Sometimes we management-side labour/employment lawyers get a little discouraged by case law which can, on occasion, seem to favour employees. But once in a while there’s good news and it is particularly good when it comes from the Supreme Court of Canada. Last week, the SCC strongly reaffirmed the principle that Human Rights Tribunals should not allow an applicant to relitigate matters which have been already been determined by another tribunal.
British Columbia (Workers’ Compensation Board) v. Figliola et al, 2011 SCC 52 involved workers suffering from chronic pain who made claims to the Workers’ Compensation Board (“WCB”). They were unhappy with the resulting award, which they alleged was discriminatory under the province’s Human Rights Code. They appealed to the Workers’ Compensation Appeal Tribunal (“WCAT”), but before the matter could be heard, legislation was passed removing WCAT’s authority to apply the Human Rights Code. The workers could have judicially reviewed the WCB decision, but they filed complaints with the Human Rights Tribunal instead.
Sometimes we management-side labour/employment lawyers get a little discouraged by case law which can, on occasion, seem to favour employees. But once in a while there’s good news and it is particularly good when it comes from the Supreme Court of Canada. Last week, the SCC strongly reaffirmed the principle that Human Rights Tribunals should not allow an applicant to relitigate matters which have been already been determined by another tribunal.
British Columbia (Workers’ Compensation Board) v. Figliola et al, 2011 SCC 52 involved workers suffering from chronic pain who made claims to the Workers’ Compensation Board (“WCB”). They were unhappy with the resulting award, which they alleged was discriminatory under the province’s Human Rights Code. They appealed to the Workers’ Compensation Appeal Tribunal (“WCAT”), but before the matter could be heard, legislation was passed removing WCAT’s authority to apply the Human Rights Code. The workers could have judicially reviewed the WCB decision, but they filed complaints with the Human Rights Tribunal instead.
Human rights codes in British Columbia and Ontario share similar language giving their respective tribunals discretion to dismiss an application if its substance has been appropriately dealt with elsewhere:
27(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member of panel determines that …
(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.
Human Rights Code, R.S.B.C. 1996, c. 210, ss. 27(1)(f).
45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
Human Rights Code, R.S.O. 1990, c. H.19, s. 45.1.
In a strongly-worded decision in Figliola, Abella J. (LeBel, Deschamps, Charron and Rothstein JJ. concurring) makes it clear that where the substance of a complaint has been appropriately dealt with by a tribunal, it should not be the subject of another inquiry by the Human Rights Tribunal.
Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them. …
This section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. [emphasis in original]
Assuming that human rights tribunals apply this decision consistently, it should prevent the frustrating situation where cases are concluded before arbitrators or the Labour Relations Board, only to be resurrected before the Human Rights Tribunal. And that is very good news for our clients!
