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Back to basics: HRTO follows Figliola and refuses to allow relitigation of WSIB claim

In 2011, the Supreme Court of Canada released its decision in British Columbia (Workers’ Compensation Board) v Figliola (“Figliola”). The Figliola decision addressed the issue of the relitigation by human rights tribunals of issues already addressed in other proceedings.

In Figliola, several claimants brought claims under workplace compensation legislation for benefits. The claimants were unhappy with the results of those complaints. They then brought complaints before the Human Rights Tribunal flowing from the denial of their entitlement to workers’ compensation benefits. The Supreme Court determined that because the decision of the worker’s compensation tribunal was a “final” decision as to the legal issue related to their disability, the Human Rights Tribunal could not allow the relitigation of that issue.

Employers across Canada hoped that Figliola would provide greater certainty and finality to proceedings before the worker’s compensation tribunals, and preclude the relitigation of such issues before human rights tribunals. Unfortunately, the ensuing case law has not been clear. In fact, several decisions from the Human Rights Tribunal of Ontario (“HRTO”) appeared to open the door for the type of duplicative litigation seemingly precluded by Figliola (see our previous posts on such cases here and here).

The murky jurisprudence in this area was made even more opaque with the release of the Supreme Court’s decision in Penner v Niagara Police Services, in which a complaint made under the Police Services Act was found to not preclude a civil action based on the same set of facts related to alleged police misconduct. Penner was decided on the basis that the two proceedings were sufficiently different in purpose and standards of proof that the complaint did not preclude the civil action. Penner was interpreted in some circles as reducing the strict prohibition that some had seen imposed by the Figliola decision.

However, a recent decision from the HRTO indicates that Figliola can still serve to protect the finality of a workers’ compensation tribunal decision.

In Post v Stevens Resource Group and the Workplace Safety and Insurance Board, the applicant had brought a claim for a workplace injury before Ontario’s Workplace Safety and Insurance Board (the “WSIB”).  At the same time, she brought a human rights complaint, which was deferred until the WSIB rendered its decision.  The employer offered the employee modified work monitoring a Salvation Army Kettle, which the employee had refused on the basis of a religious objection.  The WSIB, through a decision of one of its Appeals Resolution Officers (“ARO”), held that the applicant had refused suitable work and was thereby disentitled from benefits.

The employee sought to reactivate her human rights claim following the decision of the ARO.

The HRTO looked carefully at the ARO’s decision. In particular, the ARO had examined the employee’s complaint and determined that there was no evidence to support the employee’s allegation that the job offer violated her rights under the Human Rights Act.

The HRTO determined that the ARO indeed had the jurisdiction to decide accommodation and human rights issues, and in fact did examine the job offer from a human rights perspective. The ARO’s decision was final, and there was the availability of an appeal process.  As such, the HRTO applied Figliola and concluded that the ARO’s decision precluded the human rights application from proceeding.

Post  is a signal that employers may well be able to rely on Figliola to avoid having to defend the suitability of return to work accommodation in multiple forums.  However, given how quickly human rights tribunals found exceptions to the application of Figliola, we remain only cautiously optimistic.

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Stringer LLP

Employment and Labour lawyers at Stringer LLP
Stringer LLP is a leader in Canadian HR law. For over 45 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation and pay equity, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more
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