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.