Melnyk v RBC Dominion Securities Inc., 2022 AHRC 48 is a new decision involving an application in front of the Alberta Human Rights Commission by an employer seeking to have a human rights matter stayed pending the outcome of a Civil action involving the same parties.
Given that these two claims arose out of the same set of facts, they are called “parallel claims”. Sometimes bringing parallel claims is legitimate, because you cannot sue for an ordinary termination in human rights, and you cannot sue for discrimination in civil court.
The Human Rights Commission refused to order a stay of the human rights action or to dismiss it as an abuse of process.
This case is interesting because it is not uncommon for management-side to threaten to bring a “stay” application where there are parallel claims, but in practice the parties can usually come to an agreement on that and there is not much caselaw as a result.
Facts
Below are the pertinent facts found by the Alberta Human Rights Tribunal:
- The complainant alleged in his human rights action that he was discriminated against in employment on the grounds of mental disability and physical disability
- Prior to filing his human rights complaint, the complainant had already started a civil action for wrongful dismissal. In it he alleged that one of the reasons for his dismissal was his disability
- There was considerable overlap between the factual allegations and issues in the human rights compliant and the civil action
- By the date of the application for a stay in human rights, there had been no hearing in either forum. However, the human rights complaint had progressed further than the civil action:
- the human rights complaint was already scheduled to be heard from December 5 – 16, 2022, and a timeline for exchange of records was already set out
- in the civil action the parties had completed questioning, but they had not filed a certificate of readiness for trial and it had not been scheduled for trial
Analysis / Conclusion
The Alberta Human Rights Tribunal described the nature of a “stay of proceedings” and the circumstances when it would be granted, as follows:
[8] A stay is an injunctive equitable remedy that stops proceedings while waiting for another proceeding to finish. There is a high threshold to establish that a stay is appropriate. A stay is “an extraordinary remedy” and the requesting party “must clearly demonstrate that the balance of convenience overwhelmingly favours the granting of it.” This high threshold reflects the purposes of administrative law generally to provide expeditious resolution of disputes and, more specifically, it reflects purposes of this Act to provide timely adjudication of alleged discrimination. Delays and interruptions should be avoided and only allowed in exceptional circumstances.
[…]
[28] […] Bylaw 20.4(t) identifies that the Tribunal has authority to “dismiss part or all of a complaint where… another proceeding has appropriately dealt with the substance of those allegations”. The language of “dealt with” suggests that the other forum has made findings. […] The Bylaws clearly anticipate full or partial dismissal where there is res judicata but they are silent on stays or dismissals where parallel proceedings exist. […]
[…]
[30] […] the Tribunal has the authority to grant a stay, despite the absence of similar legislative language as in Ontario and British Columbia, because it is master of its own process and in accordance with Bylaw 20.4(w). However, in weighing the relevant factors here, including the intent and purpose of the Alberta Act, I find that it is not in the interest of justice to defer the Complaint. I decline to follow the Ontario and British Columbia cases because of the differences in our governing legislation.
The Alberta Human Rights Tribunal went on to consider the question of whether bringing the claims in both forums was an abuse of process. The AHRT found that it was not an abuse process as follows:
[37] Here, there is no evidence of bad faith and the matter has not settled. I accept that there is considerable overlap between the two proceedings and that the complainant is pursuing both claims simultaneously. However, the risk of inconsistent findings is premature because neither forum has made any findings. The civil trial is not yet scheduled so there is no guarantee that it will proceed or that it will proceed in a timely manner. This is not a case where the Complaint is a misuse of the Tribunal’s process, is truly duplicative, or abusive. It would be contrary to the Tribunal’s mandate, to hear and adjudicate human rights complaints, to dismiss the Complaint at this stage.
My Take
In my experience, usually if someone started a civil claim prior to a human rights claim, the human rights claim would not be the first one to get to a hearing. The Alberta Human Rights Commission is inundated with files and does not have the resources to move them along as quickly as anyone would like. In fact, they often move forward very slowly.
In any event, sometimes it could make sense to run parallel claims in civil court and human rights. Here is an example of why that is:
- Suppose an employee is harassed for several months and ultimately quits their job
- The employee suspects and/or has some potential evidence that the harassment was connected to a human rights characteristic (i.e. race, gender, sexual orientation, disability etc.)
- The employee has a potential human rights claim: that the resignation was effectively involuntary due to the occurrence of discrimination, and that they should be entitled to all lost wages + damages for pain and suffering
- The employee also has a potential claim that the resignation was “constructive dismissal”, but that is a civil claim. In that civil claim, the harassment could support constructive dismissal regardless of whether it was discriminatory. However, in the civil claim the damages would normally be limited to “reasonable notice”, and additional damages for pain and suffering are harder to achieve (called “aggravated damages” in that context)
- The human rights forum generally has higher potential damages, but if the human rights commission decides discrimination did not occur, there are no damages at all
- If you only file in one forum (human rights OR civil court), by the time your matter is decided it is likely to be too late to file in the other forum
- So, you could choose to file in both forums:
- If human rights is decided first and the employee wins, there is likely no reason to continue with the civil claim
- If human rights is decided first and the employee loses, he or she could still potentially succeed in the civil claim
- If the civil claim is decided first and the employee wins, he or she could still potentially get additional “pain and suffering” damages in human rights
- If the civil claim is decided first and the employee loses, he or she could still potentially win in human rights.
I personally generally avoid filing parallel claims most of the time unless there is a clear reason to do so and the client instructs me to. The reason I avoid it is that it increases the cost to the client, and the likelihood of this gambit resulting in a better outcome for the client is low in my experience.
I would be delighted if the civil courts in Alberta were someday granted jurisdiction over human rights matters, because employment disputes very often involve allegations of harassment or other poor treatment that could potentially support a civil claim or human rights claim. I doubt this will ever happen, but it would reduce the number of parallel claims in Alberta dramatically.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
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