Recently a landmark decision was issued by The Supreme Court of Canada that limits the jurisdiction of a human rights tribunal to consider matters that have already been dealt with in another proceeding. This ruling reinforces the provision of Section 45.1 of the Ontario Human Rights Code, which provides that “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”.
A standing argument has been that the tribunal has not enforced this provision creating concerns for employers that employees are with ease able to ” shop for different and better results” when a decision has already been made .
In the case of Boyce v. Toronto Housing Corporation, the worker appealed a decision from the WSIB to the Ontario Human Rights Tribunal after being terminated. Here’s what happened:
- Worker injured knee when chair collapsed at work. The worker lived in Scarborough and the employer offered accommodated work in downtown Toronto. Worker requested to work from home or an alternative location closer to home.
- WSIB Appeals Resolution Officer ruled that while a temporary modified job offered in 2005 as a Parking Enforcement Officer was suitable, it was not clear if the worker could safely get to work given disability
- 2008 WSIB Claims Adjudicator ruled permanent modified position as a dispatcher working downtown was suitable. The worker objected to the decision, but did not complete rejection form and pursue appeal right away. Employer terminated employee when he failed to accept terms of modified duty. Worker then appealed to Ontario Human Rights Tribunal.
- Worker filed complaint with Human Rights Tribunal-the tribunal did not dismiss the claim under section 45.1 and ruled the WSIB adjudicator’s decision failed to appropriate consider the workers requests for accommodation in regard to travel to and from work.
The significance of the recent decision in the case of British Columbia Compensation Board v. Figliola-Here is a recap:
- Figliola case dealt with workers who were seeking compensation for chronic back pain from the British Columbia Worker’s Compensation Board. They were awarded compensation of 2.5% of their total disability. They were not satisfied with the amount of compensation.
- Each worker appealed the decision citing the BC board’s policy was “patently unreasonable” under section 15 of the Canadian Charter of Rights and Freedoms. The review officer dismissed the appeal stating the board was not in violation under the B.C Code.
- Workers filed complaints with British Columbia Human Rights Tribunal and alleged the same discriminatory arguments-The BC Board brought forward a motion to dismiss the complaints on the basis that the argument had already been appropriate dealt with.
- Tribunal dismissed the board’s motion and held that section 27(1) (similar to section 45.1 of Ontario Human Rights Code) of the B.C code did not apply and allowed the complaint to proceed.
- Finally, British Columbia Supreme Court reversed the Tribunal’s decision to move forward, but then again restored the decision.
The BC WCB Board appealed to the Supreme Court of Canada who overturned the Tribunal’s decision, dismissed the worker’s complaints and stated that the B.C code “does not give the Tribunal authority to act as a review body with jurisdiction to consider, comment on and substitute decisions of other administrative tribunals”
What does this mean for employers in Ontario?
Due to the similarity between B.C’s section 27(1) and Ontario’s section 45.1 of their respective Human Rights Codes , the Figliola decision will likely have implications on the jurisdiction of the Ontario Human Rights Tribunal in hearing duplicated complaints. Ontario employers can use this landmark decision if they are seeking a tool to dismiss a human rights complaint by an employee when the issue has already been dealt with appropriately in arbitration or in front of a labour relations board.
In the case of Boyce v. Toronto Housing Corporation, unfortunately the worker’s requests for accommodation were not appropriately considered and many avenues were left unexplored. In this case, had all reasonable accommodations been met and had the employer and WSIB fully addressed all aspects of the worker’s requests for accommodation this Human Rights Case could have been avoided, or dismissed.
It is extremely important when responding to accommodation requests that there is an investigative process that documents and explains to the employee how the employer will meet the accommodation request. The employer is not required to do exactly what the employee requests, however the employer is required to offer alternative solutions that are reasonable with consideration for medical and functional abilities.
If you have any questions about this decision, or if you are experiencing a similar situation as the cases above, please contact Anna Aceto-Guerin by email at anna@clearpathemployer.com or by phone, 519-624-0800.
Clear Path has a particular specialty in cost-effective WSIB claims management, return-to-work (RTW) strategies and acquiring SIEF cost relief. Click here to learn more about our WSIB claims management services.
On Monday the WSIB held one of their promised Stakeholder Consultations via teleconference regarding the new Work re-integration policies.