In its 2006 decision Tranchemontagne v Ontario (Director, Disability Support Program), the Supreme Court of Canada affirmed that all administrative tribunals, and not just human rights tribunals, are entitled and required to apply human legislation, unless expressly prohibited from doing so by their enabling statute.
Practically speaking, from an employment law perspective, this has meant that employees with human rights grievances against their employer are usually required to raise their human rights concerns in a grievance arbitration proceeding, when such a forum is available to them. The same principle applies to parties before other administrative proceedings, such as the Employment Standards Branch of the Ministry of Labour, and the Workplace Safety and Insurance Appeals Tribunal, among others. This “concurrent jurisdiction” approach is based on the principle that human rights remedies must be accessible, and should be advanced in the most immediate and accessible forum.
By the same token, the Human Rights Tribunal of Ontario is empowered to dismiss an application, where the Tribunal is of the opinion that another proceeding has “appropriately dealt with the substance of the application.”
In a decision released in October 2011, British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52, the Supreme Court has clarified the test for determining whether a matter has been “appropriately dealt with” in another proceeding.
In that case, Figliola and other injured workers brought an application to the British Columbia Human Rights Tribunal, arguing that BC’s Workers’ Compensation Board policy on chronic pain was contrary to the BC Human Rights Code. Figliola’s application to the BC Human Rights Tribunal was brought only after the same arguments were unsuccessfully raised by Figliola in appeals before the Workers’ Compensation Board’s Review Division and later the Workers’ Compensation Appeal Tribunal. Rather than challenge the Workers’ Compensation decisions in court through a judicial review, Figliola decided to raise the same arguments before the Human Rights Tribunal, on the grounds that the human rights issues were not appropriately dealt with in the previous Workers’ Compensation Board proceeding.
The Supreme Court dismissed Figliola’s application to the BC Human Rights Tribunal on the grounds that it was an improper collateral attack against the Workers’ Compensation Board proceeding. The Court stated that Figliola was obligated to judicially review the Workers’ Compensation proceeding, and that he was prohibited from “forum shopping” by advancing the same arguments before the Human Rights Tribunal that had been raised in the previous Workers’ Compensation proceeding.
In its decision, the Supreme Court emphasized the principle of finality, stating that the integrity of the administration of justice is undermined when parties are permitted to re-litigate the same issues in multiple forums. The Court also set out the test for determining whether a matter has been “appropriately dealt with.” Under this test, a matter will be found to have been “appropriately dealt with,” where 1) that prior proceeding or tribunal had concurrent jurisdiction to decide the legal issues; 2) when the previously decided legal issues are essentially the same as those being raised in the current proceeding before the Human Rights Tribunal; and, 3) where the parties had notice of the legal issues and the case to be met, including any human rights issues, and had an opportunity to respond.