make an application to the Human Rights Tribunal of Ontario.
There is a policy rationale for permitting people who have civil claims and human rights claims to bring their human rights claims before the courts. The purpose is to prevent multiple proceedings. Take for example an individual with a common law claim for wrongful dismissal, and a claim of discrimination in employment on the basis of disability. It would be inefficient for that individual claimant, and also for the respondent and the justice system as a whole, to have a human rights proceeding deal with the discrimination claim, and then have a civil proceeding to address the wrongful dismissal. Section 46.1 permits the plaintiff to combine both the wrongful dismissal and a human rights claim in the same court case.
Since the s. 46.1 provision came into force, there have been several reported court decisions that have considered the operation of this provision. We have summarized several of those decisions below:
The Plaintiff in this case was found to have only a human rights issue, and did not have a civil cause of action. In dismissing the claim, the Court ruled that it lacked jurisdiction to hear this matter, because the only claim made was related to a breach of the Code.
The alleged discriminatory acts complained about in this case took place before the 2008 Code amendments came into force. The Court concluded that s. 46.1, which became law in 2008, was not retroactive, and therefore did not provide a civil remedy for the plaintiffs and the claim was dismissed.
In this matter, the Ontario Superior Court permitted a s. 46.1 claim to proceed, ruling that the s. 46.1 claim did not have to relate to the civil wrong that opened the door to making a civil claim. The Court ruled that s. 46.1(2) merely requires that there be a wrong, not that it be related to the human rights claim.
In this case, the Ontario Superior Court struck the civil claims advanced by the plaintiff. When the court struck the civil claims advanced by the plaintiff, the human rights claims were also necessarily struck. Human rights claims in a civil proceeding cannot survive without the civil claims that permit them to be combined together in a single case.
The Plaintiff made a civil claim for wrongful dismissal, and alleged that his medical condition was a factor in the decision to terminate his employment, contrary to the Code. The Court considered and dismissed the Plaintiff’s claim for a remedy under s. 46.1, ruling that the employer had a bona fide and non-discriminatory reason for terminating the Plaintiff’s employment.
Also notable in this decision is that even though the Plaintiff was not successful in his human rights claim, he was very successful in his wrongful dismissal claim. This senior employee had 3 years of service and was awarded a 12 month notice period at a rate of $150,000 per year.
In Dwyer, the employee’s obligation to mitigate was also lessened due to his heart attack and resulting inability to aggressively pursue replacement employment.
The Defendant sought to strike claims of Code breaches because of case law predating the 2008 Code amendments, particularly the Bhadauria case, where the Court had previously ruled that there was no civil cause of action for discrimination.
The Court interpreted s. 46.1 of the Code as a legislative override of previous case law, such as the Bhadauria case. The Court’s view was that the legislature had clearly opened a door for human rights claims in civil proceedings on the condition that the claimant had alleged a separate civil wrong to bring the matter within the jurisdiction of the civil courts. In this case there was a separate civil wrong, and so the case was allowed to proceed.
This was a certification motion for a class action. In this case, the Court certified the question of whether the class members were entitled to remedies under s. 46.1 of the Code as a common issue. This is the first reported decision where a human rights issue has been certified as a common issue in an Ontario class action.