Contents
Workers’ Comp – Human Rights – Issue Estoppel – Same Question?
Same Question
The three elements of a successful issue estoppel test are as follows:
(1) that the same question has been decided in earlier proceedings;
(2) that the earlier judicial decision was final; and
(3) that the parties to that decision or their privies are the same in both the proceedings.
Even should this test be met, the court will still consider, as a matter of discretion, whether issue estoppel ought to be applied.
Statutory Interpretation
The Supreme Court of Canada has noted that the wording of the relevant human rights statute gives the tribunal a more flexible approach that does not require “the technical application of the comparable common law doctrines, but rather allowed for an integrated approach to apply all of these concepts in a substantive approach”.
The wording of the Alberta Human Rights Act provides a good example of the legislated right of the tribunal to refuse a complaint in this context:
Director’s powers and duties re complaint
21(1) If the Commission receives a complaint made in accordance with section 20 and the bylaws, the director may at any time
(a) dismiss the complaint, in whole or in part, if the director determines that
(iv) is a complaint or part of a complaint that is being, has been, will be or should be more appropriately dealt with in another forum or under another Act,
(2) For greater certainty, the director may at any time
(a) refuse to accept or dismiss a complaint or part of a complaint that
(iii) is being, has been, will be or should be more appropriately dealt with in another forum or under another Act,
Ontario has a comparable provision:
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.
Same Question & Issue Estoppel
To succeed on a workers’ compensation application, the worker must show a workplace “accident” 1 within an employment relationship.
The test for an employment relationship in human rights is very liberal and differs from the conventional tests in the workers’ compensation regime.
In the WC claim, the applicant must also show the degree of emotional distress which is set as the barrier to success under the relevant legislation. The gravity of the test changes from jurisdiction to jurisdiction but the common thread is that the requisite degree of emotional suffering to qualify for benefits must be supported by a medical diagnosis.
While it is accepted that there is concurrent jurisdiction between the two administrative processes, the tests for proving a successful claim differ considerably.
As noted by the Supreme Court in Danyluk, the question at issue must be one which is “fundamental to the decision arrived at”. What might be more important to the question than the need to show a certain standard of emotional suffering in one proceeding and not in the second? The words of the SCC:
24 … The question out of which the estoppel is said to arise must have been “fundamental to the decision arrived at” in the earlier proceeding. In other words, as discussed below, the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings.
Take the example of a person who has been sexually assaulted in the workplace. The employee will proceed to workers’ compensation at her initiative as it is not mandatory. She must show the required psychiatric evidence to reach the scale of emotional suffering to qualify.
Such evidence is not required for a successful human rights. She must prove employment, and that;
she has a characteristic protected from discrimination by the Act;
she experienced an adverse impact; and
the protected characteristic was at least a factor in the adverse impact.
The test for a successful human rights claim is completely distinct from that required for a WC case.
She may well present medical evidence but there is no particular standard imposed on its contents. Indeed, no medical evidence is required to prove the case for an award for emotional suffering.
It is difficult to conceive of how these two distinctive processes may meet the “same question” test for the application of issue estoppel.
Even a more flexible applied to the statutory prohibition would seemingly not bar such a claim, as in the Alberta statute. The “complaint” is entirely a horse of a different colour:
is a complaint or part of a complaint that is being, has been, will be or should be more appropriately dealt with in another forum or under another Act,
The differing standards are apparent particularly when the WC claim fails as the requisite medical standard has not been met. In that event, clearly the question has not been the same in each case.
Should the medical evidence meet the higher standard required for the WC claim, then this distinction is academic. In that instance, should the WC claim fail, the context must be examined to determine if the reason for the dismissal is linked to the issues in the human rights case. For example, if the case was dismissed because the worker could not prove the facts of the alleged “accident”, then the employer may raise an issue of “factual estoppel” as discussed below.
Julien v Brazeau Alberta Human Rights Tribunal
In this instance, the employee had made an unsuccessful complaint for workers’ compensation benefits, then followed with a human rights complaint based on “race, colour, ancestry, place of origin, and family status”. It was found that the same allegations had been made in the first claim for workers’ compensation.
Julien had then commenced a human rights complaint based on “essentially the same allegations”.
The employer moved before the Alberta Human Rights Tribunal seeking dismissal of this complaint.
The parties were in agreement on the relevant tests, as set out in Danyluk, above, that is, the three part test, followed by residual discretion.
The competing submissions agreed that the WC decision was final and the parties were the same. They differed on the issue of whether the same question had been decided.
The Tribunal was then set with the two questions of (1) was the same question decided and (2) should residual discretion be applied to deny the employer’s motion to dismiss.
Same Question
The Human Rights Tribunal found that the WC decision did not deal with the same issue. The Human Rights Tribunal found that the same question test was not met.
The issue before the WCB, as stated correctly by the Tribunal examined whether:
- the worker has a psychological injury;
- work-related events or stressors are the predominant cause of the injury;
- the work-related events were “excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker”; and
- there is “objective confirmation of events.”
There was a meaningful difference between this test and that before the Human Rights Tribunal:
[22] Viewing the matter through this specific lens, the WCB Decision did not decide the issue of “discrimination” by asking the questions and applying the legal test that would be applied by the Tribunal in assessing the Complaint.
This Tribunal went on to discuss the issue of residual discretion, in its obiter comments, that had the first three steps been met, it would have, in any event, applied the residual discretion afforded to it, to deny the employer’s motion.
The reasons given for this conclusion were as follows:
- The WCA does not give the WC process exclusive jurisdiction over human rights matters, as was the case with the Employment Standards process in Ontario in Danyluk.
- The WCA and its associated regulations and guidelines directed the WC process to answer questions which were “manifestly different” from the issues before the HR Tribunal.
- The WC decision deal not deal with the issue of family status and even had the defence succeeded, this complaint would have continued before the HR Tribunal in any event.
- The HR Tribunal hearing was in progress, roughly at the mid-point of the scheduled hearing days.
The reference to the legal test in point 2 falls within the admonition from the Supreme Court as cited above. Point 3 falls to address the issue of case splitting which would deny a further issue to be asserted. This leaves points 1 and 4 as viable arguments.
Hoefman v LMT
This was also a decision of the Alberta Human Rights Tribunal in 2022. 2 The employee had applied unsuccessfully for WC benefits and then followed with this human rights complaint, based on mental disability. The human rights decision denied the claim based on the finding that the mental disability, while proven, was however not a factor in the termination decision, which was based on the employer’s financial circumstances.
It did deal with a preliminary motion brought by the employer to dismiss the claim due to the prior WC case and denied the motion.
The employee had argued in this process that his workplace injuries were due to adverse discriminatory action taken against him due to his mental disability.
The Human Rights Tribunal concluded, in denying the employer’s motion to dismiss, that the WC decision did not address whether the mental disability was “a factor” in the dismissal, referring to the human rights test. This conclusion “would leave the complainant without resolution on the specific claim of discrimination”.
In effect, without these direct words, the Tribunal was stating that the same question was not before each of the two decision makers. This being stated, the employer’s motion was dismissed based on the exercise of residual discretion.
It appears that the “discretion” referenced was the residual discretion following the three point test but it is not clear in the reasons.
The prudent course of conduct will be to consider with care which remedial avenue should be pursued. If the WC process is used, the complainant should be sure to raise all issues before it, including all human rights allegations where applicable and further seek an internal review of any alleged errors. The avenue of using the human rights process as a secondary means of relief, given no success in the initial application should be considered as a last resort.
Anecdotal Review
Director Concedes “Same Issue”
Such a defence did succeed in an earlier case in February of 2019, also before the Alberta Human Rights Tribunal. 3 The Tribunal had before two allegations, one being racial discrimination and the second a claim of unfair treatment due to a mental disability. The racial issue had been put before the WCAT. The Director of the Human Rights Commission conceded that this legal issue was the same as that before the Tribunal. The Tribunal found that the defence of issue estoppel did succeed. The second issue was not before the WCAT and this claim was allowed to proceed.
This case missed the point twice. The Director was wrong, respectfully said, that the issues were the same. Further, the case should not have been split.
Disability was Pre-existing and not Compensable under WCA
The Ontario HRT considered this argument in a complaint made based on adverse treatment due to a physical disability and gender. The gender issue was not before the WCB and was allowed to proceed. Again, this violated the rule against case splitting.
The employee had argued unsuccessfully that she was entitled to benefits due to a work related injury. It was found, however, that the disability arose not from the most recent employment, but rather was due a pre-existing medical condition. The same issue test was clearly not applicable and the disability complaint was allowed to proceed. 4
Canadian Human Rights Commission & Workers’ Comp & Prior Grievance
A 2025 decision of the Canadian Human Rights Tribunal considered an unusual case in which the applicant had been before three different decision makers prior to the CHRT. The complainant had applied for workers’ compensation benefits, a Canada Labour Code Unfair Representation Complaint and a grievance under the collective agreement. 5
The Tribunal noted that on a motion to dismiss prior to the full hearing, a dismissal order should be made “only in the clearest of cases”, which may be distinctive. The essential issue is whether the substance of the complaint has been “appropriately dealt with” by the prior decision maker.
Workers’ Compensation Claim
The Tribunal determined that the WorkSafeBC case dealt with a physical disability and not a mental illness. The same issue as was before the Human Rights Tribunal was thus not considered.
In addition, on a more general basis, the Board could not consider the remedy of general damages for violating a protected human rights.
This decision is not consistent with the case splitting cases above.
Unfair Representation Complaint
This issue before the CIRB was clearly not a human rights matter and the question of issue estoppel obviously failed.
Grievance
The hearing before the labour arbitrator was also determined not to be a bar to the human rights complaint. It is clear that such a decision maker may consider a human rights remedy, unlike the workers compensation board.
The arbitrator had concluded that Air Canada did not discriminate against the employee when it terminated his employment and had satisfied its duty to accommodate.
The employer had argued that this decision considered the issue of the alleged mental disability and hence the same issue test had been met. The reasons of the Tribunal then take on the task of determining whether the labour arbitrator in fact reviewed and digested the issue of a mental disability. It was then concluded that the decision does not clearly deal with this issue and hence dismissed the motion. The issue of the review process was not raised. Danyluk was not referenced. The argument of case splitting was not raised, as it ought to have been.
- this includes intentional conduct
- Hoefman v LMT
- Kebede v SGS
- Paris v Bramic Creative.
- Loconte v Air Canada