The Human Rights Tribunal Says “No” to Forum Shopping


Time Published on November 08, 2012 User Stringer LLP Admin

It has been a year since the Supreme Court of Canada’s decision in British Columbia (Workers' Compensation Board) v. Figliola (“Figliola”). In Figliola, the Supreme Court stated that human rights complaints should not be relitigated before a human rights tribunal when they have already been litigated before another tribunal, such as the workers’ compensation board (”WSIB”), or a labour arbitration tribunal.  

The Figliola test for whether the substance of an applicant has been “appropriately dealt with” in another proceeding is as follows: (a) whether there was concurrent jurisdiction to hear human rights issues; (b) whether the previously decided legal issue was essentially the same as what is being complained of to the Human Rights Tribunal; and (c) 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.

The Figliola test does not a permit a human rights tribunal to evaluate the procedural or substantive correctness of the other proceeding. In previous jurisprudence, the  Human Rights Tribunal of Ontario (“HRTO”) has taken a more active approach, engaging in a detailed analysis of the jurisdiction question, often looking into the substance of the decision, and analyzing how the other decision maker applied the Human Rights Code.

If a party wishes to challenge or overturn a tribunal’s decision, Figliola provides that they must do so through the appeal or judicial review mechanisms that are in place.

A recent decision of the HRTO illustrates how the HRTO will apply Figliola. In Kerr v. Global TeleSales of Canada Inc., the applicant alleged that her employment was terminated after her employer learned that she was pregnant.  The applicant had already filed a claim with the Minister of Labour under the Employment Standards Act, 2000 (the “ESA”) with respect to the termination of her employment. This claim was dealt with by an Employment Standards Officer, who decided there was no violation of the ESA and dismissed the claim.

The former employer argued that the application to the HRTO should be dismissed as the proceeding in front of the Employment Standards Officer had already dealt with the substance of the application. The Tribunal agreed.

The Tribunal found that the Employment Standards Officer dealt with the applicant’s allegations of discriminatory treatment in relation to her pregnancy.  The applicant worked in the respondent’s baggage claims department.  The respondent decided to close its baggage department and terminated all employees in the unit, except for two employees who were transferred to another unit. The news of the termination came three days after the applicant informed the respondent that she was pregnant. The Employment Standards Officer found that the decision to terminate was made before the employer has aware of the pregnancy and the two employees who were transferred were chosen based on productivity results and their customer service skills.

The applicant alleged that the Employment Standards Officer’s decision lacked procedural fairness, that a substantive error was made and that there was bias. In dismissing the application, the Tribunal pointed out that its role is not to sit as an appeal court and review the Employment Standards Officer’s decision. Since the legal issue decided by the Employment Standards Officer was essentially the same as that before the Tribunal, the application was dismissed.

An interesting aspect of this case is that the Tribunal found that a decision of a front-line  Employment Standards Officer constituted a “proceeding” under the Figliola test.  The Tribunal has yet to rule on whether front-line WSIB decisions are considered a “proceeding” for the purpose of this test. This is the issue in the Whitwell v. U.S. Steel Canada. We will stay tuned. 

As Kerr v. Global TeleSales of Canada Inc. illustrates, Figliola is an important tool for protecting against forum shopping. An employee cannot litigate the same issues in multiple forums. Having chosen one route, in this case through an ESA application, the employee cannot decide to go another route, i.e. the Human Rights Tribunal, when they receive an unfavourable decision.  Figliola is beneficial to employers who face litigation by an employee in multiple forums, as it reduces the likelihood of costly relitigation.

This blog was originally posted by Stringer LLP on First Reference Talks, 6 November 2012.

Tag human rights