Thursday, October 27, 2011

The First of the s.45.1 Cases

I have previously expressed concerns with the Human Rights Tribunal of Ontario's various applications of s.45.1 of the Human Rights Code.  This section allows the HRTO to dismiss an application if the subject matter of the application has been "appropriately dealt with" in another proceeding.  In the linked post, I noted a case in which the Human Rights Tribunal refused to dismiss an application on this ground because it disagreed with the analysis that Arbitrator Surdykowski used in reaching it.

The Divisional Court just released a decision in College of Nurses v. Trozzi on a similar issue.  Trozzi sought a nursing license from College of Nurses.  The College imposed conditions on the license on the basis of certain medical conditions she had, and she challenged the decision at the Health Professions Appeal and Review Board (HPARB).  She lost.

While waiting for the decision from the HPARB, she initiated a Human Rights Application, and the College sought dismissal under s.45.1.  The Tribunal found that the HPARB had failed to apply the correct analysis to the question.  The College sought judicial review.

That the Divisional Court even heard the application for judicial review at this stage is surprising - the Tribunal proceeding is ongoing, and normally this would be regarded as "premature".  But as it went to a "true" jurisdictional question, the Court refused to quash the application for judicial review.

The Divisional Court unanimously allowed the application for judicial review, but there were different sets of reasons.  The majority felt that the HRTO overstepped its bounds by attempting to sit in review of another statutory Tribunal with a "public protection mandate".  Justice Lederer, by contrast, felt that the distinction of "public protection mandate" is somewhat meaningless, and that the Tribunal overstepped its bounds simply by trying to sit in review of another statutory Tribunal at all.

I don't think that this is the last s.45.1 case we're going to see, but the Divisional Court appears to be putting the HRTO in its place pretty firmly.


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.


  1. Thanks for the post. I have a question if a case involves dicrimination on disabilty against an unionized employee and the first proceeding was labour arbitration, and the arbitrator made a very patently unreasonable and wrong decision (even a layperson can tell). But the Union rejected the employee's strong request for a judicial review. The employee then filed with Tribunal in seeking justice, do you think the court's ruling in Trozzi applies in case like this?

  2. Not quite. And the situation will arise, almost certainly: As I noted above, there have been cases in which the HRTO concluded that arbitrators have taken an incorrect approach to a human rights question (i.e. Barker v. SEIU), so I suspect that it's only a matter of time before this question gets put to the Divisional Court, as well.

    There are two factors that would distinguish Trozzi from a case such as Barker. The first is the concept of the "public protection mandate", which as far as I know is a novel notion created by the majority in Trozzi. The majority decision in Trozzi won't apply the same way to a labour arbitrator's decision: If a labour arbitrator can be said to have a "public protection mandate", then every adjudicative body would, rendering the term meaningless. (Of course, Justice Lederer makes exactly that argument as to why the concept is unhelpful.)

    The second difference arises by analogy to a common law doctrine we call "res judicata": Where an issue has already been adjudicated, it is often barred from being adjudicated again by a different body. One of the parts of the test involves the parties being the same - it only applies as between parties to the original proceeding...whereas the grievor isn't strictly a party to a labour arbitration.

    s.45.1 doesn't have the same test. The Tribunal can find that the matter has been appropriately dealt with even if the parties are different. But I've made the argument, in other discussions of this issue, that there's something morally compelling about the argument that a grievor doesn't have standing to apply for judicial review of the arbitrator's decision. Unlike Trozzi, who had another avenue of recourse if she believed the arbitrator erred, a grievor in the case you describe would not. That could be a distinguishing factor.

    Of course, while my view is that Trozzi wouldn't be exactly on point in such a case, that doesn't mean that the Divisional Court might not ultimately come down the same way. There are many legitimate objections to allowing 'two kicks at the same can', so to speak.

    Just a quick comment, however, on the obviousness of arbitral error: Law is a tricky subject, with a lot of nuances, and I'm always a little uneasy about a layperson saying that something is 'obvious' to him or her. I'd suggest getting appropriate legal advice on such an issue.

  3. Thanks Dennis. I want to explain little further for the assumed case in which the union has refused grievor’s request for judicial review. If there are couple of human rights issues/allegations contained in the grievance were put before the arbitrator, but most of them were not dealt with at all in the arbitrator’s decision, only one of the issues/allegations was actually dealt with but it was decided patently error in law, case like this, do you think the Tribunal will dismiss the case pursuant to s. 45.1?

    If the grievor seeks help from human rights legal support centre, I notice 45.13(1)2 iii of the Code confer upon the centre to apply for judicial review arising Tribunal proceedings, does this mean the centre can therefore represent the grievor to judicially review the arbitrator's decision or the centre can only appeal the decision of the Tribunal's? or both?

    If this case is dismissed by Tribunal unfortunately, do you think the grievor himself/herself can appeal tribunal’s decision to court? What most likely the court will say? And what is the proper legal route do you think for the unionized employee to pursue his/her human rights under this circumstances?

  4. Issues that *weren't* addressed at all (impliedly or expressly) by the arbitrator are far easier, and likely will *not* be dismissed per s.45.1. The challenge is where an issue was dealt with, but inadequately.

    The language of s.45.13 is pretty clear: The HRLSC can assist with judicial review proceedings arising from Tribunal proceedings. There's no basis for them to assist with judicial review of a labour arbitrator's decision. (In any event, it's unlikely that the grievor would have standing to make an application for judicial review of the arbitrator's decision.)

    If the Tribunal dismissed an application pursuant to s.45.1, I most certainly would not advise a litigant without legal training to proceed self-represented to the Divisional Court. As for what the Court would say...I can't speculate as to that. As I said, I don't think the Divisional Court is finished with its s.45.1 cases, and it isn't easy to predict which way it will come down.

  5. Thanks. I notice another important decision just made by the Supreme Court of Canada (British Columbia Workers' Compensation Board v. Figliola, 2011 SCC 52, with Trinunal's discretion when exercising s. 27 (1)(f)(s. 45.1 in Ontario Human Rights Code) in the BC Human Rights Code. What do you think how this SCC decision will affect the uninonized grievance/arbitration case as described in here?

    As you mentioned "The challege is where an issue was dealt with, but inadequately". I agree, and my concern is that when the arbitartor's decision(for the part that was dealt with) is patently error in law, incorrect and unreasonable which has in fact significantly affected the discriminatorily terminated grievor's rights under the Code but the union (union did not hire any lawyer in the grievance proceeding)agreed with the arbitrator's decision and refused to apply for judicial review. Case like this, giving the arbitrator's decision a final and binding effect (finality) has worked injustice. But the grievor has nowhere to go but to seek justice in the Tribunal to "re-litigate" the part of issue unfairly decided. For situation like this, do you think allowing "re-litigation" in case like this could be a possibility in the tribunal?

  6. That's a very interesting case, and very fresh, released even after I originally made this blog entry.

    It isn't completely fatal to a grievor trying to seek a human rights remedy on a matter dealt with inappropriately by an arbitrator...but it certainly doesn't help.

    The Figliola case is very much akin to the Trozzi case, and so, again, is close but not quite on all fours with the Barker case. But the ratio ("ratio decidendi" - reasons for decisions) in Figliola is broader than the one in Trozzi, and has a wider application which might capture Barker.

    The BCHRT looked at the question based on some technical common law principles - see my reference above to "res judicata" - and concluded that the test wasn't met, so they didn't have to dismiss the complaint. The majority of the SCC endorsed a wider, non-technical approach.

    What makes this case pretty hard for Barker to overcome is that the approach the SCC used originated in the Matuszewski case (BCSC 2008), which was more like Barker, where the prior decision was by a labour arbitrator. By implication, it seems probable that the same approach would be used in a Barker-type case.

    The other thing to bear in mind is the split court. It was a 5-4 split, and while they all agreed that the Tribunal had erred in its analysis, they disagreed on why and what to do about it.

    The majority dismissed the complaint outright, rather than remitting the matter to the Tribunal. This is rare when dealing with administrative tribunals - even when the Court has essentially said "There's only one right answer", they still tend to send it back to the tribunal to fix their own answer. The message the majority is sending is that contextual factors won't matter - finality is important, and the Tribunal would *have* to dismiss it because it had been previously dealt with.

    The dissent, on the other hand, argued for a broader interpretation of the Tribunal's discretion, and wanted to send it back simply because the Tribunal hadn't actually answered the question of whether or not the issue had been "appropriately dealt with".

    And let's further complicate the issue: You're right that s.27(1)(f) of the BC Code is essentially the same as s.45.1 of Ontario's Code...but the majority supported their interpretation of a narrower discretion by looking at the context of the provision (which is different in Ontario) and also by reviewing the Hansard (which would presumably not be the same in Ontario).

    One could make an argument that this makes an Ontario case technically distinguishable, pushing it more into the dissent's framework, which seems to imply that, in the right case, the Tribunal could override another adjudicator's disposition of an issue.

  7. I agree that the Majority gave a narrower discretion for the BCHRT to exercise s. 27(1)(f) based on the context of the s. 27(1)(f) surrounding by the remaining six provisions which are created together to dismiss. In addition to the context of the provision, the majority also supported this narrowing of discretion because the historic facts showing that the BC Legislature itself removed limiting factors in the previous s. 27(1)(f) in 2002 in order to make easier to dismiss. Also the majority used the BC's "Hansard" report in backing their reasoning.

    While I understand in Ontario, "Hansard" is irrelevant, and there is no history of amendment or changes in narrowing the discretion by the Legislature, however as you mentioned Ontario's Code is diffrent from BC's, could you explain further what's the key diffrence in terms of the context in s.45.1 in a comparison to s. 27(1)(f)? And why this difference can possibly enable the HRTO to override other tribunal's inppropriate/inadequte decision?

  8. Let me be clear: It isn't the case that I think the contextual factors in Ontario's Code strongly support an interpretation that would yield a different result, but the context of the provision in Ontario's Code *lacks* certain elements that the majority looked to when reaching the decision in Figliola.

    That doesn't mean that we can look at the Ontario Code, put it cleanly into the dissent's framework, and conclude that the Ontario Tribunal has the right to reopen questions decided by labour arbitrators; it simply presents a basis on which to distinguish Figliola - in other words, it means that Figliola likely will not be a complete answer to the question in Ontario.