An employment lawyer looks at the Ontario Human Rights Tribunal’s approach to case splitting
For employers and employees involved in employment litigation, the Human Rights Tribunal of Ontario’s (HRTO) approach to case splitting is about the notion that one set of facts should generally mean one fight, in one venue.
In plain terms, case splitting occurs when a person attempts to pursue two separate proceedings based on the same underlying facts. In the employment context, this often arises where an employee starts a civil proceeding, such as a wrongful dismissal action, and also brings an application before the HRTO alleging discrimination arising from the same employment relationship or termination.
How does the HRTO approaching case splitting?
Section 34(11) of the Ontario Human Rights Code (the code) is intended to prevent duplicative proceedings. It provides that a person may not bring an application before the HRTO with respect to a right under the code where:
- A civil proceeding has already been commenced in which the person is seeking a remedy for the alleged human rights infringement, and that proceeding has not been finally determined or withdrawn.
- A court has already finally determined the issue, or the matter has been settled.
In 2022, the Divisional Court (whose decisions are binding on the HRTO) confirmed that section 34(11) of the code operates as a mandatory bar where the facts and issues raised in a civil proceeding, such as a wrongful dismissal claim, are the same as those raised in a tribunal application: Ingram v. Human Rights Tribunal of Ontario, 2022 ONSC 3737 and Zheng v. G4S Secure Solutions (Canada) Ltd., 2022 ONSC 93. The Divisional Court has described the principle in straightforward terms: a party does not get “two kicks at the same set of facts.”
The prohibition against case splitting is grounded in practical fairness and efficiency. It helps to:
- Avoid using scarce court and HRTO resources to decide the same factual dispute twice.
- Prevent respondents from having to defend the same allegations in multiple venues at the same time.
- Reduce the risk of inconsistent findings, where a court and the HRTO could potentially reach different conclusions about the same events.
Interpretation of the ‘same facts’
In a recent 2026 decision, Oyelowo v. Ontario Provincial Police Association, 2026 HRTO 364, the HRTO rejected a terminated employee’s attempt to separate a narrow legal issue of whether the employer failed to commence a workplace investigation as a code violation from her civil claim for wrongful dismissal.
In considering whether the civil proceeding and HRTO application related to the “same facts,” the HRTO took a broad and liberal interpretation and reasoned that:
- The facts and issues “significantly overlap.”
- Both cases involve “the same constellation of facts and issues.”
- While failure to commence an investigation was not pled in the civil proceeding, it is “linked to the same factual matrix that underpins the allegations of discrimination, harassment, and reprisal pled in the civil claim.”
Ultimately, the HRTO dismissed the HRTO application on the basis of section 34(11) for the reasoning set out above.
The HRTO’s assessment of the “same facts” has also gone a step further in some cases. In Wilson v. Valentine Coleman Inc., 2024 HRTO 1453, the tribunal applied section 34(11) to dismiss an application related to a former employee’s termination of employment even though the civil proceeding related to the termination:
- Did not expressly refer to section 46.1 of the Code.
- Did not specifically plead Code-related grounds.
- Did not frame the claim as one involving discrimination.
The HRTO’s recent approach reflects a broad and liberal understanding of case splitting. If two proceedings are focused on the same underlying events, changing the wording or legal theory may not be enough to avoid the operation of section 34(11).
Key takeaways for employers on overlapping actions
- Review whether a tribunal application overlaps with an existing or prior civil proceeding.
- Consider whether section 34(11) may provide a basis to seek dismissal of a duplicative HRTO application.
- Assess the most cost-effective and strategic way to respond to overlapping proceedings.
- Obtain legal advice about how to preserve procedural objections while responding to the substance of the claim.
Jessica Herfst is an employment lawyer and workplace investigator at Turnpenney Milne in Toronto.
