With the amendment of Ontario’s human rights enforcement process in 2008, employees were given direct access to the Human Rights Tribunal’s adjudicative process. As a result of that change, one frustration for employers has been an ability for employees to take another crack, through the Human Rights Tribunal, at claims that have heard and been dismissed by other adjudicators, such as through grievance arbitrations, WSIB claims, or employment standards claims.
Ordinarily, once a legal claim has been dealt with, the person who brought the claim can’t go to another court or tribunal and try to get a different result. They have to appeal the original decision, or go to court to have it judicially reviewed. However, the Human Rights Tribunal does have the right to hear a matter that has already been the subject of other proceedings, unless it is satisfied that the “substance” of the proceeding has already been “appropriately” dealt with.
Although in many cases dealing with this issue the Tribunal does dismiss the complaint, the Tribunal has treated this discretion in some cases as opening the door to letting it review not only whether the issue was the same in both proceedings, but also whether the original deciding body misapprehended the relevant human rights principles and law applicable to the issue (see Rao v. McMaster University for example.
A decision of the Supreme Court of Canada last week is likely to put an end to this application of the Tribunal’s discretion. A 5-4 majority of the Court found that a similar provision in BC’s Human Rights Code did not let the Human Rights Tribunal look at the other deciding body’s actual application of the principles and law. Their discretion is limited to looking at:
- Did the other body have the jurisdiction to determine the human rights issue?
- Was the previously decided legal issue essentially the same as the current claim?
- Was there an opportunity for the claimants to know the case to be met and have the chance to meet it?
If these three questions are answered positively, the Human Rights Tribunal will not have the ability to rehear the issue, even where it feels that the Tribunal would have applied different procedures, or looked at the question differently. This decision should provide employers with a very effective tool for fending off attempts by employees to re-argue cases that they have already lost before other adjudicative bodies.