Human Rights Tribunal Heeding Clear Direction from Supreme Court

In British Columbia (Workers’ Compensation Board) v. Figliola, a decision released in October 2011, the Supreme Court of Canada found that the B.C. Human Rights Tribunal could not take jurisdiction over a human rights complaint because the human rights issues had already been subject of adjudication at B.C.’s Workers Compensation Board.  Please see our recent update for a more detailed summary of Figliola.

The Human Rights Tribunal of Ontario (the “Tribunal”) has applied Figliola in two recent decisions, providing insight into the Tribunal’s approach going forward.  Both cases, Gomez v. Sobeys Milton Retail Support Centre and Paterno v. Salvation Army, involved disputes about accommodation that had been the subject of grievances under the respective collective agreements.  The Tribunal dismissed the applications that sought to, effectively, overturn the arbitrators’ findings.  It found that the human rights issues had been dealt with in the grievance arbitrations and refused to second guess whether the arbitrators had applied the correct procedure or had ruled correctly on the substance of the issue.

The Tribunal’s comment at paragraph 4 in Gomez is illuminating:

“In my view, the Court’s reasoning in Figliola applies equally to the interpretation of s. 45.1 of the Ontario Code, and to whether an application should be dismissed when the issues have previously been addressed in another proceeding in which the parties have had the opportunity to know the case to be met and meet it. Figliola instructs this Tribunal not to consider the procedural or substantive correctness of the other proceeding or decision when deciding whether the application or part of the application can proceed. If the reasons in the other decision dispose of the human rights issues before the Tribunal, the application or part of the application must be dismissed on the basis that it was appropriately dealt with in the other proceeding.”

The Tribunal’s decisions following Figliola demonstrate that the Tribunal will not allow its processes to be used to effectively review decisions of other tribunals even if the other tribunal was not as expert on human rights issues or had a different adjudicative process.

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