I made a couple of entries (here and here) some time ago regarding s.45.1 of the Human Rights Code, being the provision that permits the HRTO to dismiss an Application where it feels that the subject matter has been "appropriately dealt with" in another proceeding.
The question, at its core, is whether or not the HRTO has the power to sit in review of human rights-related decisions of other statutory tribunals. After all, other Tribunals have the power to interpret the Human Rights Code, so it becomes contentious as to whether or not, after a Tribunal has done so, the HRTO can go in and second-guess its approach to the question. The Divisional Court found that the HRTO should not second-guess the decisions of other statutory Tribunals with a "public protection mandate". A slim majority of the Supreme Court, considering a similar issue out of B.C., took a broader approach, suggesting that the Tribunal should be deferential generally.
It is quite common to see somebody apply to the HRTO after being denied WSIB benefits, alleging discrimination on the basis of disability against the WSIB. These Applications are usually dismissed fairly quickly - the HRTO rightly does not want to become a review body for the WSIB.
But there's a case moving forward, Seberras v. WSIB, in which the Tribunal is closely examining its powers in these cases.
One of the key questions is whether or not the provision of statutory benefits (such as WSIB) is a "service" within the meaning of the Code, such that Code rights against discrimination attach. The Tribunal answered this question in the affirmative. Thus, the denial of benefits on discriminatory grounds under the Code will trigger HRTO jurisdiction.
The HRTO notes, too, that it should not become a review body for WSIB - anything that comes from the WSIB that is simply an appeal, simpliciter, will be dismissed for no reasonable prospect of success.
It's not entirely clear what kinds of decisions, then, will be heard by the HRTO, but I would postulate the following: If the WSIB denies benefits for reasons which are discriminatory, without considering the effects of the Code, then the HRTO will have jurisdiction to hear an Application based on those facts. On the other hand, if the WSIB actually considers the effects of the Code and concludes that its basis for denying benefits does not violate the Code, that's more likely to put the Application out of the Tribunals' jurisdiction - if a person disagrees with the WSIB's Code analysis, there's an appeal process for it.
Of course, if there isn't a proper Code analysis to be heard at all, that will also be dismissed. An applicant saying "The WSIB didn't believe that I'm injured" will have a tough time getting before the HRTO. (This is by contrast to the WSIB refusing to recognize a certain disability, for example.) If an applicant says "The WSIB didn't believe me because they're racist"...then that's likely to fail too, but for more complicated reasons.
In the Seberras case, the Applicant is challenging provisions of the WSIA itself - i.e. the statute creating the WSIB. This isn't exactly a constitutional challenge - that would have to go to Court. But the Code is what we call a "quasi-constitutional" statute, meaning that other statutes will be subject to the Code unless the Legislature expressly exempts them. So if provisions in the WSIA offend the Code, the Tribunal can hear an Application about the consequences thereof.
Again, the WSIB also has jurisdiction to consider such questions. This was a matter that the SCC decided not long ago in respect of ODSP: There was a provision in the ODSPA which essentially declined to recognize alcoholism as a disability, and the legal question became whether the Social Benefits Tribunal (a Tribunal set up to adjudicate disputes under the ODSPA, among others) had the power to interpret the Human Rights Code. The conclusion? The answer is yes, unless the legislature expressly says otherwise. The SBT could have and should have applied the Code and determined that the provisions saying that alcoholics couldn't get benefits...were unenforceable.
So again, it's a similar analysis. The WSIB has the jurisdiction to interpret and apply the Human Rights Code in matters before it. If it does so, then it's likely the case that the HRTO will have to dismiss a subsequent application based on s.45.1. If it does not, then the HRTO may have jurisdiction of human rights-related aspects of the decision.
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.