Case arose from workplace reprisal, threat of reprisal and discrimination
The Ontario Appeal Court has upheld the dismissal of a human rights claim that substantially overlapped with a case brought to the Ontario Human Rights Tribunal (HRTO).
In Corrigan v. Ontario, 2023 ONCA 39, Kathleen Corrigan was an officer with the Ontario provincial police. She filed an application with the HRTO and, at the same time, commenced an action with the Ontario Superior Court of Justice. She alleged workplace reprisal, threat of reprisal, and discrimination based on her sex and family status.
Civil action claiming damages
Corrigan’s court action against the Crown included a claim for damages. The Crown Liability and Proceedings Act (CLPA) requires that a notice of claim be given to the Crown 60 days before an action claiming damages is initiated. Corrigan had failed to comply with this requirement. The Crown counsel requested she discontinue her action due to non-compliance with the CLPA. Corrigan refused and instead brought a motion for default judgment against the Crown. At the same time, the Crown brought an action to strike out Corrigan’s statement of claim as a nullity. The motion judge dismissed the Crown’s action because of the delay in bringing it.
The Crown appealed the matter to the Ontario Court of Appeal. The court observed that the right to have the action treated as a nullity, rather than having to defend it, is a substantive right conferred by the CLPA to the Crown. The motion judge concluded that the Crown was not entitled to have the action struck as a nullity because it did not move as soon as the respondent indicated she did not intend to comply with CLPA requirements. The appeal court pointed out that the motion judge effectively conditioned the Crown’s right to have the action treated as a nullity on the timing of the motion, and this condition was not required by law.
Overlap with Human Rights Tribunal
Corrigan argued that estoppel should operate to prevent the Crown from asserting that the action is a nullity. In August 2020, she brought an application to the HRTO against the Solicitor General and four individuals, which was dismissed based on the existence of her civil action. Section 34(11) of the Human Rights Code bars an HRTO application if there is an existing civil action dealing with the same alleged rights infringement.
Corrigan claimed that the Crown got the benefit of the existence of the civil action to have the HRTO application dismissed. She said the Crown should be estopped from asserting the action was a nullity.
The appeal court refused to accept Corrigan’s argument. The court found that the Crown unequivocally advised Corrigan that it considered the existing action against it to be a nullity. Corrigan maintained the civil action and commenced concurrent HRTO proceedings, creating a procedural overlap. The Human Rights Code requires the HRTO to dismiss the human rights claim due to a concurrent civil action, regardless of whether the civil action might be unsuccessful or struck out.
The appeal court pointed out that the HRTO relied on the substantial overlap between the two proceedings to dismiss the application. Accordingly, the appeal court refused to hold the Crown in estoppel and dismissed Corrigan’s action.