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Non-unionized employee can sue employer in court for constructive dismissal, even if part of the claim alleges a failure to accommodate under human rights legislation

Accommodation E-lert, posted on January 25, 2024 within the category "The general legal duty".

An employee sued his employer for constructive dismissal in an Ontario court.  In response, the employer brought a motion to strike the employee’s statement of claim, arguing that the Human Rights Code grants exclusive jurisdiction over human rights claims to the human rights tribunal.  The Ontario Superior Court of Justice dismissed the employer’s motion because the employee’s claim was, in substance, a claim of constructive dismissal.  Thus, it did not matter that the basis for claiming constructive dismissal was a breach of the Code.  

Legal Citation 

Stomp v. 3M Canada, 2023 ONSC 5180 (September 13, 2023) (Ontario Superior Court of Justice)

Facts

An employee had worked for a Canadian manufacturing company since 1999. 

In August 2020, he suffered a heart attack, fall and head trauma, and went on a medical leave. 

He returned to work in February 2021 on a gradual basis. 

The employee subsequently resigned his position in January 2022.  He claimed that, after returning to work, he experienced a toxic and poisoned workplace due to the actions of his managers because they failed to accommodate his medical disability.  Specifically, he stated that he was assigned an excessive workload by his superiors which he could not maintain, given his mental and physical state and his recurring heart arrhythmia.  

The employee filed his claim of constructive dismissal against his employer in January 2023 with the Ontario Superior Court of Justice.  He sought damages for wrongful dismissal, as well as damages for a breach of the Ontario Human Rights Code on the grounds that the employer had failed to accommodate him. 

The employer brought a motion under the Ontario Rules of Civil Procedure to dismiss the employee’s claim.  A central part of its argument was that the Code grants exclusive jurisdiction to the Human Rights Tribunal over human rights claims and, therefore, it maintained, the Superior Court had no jurisdiction to hear the claim. 

The employer also argued that the employee’s statement of claim did not disclose a reasonable cause of action against the employer since there is no independent or common law duty to accommodate. 

Analysis 
  
In its ruling on this preliminary issue, the Ontario Superior Court of Justice began by noting that the test under rule 21.01(1)(b) in the Rules of Civil Procedure assumes that the facts as stated in the plaintiff’s statement of claim can be proven.  In other words, the test is whether, in the court’s view, it is plain and obvious that the plaintiff’s statement of claim discloses no reasonable cause of action.  

The court emphasized that, at this stage, wide latitude will be given for drafting deficiencies as the statement of claim should be read in the most generous way possible. 

The Superior Court also noted that section 46.1 of the Human Rights Code provides that a court can make either of the following orders (or both) if a right under Part I of the Code has been infringed: 

  1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
  2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

That said, the court noted this section does not permit a person to commence an action based solely on an infringement of a right under Part I.  It relied upon a 2010 ruling by the Ontario Court of Appeal in Jaffer¹ which held that there is no common law duty of care to provide an accommodation.  But it also noted that Jaffer stated that “it may be however that breach of the Code is relevant to a cause of action that is otherwise based upon breach of contract or negligent misrepresentation.”  

The Superior Court summarized: 

From Jaffer, the key takeaway is that whether or not a claim for breach of the duty to accommodate disabilities can proceed in the Superior Court depends upon whether or not the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code. [Emphasis added]

The question before the Superior Court was framed as whether it could acquire jurisdiction to adjudicate a claim that an employer failed to accommodate the plaintiff employee? 

The Court answered this question by noting that the cause of action must be based not upon a breach of human rights legislation, but, rather, on some other independent claim such as constructive dismissal.  However, in assessing the merits of this independent claim, it accepted that the factors enumerated in human rights legislation might be relevant to assessing the employer’s conduct.

The court concluded that the employee’s statement of claim was sufficient to demonstrate a reasonable cause of action, notwithstanding that it contained some drafting inefficiencies.  In its view:

The key allegation in the statement of claim is that the defendant created a poisoned workplace that was untenable for the plaintiff to continue to work in.  That the reason that the workplace was “poisoned” was due to a breach of the Code does not alter the nature of the claim as being about the constructive termination of the plaintiff’s contract of employment.

As the Superior Court explained:

The duty to accommodate in the Code is inextricably bound with disability.  Thus, an allegation that an employer has failed to accommodate is really another way of alleging that the employer is discriminating on the basis of disability.  Such a claim, so long as it is tethered to an independent cause of action such as a claim for constructive dismissal, is within the purview of the court. [Emphasis added]

The court dismissed the employer’s motion to strike the claim, and ordered the employee’s claim to proceed to be tried on its merits. 

Implications for Employers 

Employers should be aware that, as a general rule, employees can only bring a claim of discrimination or a failure to accommodate in violation of human rights legislation to the appropriate human rights tribunal.  That said, if an employee brings an independent claim to the courts alleging a constructive dismissal or a wrongful dismissal, the courts will have the jurisdiction to adjudicate the claim that there has been a breach of human rights legislation which is part of this larger claim. 

Implications for Unions 

The rules on the appropriate legal forum to litigate a workplace claim that the accommodation duty has been breached are becoming more liberal.  Already, employees can bring a claim before a labour arbitrator (if they are unionized) or before a human rights tribunal (whether they are unionized or non-unionized).  Now, a non-unionized employee would have the ability to bring a claim to the courts if their litigation can be framed as a breach of a common law duty such as a constructive dismissal or a wrongful dismissal.  (Unions and unionized employees must keep in mind that they cannot initiate a litigation claim in the courts, because of the long-standing rules which oust the courts from adjudicating claims arising from a collective agreement.) 

¹ Jaffer v York University, 2010 ONCA 654