By Clayton Jones and Derek Knoechel
A growing frustration for Canadian employers is the need to defend against human rights claims arising out of the same factual circumstances in multiple forums. Discrimination claims that are presumptively dealt with by a labor arbitrator can resurface as virtually identical claims before a human rights tribunal.
While most human rights tribunals have the discretion to dismiss such claims as a result of the prior proceeding, it historically has been difficult to predict whether such discretion actually would be exercised.
On October 27, 2011, the Supreme Court of Canada waded into the area with its decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52. In doing so, the Supreme Court significantly limited the ability of the British Columbia Human Rights Tribunal to “rehear” human rights matters that are dealt with by other administrative decision-makers with concurrent human rights jurisdiction.
Figliola case
In this case, three workers sought compensation from the B.C. Workers Compensation Board (WCB). They claimed they suffered from chronic pain arising from workplace injury. The WCB provided each worker with a limited fixed compensation award in accordance with its Chronic Pain Policy.
The workers appealed to the WCB Review Division, claiming among other things that the Chronic Pain Policy was discriminatory under the B.C. Human Rights Code. After determining that he had jurisdiction to hear and decide the discrimination complaint, the review officer went on to find that the policy wasn’t contrary to the Code and dismissed the workers’ appeals.
Workers ‘Appeal’ to Human Rights Tribunal
At this point, the workers had the ability to apply to the court for judicial review of the review officer’s decision. Rather than doing so, the workers decided to file separate human rights complaints with the B.C. Human Rights Tribunal. The WCB tried to have the complaints dismissed on the basis that the same issues had appropriately been dealt with by the review officer. But the Tribunal refused to dismiss the complaints.
The WCB applied for judicial review of the Tribunal’s refusal to dismiss the complaints and was initially successful in the B.C. Supreme Court. However, the judge’s ruling was overturned by the B.C. Court of Appeal, setting the stage for the Supreme Court of Canada’s decision.
Supreme Court of Canada embraces ‘finality’
The Supreme Court said that the Tribunal’s decision to hear the complaints was patently unreasonable and allowed the WCB’s appeal.
The Supreme Court commented that the Tribunal’s discretion in such matters is limited to consideration of three questions:
- whether there was concurrent jurisdiction to decide the issues;
- whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and
- whether there was an opportunity for the complainants to know the case to be met and have the chance to meet it.
Where these questions are answered in the affirmative, the Tribunal should refuse to hear a human rights complaint.
Relevance for Canadian employers
This decision is welcome news for employers throughout Canada since they often can find themselves faced with a multiplicity of proceedings whenever a breach of human rights legislation is claimed. It considerably limits the jurisdiction of the Tribunal to hear a matter that has already been decided by another adjudicative body with concurrent human rights jurisdiction in B.C. It also can be expected to help limit the ability of human rights tribunals in other provinces to “rehear” human rights matters.