HRTO Dismissal Overturned: Divisional Court Rejects “Overlap” Without Analysis in Burland
The Ontario Divisional Court’s decision in Burland v. Precise ParkLink Inc., 2026 ONSC 1587 (“Burland”) provides guidance on the limits of the Human Rights Tribunal of Ontario’s (“HRTO”) discretion to dismiss applications where there is a related civil action.
While the HRTO may decline jurisdiction under section 34(11) of the Human Rights Code (the “Code”), the Court underscores that this discretion must be exercised carefully. In this case, the Tribunal’s analysis fell short – particularly in failing to grapple with the fact that the HRTO application and the civil action addressed different time periods and sought distinct remedies. Vey Willetts LLP acted for the applicant in this matter.
Background
The applicant filed a human rights application alleging discrimination on the basis of disability during his employment. This allegation stemmed from events arising during Spring 2020 in the context of the COVID-19 pandemic.
Following his subsequent dismissal from employment on December 30, 2022, the applicant then commenced a wrongful dismissal action in the Ontario Superior Court of Justice, focused on the termination itself and its consequences.
The respondent sought dismissal of the HRTO application under section 34(11) of the Code, arguing that the civil action addressed the substance of the dispute. The HRTO agreed and dismissed the application at a preliminary stage. See the decision here.
Divisional Court Decision
On judicial review, the Divisional Court set aside the HRTO’s decision and remitted the matter for reconsideration.
A central concern was the HRTO’s failure to address the temporal and substantive differences between the two proceedings at issue. The human rights application dealt with alleged discriminatory conduct arising during the employment relationship (in 2020), while the civil action concerned the applicant’s subsequent dismissal from employment almost three years later.
The Court also emphasized the difference in available remedies. The HRTO can award damages for injury to dignity and other Code-based remedies, while the civil action was focused on prospective damages for breach of contract and wrongful dismissal.
Despite these distinctions, the HRTO treated the matters as overlapping without first explaining how the civil action would, in fact, resolve the human rights issues.
More broadly, the Court found that:
The civil claim did not plead Human Rights Code breaches;
The HRTO did not analyze whether discrimination issues would be adjudicated;
There was little consideration of the different timeframes;
The decision failed to engage with the distinct remedies being sought; and
The reasoning relied on a generalized assertion of overlap.
While exact duplication is not required, the Court held that a meaningful, issue-specific analysis is necessary. The Tribunal’s reasoning did not meet this standard.
Key Takeaways
Differences in timing matter: Proceedings addressing different periods—such as pre-termination conduct versus termination—may not justify dismissal under section 34(11).
Distinct remedies are critical: A wrongful dismissal action does not necessarily address the full scope of human rights remedies. This must be considered.
Section 34(11) requires careful analysis: THRTO must go beyond broad assertions and engage with the specific claims, timeframes, and remedies.
Access to the HRTO should not be lightly denied: Clear and persuasive reasoning is required before declining jurisdiction.
Courts will intervene where reasoning is insufficient: The decision reflects continued scrutiny of summary dismissals lacking adequate explanation.
Conclusion
Burland confirms that section 34(11) of the Code cannot be applied mechanically. Where proceedings involve different periods of alleged misconduct and seek different relief, those distinctions must be carefully considered.
For parties navigating multiple avenues of relief, the decision highlights the importance of how claims are framed and pursued. More broadly, it confirms that limiting access to the HRTO process requires a clear, fact-specific justification and is something that cannot be summarily denied.
Navigating multiple claims can be complex. As such, employers and employees are encouraged to work with experienced employment law counsel to avoid improper overlap and to put in place an effective litigation strategy.
Vey Willetts LLPis an Ottawa-based employment law boutique that provides timely and cost-effective legal advice to employers and employees across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.