Human Rights Complaints vs. Wrongful Dismissal Suits: Choosing Your Forum

The Two Forums

When an employee is terminated and believes the termination was motivated by discrimination — on the basis of race, sex, disability, age, religion, sexual orientation, or any other ground prohibited by the Ontario Human Rights Code — they face a choice between two principal forums for seeking redress.

The Human Rights Tribunal of Ontario (HRTO) is a specialized administrative tribunal with jurisdiction to hear complaints of discrimination under the Human Rights Code. Applications are filed directly by the complainant (no lawyer required, though legal representation is advisable). There is no filing fee.

The Ontario Superior Court of Justice is the court of general jurisdiction with the power to hear wrongful dismissal claims and human rights claims. Proceedings are commenced by issuing a Statement of Claim. Court filing fees apply, and legal representation, while not technically required, is practically essential.

A third option — filing a complaint with the Ontario Human Rights Commission — was eliminated for individual complaints when the Human Rights Code was amended in 2008. The Commission now focuses on systemic issues, public interest inquiries, and policy development. Individual complaints go directly to the Tribunal.

The Tribunal: Advantages and Limitations

Advantages

Accessibility. The HRTO is designed to be accessible to self-represented parties. The application form is straightforward, the process is less formal than court proceedings, and the filing fee is zero. This accessibility makes the Tribunal the only practical option for many employees who cannot afford litigation.

Specialization. The Tribunal's adjudicators are experts in human rights law. They deal with discrimination cases daily and have developed a sophisticated understanding of the nuances of discrimination analysis. A Tribunal adjudicator is less likely to misunderstand or undervalue a discrimination claim than a generalist court judge who may hear a discrimination case only occasionally.

Remedial flexibility. The Tribunal has broad remedial powers under section 45.2 of the Human Rights Code, including monetary compensation for injury to dignity, feelings, and self-respect (general damages), compensation for lost wages and benefits, reinstatement, orders requiring the respondent to change policies and practices, and orders requiring the respondent to provide training or education.

No adverse costs. In most HRTO proceedings, each party bears their own legal costs regardless of the outcome. This means the employee does not risk an adverse costs award if they lose — unlike in court, where the losing party typically pays a portion of the winning party's legal costs.

Limitations

No wrongful dismissal damages. The HRTO does not have jurisdiction to award common law wrongful dismissal damages. It cannot determine the reasonable notice period and cannot award damages equivalent to salary and benefits during that period. An employee who brings a discrimination claim at the HRTO forgoes the typically larger wrongful dismissal damages that a court can award.

Slower than expected. The HRTO's processing times have been a persistent concern. While the Tribunal was designed to provide faster resolution than the courts, processing delays have lengthened considerably. An application filed today may not reach a hearing for 12 to 18 months.

Lower general damages. While HRTO general damages awards have been increasing, they are generally lower than what courts can award. Typical HRTO general damages awards for employment discrimination range from $15,000 to $50,000, with awards exceeding $75,000 reserved for the most egregious cases. A court, by contrast, can combine wrongful dismissal damages, moral damages, punitive damages, and human rights damages into a total award that significantly exceeds what the Tribunal can provide.

Limited discovery. The HRTO's discovery process is more limited than the court's. The Tribunal may not provide the same tools for compelling the production of documents, examining witnesses under oath before the hearing, or obtaining other pre-hearing disclosure. This can disadvantage the employee in cases where the evidence of discrimination is in the employer's possession.

The Courts: Advantages and Limitations

Advantages

Full range of damages. The court can award the complete spectrum of damages available to a terminated employee: common law reasonable notice damages, ESA statutory entitlements, moral damages under the Honda framework, punitive damages, human rights damages (the court has concurrent jurisdiction with the HRTO under section 46.1 of the Human Rights Code), and costs.

The combined award can be substantial. An employee who was terminated without cause in a discriminatory manner might receive 18 months of reasonable notice damages, $50,000 in moral damages for the manner of dismissal, $25,000 in human rights general damages, and costs. The total could easily exceed $300,000 — far more than a typical HRTO award.

Concurrent jurisdiction. Since 2008, the Ontario Superior Court has had concurrent jurisdiction to hear human rights claims alongside common law claims. Section 46.1 of the Human Rights Code provides that a person who alleges a Code infringement may claim damages and other remedies as part of a civil proceeding. This means the employee can pursue their wrongful dismissal claim and their discrimination claim in a single proceeding.

Comprehensive discovery. The court's discovery process provides the employee with tools to compel the production of documents, conduct examinations for discovery (depositions), and obtain other pre-trial disclosure. This is particularly valuable in discrimination cases, where the evidence of the employer's discriminatory motivation may be embedded in internal emails, performance reviews, meeting notes, and other documents in the employer's possession.

Precedent. Court decisions create binding precedent that shapes the development of the law. Tribunal decisions are not binding on the courts. Employees who seek not only personal redress but also systemic change may prefer the courts for their precedential effect.

Limitations

Cost. Court proceedings are expensive. Legal fees for a wrongful dismissal trial can range from $20,000 to $100,000 or more, depending on the complexity of the case. While contingency fee arrangements (where the lawyer is paid a percentage of the recovery) are available, they are not universal, and the employee may need to bear some costs upfront.

Risk of adverse costs. If the employee loses at trial, they may be ordered to pay a portion of the employer's legal costs. The costs risk is a significant deterrent, particularly for employees with limited financial resources.

Duration. Court proceedings can take two to four years from filing to trial, depending on the complexity of the case and the court's schedule. While this is not necessarily longer than the HRTO's current processing times, the formal court process involves more procedural steps (pleadings, discovery, motions, pre-trial conference, trial) that extend the timeline.

Generalist judges. Unlike the Tribunal's specialized adjudicators, court judges are generalists who may not have extensive experience with employment discrimination claims. The quality of the judge's understanding of discrimination law can vary.

The Strategic Calculus

The choice between the HRTO and the courts depends on several strategic factors:

If the primary claim is discrimination and the damages are primarily non-monetary (reinstatement, policy change, training), the HRTO is likely the better forum. The Tribunal has broader remedial powers for non-monetary relief and is more accessible.

If the primary claim is wrongful dismissal with a discrimination component, the court is likely the better forum. The court can award the full range of damages, and the wrongful dismissal claim provides the financial foundation of the case.

If the employee cannot afford litigation, the HRTO is the accessible option. No filing fee, no adverse costs risk, and the ability to self-represent make the Tribunal the practical choice for employees without the resources for court proceedings.

If the employee wants maximum financial recovery, the court provides the higher ceiling. The combination of reasonable notice damages, moral damages, punitive damages, and human rights damages can produce a total award significantly higher than the HRTO's typical range.

If the evidence of discrimination is in the employer's possession, the court's discovery process provides more powerful tools for obtaining it. The HRTO's more limited discovery process can be a disadvantage in cases where the smoking gun is in the employer's files.

The Election Issue

An important procedural constraint is the interaction between HRTO proceedings and court proceedings. Generally, a person cannot pursue the same claim in both forums simultaneously. If you file an HRTO application and subsequently commence a court action based on the same facts, the respondent may bring a motion to stay one of the proceedings.

The Human Rights Code provides some guidance. Section 34(11) gives the Tribunal discretion to defer or dismiss an application if the subject matter is being or has been dealt with in another proceeding. Section 46.1 provides that human rights damages can be claimed in a civil proceeding, but the interaction between a pending HRTO application and a subsequent court action is a potential procedural trap.

The practical advice is to choose your forum carefully at the outset. Once you have filed in one forum, switching to the other can be complicated, and pursuing both simultaneously is problematic. Get legal advice before filing.

The Reality for Most Employees

For most employees who experience discrimination-related termination, the choice comes down to a pragmatic assessment: Can they afford to litigate in court? If the answer is yes — either through personal resources or a contingency fee arrangement — the court provides the more comprehensive remedy. If the answer is no, the HRTO provides an accessible alternative that, while more limited in its damages range, can still provide meaningful redress.

Neither forum is perfect. The HRTO is slow and its damages are capped by institutional norms. The courts are expensive and risky. Both require the employee to relive the discrimination through testimony and cross-examination. Both require patience, resilience, and a tolerance for uncertainty.

The ideal system would provide a single, accessible forum that combines the Tribunal's accessibility with the courts' remedial breadth. Until that system exists, employees must navigate the choice with the best information available — and with an understanding that the choice of forum is itself a consequential legal decision.