Employees can only choose one venue to seek damages against their employer

In certain cases, an employee can have multiple ways to pursue damages against their employers. For example, a provincially regulated employee who gets fired for complaining that the employer is not following the Occupational Health and Safety Act can file a civil wrongful dismissal claim or make a claim with the Ontario Labour Relations Board. There are strategic reasons for choosing either venue. Continuing with the example, that employee might choose the Ontario Labour Relations Board, as it has the power to reinstate discharged employees.

A federally regulated employee might face a similar dilemma. For example, a federally regulated employee might get terminated for a discriminatory reason. This employee could file a civil unjust dismissal claim or file a human rights complaint with the Canadian Human Rights Commission.

There are cases where employees will claim damages through multiple venues. However, generally speaking, an employee needs to choose one venue for pursuing their claim. This general rule, which is sometimes enshrined in legislation, is meant to prevent employees from claiming damages for the same wrong twice. The general rule also helps prevent courts from being strained by having to deal with multiple cases that get decided on the same set of facts.

Earlier this year, the Human Rights Tribunal of Ontario confirmed the general rule, that an employee can not make similar claims through multiple venues, in Almseideen v McKesson Canada (2023 HRTO 255). In that case, Ahmad Almseideen filed a complaint with the Human Rights Tribunal against his employer McKesson Canada. In Almseideen’s initial filing, he noted that he had not commenced a civil complaint against his employer. McKesson’s response noted that a civil procedure had commenced. Noting the two actions, the Tribunal requested submission to whether subsection 34(11) of the Code, which prohibits the same complaint to both the Tribunal and Courts applied. In the submissions, it became clear that Almseideen was trying to collect damages through both procedures. In Almseideen’s civil proceedings claim he sought damages for wrongful dismissal. In Almseideen’s complaint to the Tribunal, he sought damages for discrimination. However, in both claims, the damages that Almseideen sought were for the same lost wages.

The Tribunal found that subsection 34(11) of the Code applied. It reasoned that it would be an unfair abuse of the process to require an employer to defend themselves twice based on the same set of facts for the same alleged damages. Subsection 34(11) tries to prevent such double claims. The Tribunal even cited a recent Ontario Court of Appeal decision that noted that the Tribunal has no discretion but to dismiss a human rights claim if there is a concurrent civil action. Therefore, the Tribunal dismissed Almseideen’s human rights complaint.

The decision in Almseideen v McKesson Canada has been seen as a strong message to employees that trying to get your case heard at two different venues to try to double possible damages will not be tolerated. Employers, who are more likely represented by experienced legal counsel, will get such double claims thrown out.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation, we can help employees, who are seeking damages against their employer, find the correct venue to pursue their claim. Our employment lawyers can guide you through the benefits of each venue considering your desired outcome and the costs tied to filing a complaint with each venue.

Our employment lawyers can also help employers who are faced with employees who are trying to make double claims against them. Our employment lawyers are aware of the procedures to get improper claims dismissed. To get in contact with one of our employment lawyers, you can call us at (705) 268-6492 or email us at info@sdlawtimmins.com.