Journal

Otherwise known as
Michael’s soapbox

2017-11-14T08:50:39+00:00 November 14, 2017|Employment Standards, Human Rights|

Employment Standards Officers and the Human Rights Code

Employees will sometimes seek remedies in multiple forums – for example under the Employment Standards Act, 2000 before a employment standards officer (“ESO”) or at the Ontario Labour Relations Board (“OLRB”) and before the Human Rights Tribunal of Ontario (“HRTO”) under the Human Rights Code (“Code”).

Policy favours finality and employers faced with a situation where an employee pursues claims in several forum might argue that this is prohibited as, among other things, it raises the possibility of inconsistent results, forum shopping and wasted costs and resources. 

Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. [Emphasis added]

The two (2) elements under section 45.1 are:

  1. There must be “another proceeding”; and
  2. That proceeding must have “appropriately dealt with the substance of the application”

The issue was most recently considered in Way v. BridgeCo Foods Inc., 2017 HRTO 1465 (CanLII).

Is the ESO a Proceeding?

The Tribunal has repeatedly held that a complaint determined by an ESO constitutes a proceeding within the meaning of s. 45.1.  For example, Little v. TeleTech Canada, 2009 HRTO 1763 (CanLII); and Poirier v. MacLean Engineering & Marketing, 2010 HRTO 1672 (CanLII), Kerr v. Global TeleSales of Canada Inc., 2012 HRTO 1896 (CanLII) among many others). As such, this part of the test is generally not in dispute.

Has the other Proceeding “Appropriately Dealt with the Substance of the Application”

In answering the second questions, the HRTO will consider the following:

  1. whether the other proceeding had concurrent jurisdiction to determine human rights issues;
  2. whether the previously decided issues were the same as the issues complained of to this Tribunal;
  3. whether there was an opportunity for the applicant or his or her privies to know the case to be met and have the chance to meet it; and
  4. whether it would be unfair to use the results of the previous preceding to preclude the applicant from proceeding with this Application.

(see: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 51 (CanLII), and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII)).

In Post v. Stevens Resources Group, 2014 HRTO 1470 (CanLII) (“Post”), the HRTO reviewed these Figliola and Penner decisions and held that, there are three primary questions to consider once concurrent jurisdiction is found to exist in order to decide whether the other proceeding has appropriately dealt with the substance of the Application. These are:

  1. whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it;
  2. whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and
  3. whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?

See, more recently, Bian v. University of Western Ontario, 2017 HRTO 620 (CanLII).

The Application was not dismissed in the Way case, mentioned above, and the HRTO commented:

While the ESO had the authority to address the human rights issues raised in the Application, the issues he considered were significantly narrower than those in the current proceeding.

The ESO only addressed the question of whether the applicant’s conduct was “wilful” within the meaning of the ESA and thereby disentitled the applicant to termination and severance pay. The ESO did not address the issues raised here of whether the respondent, BridgeCo Foods Inc., failed to accommodate the applicant’s disability and/or terminated the applicant on discriminatory grounds.

I have seen a number of ESO cases that specifically carve out the issue of discrimination by stating something like:

The complainant raised his belief that he had been discriminated against in his employment contrary to the Human Rights Code.  I informed him that I only had jurisdiction to consider those matters and issues arising under and out of the Employment Standards Act, 2000 and suggested that, if he wished to pursue his complaint under the Code, that he contact the Human Rights Tribunal of Ontario or the Human Rights Legal Support Centre.

Although a number of HRTO cases have held that it is “well established” that Ministry of Labour “has jurisdiction to apply the Code in its adjudication processes”, the ESO often will specifically carve that out.

The Application was allowed to proceed under the Code in Way since the other proceeding had not appropriately dealt with the substance of the Application.  On the other hand, the HRTO dismissed the Application in Bian because the ESO had appropriately dealt with the substance of the Application.

It is important for employers to be mindful of the issue when they receive an Application and the employee has complained under another statute and a decision has been issued.