The choice of forum in which to begin a human rights proceeding can often have dramatic consequences for litigants, which may not be readily apparent at the time of deciding to commence litigation. For this reason, those litigating human rights claims ought to have an informed understanding of the various procedural factors that can impact the scope of litigation in order to guide their decision-making in a goal-directed manner.
This article begins by summarily examining the various avenues, set out in provincial legislation and rules of procedure, that are available to prospective litigants seeking a remedy for violations of their human rights. This article focuses only on human rights litigation resulting from employment relationships that can proceed in Ontario courts and tribunals. However, this article does not address the particular legal considerations that arise from human rights claims and complaints within unionized and federally regulated workplaces.
The Ontario Human Rights Code (the “Code”) broadly prohibits actions that discriminate against people based on a protected ground in a protected social area. Employment as a social area is dealt with specifically under section 5 of the Code and, more generally, under section 9 of the Code. Based on the relevant facts at issue in litigation, various other sections of the Code might also be applicable, e.g., reprisal under section 8.
In 2006, Bill 107, the Human Rights Code Amendment Act (the “Act”), significantly changed the framework for litigating human rights in Ontario. Perhaps most notably, the Act allows human rights damages available under the Code to be dealt with either as part of a civil claim before the courts or as an application to the HRTO, as provided for under section 46.1 of the Code.
Applications to the HRTO are governed by the provisions of the Code and HRTO’s Rules of Procedure. For actions commenced in small claims court, the Rules of Small Claims Court govern procedure. For all other actions commenced in the Ontario Superior Court, the Rules of Civil Procedure govern procedure.