Monday, November 7, 2011

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.


  1. Hello Dennis, I'm the anonymous who follows your s. 45.1 entries, the decision for Barker v SEIU was just released ( The case closed. Barker left to withsdraw and SEIU decided not to judicially review HRTO's interim decision (not to dismiss).

  2. Indeed. I'm inclined to think that the decision came out too soon after Trozzi for the applicant's decision to have been influenced by it, so I would speculate that dropping the case was driven by a settlement of some sort.

    Kind of a shame, from an academic perspective - I would have liked to see how the Div. Ct. would have dealt with it - but one never assumes that any particular case will be heard by any particular level of Court. Settlements happen so frequently that actual hearings only occur in a small minority of cases.

    For example, Trozzi could appeal the Div. Ct. decision to the Court of Appeal...but we'll only see such a decision if (a) she has the resources to do so or can get free legal assistance in doing so, (b) she thinks her chances of success high enough to take the risk, and (c) it doesn't settle along the way. Whether or not she does is something we likely won't know until and unless it shows up on the Court of Appeal's schedule.

  3. So according to this SSC's ruling, at least in British Columbia, the BCHRT will acted like a "rubber stamp" to dismiss every previously decided decision, even the decision is undeniably wrong and lacks of any analysis of human rights principles or not appropriately dealt with...Do you think is it fair for the tribunal to simply dismiss the case for people or group who was discriminated against but lacks financial resources or his/her union refused to judicially review?

  4. I'm not sure I agree with that characterization. A "rubber stamp" suggests that their approval is needed. It isn't. Unless specifically excluded by statute, every administrative tribunal has the power to address human rights issues. The majority decision here suggests that, if they've exercised that power,

    This prevents re-litigation of the same issue. There are persuasive policy reasons behind that.

    Where a person "lacks the financial resources"...that's a broader access-to-justice issue, and allowing a second low-cost venue to consider the same issue again doesn't solve that problem.

    It's where the union refuses to seek judicial review that I see there as being a potential for real injustice. You can't hold the Union to account unless its decision not to proceed was arbitrary, discriminatory, or in bad faith. You can't seek judicial review of the decision because you lack standing as a non-party. And you can't bring a new application where *you* would be the party because it would create duplicate proceedings. It's a complete bar on seeking recourse to which a person might have legitimate entitlements.

  5. Thanks. I have read again s. 45.1 in Ontario's Code. In my understanding (may be wrong), the provision is single and independent, and its language and wording have intended by the Ontario legislature to give HRTO a broad (actually very broad) discretion rather than a narrow one, as it states: “…if the Tribunal is of the opinion…” On its face, the dicretion in s. 45.1 is indeed broad and wide... My question is if the same Figliola case happens in Ontario and also finally went to the SCC, same case but different Code provision and different legislative history (no 'Hansard'), then what will the SCC say? I think definitely not it will end up 5/4 split court like in BC...isn't it?

  6. To be clear, Ontario has its own Hansard, which I haven't reviewed in this context, and which may or may not shed some light on the legislature's intentions.

    I'm inclined to agree with you that the wording of s.45.1 is intended to give a broad discretion to the Tribunal. Chief Justice McLachlin and Justices Binnie, Cromwell, and Fish would presumably agree with you as well.

    Whether the contextual differences would persuade Justices Abella, Deschamps, Rothstein, and LeBel to find differently in Ontario...frankly, I wouldn't count on it.

    In advocacy, there's a distinction between 'why' and 'how'. We show the Court *why* they should side with us, making compelling arguments that appeal to basic notions such as morality and fairness, and then we show the Court *how* the law can be interpreted to come down on our side. This is why we say that "bad facts make bad law".

    So when Justice Abella interpreted the provision as giving a narrow discretion, particularly given the flaws in statutory interpretation pointed out by the dissent, it's probable that her conclusion was driven more by policy considerations of finality rather than by the technical aspects of statutory interpretation that I'm pointing out.

    But it's fairly hypothetical, trying to speculate as to what the Supreme Court will say. The composition of the Court changes often enough - both the dissent and majority are already losing one member - and we can't even guess if they will ever even consider the question. I doubt they would unless the Ontario Court of Appeal actually distinguished Figliola.

  7. Ontario’s legislative history demonstrates that the legislature’s intention was to make it harder to dismiss complaints through the introduction of Bill 107 in 2006 to amend the former Ontario Human Rights Code. Before the amendment, the Commission had broad powers under s. 34 of the former Code to exercise its discretion to decide not to deal with the complaint, under s. 34(1)(a), the Commission may decide not to deal with a complaint if it could or should be more appropriately dealt with under another Act. Particularly in respect of unionized employees, complaints have been routinely dismissed under s. 34(a) on the basis that they could or should more appropriately be dealt with in grievance arbitration. Under the new amendments of s. 45.1, the Tribunal have much more limited power to dismiss complaints comparing the Commission’s broad power to dismiss complaints under the former Code.

  8. The Employment Standards Act focuses on particular issues concerning workers and the ability to make such individuals comfortable within the work environment. This i described fully in my blog The employment standards act and the British Columbia Human Rights Code: tiles and Carpet