Can You File Both an HRTO and ESA Claim in Ontario?

Can You File Both an HRTO Application and an ESA Complaint at the Same Time?

Yes — but filing both can have consequences for timing. When the facts underlying an ESA complaint and an HRTO application are substantially the same, the Human Rights Tribunal of Ontario has the power to put the human rights application on hold until the ESA process is finished. That is exactly what happened in Udoakpan v. VPI Inc. (operating as VPI Employment Services), 2026 HRTO 1514 (CanLII).

Understanding how these two processes interact can help workers and employers make informed decisions about where and how to advance a workplace dispute.

What Was This Case About?

The employee alleged discrimination and reprisal on several grounds — including race, place of origin, colour, disability, and family status — in connection with her employment. Her complaints centred on being denied leave, having approved vacation cancelled, and not receiving wages and other entitlements she says she had earned.

She had filed an ESA complaint with the Ministry of Labour, Training and Skills Development a few days before submitting her HRTO application. The ESA complaint focused on unpaid wages, vacation pay, and whether the employer had punished her for exercising her ESA rights. The HRTO application covered much of the same ground but also raised discrimination and reprisal under the Human Rights Code.

What Did the Tribunal Decide?

The HRTO deferred the human rights application. The Tribunal found that the facts at the core of both proceedings were essentially the same. Running two processes at the same time, on the same facts, risked producing contradictory findings — one decision-maker might conclude the employer acted lawfully while the other concluded it did not.

The Tribunal acknowledged the employee’s argument that the ESA and human rights proceedings offer different remedies and address different legal questions. But it concluded that the factual overlap was significant enough that deferral was the fairest and most efficient path forward.

Does Deferral Mean the Human Rights Application Is Dismissed?

No — deferral is a pause, not a dismissal. The HRTO retains full jurisdiction over any discrimination or reprisal issues that are not resolved through the ESA process. Once the ESA complaint concludes, the employee can ask the Tribunal to reactivate the application by filing a Form 10 within 60 days of the ESA outcome.

There is one important caveat: under section 45.1 of the Human Rights Code, the Tribunal can dismiss all or part of an application if the substance of the matter has already been appropriately dealt with in the other proceeding. This means the ESA outcome could affect what remains of the human rights claim.

What Factors Does the HRTO Consider Before Deferring?

The Tribunal does not defer automatically. It weighs several factors drawn from its own established practice:

• Subject matter overlap — Are the facts and issues in both proceedings substantially the same?
• Nature of the other proceeding — Is the ESA complaint a genuine, active process?
• Available remedies — Do the two processes offer similar or different forms of relief?
• Overall fairness — Would deferral prejudice either party given where each proceeding stands?

In this case, the Tribunal found that the risk of inconsistent findings outweighed any prejudice caused by the delay, even though the ESA complaint had not yet been assigned to an officer.

What Remedies Are Available Under Each Process?

The ESA and the Human Rights Code offer different but sometimes overlapping remedies. An Employment Standards Officer can order repayment of unpaid wages, vacation pay, and other monetary entitlements. The HRTO can award monetary compensation for injury to dignity, feelings, and self-respect, as well as lost income — and can also make broader public interest orders.

Where an employee seeks both types of relief, the choice of where to start — or whether to pursue both — can have real strategic implications. Our Ontario employment lawyers regularly advise workers and employers navigating these overlapping processes.

What Should Employees Know About Timing?

Timing matters significantly in these situations. The 60-day window to reactivate an HRTO application after an ESA proceeding concludes is a firm procedural deadline. Missing it could affect your ability to continue the human rights claim.

It is also worth knowing that the ESA complaint and the HRTO application each have their own limitation periods and procedural rules. Filing one does not automatically protect your rights under the other. If you are dealing with a workplace dispute that involves both unpaid wages and potential discrimination, speaking with an employment lawyer early — before filing anything — can help you understand the full picture.

If your situation involves a dismissal that may also raise human rights concerns, our pages on wrongful dismissal and termination for cause may also be relevant to your circumstances.

Questions and Records to Discuss with a Lawyer

• What complaints have you already filed, and with which body — the Ministry of Labour, the HRTO, or both?
• Do you have documentation of the events underlying your complaint, such as emails, pay stubs, or written communications about leave or vacation?
• Are the facts in your ESA complaint and any potential human rights application the same, or are there genuinely distinct issues in each?
• What remedies are most important to you — wage recovery, compensation for dignity, a public interest order, or some combination?
• Are you aware of any deadlines that apply to your specific situation?

If you have questions about how these processes apply to your circumstances, we invite you to reach out to UL Lawyers through /connect for a conversation about your options.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.