In Carney v. Peterborough Regional Health Centre (“Carney”), Emond Harnden’s own Raquel Chisholm handily secured the dismissal of a human rights complaint filed by a former employee of the Peterborough Regional Health Centre (the “Hospital” or the “Employer”). As counsel for the Employer, Raquel successfully argued that the Human Rights Tribunal of Ontario (“HRTO”) should exercise its residual discretion to dismiss the former employee’s application based on the fact that a proceeding before the Ontario Labour Relations Board (the “OLRB”) had already appropriately dealt with the substance of the application.
Relevant Provision of the Human Rights Code
Section 45.1 of Ontario’s Human Rights Code (the “Code”) provides as follows:
The [HRTO] may dismiss an application, in whole or in part, in accordance with its rules if the [HRTO] is of the opinion that another proceeding has appropriately dealt with the substance of the application.
In Carney, the applicant filed an application with the HRTO alleging that the respondent had violated the Code by discriminating against her on the basis of race, colour, ancestry, place of origin, ethnic origin, citizenship, family status and reprisal in employment (the “HRTO Application”).
The HRTO Application was deferred for a period pending resolution of an application to the Ontario Labour Relations Board (the “OLRB Application”), as well as an application for judicial review of the OLRB’s decision, both of which were brought by the applicant. Briefly, the OLRB Application consisted of a reprisal complaint made under the Occupational Health and Safety Act (the “OHSA”). Once those proceedings concluded – both in favour of the Employer – the HRTO Application was reactivated and scheduled for a preliminary hearing, at which time the parties were directed to make submissions on the issue of whether the HRTO Application should be dismissed, in whole or in part, pursuant to section 45.1 of the Code.
As noted by the adjudicator in her written decision, an analysis under section 45.1 of the Code must be broken into two separate parts:
1- Determination of whether there was another proceeding, and
2- If so, determination of whether the other proceeding appropriately dealt with the substance of the application.
With respect to the first part, the Hospital argued that given the authority and the duty of the OLRB under the OHSA to hold a review hearing of a reprisal complaint, and given the institutional independence of the OLRB in adjudicating issues before it under various sections of the Labour Relations Act, 1995, the hearing before the OLRB constituted a “proceeding” within the meaning of section 45.1 of the Code. Noting that the HRTO had adopted a similar position with respect to hearings before the OLRB in previous decisions, the adjudicator agreed with the Hospital’s assertion.
With respect to the second part, the adjudicator was tasked with reviewing the allegations made in the HRTO Application and comparing that to what matters the OLRB considered and decided upon in the course of its proceeding, in order to determine whether the substance of the HRTO Application had appropriately been dealt with in the OLRB proceeding. More specifically, this required that the adjudicator undertake the following four-part analysis:
- Did the other proceeding have concurrent jurisdiction to determine human rights issues? In light of a Supreme Court of Canada decision that held that statutory tribunals empowered to decide questions of law are presumed to have the power to look behind their enabling statutes in order to apply the whole law to a matter properly before them, the adjudicator concluded that the OLRB did have the power to interpret and apply human rights and other employment-related statutes.
- Was there an opportunity for the applicant or their privies to know the case to be met and to have a chance to meet it? The adjudicator determined that there was significant overlap between the allegations made in the HRTO Application and those made in the OLRB Application, including that both applications were based on the same employment relationship. Moreover, she noted that the applicant had the benefit of counsel (at least in part) in both proceedings, and that the OLRB had heard testimony from a dozen witnesses and reviewed over 200 exhibits of documentary evidence. Accordingly, she concluded that there was an obvious opportunity for the applicant to know the case to be met and that she did have a chance to meet it.
- Was the previously decided legal issue essentially the same as what is being complained of to the HRTO? The adjudicator held that an assessment of the underlying facts of the employment relationship and the many interactions between the applicant and various co-workers and managers cited in the HRTO Application, as well as a detailed review of the OLRB’s decision, revealed that the previously decided issues were the same issues as those now complained of in the HRTO Application, “even if they were not assessed specifically through a Code-based lens”.
- Would it be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case? Having found that the substance of the application had been appropriately dealt with in the OLRB proceeding, the adjudicator elected to exercise her residual discretion under s. 45.1 of the Code. She concluded:
“[T]o allow [the HRTO Application] to continue in the Tribunal’s process would be inappropriate. Given the time and resources already expended on the litigation of these facts by the respondents and the OLRB, it would completely undermine the principles of finality, fair and efficient administration of justice, and the avoidance of unneeded duplicate litigation.”
In Our View
In conducting an analysis under section 45.1 of the Code, the HRTO’s primary concern is not whether a parallel proceeding has correctly determined the human rights issue, but whether the applicant has already had an opportunity to have their human rights claim considered by an adjudicator who had jurisdiction to interpret and apply the Code. In Carney, the adjudicator was of the view that the applicant had in fact had such an opportunity as a result of the OLRB proceeding.
Of note, section 45.1 is not the only Code provision that can prevent an HRTO application from proceeding because of the existence of a parallel proceeding. For example, as detailed in a separate Focus Alert, subsection 34(11) also bars HRTO applications where a civil proceeding has been commenced in a court in which the applicant/plaintiff is seeking monetary compensation, whether implicitly or explicitly, for an alleged Code infringement, or where a court has finally determined the issue of whether the right has been infringed or the matter has been settled. Employers who face, or risk facing, proceedings before the HRTO as well as a court or other tribunal in respect of a termination where discrimination or a breach of the Code is alleged to be at issue should be aware of these tools that can, in some circumstances, help prevent the unnecessary duplication of proceedings.