Case In Point
HRTO Finds Availability of Different Remedies under a Different Proceeding not Determinative of Whether Substance of HRTO Application had been Appropriately Dealt With
Date: April 5, 2022
In Green v National Steel Car Ltd., the Human Rights Tribunal Ontario (HRTO) found that the Workplace Safety and Insurance Appeals Tribunal (WSIAT) has the direct authority to apply the Human Rights Code (Code) and to determine the appropriate accommodation of medical restrictions. The application before the HRTO on the same issue, therefore, had been appropriately dealt with in another proceeding and was dismissed pursuant to section 45.1 of the Code. The HRTO also found the fact that the WSIAT and the HRTO can award different remedies under their respective statutory schemes was not determinative of whether the proceedings were duplicative.
The intent of section 45.1 is to avoid the duplication of proceedings and to prevent the re-litigation of issues that have already been determined in another forum. The HRTO has interpreted this section as requiring a two-step analysis:
(1) whether there was another proceeding; and
(2) if yes, whether the substance of the application has been appropriately dealt with by the prior proceeding.
The issue before the HRTO in this case was whether the applicant had been “properly accommodated by his employer by being provided with suitably modified workplace duties that corresponded to his diagnosed medical restrictions” during a specified lay off period. A grievance on the issue had been settled. In two decisions, the WSIAT found that the applicant could not be accommodated with suitable modified work during the period in question and awarded loss of earnings benefits.
The HRTO held that both the grievance settlement and the WSIAT proceedings were “proceedings” within the meaning of section 45.1. It then concluded that both proceedings decided the same issue as that before the HRTO, which was whether the applicant was properly accommodated by his employer.
The applicant argued before the HRTO that the WSIAT proceedings did not appropriately deal with the substance of the HRTO application as the WSIAT can award for “lost wages” but has no authority to award damages for injury to dignity, feelings and self-respect. The HRTO has the authority to award those damages under the Code.
The HRTO held that this difference in remedy was not determinative, noting that “the HRTO has previously held that the difference in remedies in different proceedings is inconsequential.” When considering whether the remedies are the same, the HRTO has favoured a broader approach of considering whether the humans rights claims in the application were raised and ultimately addressed in the other proceeding. In this case, the HRTO held that the legal issues or substance of the issues before the WSIAT were essentially the same as the issues in the application.
The HRTO dismissed the application since both the grievance settlement as well as the two WSIAT decisions appropriately dealt with the substance of the application.
This case is helpful to employers looking to avoid duplicative proceedings that attempt to re-litigate human rights issues that were dealt with in other proceedings, such as in a grievance or before the WSIAT.
Jessica Herfst is a 2021-2022 Articling Student with Hicks Morley
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