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Res judicata revisited at HRTO and OLRB

The legal doctrine of res judicata can cause an Application at the Human Rights Tribunal to be dismissed. This was the case in Chen v. Harris Rebar.


In March of 2004, the applicant, Ms. Chen, was terminated from her employment. The applicant alleged it was a result of her pregnancy. The applicant then took two steps to enforce her rights. Ms. Chen filed a complaint under the Employment Standards Act (ESA). Ms. Chen then also filed an application with the Ontario Human Rights Commission.

Upon investigation the employment standards officer concluded Ms. Chen’s pregnancy had played a role in her termination and an order to pay was issued.[i] The employer disagreed with the finding and the matter was adjudicated at the Ontario Labour Relations Board. Subsequently the Board overturned the decision of the employment standards officer and rescinded the order to pay.

The applicant then attempted to proceed with the human rights application she had earlier filed on June 30, 2004.

The matter

The respondents relied upon the legal doctrine of res judicata, which prevents the same matter from being tried a second time once there has been a verdict or decision in regard to that matter.

Further the respondents also relied upon section 45.1 of the “Code” that provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.[ii]


In adjudicating the matter, the Tribunal noted that there are provisions within the ESA coupled with Section 74 that are in the nature of anti–discrimination enactments, consistent with those found under the “Code.

The Tribunal established that the main point to be determined was whether or not the applicant’s pregnancy played a role in her termination. The Tribunal also pointed out that these issues mirrored the same issues that were determined at the Board hearing that had been decided in favour of the employer.

As a Board hearing that included testimony, evidence, and witnesses had already taken place, and had paralleled the same legal arguments and issues, the Tribunal was satisfied that the Board had appropriately dealt with the allegations contained in Ms. Chen’s Application. As a result the Application was dismissed.[iii]

The takeaway

The takeaway is that of res judicata exists to prevent duplication of process, and that the employee should be familiar with this principle. Often it may be prudent for the employee to examine their options, and to choose one jurisdiction under which to exercise their rights.

Further reading: The Human Rights Code and Res Judicata: G.G. v. […] Ontario Limited

Kevin Sambrano is a human rights paralegal practicing in Toronto, Markham, Hamilton, Oakville, Mississauga and Oshawa. Do you have a human rights issue Kevin can help you with? Contact Kevin today at 647 860 8339 or through the contact link for a free consultation. Or you may visit

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[i] Chen v. Harris Rebar, 2009 HRTO 227 para. 5

[ii]Ibid., para. 11

[iii] Ibid., para. 20


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