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Different Legal Avenues for Different Legal Problems – A Guide for Navigating the Routes to Employee Justice
Employment Law

Different Legal Avenues for Different Legal Problems – A Guide for Navigating the Routes to Employee Justice

By August 17, 2020 October 26th, 2020 No Comments

Depending on the facts of their situation, aggrieved employees who’ve been treated unlawfully by their employers (or former employers) have different legal routes they can take. Generally, courts and tribunals disfavor the commencement of multiple legal proceedings stemming from the same legal issue. This helps provide efficiency and ensures that defendants to proceedings are not harassed repeatedly for the same legal problem. It also helps prevent claimants from relitigating their case if unsuccessful. The legal doctrine that encapsulates this is called “issue estoppel.”

Further, some legal bodies specifically preclude making a claim for the same relief in multiple proceedings. For example, section 97 of the Employment Standards Act (the “Act”) specifically provides that employees who file a complaint under the Act with respect to an alleged failure to pay wages or termination and severance pay, may not commence a civil proceeding with respect to the same matter. Accordingly, where an employee has multiple legal options at their disposal, a strategic decision must be made with the help of a lawyer or legal representative. Such a decision depends on several different considerations, including:

  1. The nature of the employer’s unlawful act;
  2. Whether the employee was wrongfully dismissed;
  3. The manner of an employee’s dismissal;
  4. The employee’s financial means; and
  5. The amount of risk an employee is willing to bear.

In view of the foregoing, Ontario employees have a plethora of legal forums that they can commence a legal proceeding in. These include the Ontario Human Rights Tribunal (the “Tribunal”), the Ontario Labour Relations Board (the “Board”), the Ministry of Labour (the “Ministry”), and the Superior Court of Justice (the “Court”).

Ontario Human Rights Tribunal

The Human Rights Tribunal (the “Tribunal”) hears cases arising from the Human Rights Code (the “Code”). The Code prohibits actions that discriminate against people based on a p-protected ground in a protected social area. Protected grounds include age, disability, sex, record of offences, ethnic origin and race. Protected social areas include employment and membership in unions as well as trade and professional associations. Accordingly, the Tribunal can provide relief for workers who are currently employed and who have been discriminated against based on one of the Code’s enumerated grounds. However, where the discrimination has influenced an employee’s termination or has coloured the manner of their dismissal, an employee may be able to claim bad faith damages arising from the discrimination, as an additional head of damage to a wrongful dismissal claim.

Ontario Labour Relations Board

The Board hears applications pursuant to section 50 of the Occupational Health and Safety Act (the “OHSA”). This section protects employees attempting to exercise their rights under the OHSA from reprisals by employers. Specifically, employers are prohibited from retaliating against employees who complain about harassment, or who refuse to stop work where their health or safety is in danger. Invoking section 50 by way of an application to the Board initiates a mediation hearing in the presence of a Board mediator. If unsuccessful, a hearing is convened before the Board where parties must prove their case on a balance of probabilities. Applicants can claim compensation or reinstatement by their employer.

Ministry of Labour

The Ministry’s Employment Standards Program handles complaints regarding any entitlements owing under the Act. This includes unpaid wages, hours of work, unpaid overtime, vacation pay, holiday entitlements, termination pay and severance pay. Upon filing a claim, an employment standards officer investigates and has the power to make an order in the employee’s favour for outstanding amounts owed. If either the employee or the employer wishes to appeal the officer’s decision, an application for review must be filed within 30 days of the decision. Such applications trigger a mediation before the Board, and a subsequent hearing if mediation is unsuccessful.

Superior Court of Justice

Where an employee has been wrongfully dismissed (i.e. where an employee’s employment contract does not rebut the presumption of common law notice, and they have not been offered their common law notice entitlement or pay in lieu of notice), the employee can file a claim for damages in the Superior Court of Justice. Claims under $35,000 must be filed in the Small Claims Court. Court proceedings can provide maximum recovery of damages (if successful). Another benefit of filing a claim in the Superior Court is that an employee can add any of the aforementioned causes of action (i.e. reprisal, or discrimination) as an additional head of damage as “bad faith damages”. However, such proceedings are time consuming and may be more expensive for an employee. Also, claimants run the risk of paying the employer’s costs if they are unsuccessful.

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