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 relitigation 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.
- 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.
- 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.
- 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.
- Had another proceeding taken place?
- If so, were the allegations before the Tribunal appropriately dealt with in the other proceeding?
- 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.
- 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.