Pursues substantially same facts with civil court, human rights tribunal
An Ontario worker who alleged age-based harassment at work lost his human rights case after the tribunal ruled he couldn't pursue substantially the same facts in both civil court and the Human Rights Tribunal of Ontario.
Adjudicator Joseph Tascona dismissed Girard Banks' application against A.P. Plasman Inc. on Jan. 23, 2026.
He confirmed that section 34(11) of the Ontario Human Rights Code operates as a mandatory bar when the facts and issues overlap, even when the civil claim doesn't explicitly mention discrimination.
Discrimination, constructive dismissal
Banks filed his tribunal application in July 2018, alleging that the company’s employees engaged in harassing treatment relating to his age that caused him to file a workplace harassment complaint in May 2017 and go off work at the end of July 2017.
He sought monetary compensation for lost income and damages for violation of his human rights, along with specialized training in the workplace.
A year later, he filed a civil lawsuit claiming constructive dismissal and seeking damages for wrongful dismissal/breach of contract, bad faith termination, intentional or negligent affliction of mental distress, and punitive and/or aggravated damages, stating his claim was "exclusive of the Ontario Human Rights Code."
Remedies for wrongful termination
The tribunal found that both proceedings stemmed from events occurring during the same May 2017 to July 2017 period. Banks had sought remedies for wrongful termination in both venues, with the tribunal application casting it as reprisal under the Code while the civil claim focused on termination without just cause.
The adjudicator noted that while the application made broader claims about a hostile workplace, the fundamental issue remained identical. Both proceedings required decision makers to examine the circumstances surrounding Banks' departure from employment.
The tribunal emphasized that the civil claim's request for damages for bad faith termination and intentional or negligent affliction of mental distress could address the same harms alleged in the human rights application. As Tascona wrote, these remedies "can serve to remedy the consequences to the applicant of the alleged harassment, discrimination and reprisal."
No escape through careful wording
The tribunal rejected Banks' argument that his civil claim's explicit statement excluding the Human Rights Code should allow both proceedings to continue. Recent Divisional Court decisions have established that the determinative question is "whether the facts and issues in the two proceedings are the same," not whether discrimination is explicitly mentioned.
Tascona explained the policy rationale: "Duplicate proceedings bear a risk of inconsistent findings of fact. They create a disadvantage to the respondent, who must defend against he [sic] same set of facts twice when all issues could have been raised in one proceeding."
The decision underscored that splitting remedies into separate proceedings forces employers to defend termination claims in two venues involving the same constellation of facts
"By splitting remedies into two separate proceedings, the respondent bears the costs of defending the applicant's termination in two venues where both cases involve the same constellation of facts and issues."
