Since the Supreme Court decision in British Columbia (Workers’ Compensation Board) v. Figliola (“Figliola”), the Human Rights Tribunal of Ontario (the “Tribunal”) has taken a more narrow approach to its jurisdiction to hear applications where another tribunal has dealt with the same or similar issues. However, recent case law suggests that the Tribunal is moving away from the more narrow Interpretation of its jurisdiction that was laid out in Figliola.
Under section 45.1 of the Ontario Human Rights Code, the Tribunal may dismiss an application in whole or in part if the substance of the application has been appropriately dealt with in another proceeding.
The Figliola decision provided a three part test to be used in order to determine whether an application had been appropriately dealt with in another proceeding: (a) whether there was concurrent jurisdiction to hear human rights issues; (b) whether the previously decided legal issue was essentially the same as what is being complained of to the Human Rights Tribunal; and (c) whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it.
In Claybourn v. Toronto Police Services Board (“Claybourn”), the Tribunal recently found that in the context of a human rights compliant where there had already been a proceeding under the Police Services Act (“PSA”), the applicant was not precluded from bringing his human rights application by section 45.1.
The Tribunal applied the principles from the recent the Supreme Court of Canada decision, Penner v. Niagara (Regional Police Services Board) (“Penner”), which did not deal with the jurisdiction of the Human Rights Tribunal. The Penner decision pertained to an individual’s ability to pursue a civil action after a decision had already been rendered in a police disciplinary hearing. In Penner, the Supreme Court found that the police disciplinary process did not preclude the bringing of a civil action.
The Penner decision prompted the Tribunal to reassess its approach to section 45.1 and the Figliola decision.
In Claybourn, the Tribunal relied on a number of factors in its decision including that the PSA contemplates parallel civil proceedings, that the applicant did not have a personal remedy under the PSA process and that there would be unfairness to the applicant.
The Tribunal also emphasized that the language in section 45.1 provides it with discretion, as the section provides that the Tribunal may dismiss an application where the substance has been appropriately dealt with. It does not stipulate that the Tribunal must dismiss the application in these circumstances.
The Claybourn decision certainly signals a shift in the Tribunal’s treatment of section 45.1.
We are concerned that this less strict interpretation of Figliola, in Claybourn and other recent Tribunal decisions, will lead to multiplicity of litigation and unnecessary waste of time and resources. Although Claybourn was not an employment case, it seems to have started the worrisome trend.
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