Workers’ Compensation & Choice of Forum
Employment disputes involving workplace injury, disability or psychological
harm may engage several different remedial systems at the same time.
Workers’ compensation, human rights proceedings, grievance arbitration
and civil litigation each apply different jurisdictional rules, legal tests
and remedies.
The materials below examine the interaction between these processes,
including return-to-work obligations, concurrent jurisdiction, issue
estoppel, factual estoppel and the risks associated with pursuing related
claims in more than one forum.
Workers’ Compensation & Employment Claims
The Minefield of Aggravated Damages and Workers’ Compensation Plans
An introduction to the interaction between workers’ compensation
legislation, civil claims and human rights remedies. The article
considers the historic workers’ compensation bargain and the extent
to which workplace psychological injury may restrict or affect a
civil claim for aggravated or emotional-distress damages.
Comparison: Workers’ Comp vs Human Rights
A comparative reference chart identifying important differences
between workers’ compensation and human rights proceedings and the
distinct legal and remedial considerations arising in each process.
Choosing the Forum
The Grievance Process & Human Rights Remedies
A review of the jurisdictional relationship between grievance
arbitration and human rights proceedings. The article considers the
general rule of arbitral exclusivity and the circumstances in which
legislation may nevertheless permit concurrent human rights jurisdiction.
Choice of Forum: Grievance Process vs Human Rights
A practical consideration of why a unionized employee might seek to
pursue a human rights complaint rather than the grievance process,
despite the advantages commonly associated with arbitration,
including union-funded representation, speed and the availability
of reinstatement.
Workers Comp & Human Rights: The Interplay
A broader analysis of concurrent jurisdiction between workers’
compensation and human rights regimes. The article considers what
happens when a worker pursues one process first and the potential
effect of that decision on a later human rights complaint.
Return to Work & Disability
Return to Work Issues: Workers’ Comp vs Human Rights
A comparison of return-to-work and re-employment obligations under
workers’ compensation legislation and human rights law. The article
examines differences in eligibility, time limits, available remedies
and standards such as suitable employment and undue hardship.
Issue Estoppel, Factual Estoppel & Case Splitting
Workers’ Comp – Human Rights – Issue Estoppel – Same Question?
An examination of whether a prior workers’ compensation decision
prevents a subsequent human rights complaint. The article focuses
particularly on the requirement that the same question have been
decided in the earlier proceeding and the important differences
between workers’ compensation and human rights tests.
Factual Estoppel
A review of the separate principle that factual findings made in an
earlier proceeding may bind a later tribunal even where the legal
issues themselves are different. The article considers decisions in
which findings from workers’ compensation or civil proceedings
affected later human rights claims.
Splitting the Case
An examination of the rule against advancing only part of a case in
one proceeding and reserving related human rights allegations for a
later proceeding. The article considers whether a claimant who elects
to use workers’ compensation must advance all available human rights
issues in that first process.