Two issues will arise with respect to the relationship between a protected statutory right and a common law claim. The first is whether it is possible to assert a breach of the human rights statute as the substantive ground of the constructive dismissal claim. That is, may the employee plead that the conduct of the employer in violating the statutory duty gives rise to a constructive dismissal claim? ¹

The second issue is whether human rights decisions may incorporate the common law cases to determine liability in a human rights case. The answer to this latter question is yes.

As to the first question, common law courts have allowed the submission as set out above, to be the foundation of the civil claim for constructive dismissal. This is even so where the statute creates sole jurisdiction for a human rights claim to be before its tribunal.

This issue was considered by the B.C. Court of Appeal in 2019. ² Lewis had sued civilly and argued that the human rights statute, in this case, the federal Act, set the standard of required norm and a breach of it was actionable as a contract term.

The Court of Appeal, on this issue of jurisdiction of the civil court, to consider the words of the statute dealing with jurisdiction of the tribunal created by it. The granting of “exclusive jurisdiction” is an important consideration to determine what the Court of Appeal referenced as the “essential character” of the dispute. The plaintiff in Lewis, which was a proposed class action, argued that the employment contract may be a source of certain legal rights, even where the same right s are contained within the protective statute.

As a general rule, the Court observed that where the right arises solely from the statute, the employee must seek their remedy by the same statute. In this case, the plaintiff however based its case on a contracted term which incorporated the duty to prevent harassment and discrimination.

The argument arose in this case by the analogy to constructive dismissal claims. The employer agreed with the proposition that such a claim may be made based on conduct which reflects a violation of the standard set by the human rights statute.

Several earlier decisions had come to the same conclusion. The Ontario Court of Appeal in 1979 ³ allowed the claim to proceed, setting aside the first decision. The plea which was based on an assertion that the plaintiff was fired because of her gender. The Court of Appeal affirmed this decision, Wilson, J.A., as she then was, stating:

We think the learned trial Judge erred in finding that the statement of claim disclosed no cause of action for the reason given by him.  In our view, the issue whether or not the Ontario Human Rights Code gave rise to a civil cause of action was not the determinative issue before him.  The determinative issue was whether, assuming the facts as outlined in the statement of claim to be true, they could give rise to a cause of action for wrongful dismissal.  We are all of the view that they could, since dismissal because of sex alone would not be "cause".

A 1993 decision of the Ontario court came to the same conclusion. ⁴ The claim for constructive dismissal was based on allegations of sexual harassment. Spence J. stated:

With respect to the Ontario Human Rights Code as a barrier to the plaintiff proceeding in Court, the defendants rely on the decision in Seneca College of Applied Arts & Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, 22 C.P.C. 130 and on certain other cases.  In Seneca, the Court determined that "the Code forecloses any civil action based directly upon a breach thereof" and "any common law action based on an invocation of the public policy expressed in the Code".  In Seneca, the plaintiff had no cause of action apart from the Code, but, in the instant case, the plaintiff alleges facts which disclose a cause of action for constructive dismissal, which distinguishes Seneca.

A similar case came before the Ontario Court of Appeal in 1996. ⁵

The plaintiff had pled that his constructive dismissal claim was supported by the Bank’s conduct in allegedly treating him adversely due to the assertion that he was a young man of Afro-Caribbean heritage and that such conduct was contrary to the Bank’s policies and the Canadian Human Rights Act. The claim had been dismissed on its first challenge. The Court of Appeal reversed and allowed the claim to proceed. The terms of the statute could be a relevant consideration to assess the propriety of the Bank’s conduct:

The plaintiff in the present case had been in an employment relationship with the defendant and, in order to prove conduct on the part of the defendant which amounted to constructive dismissal (generally, a fundamental breach of the terms of the employment contract) he does not need to invoke the policy of the Canadian Human Rights Act.  This does not mean that its terms could not be relevant factors to take into account in assessing the defendant's conduct.

A 2005 Court of Appeal decision from Ontario reversed the prior decision. The motion’s judge had allowed the claim of adverse treatment directed against the plaintiff directly, to support the constructive dismissal claim but had denied the allegations made of systemic discrimination. This was reversed on appeal. ⁶

This principle is now firm. A claim based on the standards set by the relevant human right statute may be argued as the grounds of the toxic work environment as set out in the second branch of Potter. This was confirmed by the Supreme Court of Canada in Honda in 2006. ⁷