Case snapshot
At a glance
- Case
- Can You File Both an HRTO Application and a Court Claim in Ontario?
- Court / Tribunal
- Human Rights Tribunal of Ontario
- Citation
- 2026 HRTO 1538 ↗
- Date
- October 14, 2026
- Area of law
- Employment Law
- Key issue
- Whether an employee who has already filed a civil claim in Small Claims Court based on the same workplace facts can also pursue a separate application at the Human Rights Tribunal of Ontario.
- Outcome
- The HRTO dismissed the human rights application, finding that section 34(11) of the Human Rights Code barred the proceeding because the facts and issues substantially overlapped with an ongoing Small Claims Court claim.
- Why it matters
- Ontario workers who file a court claim and an HRTO application about the same workplace events risk losing their tribunal application entirely — understanding the election rule before you file can protect your access to remedies.
Legal principle
The rule from this case
Section 34(11) of Ontario's Human Rights Code prevents a person from running two separate proceedings — one in court and one at the HRTO — when both are based on the same underlying facts and seek similar relief. The determinative question is not whether the civil claim explicitly mentions the Human Rights Code or discrimination; it is whether the facts and issues in the two proceedings are substantially the same. If they are, the HRTO application is barred as a matter of law, regardless of which proceeding was started first. The rationale is straightforward: allowing the same dispute to be litigated in two forums risks producing contradictory findings of fact and wastes public and private resources. Ontario courts have confirmed that a civil court — including Small Claims Court — has authority to deal with human rights issues under section 46.1 of the Code, so an applicant who chooses to go to court is not left without a remedy; they are simply required to pursue all their claims in that single forum.
Important limits
What this does not mean
This decision does not mean that a person with human rights complaints can never go to court. It means they must choose one forum when the facts underlying their court claim and their HRTO application are substantially the same. If a worker has genuinely distinct claims — facts that do not overlap with the civil proceeding — those may be treated differently, though that is a fact-specific analysis. The decision also does not stand for the proposition that human rights remedies are unavailable in court. The Tribunal noted that Small Claims Court has jurisdiction to decide human rights issues under section 46.1 of the Human Rights Code. The practical consequence is that a worker who has already filed in court should raise all related human rights allegations there, rather than filing a separate HRTO application.
Can you file both an HRTO application and a Small Claims Court case about the same job?
No — not if both proceedings are based on the same workplace facts. Ontario’s Human Rights Code contains a rule, found in section 34(11), that bars an HRTO application when a civil court proceeding covering the same facts is already underway. A 2026 decision from the Human Rights Tribunal of Ontario applied this rule to dismiss a worker’s human rights application after she had already filed a claim in Small Claims Court about the same employment situation. The case is Nadtochii v. Ottawa East Flooring Liquidators Inc., 2026 HRTO 1538 (CanLII).
What happened in this case?
The employee filed an HRTO application in August 2025 alleging discrimination on the basis of disability, gender identity, and gender expression, as well as harassment and reprisal in connection with her employment. The allegations centred on how her employer handled a workplace injury, her treatment during employment, and the termination of her employment.
Several months later, she filed a claim in Small Claims Court against the same respondents, raising the same core facts: the workplace injury, treatment during employment, and the circumstances of her dismissal. She also sought overlapping remedies in both proceedings, including aggravated and bad-faith damages.
The Tribunal issued a Notice of Intent to Dismiss and invited written submissions on jurisdiction. After reviewing those submissions, the adjudicator dismissed the application.
What is the “election” rule under the Human Rights Code?
Section 34(11) of the Human Rights Code operates as a mandatory bar when a civil proceeding has been commenced in court based on the same or substantially similar facts as an HRTO application, and that court proceeding has not yet been finally decided or withdrawn. The Tribunal — relying on Divisional Court authority — confirmed that the key question is simply whether the facts and issues in the two proceedings are the same. It does not matter whether the civil claim explicitly mentions the Code, discrimination, or section 46.1 remedies. If the factual foundation is the same, the bar applies.
The adjudicator also confirmed that the rule applies regardless of which proceeding was filed first. Filing the HRTO application before the court claim did not protect the application from dismissal.
Does it matter that the employee argued her claims were different in each forum?
The employee argued that her court claim was a monetary employment claim while her HRTO application raised distinct Code-based harms not pleaded in court. The adjudicator was not persuaded. Both proceedings named the same respondents, arose from the same events, and sought overlapping compensation. The adjudicator noted that the employee had not argued she was barred from raising human rights allegations in Small Claims Court — and indeed, Small Claims Court has jurisdiction under section 46.1 of the Code to address such claims.
The adjudicator also addressed the Burland decision the employee relied upon, explaining that the Divisional Court in that case found the Tribunal’s reasoning was unjustified on the specific facts before it — not that case-splitting was ever permissible as a general matter.
What does “case-splitting” mean and why is it prohibited?
Case-splitting means taking a single set of events and dividing the resulting claims across two different adjudicative forums. The Tribunal has held many times that this practice offends the principles of judicial economy and the integrity of the administration of justice. Running parallel proceedings on the same facts creates the risk that two decision-makers will reach different conclusions about what happened — a result that undermines public confidence in both systems and is unfair to respondents who would have to defend themselves twice.
As the adjudicator put it, having chosen to go to court on the same facts, the employee was restricted to advancing all her claims in that forum. This was not a situation where she was left without any remedy — she retained her right to pursue human rights remedies through the court proceeding.
What does this mean for Ontario workers considering their options?
For anyone dealing with a workplace dispute that involves potential human rights issues, the forum decision matters enormously and should be made carefully before any claim is filed. Our Ontario employment lawyers can review where a workplace claim should be brought before anything is filed.
If you are also dealing with a termination, our team can help you understand the interplay between wrongful dismissal claims and human rights applications before you commit to a particular forum.
In this case, the court claim was filed after the HRTO application, and the HRTO application was still dismissed. Once a court claim is underway on the same facts, the HRTO route may close.
Questions and records to discuss with a lawyer
- What forum — court or the HRTO — is best suited to the full range of your workplace complaints, and have you already filed anywhere?
- Do your court claim and any potential HRTO application arise from the same events, involve the same respondents, and seek similar relief?
- Have you documented the timeline of events, including dates of injury, workplace incidents, and termination?
- Are there any Code-protected grounds (disability, gender identity, race, etc.) connected to how you were treated, and have those been raised in any existing proceeding?
- Has the court proceeding been finally decided or withdrawn, which could affect whether the HRTO bar still applies?
If you have questions about your own workplace situation, you are welcome to reach out to UL Lawyers through our contact page to discuss your circumstances with a member of our team.
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.
FAQ
Frequently asked questions
Not if both proceedings are based on the same facts. Section 34(11) of the Human Rights Code bars an HRTO application when an ongoing civil court claim covers the same events and issues. You should get legal advice before filing in either forum to understand which route best fits your situation.
Yes. Under section 46.1 of the Human Rights Code, Ontario courts — including Small Claims Court — can make orders addressing Code infringements. This is why the HRTO has held that dismissing a human rights application does not leave an applicant without a remedy when a court proceeding is already underway.
Section 34(11) of the Code also bars an HRTO application if a court has finally determined the human rights issue or the matter has been settled. If your court claim settles, that settlement may affect your ability to pursue a separate HRTO application on the same facts.