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The End of Forum Shopping in Workers’ Compensation Cases? – Ryan Conlin & Jeremy Schwartz

By: Ryan J. Conlin & Jeremy D. Schwartz
In recent years it has become very common for employees with WSIB claims to file applications with the Ontario Human Rights Tribunal alleging discrimination on the basis of disability. It is not uncommon for these same employees to be pursuing appeals at the WSIB or the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) with respect to whether an employer has adequately accommodated their disability.

In cases where a Human Rights Application has been filed and an on-going appeal is pending at the WSIB or WSIAT relating to a similar issue, the general practice of the Human Rights Tribunal has been to defer the hearing of the Human Rights Application pending the completion of the WSIB and/or WSIAT appeal proceedings (See for example Dhunsi v. J.T. Bakeries). Once a final decision of the WSIB has been made, the Human Rights Tribunal will make a determination about whether the WSIB has “adequately” dealt with accommodation issues.

The Supreme Court of Canada recently considered an appeal in British Columbia (Workers’ Compensation Board) v. Figliola (“Figliola”), which related to the interaction between parallel workers’ compensation and human rights proceedings. We last reviewed the decision in our update on December 2, 2011. Our goal in this update is to put the decision in context with prior decisions and subsequent caselaw.

What Does “Adequate” Mean?

The question of what “adequately” dealing with accommodation issues means is a fairly complex issue and is open to considerable interpretation. It is important to appreciate, particularly at the initial level of decision-making (the Case Manager at WSIB) the issues considered and the evidence heard may be fairly limited and is greatly dependent upon the level of participation by the employer and the worker. However, decisions of Case Managers can be appealed to the WSIB Appeals Branch (an internal WSIB appeal mechanism). Decisions of the WSIB Appeals Branch can be appealed to WSIAT. Each level of appeal allows for new evidence to be introduced and does not afford any deference to the decision of the Case Manager.

The issue of whether a WSIB decision “appropriately” dealt with accommodation issues has been considered on a number of occasions. For example, in Galves v. Balzac’s Coffee Roastery, the worker was employed as a barista at a coffee shop. The worker suffered a work-related injury to her back and was subsequently off work. The WSIB held a Return to Work meeting which was attended by the worker, the employer and a WSIB Return to Work Specialist.

According to the worker, the employer indicated at this meeting that the worker could not perform all her duties and that there was no suitable position available for her. The result of the meeting was that the WSIB decided to refer the worker to Labour Market Re-Entry (a re-training program now called Work Reintegration). The worker did not appeal the referral to Labour Market Re-Entry. The employer argued that the WSIB had “appropriately” dealt with the substance of the Human Rights Application by accepting the employer’s position that no suitable work was available and referring the worker to a WSIB funded re-training program. The employer sought early dismissal of the Human Rights Application.

The Human Rights Tribunal dismissed the request for early dismissal of the Application. The Vice-Chair held that that the WSIB did not address the accommodation issues in the manner contemplated by the Human Rights Code and that it appeared that the WSIB accepted the employer’s claim that no work was available at face value. The Vice-Chair noted that there was no indication that the WSIB determined whether the Employer met the obligation under the Code by considering whether the Employer’s reasons for not returning the worker to her job were because of undue hardship and the underlying factors of health, safety and costs.

The practical consequence of this approach is that the WSIB could find that no suitable work was available for a worker and the Human Rights Tribunal could come to a different conclusion on what some would say is essentially the same issue. Not surprisingly, many in the employer community have been frustrated by the parallel litigation that has become commonplace in the WSIB/Human Rights context. There has been a concern expressed in some quarters that workers who are unsuccessful in the WSIB Appeal process are being permitted to re-litigate the issue at the Human Rights Tribunal.

Supreme Court of Canada Weighs In

In Figliola, the complainant workers suffered from chronic pain and sought compensation from the British Columbia equivalent of the WSIB. Pursuant to the B.C. Board’s Chronic Pain Policy, the workers received a fixed compensation award.

The workers appealed to the B.C. Board’s version of the Appeals Branch, arguing that a policy which set a fixed award for chronic pain was patently unreasonable, unconstitutional and discriminatory on the grounds of disability pursuant to the B.C. Human Rights Code. The B.C. version of the Appeals Branch accepted that it had jurisdiction over the Human Rights Code complaint and concluded that the B.C. Board’s Chronic Pain Policy was not contrary to the Human Rights and therefore was not discriminatory.

The workers choose not to pursue further workers’ compensation or judicial review remedies and launched a Human Rights Complaint which made the same type of argument made before the B.C. equivalent of WSIB that the chronic policy breached the Human Rights Code. The B.C. Human Rights Tribunal dismissed a motion to dismiss the Human Rights Complaint on the basis that it had already been decided in the workers’ compensation context. This decision was ultimately upheld by the B.C. Court of Appeal.

The majority of the Supreme Court of Canada categorically rejected the approach taken by the B.C. Court of Appeal and the B.C. Human Rights Tribunal. The majority of the Court stated that when determining whether the workers’ compensation decision maker “adequately” dealt with the human rights issues, the focus of the inquiry should be to “…inquire into whether the parties had notice of the case to be met and were given an opportunity to respond, that does not mean that it can require that the prior process be a procedural mimic of the Tribunal’s own, more elaborate one.” The majority of the Court went on to state,

As long as the complainants had a chance to air their grievances before an authorized decision-maker, the extent to which they received traditional “judicial” procedural trappings should not be the Tribunal’s concern. (Para. 49)

Looking Ahead

Subsequent to the Supreme Court’s decision in Figliola, a number of decisions have been released with favourable connotations for employers (and the public interest in efficient use of state resources).

In particular, in Gilinsky v. Peel District School BoardGomez v. Sobeys Milton Retail Support Centre and Paterno v. Salvation Army, the Human Rights Tribunal of Ontario dismissed human rights applications on the basis that the subject matter had been “appropriately dealt with” in labour arbitrations. Notably, in Gilinsky, they made this finding despite the fact that the arbitration decision was pending judicial review. This suggests strongly that, where the conditions identified in Figliola are satisfied even at an initial decision making level, access to or even ongoing appeal processes ought not to affect the result at the Tribunal.

More recently still, in Frankson v. Workplace Safety and Insurance Board, the Human Rights Tribunal of Ontario determined that it had jurisdiction to find that the WSIB’s policies were themselves discriminatory. That case did not involve the employer directly. However, the decision confirmed that Figliola has not, in the Tribunal’s view, modified its jurisdiction to ensure the WSIB does not provide its “services” in a discriminatory way.

One possible way to read these decisions in unison, assuming they are not inconsistent, is that employers, who follow decisions made by the WSIB and later face a human rights application for abiding thereby, may name the WSIB as an additional responding party to the human rights application. In other words, the synergy between Figliola and Frankson may be that employers can, in effect, seek absolution (or at least limit liability) by arguing that the WSIB’s processes “adequately dealt” with the issues regarding employer compliance, and that liability for any violation should rest with the WSIB.

For more information, please contact:

Ryan Conlin at [email protected] or 416-862-2566, or
Jeremy Schwartz at [email protected] or 416-862-7011.

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