Toronto, ON — April 22nd, 2026 — Burland v. Precise ParkLink Inc. is a clear warning to employers: you can no longer rely on the mere existence of a wrongful dismissal action to shut down a human rights application.
For years, employers often persuaded the Human Rights Tribunal of Ontario (“HRTO”) to decline jurisdiction under section 34(11) of the Human Rights Code (the “Code”), by pointing to general “overlap” between a civil claim and a human rights claim – particularly where both proceedings arose out of the same employment relationship. The Divisional Court has now made it clear that this approach is legally insufficient.
The Facts Behind Burland
The case arose out of events that will be familiar to many employers operating during the early stages of the COVID‑19 pandemic.
The applicant, Mr. Burland, was a long‑service employee of Precise ParkLink Inc., ultimately working as a branch manager in Ottawa. In March 2020, at the onset of the pandemic, Mr. Burland advised his employer that he had a suppressed immune system and provided a medical note recommending that he work from home as an accommodation.
Precise declined the work‑from‑home request and instead placed Mr. Burland on unpaid sick leave. Several weeks later, in May 2020, his physician cleared him to return to work without restrictions. Precise nonetheless did not recall him, instead deeming him to be on an unpaid Infectious Disease Emergency Leave under the Employment Standards Act.
Mr. Burland later filed an HRTO application alleging disability‑related discrimination and reprisal, focused squarely on events in the spring of 2020. He sought damages for injury to dignity, feelings, and self‑respect, as well as lost wages.
More than two years later, in December 2022, Mr. Burland’s employment was terminated without cause. He then commenced a civil wrongful dismissal action arising from the termination.
The employer asked the HRTO to dismiss the human rights application under section 34(11) of the Code, which permits dismissal where another proceeding has “appropriately dealt with” the substance of the application. The Tribunal accepted the employer’s position, concluding that the civil action overlapped with the human rights application and dismissed the HRTO claim at a preliminary stage.
On judicial review, the Divisional Court set the decision aside.
The Court held that “overlap” cannot be assumed or asserted in broad strokes. Instead, the Tribunal must conduct a rigorous, issue‑by‑issue comparison between (i) what the HRTO application alleges, and (ii) what the civil action will actually require the court to decide. In Burland, that analysis was missing.
Critically, the Court observed that:
- The HRTO application addressed alleged discrimination and reprisal during employment in 2020, while the civil action focused on a termination in late 2022.
- The civil claim did not plead breaches of the Code.
- The remedies available in the two proceedings were fundamentally different, particularly with respect to dignity‑based damages, which are unavailable in a wrongful dismissal action.
Because the HRTO failed to grapple with these differences in any meaningful way, its decision to dismiss the application was found to be unreasonable.
How the HRTO is applying Burland
In McDonald v. Soft-Moc Inc., the Tribunal applied the Divisional Court’s guidance in Burland and refused to dismiss a human rights application under section 34(11) despite the existence of a parallel court action.
While both proceedings arose out of the same employment relationship, the Tribunal found that they addressed different wrongs.
- Civil Action: Focused on traditional employment‑law issues typically resolved by the courts (i.e. reasonable notice, severance).
- HRTO Application: Alleged Code‑based discrimination, engaged a different legal test, and sought human‑rights‑specific remedies, including compensation for injury to dignity.
The court in the civil action would not be required to determine human rights liability. Relying on Burland, the Tribunal emphasized that shared facts or background are not enough. Section 34(11) only applies where the other proceeding will actually adjudicate the alleged Code violations and provide comparable remedies. Because that was not the case, the HRTO concluded that the application had not been “appropriately dealt with” and it was allowed to proceed.
Practical Takeaways
Employers should reassess how they approach cases involving both HRTO and court proceedings:
- Prepare a side‑by‑side comparison before any dismissal motion. Successful dismissal motions will require a side‑by‑side comparison showing that the court will determine the same issues and offer comparable remedies.
- Scrutinize the pleadings, not just the relationship. Before relying on section 34(11), review the civil pleadings with precision. Ask yourself: Does the Statement of Claim actually allege Code breaches, or require the court to decide discrimination, accommodation, or reprisal issues? If the answer is no, a dismissal motion is unlikely to succeed.
- Recognize that shared facts do not equal the same legal issues. Where the facts overlap but the legal issues do not, consider whether early, global settlement discussions are more cost‑effective than proceeding with parallel litigation.
If you have any questions related to this article, Protea LLP is ready to help.
