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It’s a Happy New Year indeed for labour/employment lawyers and their clients, who now have clear direction from the Ontario Human Rights Tribunal on the thorny issue of when duplicative litigation will be permitted (or not!) before the Tribunal.

Previously, the Tribunal had issued conflicting case law interpreting s. 45.1 of the Code, which provides that an application may be dismissed, in whole or in part, “where the substance of the application has been appropriately dealt with in another proceeding.” However, Associate Chair David Wright has now applied the Supreme Court’s recent decision in Figliola1 to clarify the Tribunal’s approach.

In Paterno2 (argued successfully by my partner, Beth Traynor), Associate Chair Wright considered the decision of a labour arbitrator which found no contravention of the Human Rights Code in the course of the employer’s imposition of discipline (a suspension and subsequent termination). In determining whether three related Applications before the Tribunal should be dismissed, the Associate Chair said:

[24] The key question is whether the arbitration appropriately dealt with the substance of these Applications. In considering this question, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding. … Previous jurisprudence that suggested that the Tribunal should consider whether or not the other proceeding applied proper human rights principles is no longer applicable in light of Figliola.

[25] …Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the application must be dismissed. … If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed. …

[26] … An arbitrator has the power and the duty to interpret and apply the Code and collective agreement rights and obligations must be interpreted in light of the Code.

[27] It follows that there is no just cause for discipline or discharge imposed in contravention of theCode. When an arbitrator finds that an employer has proven just cause for discipline or discharge, this incorporates a finding that the discipline or discharge is consistent with the Code. Just cause presumes that the discipline was consistent with the employer’s statutory obligations, including those under the Code. …

[33] The applicant had a choice. He could have foregone the benefits that he had as an employee under a collective agreement – including just cause protection, the grievance procedure and representation by union counsel – by not pursuing a grievance or arbitration. He then could have proceeded at the Tribunal with his human rights Applications without them being affected by the arbitrator’s determination. Having chosen to take the benefits of the collective agreement and the grievance process, however, an applicant must accept the consequences of that choice for a subsequent human rights proceeding. … An applicant has a choice about where to proceed, but does not have the option to require an employer to litigate the same issues twice. [citations omitted]

In my view, this decision will provide much-needed direction to counsel on both sides of the bar.


 

[1] British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52.

[2] Paterno v. The Salvation Army et al, 2011 HRTO 2298. See also Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 (CanLII) released the same day.

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