Canada: Update On Re-Litigation Of Issues Before The Human Rights Tribunal Of Ontario

Last Updated: September 17 2009
Article by Brian G. Wasyliw

Most Read Contributor in Canada, September 2018

In an earlier article, we discussed Campbell v. Toronto District School Board, where the Human Rights Tribunal of Ontario considered whether it should hear matters that had already been decided by a different tribunal, body or judicial process. The Tribunal has since issued some further decisions of interest regarding Section 45.1 of the Ontario Human Rights Code (the Code), which allows the Tribunal to dismiss a complaint without a hearing. Two of these decisions are discussed below.

Jarvis v. Sheet Metal Workers International Association

In the proceeding before the Tribunal, the employee alleged that the union had discriminated against him on the basis of race in not referring certain jobs to him. The employee had previously made a similar allegation in a proceeding before the Ontario Labour Relations Board (OLRB) under Section 75 of the Labour Relations Act (LRA).

The OLRB held a consultation process to consider the complaint under Section 75 of the LRA, which resulted in the complaint being dismissed.

The union claimed before the Tribunal that the OLRB had appropriately dealt with the issues of discrimination and that the employee's application to the Tribunal should be dismissed under Section 45.1 of the Code.

The Tribunal confirmed the decision from the Campbell case and considered two central questions:

  • had another proceeding taken place?
  • how did that proceeding deal with the substance of the application now before the Tribunal?

The Tribunal quickly determined that the OLRB consultation process was a requisite proceeding, and concluded that the purpose of Section 45.1 was to avoid duplication of proceedings and re-litigation of issues. The Tribunal also concluded it should not consider whether it would have reached the same conclusion as the proceeding in question.

The Tribunal considered several factors in determining whether the allegations had been appropriately dealt with.

  1. The Tribunal said that the purpose of the LRA was to hold trade unions to certain standards and to ensure employees were treated in a fair manner. The Tribunal noted that Section 75 was, in many respects, broader than the regime contained in the Code. The OLRB's experience and expertise in discrimination in a labour relations environment also supported the application of Section 45.1 to the decision of the OLRB.
  2. The Tribunal examined whether the same questions were decided using the application of human rights principles. The Tribunal determined that the questions before the Board included the issues that were now before the Tribunal.
  3. The Tribunal considered the process that was applied by the OLRB, noting that various procedural safeguards were in place. The Tribunal also noted that the Board's consultation process was subject to judicial review.

Carlos v. 1174364 Ontario

In this case, the Tribunal was considering a previous decision of the Landlord and Tenant Board. The case was an allegation of discrimination on the grounds of sex. The tenant claimed that her landlord had issued a notice of eviction that contained sexually demeaning comments, and that the landlord had sexually harassed her.

The Tribunal concluded that the claim before the Landlord and Tenant Board did qualify as a proceeding for the purpose of Section 45.1, but said that the issues before it had not been appropriately dealt with.

On reviewing the decision of the Board, the Tribunal noted that there was nothing to suggest the Board had considered the elements of sexual solicitation or harassment. When considering Section 45.1, the Tribunal will review the other proceeding and require something indicating that the proceeding had analyzed the evidence and applied human rights principles to the allegations or evidence.

The landlord argued before the Tribunal that since the tenant had had the opportunity to raise the issues of sexual solicitation and harassment at the Board, but had not done so, the tenant should be precluded from pursuing these issues at the Tribunal. The Tribunal concluded this argument was inconsistent with the purpose of Section 45.1, which requires the Tribunal to consider whether or not the allegations in question had "appropriately been dealt with."

It will be interesting to see whether the application of Section 45.1 will be unsuccessful where a complainant has deliberately not pursued, at the previous proceeding, some of the allegations before the Tribunal. It is possible the decision in this case was impacted by the scope of the Landlord and Tenant Board where all issues of discrimination and harassment might not be addressed. In contrast, the Jarvis case above was dealing with the broad experience of the OLRB, and a statutory regime that arguably had a wider mandate regarding the interaction between unions and employees.

Lessons For Employers

These cases re-affirm the basic approach set out in the Campbell decision that the Tribunal will consider two points when determining whether to dismiss a claim under Section 45.1.

  1. Had another proceeding taken place?
  2. If so, were the allegations before the Tribunal appropriately dealt with in the other proceeding?
    1. In deciding whether the other proceeding "appropriately dealt with the substance of the application," the questions is not whether the complaint was decided correctly in the other proceeding. The Tribunal does not have to be satisfied that it would have reached the same conclusion.
    2. However, some type of examination of the decision from the other proceeding is necessary. This examination requires the Tribunal to consider whether, in essence, the complaint was dealt with in a suitable and proper manner.

Note also that proceedings will not necessarily require all of the due process protections that one would find in the Tribunal or a civil proceeding. Where an employee chooses not to pursue particular allegations that could be raised at the previous proceeding, he or she may not be prevented from raising those points at a later date before the Tribunal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions