Ontario Superior Court allows claim of constructive dismissal and Human Rights Code violation

The Ontario Superior Court of Justice has refused to strike a claim involving constructive dismissal and breach of the Ontario Human Rights Code.

In Stomp v. 3M Canada, 2023 ONSC 5180, 3M Canada Company employed Joseph Stomp from September 1999 to January 2022. In 2020, Stomp left work on a medical leave of absence after suffering a heart attack, fall and head trauma.

Stomp returned in February 2021 on a gradual return-to-work basis. However, Stomp claimed he was subjected to a "poisoned and toxic work environment." He repeatedly asserted that 3M failed to accommodate his medical disability.

Stomp commenced an action against 3M, seeking damages for wrongful dismissal. He further argued that 3M breached the Ontario Human Rights Code by failing to accommodate his disability, entitling him to damages under the Code.

Defendant 3M brought a motion to strike Stomp's statement of claim as disclosing no reasonable cause of action under rule 21.01 of the Rules of Civil Procedure.

3M argued that the Ontario Human Rights Code grants exclusive jurisdiction over human rights claims to the Human Rights Tribunal of Ontario, such that the Superior Court of Justice has no jurisdiction. 3M further argued that there is no independent duty to accommodate.

The Ontario Superior Court of Justice explained that if the facts as stated in the statement of claim can be proved, the test under rule 21.01 (1)(b) is whether it is plain and obvious that the statement of claim discloses no reasonable cause of action.

Moreover, the court explained that s. 5 of the Human Rights Code provides that a person has a right to equal treatment concerning employment without discrimination because of several grounds, including disability. The Code also grants an employee the right to freedom from harassment in the workplace based on disability. The court also noted that the duty to accommodate is a central part of the public policy of the Code.

The court noted from case law that whether or not a claim for breach of the duty to accommodate disabilities can proceed in the Superior Court depends on whether or not the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code.

The court found that "it is not plain and obvious" that Stomp's statement of claim disclosed no reasonable cause of action. Instead, the court said that the statement of claim laid out a claim for constructive dismissal whereby it asserted "a series of acts that, taken together, show that the employer no longer intends to be bound by the contract." Those acts included 3 M's failure to accommodate the plaintiff's disability.

The court further ruled that even if those acts only included the failure to accommodate, the independent cause of action remained constructive dismissal. The court noted that 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. Even if the workplace was "poisoned" because of a breach of the Human Rights Code, it did not alter the nature of the claim as being about the constructive termination of the plaintiff's employment contract.

Accordingly, the court concluded that the case was not an action solely founded on a breach of the Human Rights Code. Instead, it was a claim for a violation of the employment contract between the parties. The lawsuit sought a remedy for the constructive violation of an implied term or duty that "the employer will treat the employee with civility, decency, respect and dignity."

The court stressed that the duty to accommodate in the Code is inextricably bound with disability. Consequently, an allegation that an employer has failed to accommodate is another way of alleging that the employer has discriminated based on 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 court's authority. Accordingly, the court dismissed 3M's motion to strike Stomp's claim.