In, Nicola Lao and St. John Ambulance Council for Ontario 2024 HRTO 347, Szymon Rodomar of FCL LLP successfully represented St. John Ambulance Council for Ontario (the “Respondent”) at a recent a preliminary hearing before the Human Rights Tribunal (“HRTO”).

In this Application, the Applicant alleged that she was discriminated against based on sex and family status by her former employer, St. John Ambulance Council for Ontario (the “Respondent”). The Applicant first initiated a Claim before the Ministry of Labour (the “MOL”) against the Respondent and, shortly thereafter, filed her Application with the HRTO; the Applicant made identical factual allegations relating to sex-based and family status discrimination in both proceedings. After her MOL Claim was dismissed, the Applicant still sought to proceed further with her HRTO Application.

In noting the strong similarities between the MOL Claim and the HRTO Application, the Respondent brought a preliminary hearing to dismiss the Application under Section 45.1 of the Code or, alternatively, because the Application was an abuse of process.

Section 45.1 of the Code states that the Tribunal may dismiss an application, in whole or in part, if another proceeding has appropriately dealt with the substance of the application. The provision is meant to prevent duplication of proceedings and re-litigation of issues already determined in another forum. An Applicant dissatisfied with the outcome of a proceeding before another administrative tribunal may not seek to appeal that outcome via the HRTO.

The Respondent detailed the four factors referenced by the HRTO in the context of decisions under Section 45.1 of the Code, which are derived from the Supreme Court’s decisions in British Columbia (Workers Compensation Board) v. Figliola, 2011 SCC 51 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. In doing so, the HRTO accepted the Respondent’s submissions that the MOL had jurisdiction to consider allegations of discrimination contrary to the Code, the issues considered by the MOL were the same as the issues that the Applicant sought to litigate before the HRTO, the Applicant knew the case to be met before the MOL and that it would not be unfair to dismiss the Application under Section 45.1.

The Respondent’s Submissions centered heavily on third and fourth factors which focus, respectively, on the Applicant’s opportunity to know the case to be met before the other tribunal and fairness.

In this regard, the HRTO agreed with the Respondent’s argument that, if the Applicant took issue with the MOL’s procedures or with its substantive reasoning, she should have sought a review of the MOL’s decision by the Ontario Labour Relations Board pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41.

The HRTO further expressed agreement with the Respondent’s position that proceeding to a merits hearing in respect of the Application would necessarily entail a re-hearing of the issues raised before and decided by the MOL, which is precisely the situation Section 45.1 was enacted to prevent.

Ultimately, the HRTO found in favour of the Respondent and dismissed the Application.

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