Under Section 45.2 of the Ontario Human Rights Code, you can sue your employer for discrimination directly in the Superior Court of Justice if it is linked to a wrongful dismissal. This allows you to claim both your common law severance pay and human rights damages in one single, efficient lawsuit.
Understanding Section 45.2 of the Ontario Human Rights Code
Losing your job is devastating, but discovering you were fired due to discrimination is a profound violation of your dignity. 😡 In Ontario, it is strictly illegal for an employer to terminate you based on protected grounds such as age, race, gender, sexual orientation, or disability. Historically, victims of workplace discrimination had to file a complaint with the Human Rights Tribunal of Ontario (HRTO), which is currently suffering from massive, multi-year backlogs. Fortunately, the law provides a much better alternative for employees who have been wrongfully dismissed.
Thanks to Section 45.2 of the Human Rights Code, you are no longer forced to use the slow tribunal system. ⚔️ If your termination involves both a failure to provide proper severance and a human rights violation, you can combine everything into one powerful civil lawsuit. Whether you work in Toronto, Brampton, or London, the Superior Court of Justice has the legal authority to award you a massive common law severance package, plus additional financial compensation for the injury to your dignity, feelings, and self-respect.
Step-by-Step Process: Suing for Discrimination and Severance
Combining a wrongful dismissal claim with human rights damages is a highly strategic legal move. 📋 To ensure your case is strong, you must gather the right evidence and avoid making procedural mistakes. Follow this step-by-step process if you face discrimination during a termination in Ontario.
Step 1: Identify the Protected Ground
First, you must clearly identify which part of the Human Rights Code your employer violated. 🔍 Common examples include firing an older employee purely to hire someone younger (Age), terminating a woman shortly after she announces a pregnancy (Sex/Family Status), or letting someone go because they requested an ergonomic chair (Disability). The discrimination does not have to be the only reason you were fired; it simply has to be one of the factors.
Step 2: Collect Circumstantial and Direct Evidence
Employers rarely admit they are firing someone for discriminatory reasons; they usually invent fake performance issues instead. 📸 You need to gather evidence that points to the true motive. Save any emails containing inappropriate jokes, document sudden negative performance reviews that appeared only after your disability was known, and note if a younger, less qualified person immediately replaced you. A clear timeline is your best weapon.
Step 3: Do NOT File an HRTO Complaint
This is a critical legal trap. ❗ If you immediately file a standalone application with the Human Rights Tribunal of Ontario (HRTO), you may legally block yourself from claiming those same human rights damages in civil court. To use Section 45.2, the human rights claim must be officially attached to an independent civil cause of action (like wrongful dismissal) from the very beginning.
Step 4: Consult a Dual-Specialty Employment Lawyer
You need a local law firm that is highly experienced in both civil litigation and human rights law. 💻 An Ontario lawyer will evaluate your evidence and calculate two separate numbers: your common law severance entitlement (up to 24 months of pay) and your potential human rights damages (which typically range from $10,000 to $50,000 CAD).
Step 5: File a Statement of Claim at the Superior Court
Your lawyer will draft a formal Statement of Claim citing Section 45.2 of the Code. 🏛 This document is filed at the Superior Court of Justice and served to your former employer. Often, the threat of having their discriminatory behaviour exposed in a public civil court record motivates employers to settle the matter quickly and quietly during mediation.
Comparing the HRTO vs. Superior Court (Section 45.2)
Choosing the right venue for your discrimination claim is vital. 📊 Here is why most wrongfully dismissed employees in Ontario choose the civil court route.
| Feature | Human Rights Tribunal (HRTO) | Superior Court (via Section 45.2) |
|---|---|---|
| What You Can Claim | Human rights damages only (No common law severance). | Both human rights damages AND full common law severance pay. |
| Wait Times (As of 2026) | Severe backlogs; often 3 to 4 years for a hearing. | Generally faster to reach mediation and force a settlement. |
| Leverage | Lower financial risk for the employer. | High financial risk and public exposure forces better settlements. |
| Tax Implications | HRTO damages are generally tax-free. | Severance is taxed (CRA rules); the human rights portion remains tax-free. |
How Much Does it Cost to Sue in Ontario?
Taking a discriminatory employer to the Superior Court is financially accessible. 💰 Here are the standard expected costs.
- Court Fees: Issuing a civil Statement of Claim in Ontario generally costs around $229 CAD.
- Lawyer Fees: Strong cases involving both severance and human rights damages are highly attractive to lawyers. Many will offer a contingency fee arrangement, meaning you pay $0 out of pocket, and the law firm takes roughly 25% to 35% of the final settlement.
How Long Does the Legal Process Take?
Using Section 45.2 is generally a more efficient way to resolve workplace discrimination. 📅 Because employers face massive dual-liability (paying both severance and discrimination fines), they are often eager to settle. A skilled lawyer can frequently secure a comprehensive out-of-court settlement within 3 to 6 months. If the employer acts stubborn and the case must proceed through discoveries to a full civil trial, expect the timeline to take 1 to 3 years.
Frequently Asked Questions (FAQ)
What if I already filed an HRTO application?
If you have already filed with the HRTO, you generally cannot claim those same human rights damages in a civil wrongful dismissal lawsuit. However, you can often withdraw your HRTO application early in the process to proceed in Superior Court. Consult a lawyer immediately to fix this.
Is the human rights payout taxed by the CRA?
Under Canada Revenue Agency (CRA) rules, general damages awarded specifically for human rights violations (injury to dignity and feelings) are generally tax-free. However, the severance pay portion of your lawsuit is fully taxable as employment income.
Can I use Section 45.2 if I wasn’t fired?
No. Section 45.2 specifically requires that the human rights claim be attached to an independent civil wrong (like wrongful dismissal or constructive dismissal). If you are still employed and just want the discrimination to stop, you must use the HRTO.
How much money are human rights damages usually worth?
In Ontario, human rights damages for injury to dignity typically range from $10,000 to $50,000 CAD, depending on the severity of the discrimination and the vulnerability of the employee. This is awarded on top of your standard severance pay.
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