Workers Comp & Human Rights: The Interplay
Human Rights Violation Not Limited to Human Rights Tribunal
As a prelude, it is to be noted that the determination of a human rights breach is not one which is limited to the Human Rights Tribunal. This point was clearly made by the Supreme Court of Canada in Tranchemontagne v Ontario in the 2006 decision in which the Social Benefits Tribunal was presented with the question as to whether the Ontario Disability Support Act was offside the Human Rights Code due to its refusal to award disability sums to those persons suffering from drug dependency:
The Code is fundamental law. The Ontario legislature affirmed the primacy of the Code in the law itself, as applicable both to private citizens and public bodies. Further, the adjudication of Code issues is no longer confined to the exclusive domain of the intervener the Ontario Human Rights Commission (“OHRC”): s. 34 of the Code. The legislature has thus contemplated that this fundamental law could be applied by other administrative bodies and has amended the Code accordingly.
Human rights issues may be raised before the workers’ compensation board, employment standards hearings and through the grievance process for unionized workers.
Issue 1 Concurrent Jurisdiction
It is an accepted principle that there is concurrent jurisdiction between the workers’ compensation and human rights regime, absent words in the relevant statutes to the contrary. 1
Issue 2 The Right to Proceed to Human Rights
The question will arise as to the impact of an initial decision to pursue a workers’ comp claim upon a subsequent human rights application. All workers’ compensation statutes are based on the same theme, being in essence, “no-fault” workplace insurance. The bargain made by the legislation is that workers will receive its protections for workplace injuries regardless of fault, but will, in turn, relinquish the right to sue the employer.
The case law to date has interpreted the statutory restrictions barring other legal proceedings against the employer as not to be a bar to a subsequent human rights complaint. See this review.
An analysis of the fundamental distinction between a workers’ compensation claim and a human rights complaint speaks to the essential differences between the two remedies. This has been offered as the reasoning to allow a later human rights complaint to proceed: 2
The right to dignity and self-respect in the workplace and the right to a safe and discrimination free workplace are not matters under the WSIA, not compensable claims under WSIA and fall outside the exclusive jurisdiction of the WSIB.
To the same conclusion is the 2021 decision of the Alberta Human Rights Tribunal: 3
The Workers’ Compensation regime and the Alberta Human Rights regimes have very different aspects. It is only the Alberta Human Rights Commission that is concerned with a determination of whether discrimination occurred and provides unique remedies to those who have been discriminated against.
The synthesis of the case law has then accepted this principle and allowed the applicant to make a subsequent human rights complaint following the workers’ compensation application. 4
It is to be recalled that this subsequent allegation of a human rights violation may be brought through the human rights process or by a grievance under the collective agreement. 5
Issue 3 The Human Rights Commission: Denial of the Second Complaint
The law then allows a workers’ compensation claim followed by human rights complaint. That does not end the issue, as the question will then arise as to whether the prior decision binds the outcome of the human rights matter.
Human rights statutes typically contain a term which will deny the complaint to proceed where it has been considered by another tribunal. This is so for all statutes, including the direct user processes in Ontario and B.C. 6
The case law on this subject often speaks to the defence as one of issue estoppel. It is actually a broader defence as it is one which interprets the relevant statute which allows the commission this right to deny the right to a hearing.
Admonition of the Supreme Court of Canada
The cases on this subject must follow the point decided by the Supreme Court of Canada in B.C. v Figliola.
The Supreme Court noted that the legislation in B.C., which is comparable to other human rights statutes in the systems which are not user initiated, contained this provision, as referenced above, which allows the Human Rights Tribunal to dismiss the complaint where the substance of the complaint has been considered in the prior proceeding.
Due to this legislative provision, the Supreme Court observed that this section 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”.
[46] This brings us to how the Tribunal exercised its discretion in this case. Because I see s. 27(1)(f) as reflecting the principles of the common law doctrines rather than the codification of their technical tenets, I find the Tribunal’s strict adherence to the application of issue estoppel to be an overly formalistic interpretation of the section, particularly of the phrase “appropriately dealt with”. With respect, this had the effect of obstructing rather than implementing the goal of avoiding unnecessary relitigation. In acceding to the complainant’s request for relitigation of the same s. 8 issue, the Tribunal was disregarding Arbour J.’s admonition in Toronto (City) that parties should not try to impeach findings by the “impermissible route of relitigation in a different forum” (para. 46).
This defence thus should not be applied in a purely technical manner, but rather should implement the objective of avoiding relitigation.
The test then applied in the current context is as follows: 7
The expression of the legislative intent of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.
The Tribunal’s discretion in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process.
The Tribunal should not be overly technical in determining whether another proceeding has appropriately dealt with the substance of the application.
The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.
In applying its discretion, some of the factors that may apply include the purpose of the statutory scheme governing the other proceeding, whether the same question was decided, whether human rights principles were applied, and what safeguards were available to the parties in the other administrative procedure.
As to the issue of issue estoppel in its purest form, the accepted test for this argument is as follows: 10
Precision is not required for the Tribunal to find that a previous proceeding appropriately dealt with the substance of an application. This principal has been echoed in the Tribunal’s jurisprudence:
This Tribunal has emphasized throughout its jurisprudence on s. 45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing re-litigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed.
It is very unlikely that the “same question” test may be met in the application of the defence of issue estoppel, even as moderated by the statutory bar against litigating the same substantive issue, as reviewed here.
Summary
Based on the above review:
- There is concurrent jurisdiction between the workers’ compensation and human rights regimes.
- There is no obligation for the injured employee to pursue the workers’ comp remedy, unlike the law in civil cases.
- Should the worker submit a workers’ comp claim, all human rights issues should be advanced, failing which the employee will be met with the defence of case splitting in the subsequent human rights matter.
- Should the workers’ compensation claim fail, it is unlikely that the “same question” test will be met for the success of an issue estoppel defence. This will allow a further human rights complaint to proceed.
- Should the workers’ compensation claim succeed, the employee may seek human rights emotional distress remedies in the human rights process. 11
- Supreme Court of Canada British Columbia (Workers’ Compensation Board) v. Figliola In this case holding that the WCB had authority to consider human rights issues
- Toronto District School Board v Elementary Teachers’ Federation of Ontario
- Baraby v SGS
- See for example, the decision of the Ontario HRT: McWilliam v Toronto Police Services in which the applicant recovered WC benefits and then $75,000 for emotional suffering in the Human Rights complaint.
- This statement is not fulsome as the grievance process must be used in most jurisdictions, and is not permissive. Also in Ontario, the human rights issue may be raised by a civil proceeding with a companion action.
- For example, Section 45.1 of the Ontario Code reads as follows: 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.
- Walmark v. Thunder Bay Police Service
- Van Woundenberg v. Sheridan College Institute of Technology and Advanced Learning 8
Did the other proceeding have concurrent jurisdiction to decide human rights issues;
Was there an opportunity for the applicant or their privies to know the case to be met and have the chance to meet it;
Was the previously decided legal issue essentially the same as what is being complained of to the Tribunal; and
Would it be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?
The application of this test becomes one applied on a case-by-case basis. The human rights tribunal will take pains to examine the prior decision to determine if it truly met the same legal issue as is put before it.
Even where the pure tests of issue estoppel have been met, this principle allows the decision maker residual discretion to deny the defence.
The Ontario Human Rights Tribunal has determined, in considering this defence, that precision is not required in the analysis, a view which is reflective of the words from the Supreme Court of Canada: 9 Chang v ABC
- The McWilliam case in the Ontario HRT raised the issue of additional economic loss which the Tribunal was prepared to consider,, yet did not award due to the facts before it.