Stopping a Second Case From Being Built on the Same Facts

The situation

What worried Kajan and Sophia was not the dismissal claim itself, which they had budgeted for and expected to settle in due course. It was the prospect of a second decision-maker, months later, weighing the same firing under a different set of rules, and their clinic ending up owing damages twice over for a single decision to let someone go.

Kajan and Sophia were two of a group of five neighbours who had pooled their savings several years earlier to buy the building that housed a small physiotherapy clinic, then hired staff and ran it together as co-owners. Kajan worked as the lead physiotherapist, while Sophia, a hospital department manager by background, handled scheduling, payroll, and the business side on behalf of the group; the other three neighbours held a share but left day-to-day decisions to the two of them. A former employee, Kostas, had been dismissed after a series of performance issues the clinic documented over several months: missed shifts, complaints from patients, and two written warnings that spelled out what needed to change and did not. Kostas sued for wrongful dismissal, a civil claim seeking notice pay and related damages, and the clinic retained a lawyer to defend it. That claim moved through its early stages in the ordinary way: pleadings exchanged, some documents produced, a settlement conference scheduled for a date roughly a year out.

Roughly ten months in, and after the lawyer who had started the file left private practice for an in-house role elsewhere, Kajan and Sophia were served with a second proceeding: a human rights application filed with the tribunal, alleging that Kostas's dismissal was in part connected to a protected ground and seeking compensation for that alone. The application described the same firing, the same performance record, and much of the same underlying conduct already at issue in the civil claim, but it asked a different body to decide it under different legal tests and, most alarmingly to Kajan and Sophia, under a process that did not automatically account for anything the civil case might resolve.

That left Kajan and Sophia holding two active proceedings running in parallel with no one who had been tracking both from the start. Sophia, used to the structured escalation processes of a hospital department, found the lack of coordination genuinely disorienting: in her experience, one body handling a personnel dispute would ordinarily be aware of another. They came to our office needing someone to take stock quickly, because a preliminary hearing date for the human rights application was already on the calendar, and neither of them had a clear sense of what that hearing would actually decide.

The problem

Ontario law generally does not allow a person to recover twice for the same wrong through two separate proceedings, but that principle does not enforce itself. A civil court and a human rights tribunal are different bodies, applying different tests, and neither is required to know or defer to what the other is doing unless someone raises it. Kostas had been with the clinic for close to eleven years and was its highest-paid clinician after Kajan, so his notice period alone, if the civil claim succeeded outright, could reach into the low six figures; a human rights award layered on top of that, covering the same dismissal rather than a genuinely separate wrong, risked pushing the group's total exposure toward a sum five co-owners of a small clinic would feel. Left alone, both proceedings could run to a full hearing, and both could result in an award covering overlapping ground, a result the group would then have to fight to unwind after the fact rather than avoid at the outset, likely through an appeal or a further motion long after the damage of a double award was already done.

The tribunal that hears human rights applications does have a mechanism for addressing exactly this kind of overlap: an application can be deferred while a related civil proceeding is pending, or in some circumstances dismissed outright if it duplicates matters already properly before another forum. But that mechanism has to be invoked, with evidence showing the two proceedings genuinely cover the same ground, and it works far better raised early than after a hearing date has consumed months of preparation on both sides.

The file we inherited complicated that task. The former lawyer's records were incomplete on exactly the point that mattered most: which specific losses and remedies the civil claim was pursuing, and how closely they tracked what the human rights application sought. Some correspondence referenced draft pleadings that were never actually filed, and Kostas's application described his compensation claim in broad terms; without a clear map of what the civil claim already covered, we could not simply assert overlap to the tribunal, we had to demonstrate it with specifics pulled from both files.

There was also a timing problem. The preliminary hearing before the tribunal, at which it would typically set a schedule toward a full hearing on the merits, was roughly six weeks out when we were retained. Once that scheduling step happened and both sides had begun preparing in earnest, gathering witness statements and disclosing tribunal-specific documents, a deferral request would carry less practical force, since work already done would be sunk regardless of the outcome. Six weeks was enough time to act properly, but not enough to treat the file as anything other than urgent from the first meeting.

What we did

1. Reconstructed the full history of both proceedings from the inherited file, cross-checking the former lawyer's emails, draft pleadings, and calendar notes against the actual court and tribunal records, since the notes did not clearly separate what had been pleaded and disclosed in the civil claim from what the human rights application alleged, and we needed a complete, accurate picture before approaching either the tribunal or the other side.
2. Mapped the remedies sought in each proceeding side by side, item by item, comparing the notice period and damages claimed in the civil pleadings against the compensation heads listed in the tribunal application, to show precisely where the two covered identical ground rather than assuming the overlap from a general similarity in the facts. That comparison, not a general impression that the two proceedings looked alike, became the evidentiary backbone of the deferral request.
3. Contacted Kostas's counsel directly to raise the overlap before filing anything formally, on the reasoning that a negotiated agreement to pause the tribunal application pending the civil claim's outcome would resolve the issue faster and more cheaply than a contested motion, and it also signalled to Kostas that the clinic and its owners were not trying to avoid accountability, only duplication, a distinction worth making plainly at the outset.
4. Prepared a formal request to defer the tribunal application when informal discussion did not immediately resolve things, setting out the specific overlaps in remedy and underlying fact in a structured comparison, and asking the tribunal to pause its process until the civil claim concluded rather than run both to a hearing in parallel and risk two inconsistent findings on the same set of facts.
5. Requested an adjournment of the upcoming preliminary hearing to give the tribunal time to consider the deferral request properly, rather than allowing the scheduling step to proceed and effectively moot the request by advancing tribunal preparation regardless of how the deferral question was eventually decided. Explaining, in the adjournment request itself, exactly why the timing mattered helped the tribunal see the request as a genuine attempt to avoid wasted process rather than a delay tactic.
6. Briefed Kajan and Sophia, and through them the rest of the ownership group, on what deferral would and would not achieve, being clear in plain terms that a successful deferral paused the tribunal proceeding rather than eliminating it outright, and that Kostas could, depending on how the civil claim resolved, still pursue any genuinely distinct human rights element afterward, so no one was caught off guard later.
7. Continued coordinating with the lawyer handling the civil claim to keep the two files aligned as the civil matter approached its own settlement conference, since a settlement reached there without regard to the pending human rights application risked leaving that second proceeding as unfinished business rather than fully closed, undermining much of the value the deferral effort had been meant to protect in the first place.
8. Documented the full overlap analysis in writing for the clinic's ownership group, not just for Kajan and Sophia individually, so that all five co-owners would have a clear reference for how quickly a second proceeding needs to be flagged and addressed once it appears, and would know to ask about parallel proceedings the next time any dispute involving the clinic arose.

The outcome

Faced with the mapped overlap, Kostas's counsel agreed to withdraw the human rights application rather than contest a deferral motion, on the basis that the civil claim already captured the full scope of what he was seeking. The tribunal proceeding closed without a hearing, and the looming preliminary hearing date never had to happen. No compensation was ever awarded under the application, because it never reached a decision on its merits at all, and the withdrawal was recorded as final, closing off any possibility Kostas could refile the identical application later.

The clinic still faced the original wrongful dismissal claim, which continued toward its own resolution, and nothing about the deferral changed the group's exposure on that file. What changed was the elimination of a second, parallel path to compensation over the identical dismissal, one that could have resulted in an award layered on top of whatever the civil claim produced, with no clean mechanism afterward to prevent double recovery. Avoiding that outcome before it happened, rather than litigating it afterward, was the entire point of acting quickly.

For Kajan and Sophia, and for the other three neighbours who held a stake in the clinic without being involved in its daily operation, the practical result was a single proceeding to manage instead of two, and a bounded exposure instead of an open-ended one the whole ownership group would otherwise have had to fund. The group incurred additional legal cost picking up a file mid-stream and reconstructing what a previous lawyer's notes should have made clear from the outset. Sophia, reflecting on the file afterward, said the lesson that stuck with her was less about the law and more about handoffs: any time a file changes hands, someone needs to actively check what else might be moving alongside it before assuming the picture is complete.

What you can learn from this