Another Analysis of "Appropriately Dealt With"

On October 27, I made an entry about a recent Divisional Court case, Trozzi, interpreting s.45.1 of Ontario's Human Rights Code, which permits the Tribunal to dismiss an application the subject matter of which has been "appropriately dealt with" in another proceeding.  The Court determined that Ms. Trozzi could not go to the Human Rights Tribunal to fight over a human rights issue that had already been considered and dealt with by the Health Professions Appeal and Review Board.

In that post, I argued that Trozzi may still leave the door open to an argument that the Tribunal is able to hear arguments about matters previously decided by labour arbitrators if they are of the opinion that the arbitrator didn't "appropriately" deal with the subject matter, as happened in the Barker case (which I talked about here in July).

On October 28, as an anonymous commenter on my Oct 27 entry has drawn to my attention, the Supreme Court of Canada released a decision in British Columbia (Workers' Compensation Board) v. Figliola, interpreting an almost identical section, s.27(1)(f), of the British Columbia Human Rights Code, which gives much more material for the discussion.

Figliola suffered a workplace injury which resulted in chronic pain, and British Columbia's WCB had a policy that essentially set out a fixed formula for what people with chronic pain would receive.  He argued, among other things, that this policy contravened the Code, and took the argument to a Review Officer, who rejected it.  Around this same time, the BC Legislature enacted legislation which removed the Workers' Compensation Appeal Tribunal's jurisdiction to consider human rights issues, which meant that the Review Officer's decision regarding human rights could not be appealed.  As a side effect of this, it would have been possible to seek judicial review of the Review Officer's decision in respect of the human rights matter.  Figliola decided instead to take the matter to the BC Human Rights Tribunal.  The WCB argued that it should dismiss the application because its subject matter had been "appropriately dealt with" in another proceeding, and the Tribunal declined to do so.

The Tribunal's reasoning was premised on a previous BC Court decision interpreting the provision in context of a Barker-type case, where the Tribunal had reviewed an issue previously addressed by a labour arbitrator:  The Court had felt that s.27(1)(f) captured the underlying principles of certain common law doctrines against multiple proceedings.  The Tribunal, applying the common law tests literally, concluded in Figliola that they weren't strictly met, and therefore declined to exercise its discretion to dismiss the application.

The Supreme Court was unanimous that this was wrong.  Capturing the underlying principles does not mean that the test should be applied technically.  However, the analysis had an important schism, with a 5/4 split court.

Justice Abella's camp - the majority - argued that the Tribunal's discretion should be interpreted narrowly, requiring deference to other adjudicated decisions and not permitting discretion to hear such matters anyways.  They allowed the appeal and dismissed the complaint.

Justice Cromwell's minority, on the other hand, argued that the language confers a wide discretion, and so while the Tribunal failed to answer the question correctly in the first place, the matter should be sent back to them to apply a proper analysis as to whether or not to proceed with the complaint.  The implication being, of course, that the Tribunal should still be able to evaluate for itself whether or not the WCB had "appropriately dealt with" the subject matter.

Typically, we wouldn't give too much attention to the dissent.  The majority's conclusion is now the state of the law in Canada, binding on everyone except the Supreme Court itself.  The dissent is just that - a dissent - and even though it made some very strong criticisms of the majority's reasons for finding a narrow discretion (which essentially turned on the context in which s.27(1)(f) falls), the BCHRT is now stuck with the majority's decision.

The more interesting question is the consequences in Ontario, where we have essentially the exact same legislative provision.  One might think that the Supreme Court would find that the same phrase has the same meaning in British Columbia and Ontario - in fact, there's a strong argument to that effect.  Yet the reasons underlying the majority's interpretation in British Columbia is significantly based on the subsections surrounding the provision in the B.C. Legislation, which is in fact very different from the surrounding context in Ontario.

Meaning that, if Trozzi or some similar case goes to the Ontario Court of Appeal, it is quite possible that the Court would distinguish Figliola on that basis, and perhaps even conclude, given the strength of the dissent, that the dissent's interpretation of the provision is the one that should be applied to the Ontario language.

*****

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.