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Courts to Human Rights Tribunals - Keep Your Feet off our Turf!

In two very recent decisions, Courts in Canada have confirmed that Human Rights Tribunals do not have exclusive domain over the interpretation of human rights legislation, nor do they have the power to review the decisions of other tribunals dealing with human rights issues.

The first case is the Supreme Court of Canada’s (SCC) decision in re Workers Compensation Board of British Columbia v. Figliola, [2011] SCC 52.  In this case, the B.C. Human Rights Tribunal was asked, effectively, to review a decision of the B.C. Workers Compensation Board holding that its’ chronic pain policy did not offend the B.C. Human Rights Code (“Code”).  Section 27 of BC’s Code, in almost identical language to section 45.1 of Ontario’s Human Rights Code, allows the Tribunal  to dismiss complaints where the substance of the complaint “has been appropriately dealt with in another proceeding”.  In this case, the Tribunal refused to dismiss the complaint pursuant to section 27 of the Code.  The case made its way all the way to the SCC.  The SCC held that where other tribunals are required by law to interpret and apply human rights legislation in their own proceedings, various common law principles ought to apply and prevent re-litigation of the same issues before human rights tribunals.  The SCC further held that the Code does not give the Tribunal the power to judicially review another tribunal’s decision or reconsider a legitimately decided issue.  This decision affirms that judicial review of tribunal decisions is exclusively the domain of the Courts.

Ontario’s Human Rights Code was amended extensively in 2008.  One of the new provisions introduced was section 45.1 which give Ontario’s Human Rights Tribunal the discretion to dismiss an application where the Tribunal is of the opinion that another proceeding has “appropriately dealt with the substance matter of the complaint”.   In a landmark decision,  Ontario College of Nurses v. Trozzi, [2011] ONSC 4614 (Div Ct.)  the Ontario courts were asked for the first time to consider the effect of section 45.1 on the Tribunal’s power to review the decisions of other tribunals on human rights matters.  Briefly, Ms. Trozzi suffered from some medical conditions that caused the Ontario College of Nurses (OCN) to issue restrictions on her nursing license.  These restrictions were reviewed by the Health Professionals Appeal and Review Board (HPARB) and the issues of alleged discrimination in the restrictions were addressed by the HPARB.  Ms. Trozzi also brought an application under the Ontario Human Rights Code seeking a finding of unlawful discrimination against the OCN in relation to the restrictions she was issued.  In a preliminary decision, the Tribunal refused to dismiss Trozzi’s application pursuant to section 45.1.  The OCN applied for judicial review of the preliminary decision and the Divisional Court, in a decision released on October 20, 2011, found in the OCN’s favour.

Specifically, the Divisional Court dealt with the following question: To what extent does section 45.1 give the Tribunal supervisory or residual jurisdiction over decisions of other tribunals where the other tribunal has already dealt with the substance of the human rights claims?  The Divisional Court, in part, answered the central question as follows:

“However, when a tribunal such as the HPARB specifically addresses the alleged discrimination within the context of its own “incapacity” mandate, those allegations have been “appropriately” dealt with.  Any challenge is by appeal or judicial review of that decision.  The Human Rights Tribunal is not an appellate body for other tribunals…”

In both Figliola and Trozzi the message from the Courts is clear:  hands off, we are the exclusive forum for the appeal or review of decisions from other tribunals who have rendered decisions on human rights issues!

We would encourage you to contact one of the lawyers at CCP if you have any questions about these important jurisdictional decisions or how they may impact cases you may currently have before the Tribunal.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.