A recent endorsement by Justice Echlin of the Superior Court of Justice has affirmed that disabled employees who fail to receive appropriate workplace accommodations should be permitted to pursue wrongful dismissal and human rights damages in the Superior Court of Justice, even when these two claims relate to the same set of facts: Anderson v. Tasco Distributors, 2011 ONSC 269.
Normally, a party is not permitted to commence an action in the Superior Court of Justice when the claim is based solely on an infringement of the Ontario Human Rights Code (“the Code”). In these circumstances, the party must bring an application to the Human Rights Tribunal of Ontario.
However, section 46.1 of the Code allows a party to obtain damages for a breach of the Code in a civil action, when the action is not based solely on a breach of the Code.
In the Anderson v. Tasco Distributors case, the defendant employer brought a motion to strike out the plaintiff’s Statement of Claim on the grounds that the court had no jurisdiction over allegations relating to an alleged failure to accommodate the plaintiff’s disability, among other grounds. In his decision on the motion, Justice Echlin refused to strike out the plaintiff’s claim and affirmed that the plaintiff was entitled to bring the claim even though the breach of the Human Rights Code and the civil claim for wrongful dismissal damages related to the same set of facts. Echlin J. took no issue with the fact that the same set of facts gave rise to all of the plaintiff’s claims.
Justice Echlin’s endorsement appears to signal an increased willingness to allow claims for human rights damages in civil proceedings, even where the alleged human rights breach and the civil claim are inextricably linked.