several claimants brought claims under workplace compensation
legislation for benefits. The claimants were unhappy with the
results of those complaints. They then brought complaints before
the Human Rights Tribunal flowing from the denial of their
entitlement to workers' compensation benefits. The Supreme
Court determined that because the decision of the worker's
compensation tribunal was a "final" decision as to the
legal issue related to their disability, the Human Rights Tribunal
could not allow the relitigation of that issue.
Employers across Canada hoped that
Figliola would provide greater certainty and
finality to proceedings before the worker's compensation
tribunals, and preclude the relitigation of such issues before
human rights tribunals. Unfortunately, the ensuing case law has not
been clear. In fact, several decisions from the Human Rights
Tribunal of Ontario ("HRTO") appeared to open the door
for the type of duplicative litigation seemingly precluded by
Figliola (see our previous posts on such cases
The murky jurisprudence in this
area was made even more opaque with the release of the Supreme
Court's decision in Penner v Niagara Police
Services, in which a complaint made under the
Police Services Act was found to not preclude a
civil action based on the same set of facts related to alleged
police misconduct. Penner was decided on the basis
that the two proceedings were sufficiently different in purpose and
standards of proof that the complaint did not preclude the civil
action. Penner was interpreted in some circles as
reducing the strict prohibition that some had seen imposed by the
However, a recent decision from the
HRTO indicates that Figliola can still serve to
protect the finality of a workers' compensation tribunal
In Post v Stevens Resource Group and the
Workplace Safety and Insurance Board, the applicant
had brought a claim for a workplace injury before Ontario's
Workplace Safety and Insurance Board (the "WSIB"). At the
same time, she brought a human rights complaint, which was deferred
until the WSIB rendered its decision. The employer offered the
employee modified work monitoring a Salvation Army Kettle, which
the employee had refused on the basis of a religious objection. The
WSIB, through a decision of one of its Appeals Resolution Officers
("ARO"), held that the applicant had refused suitable
work and was thereby disentitled from benefits.
The employee sought to reactivate
her human rights claim following the decision of the ARO.
The HRTO looked carefully at the
ARO's decision. In particular, the ARO had examined the
employee's complaint and determined that there was no evidence
to support the employee's allegation that the job offer
violated her rights under the Human Rights
The HRTO determined that the ARO
indeed had the jurisdiction to decide accommodation and human
rights issues, and in fact did examine the job offer from a human
rights perspective. The ARO's decision was final, and there was
the availability of an appeal process. As such, the HRTO applied
Figliola and concluded that the ARO's decision
precluded the human rights application from proceeding.
Post is a signal
that employers may well be able to rely on
Figliola to avoid having to defend the suitability
of return to work accommodation in multiple forums. However, given
how quickly human rights tribunals found exceptions to the
application of Figliola, we remain only cautiously
This past year has been marked with significant changes to employment legislation, and watershed decisions that will affect employers for years to come. We've designed this year's conference to deliver a practical and digestible review of what you need to know to manage your employees effectively.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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