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The Latest on Forum Shopping: The Human Rights Tribunal is Considering Whether a WSIB Case Manager Decision is a “Proceeding”

As readers of our Blog and recent update are aware, the blockbuster Supreme Court decision in British Columbia (Workers’ Compensation Board) v. Figliola, altered the legal landscape with respect to the interaction between workers’ compensation law and Human Rights Tribunal proceedings.  As we have discussed in detail in an earlier update, the Supreme Court of Canada found that the B.C. Human Rights Tribunal could not take jurisdiction over a human rights complaint because the human rights issues had already been subject of adjudication at B.C.’s Workers Compensation Board.

The Supreme Court decision in Figliola has made it clear that workers are not entitled to re-litigate accommodation issues which were the subject of an earlier “proceeding”.  The critical issue for employers is what type of decision is considered to be a “proceeding”.  The Human Rights Tribunal has found in decisions pre-dating Figliola that the decisions of “front line” WSIB case managers are not “proceedings” and workers were therefore free to pursue their accommodation complaints at the Tribunal regardless of any decision of the WSIB.

The problem with this approach from the perspective of an employer is that it allowed workers who did not like the findings of the WSIB Case Manager on accommodation issues to essentially appeal a decision of the WSIB to the Human Rights Tribunal.  In the recent case of Whitwell v. U.S. Steel Canada, the employer is arguing that a Human Rights Application should be dismissed on the basis that a WSIB Case Manager has ruled that there is no suitable work available for the Applicant with the employer.  Both the WSIB and the Human Rights Commission are intervening in the case.

This case will be of critical importance to determining whether a decision of a Case Manager is a “proceeding” and the extent to which forum shopping will survive post-Figliola.  Regardless of the outcome, it is very likely that this case will end up in the Courts on judicial review.  We will keep you posted about the status of this case.

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