Tuesday, January 24, 2012

The HRTO and the WSIB

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.


  1. "It's not entirely clear what kinds of decisions, then, will be heard by the HRTO" Good question.

    So what's Ontario legislature's intention when they created s. 45.1 as it introduced bill 107 to reform human rights code back in 2006? From the plain language of s. 45.1, indeed HRTO is afforded a very broad discretion saying "if it is the opinion of the Tribunal" "appropriately dealt with". I think SCC in Figiola of BC was reading BC's own provincial Human Rights Code not Ontario's. And back in 2006 when proposed amendments to the Bill 107 in Ontario, in the "Hansard", the then Hon. Mr. Michael Bryant (Attorney General) said:"...Lastly, amendments are being proposed to promote greater fairness at the Human Rights Tribunal of Ontario… Amendments are before you and proposed that would restrict the tribunal's powers to dismiss applications..." And in previous HRTO decision, HRTO was well following the legislature's this intention and recognized that the dicretion under s. 45.1 is broad! For example, see para. 45 in Jarvis v. Sheet Metal Workers’ International Association, 2009 HRTO 121 (http://canlii.ca/t/22cdg), Vice-chair Sherry Liang determined: “Although the discretion given to the Tribunal under section 45.1 is broad, the Tribunal’s exercise of the discretion is based on the application of certain factors to the circumstances of each case …” She considered four factors: 1)The purpose of the other statutory scheme and its relationship to the Code; 2)Whether the other proceeding decided the same questions; 3) Whether human rights principles were applied in the other proceeding; 4)The nature of the process applied in the other proceeding and the availability of procedural safeguards.

    Indeed the discretion under s. 45.1 of Ontario Code is very broad. And in Trozzi, the Div Court actually criticized HRTO for failing to consider HPARB's public health mandate, and this was well consistent with the SCC minority`s ruling in Figliola in para. 94 and with Ms. Liang`s factor 1).

    I am not convinced that Figliola applies in Ontario and as it will against the legislature`s initial intention when it created s. 45.1. The legislature wanted greater fairness (not Finality!) and wanted to restrict HRTO`s powers to dismiss.

    If I am wrong pls correct.

  2. Also in a recent case post-dated Figliola, i.e. Pongracz v. Loblaws Supermarkets Limited, 2011 ONSC 4505 (http://canlii.ca/t/fpdpg) issued by Ontario Superior Court of Justice on December 19, 2011. The court spent some paragraphs in analyzing Figliola, the Court's final judgement actually sided with SCC minority’s ruling when it required to decide the important issue of Fairness vs Finality.

    In para.84, the court ruled that: "His reasons [Justice Cromwell], I believe support a conclusion that the desirability of fairness, generally ought to trump the desirability of finality". And in para. 86, the court ruled that: “Plaintiffs bring actions to address perceived wrongs done to them. They seek rely upon society’s promise of access to justice. They invest time, emotion and financial resources in seeking their ultimate day in court.” In para. 89 and 90, the court ruled that “In my view, justice would be best served by allowing the action to proceed against the defendant and be determined on its merits." "Poor procedural compliance, and the desire for reasonable finality, should not be fatal to an appropriate consideration of her complaint on its merits.” And this is exactly the SCC minority has emphasized in para. 95 of Figliola: "The most important consideration, however, is the last one noted by Binnie J. in Danyluk, at para. 80: whether giving the earlier proceeding final and binding effect will work an injustice. If there is substantial injustice, or a serious risk of it, poor procedural choices by the complainant should generally not be fatal to an appropriate consideration of his or her complaint on its merits"

  3. As I've said before, the consequences of Figliola in Ontario are not yet completely certain.

    But the principle of finality, highlighted by the majority in that case, is important. Whatever the scope of the HRTO's discretion, there's no question that it should tread carefully when considering hearing a question which has been addressed on its merits by another adjudicative body.

    In context of the WSIB, I think we're likely to end up with a distinction between "The WSIB addressed the Human Rights concerns but got it wrong" and "The WSIB failed to address the Human Rights concerns at all." In the former case, there are statutory appeal processes available, judicial review, and no persuasive reason why an aggrieved party can't pursue these avenues. There's simply no persuasive reason why the HRTO should be an alternative avenue to review an unsatisfactory WSIB decision on its merits. In the latter case, however, where the WSIB simply didn't examine the human rights question, s.45.1 couldn't act as a bar.