The Human Rights Tribunal’s New Approach to Concurrent Proceedings

By Liam McHugh-Russell

Under the old Human Rights Code, the Ontario Human Rights Commission played a double gatekeeper role. In addition to dismissing claims it found to lack merit, it routinely refused to consider complaints it felt could or would be more appropriately be dealt with in another forum. The Human Rights Tribunal’s power to dismiss human rights applications is now more limited under the amended Code. The Tribunal may defer hearing an application until a decision is rendered in a parallel proceeding. But, once the claim has been considered elsewhere, the Tribunal may only dismiss an application if the Tribunal determines that the “substance of the application” was “appropriately dealt with” in the other proceeding. Furthermore, the Tribunal can only dismiss applications after providing parties with the opportunity to make oral submissions.

Changes Under the New Code

Before the recent amendments to the Code, the Human Rights Commission could refuse to deal with a complaint if it found that the issues “could or should” more appropriately be heard under another Act. Because of the concurrent jurisdiction of other bodies to adjudicate human rights claims, this essentially meant that the Commission would often dismiss claims whenever another forum could deal with the claim – i.e. not only when other proceedings were under way in the other forum. This procedure was often frustrating to claimants. Once the Commission dismissed a complaint, there was no guarantee that the human rights analysis in the other proceedings would be adequate, that the remedies would be sufficient, or even that the other proceeding would consider the Code at all.

The new Code aims to make a better fit between the Tribunal’s processes and that of other decision-making bodies. There are three parts to the new system.

1. Under section 45 of the Code, and Rule 14 of the Tribunal’s Rules of Procedure, a party can request that consideration of an application be deferred, usually pending ongoing alternative proceedings;
2. Contrary to the prior process, however, once the other proceedings have finished, under Rule 14.3, a party can ask the Tribunal to continue consideration of the claim. If the deferral was made to allow another adjudicator to hear the claim, Rule 14.4 requires the request to be made within 60 days of the conclusion of the other proceedings;
3. Parties can apply under Rule 22.1 to have an application dismissed in accordance with section 45.1 of the Code, which permits the Tribunal to dismiss an application where the substance of the claims in the application have already been appropriately dealt with in another proceeding. The Tribunal must hear oral submissions before deciding to dismiss.

Ideally, by allowing claims to return to the Tribunal after related matters have been heard or settled in another forum, the option of deferral and continuance ensures that the human rights aspects of claims are dealt with appropriately somewhere – either in a settlement between the parties, by another administrative body, or by the Tribunal itself.

If human rights claims had already been fairly disposed of, a rehearing by the Tribunal could lead to duplication, risk contrary findings of fact and law, threaten the finality of proceedings, discourage early settlement and ultimately increase the cost of adjudicating human rights claims to all parties involved. The Tribunal’s power to dismiss claims determined in another proceeding ensures that it will only adjudicate claims that have not already had fair hearing and where the substance of the human rights claim has not been appropriately dealt with in the other forum.

The Tribunal’s Approach Under the New Code

Under section 40 of the amended Code, the Tribunal is required to develop practices that will encourage the best opportunity for fair, just and expeditious disposition of the merits of applications before it. The Tribunal’s decisions on deferral and dismissal should be used together to ensure that this goal is pursued effectively in the Tribunal’s interaction with other decision makers.

In Bhagdasserians v 674460 Ontario, 2008 HRTO 404, the Tribunal held that a decision whether to defer an application is to be determined based on: “the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to parties to defer, having regard to the status of each proceeding and the steps that have been taken.” The Tribunal has reconfirmed this approach in other decisions.

When deciding whether to dismiss a claim because a prior proceeding “appropriately” dealt with the substance of an application, the Tribunal has emphasized that it is not sitting in appeal of prior decisions, and should be careful not to interfere too easily with the principle of finality in litigation. The factors that the Tribunal will take into consideration in determining the appropriateness of a prior adjudication of the issues are similar to those applied by the Tribunal when determining whether to defer: the statutory scheme applied, the question decided, the application of human rights principles and the fairness of the prior proceedings.

How Will The Tribunal’s Deferral and Dismissal Powers Be Used Together?

There are two ways to tie the procedures together into a “general” process. On the one hand, the Tribunal could take a more ‘hands off’ approach, preferring early deferral and less stringent consideration of dismissal requests, thereby encouraging other bodies to be ‘fair, just and expeditious’ in their disposition of human rights issues. Alternatively, because of the Tribunal’s expertise in human rights matters, and the presumptive speed at which the Tribunal plans to dispose of the human rights claims, it may prefer to retain active jurisdiction of applications despite the potential injustice and delay which may arise from a multiplicity of proceedings.

A review of the Tribunal’s deferral and dismissal decisions so far reveals that the Tribunal’s approach has been inconsistent as discussed in the sections below on:

• deferral to the grievance process
• the treatment of informal proceedings
• the treatment of withdrawn grievances
• doubts about the timing of other proceedings
• how settlements are to be evaluated

Grievances, Informal Proceedings and Withdrawal

It is generally settled that the Tribunal will defer where a grievance has been filed and is ongoing, demonstrating a high level of deference to that process and to control over workplace issues by unions and employers, where appropriate. Yet two issues - one related to deferral and one to dismissal - appear to suggest that the Tribunal may not take a completely deferential approach to the grievance process.

Strictly speaking, section 45 requires only that a deferral be made “in accordance with Tribunal Rules of Procedure”. The Rules allow the Tribunal to defer at the request of a party “on such terms as it may determine.” Yet the caselaw has required the initiation of formal proceedings before deferral is granted. For example, in Garcia v. Tri-Krete, 2008 HRTO 288, the Tribunal refused to defer an application when no grievance had yet been filed, stating that “[s]ection 45 provides for deferral to a proceeding not a potential for a proceeding.”

Another clear result of the amended process as it applies to dismissal decisions is that, once a grievance has been withdrawn by the union, a grievor is nonetheless within their rights to pursue or continue a claim before the Tribunal. In Manchanda v Children’s Aid Society of Toronto, 2009 HRTO 376, a union had filed and subsequently withdrawn a grievance. The respondent employer requested that the application before the Tribunal be dismissed because the claim had been dealt with through the grievance process. The Tribunal held that there was no evidence “that the withdrawal by the union indicated an agreement by the applicant to withdraw her human rights complaint,” and that dismissal was therefore inappropriate.

The Importance of Timing

The tension between deference and a more hands-on approach was demonstrated by a pair of deferral cases raising accommodation issues under the Workplace Safety and Insurance Act.

In Cui v MSM, 2008 HRTO 449, the Human Rights Tribunal held that it would be appropriate to defer pending the outcome of a Workplace Safety and Insurance Appeals Tribunal hearing because the application was based on facts similar to those under consideration by the WSIAT. Yet in Boyce v Toronto Community Housing, 2009 HRTO 131, once again, in addition to the discrimination claim before the Tribunal, the applicant was pursuing accommodation from the employer at the Workplace Safety and Insurance Board. In making the decision not to defer, the Tribunal held that the most salient difference was that the WSIA process was much farther from completion in that case. In Cui, the hearings were about to commence, whereas, in Boyce, the claim was still in its preliminary stages.

The Tribunal’s reasoning was that refusing deferral would expedite the final disposition of the human rights aspects of the claims to the advantage of the applicant, and that this weighed against the other factors: the priority was the timely resolution of Code issues by the Tribunal, some of which would not be addressed by the WSIB process.

Settlement

A similar tension continues to hang over the treatment of dismissal requests where a prior settlement of the issues has been agreed to by the parties. The Tribunal’s basic approach to settlements was set out in Dunn v Sault Ste. Marie, 2008 HRTO 149, where it held that a settlement may constitute a ‘proceeding’ for the purposes of s. 45.1 of the Code. In Dunn, the issues had previously been the subject of duty of fair representation proceedings, which had been settled. Both the employer and the union brought motions to dismiss. In dismissing the claims against the union, the Tribunal held that it should limit itself to considering the issues that were addressed by the settlement and the express language used in it. The Tribunal found that, neither the reasoning process leading to the settlement nor the specific remedies chosen by the parties were appropriate considerations for determining whether the settlement had “appropriately dealt with” the underlying issues.

Despite subsequent reliance on Dunn, in Bielman v Casino Niagara, 2009 HRTO 123, the Tribunal seemed much more willing to assume that a full review of the settlement was necessary. In Bielman, the disabled applicant had previously signed a release of claims when she decided to participate in a voluntary resignation program offered by the employer. Despite the release, the Tribunal held that a hearing was necessary on the merits to determine whether, in all the circumstances, the employer had met its duty to accommodate the claimant. Presumably, this would include an evaluation not only of the release in question, but the process which led to its signing.

Lessons Going Forward

The amendments to the Code have certainly provided an improved framework for the resolution of human rights claims where concurrent proceedings are being pursued. The following are clear lessons for applicants and respondents from the Tribunal’s decisions so far:

• the Tribunal will generally defer to the arbitration process, but only once a grievance has been filed; 
• even where there are substantial human rights issues raised in another proceeding, there is no guarantee the Tribunal will agree to defer an application based on similar facts;
• in dismissal decisions, a prior settlement constitutes a ‘proceeding’ and can lead to the dismissal of an application raising the same issues at the Tribunal - but not always. Care should be taken by parties in the negotiation and drafting of settlements; 
• in dismissal applications, the union’s prior unilateral withdrawal of a grievance raising human rights issues without the consent of the grievor will not act to bar a full hearing before the Tribunal

While some of these issues seem settled, the jurisprudence on deferral and dismissal is still in flux. Deferral and dismissal are both procedural decisions which have a substantial impact on the final rights in question. When crafting arguments proposing or opposing either request, it may be helpful for unions, applicants and other parties to keep in mind that the Tribunal’s job is not only to treat such procedural requests fairly, but to create an overarching procedural framework which is ‘fair, just, and expeditious.’