![](/scc-csc/scc-csc/en/7968/277348/res.do)
SUPREME
COURT OF CANADA
Between:
Workers’
Compensation Board of British Columbia
Appellant
and
Guiseppe
Figliola, Kimberley Sallis, Barry Dearden and
British
Columbia Human Rights Tribunal
Respondents
-
and -
Attorney
General of British Columbia, Coalition of BC Businesses,
Canadian
Human Rights Commission, Alberta Human Rights Commission
and
Vancouver Area Human Rights Coalition Society
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 55)
Reasons
Concurring in Result:
(paras. 56 to 99)
|
Abella J. (LeBel, Deschamps, Charron and Rothstein JJ.
concurring)
Cromwell J. (McLachlin C.J. and Binnie and Fish JJ.
concurring)
|
British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422
Workers’
Compensation Board of British Columbia Appellant
v.
Guiseppe Figliola,
Kimberley Sallis, Barry Dearden and
British
Columbia Human Rights Tribunal Respondents
and
Attorney General of British Columbia,
Coalition of BC Businesses,
Canadian Human Rights Commission,
Alberta Human Rights Commission and
Vancouver
Area Human Rights Coalition Society Interveners
Indexed as: British Columbia (Workers’ Compensation Board) v.
Figliola
2011 SCC 52
File No.: 33648.
2011: March 16; 2011: October 27.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Administrative law — Judicial review —
Standard of review — Patent unreasonableness — Injured workers receiving
compensation pursuant to British Columbia’s Workers’ Compensation Board chronic
pain policy — Workers filing appeal with Board’s Review Division claiming
policy breached s. 8 of British Columbia Human Rights Code — Board
rejecting that policy breached Human Rights Code — Workers subsequently filing
complaints with Human Rights Tribunal repeating same arguments — Human Rights
Tribunal deciding that this was appropriate question for Tribunal to determine
— What is the scope of Tribunal’s discretion to determine whether the substance
of a complaint has been “appropriately dealt with” when two bodies share
jurisdiction over human rights — Whether exercise of discretion by Tribunal was
patently unreasonable — Human Rights Code, R.S.B.C. 1996, c. 210, ss. 8,
27(1) — Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59.
The complainant
workers suffered from chronic pain and sought compensation from British
Columbia’s Workers’ Compensation Board. Pursuant to the Board’s chronic pain
policy, they received a fixed compensation award. They appealed to the Board’s
Review Division, arguing that a policy which set a fixed award for chronic pain
was patently unreasonable, unconstitutional and discriminatory on the grounds
of disability under s. 8 of the British Columbia Human Rights Code (“Code”).
The Review Officer accepted that he had jurisdiction over the Human Rights
Code complaint and concluded that the Board’s chronic pain policy was not
contrary to s. 8 of the Code and therefore not discriminatory.
The complainants appealed this decision to the Workers’
Compensation Appeal Tribunal (“WCAT”). Before the appeal was heard, the
legislation was amended removing WCAT’s authority to apply the Code.
Based on the amendments, the complainants’ appeal of the Review Officer’s human
rights conclusions could not be heard by WCAT, but judicial review remained
available. Instead of applying for judicial review, the complainants filed new
complaints with the Human Rights Tribunal, repeating the same s. 8 arguments
about the Board’s chronic pain policy that they had made before the Review
Division.
The Workers’ Compensation Board brought a motion asking
the Tribunal to dismiss the new complaints, arguing that under s. 27(1)(a)
of the Code, the Tribunal had no jurisdiction, and that under
s. 27(1)(f) of the Code, the complaints had already been
“appropriately dealt with” by the Review Division. The Tribunal rejected both
arguments and found that the issue raised was an appropriate question for the
Tribunal to consider and that the parties to the complaints should receive the
benefit of a full Tribunal hearing. On judicial review, the Tribunal’s
decision was set aside. The Court of Appeal, however, concluded that the Tribunal’s
decision was not patently unreasonable and restored its decision.
Held: The appeal should be allowed, the Tribunal’s decision
set aside and the complaints dismissed.
Per LeBel, Deschamps, Abella, Charron and
Rothstein JJ.: Section 27(1)(f) of the
Code is the statutory reflection of the
collective principles underlying the doctrines of issue estoppel, collateral
attack and abuse of process — doctrines used by the common law as vehicles to
transport and deliver to the litigation process principles of finality, the
avoidance of multiplicity of proceedings, and protection for the integrity of
the administration of justice, all in the name of fairness.
Read
as a whole, s. 27(1)(f) does not codify these actual doctrines or their
technical explications, it embraces their underlying principles. As a result,
the Tribunal should be guided less by precise doctrinal catechisms and more by
the goals of the fairness of finality in decision‑making and the
avoidance of the relitigation of issues already decided by a decision‑maker
with the authority to resolve them. Relying on these principles will lead the
Tribunal to ask itself whether there was concurrent jurisdiction to decide the
issues; whether the previously decided legal issue was essentially the same as
what is being complained of to the Tribunal; and whether there was an
opportunity for the complainants or their privies to know the case to be met
and have the chance to meet it, regardless of how closely the previous process
procedurally mirrored the one the Tribunal prefers or uses itself. All of
these questions go to determining whether the substance of a complaint has been
“appropriately dealt with” under s. 27(1)(f). The Tribunal’s strict
adherence to the application of issue estoppel was an overly formalistic
interpretation of s. 27(1)(f), particularly of the phrase “appropriately
dealt with”, and had the effect of obstructing rather than implementing the
goal of avoiding unnecessary relitigation.
Section 27(1)(f)
does not represent a statutory invitation either to judicially review another
tribunal’s decision, or to reconsider a legitimately decided issue in order to
explore whether it might yield a different outcome. The section is oriented
instead towards creating territorial respect among neighbouring tribunals,
including respect for their right to have their own vertical lines of review
protected from lateral adjudicative poaching. When an adjudicative body
decides an issue within its jurisdiction, it and the parties who participated
in the process are entitled to assume that, subject to appellate or judicial
review, its decision will not only be final, it will be treated as such by
other adjudicative bodies.
The
discretion in s. 27(1)(f) was intended to be limited. This is based not
only on the language of s. 27(1)(f) and the legislative history, but also
on the character of the other six categories of complaints in s. 27(1),
all of which refer to circumstances that make hearing the complaint
presumptively unwarranted, such as complaints that are not within the
Tribunal’s jurisdiction, allege acts or omissions that do not contravene the Code,
have no reasonable prospect of success, would not be of any benefit to the
complainant or further the purposes of the Code, or are made for
improper motives or bad faith.
What the complainants in this case were trying to do is relitigate in
a different forum. Rather than challenging the Review Officer’s decision
through the available review route of judicial review, they started fresh
proceedings before a different tribunal in search of a more favourable result.
This strategy represented a “collateral appeal” to the Tribunal, the very
trajectory that s. 27(1)(f) and the common law doctrines were
designed to prevent. The Tribunal’s analysis made it complicit in this
attempt to collaterally appeal the merits of the Board’s decision and decision‑making
process. Its analysis represents a litany of factors having
to do with whether it was comfortable with the process and merits of the Review
Officer’s decision: it questioned whether the Review Division’s process met
the necessary procedural requirements; it criticized the Review Officer for the
way he interpreted his human rights mandate; it held that the decision of the
Review Officer was not final; it concluded that the parties were not the same
before the Workers’ Compensation Board as they were before the Tribunal; and it
suggested that Review Officers lacked expertise in interpreting or applying the
Code.
The
standard of review designated under s. 59 of the Administrative
Tribunals Act is patent unreasonableness. Because the Tribunal based its
decision to proceed with these complaints and have them relitigated on
predominantly irrelevant factors and ignored its true mandate under
s. 27(1)(f), its decision is patently unreasonable.
Per
McLachlin C.J. and Binnie, Fish and Cromwell JJ.: Both the common law and in particular s. 27(1)(f) of the Code
are intended to achieve the necessary balance between finality and fairness
through the exercise of discretion. It is this balance which is at the heart
of both the common law finality doctrines and the legislative intent in
enacting s. 27(1)(f). A narrow interpretation of the Tribunal’s
discretion under s. 27(1)(f) does not reflect the clear legislative intent
in enacting the provision. Rather, s. 27(1)(f)
confers, in very broad language, a flexible discretion on the Human Rights
Tribunal to enable it to achieve that balance in the multitude of contexts in
which another tribunal may have dealt with a point of human rights law.
The
grammatical and ordinary meaning of the words of s. 27(1)(f) support an
expansive view of the discretion, not a narrow one. Nor can it be suggested
that s. 27(1)(f) be read narrowly because of the character of the other
six categories of discretion conferred by s. 27(1). The provision’s
legislative history also confirms that it was the Legislature’s intent to
confer a broad discretion to dismiss or not to dismiss where there had been an
earlier proceeding. The intent was clearly to broaden, not to narrow, the
range of factors which a tribunal could consider.
The Court’s jurisprudence recognizes that, in
the administrative law context, common law finality doctrines must be applied
flexibly to maintain the necessary balance between finality and fairness.
This is done through the exercise of discretion taking into account a wide
variety of factors which are sensitive to the particular administrative law
context in which the case arises and to the demands of substantial justice in
the particular circumstances of each case. Finality and requiring parties to
use the most appropriate mechanisms for review are of course important
considerations. But they are not the only, or even the most important
considerations. The need for this necessarily broader discretion in applying
the finality doctrines in the administrative law setting is well illustrated by
the intricate and changing procedural context in which the complainants found
themselves in this case and underlines the wisdom of applying finality
doctrines with considerable flexibility in the administrative law setting. The
most important consideration is whether giving the earlier proceeding final and
binding effect will work an injustice. If there is substantial injustice, or a
serious risk of it, poor procedural choices by the complainant should generally
not be fatal to an appropriate consideration of his or her complaint on its
merits.
In
this case, the Tribunal’s decision not to dismiss the complaint under s. 27(1)(f)
was patently unreasonable. While the Tribunal was entitled to take into
account the alleged procedural limitations of the proceedings before the Review
Officer, it committed a reversible error by basing its decision on the alleged
lack of independence of the Review Officer and by ignoring the potential
availability of judicial review to remedy any procedural defects. More
fundamentally, it failed to consider whether the substance of the complaint had
been addressed and thereby failed to take this threshold statutory requirement
into account. This requires looking at such factors as the issues raised in
the earlier proceedings; whether those proceedings were fair; whether the
complainant had been adequately represented; whether the applicable human
rights principles had been canvassed; whether an appropriate remedy had been
available and whether the complainant chose the forum for the earlier
proceedings. This flexible and global assessment seems to be exactly the sort
of approach called for by s. 27(1)(f). The Tribunal also failed to have
regard to the fundamental fairness or otherwise of the earlier proceeding. All
of this led the Tribunal to give no weight at all to the interests of finality
and to largely focus instead on irrelevant considerations of whether the strict
elements of issue estoppel were present.
The
appeal should be allowed and the application of the Workers’ Compensation Board
under s. 27(1)(f) should be remitted to the Tribunal for reconsideration.
Cases Cited
By Abella J.
Referred
to: Tranchemontagne v.
Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; British
Columbia (Ministry of Competition, Science & Enterprise) v. Matuszewski,
2008 BCSC 915, 82 Admin. L.R. (4th) 308; Danyluk v. Ainsworth Technologies
Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Workers’ Compensation Appeal
Tribunal (B.C.) v. Hill, 2011 BCCA 49, 299 B.C.A.C. 129; Berezoutskaia
v. Human Rights Tribunal (B.C.), 2006 BCCA 95, 223 B.C.A.C. 71; Hines v.
Canpar Industries Ltd., 2006 BCSC 800, 55 B.C.L.R. (4th) 372; Boucher
v. Stelco Inc., 2005 SCC 64, [2005] 3 S.C.R. 279; Rocois Construction
Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440; Angle v. Minister of
National Revenue, [1975] 2 S.C.R. 248; Canada (Attorney General) v.
TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Garland v. Consumers’
Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; Toronto (City) v. C.U.P.E.,
Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; R. v. Mahalingan, 2008
SCC 63, [2008] 3 S.C.R. 316; Rasanen v. Rosemount Instruments Ltd.
(1994), 112 D.L.R. (4th) 683; Nova Scotia (Workers’ Compensation Board) v.
Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Council of Canadians with
Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650.
By Cromwell J.
Referred to: Danyluk v.
Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Toronto
(City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; British
Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998),
50 B.C.L.R. (3d) 1; Tranchemontagne v. Ontario (Director, Disability Support
Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo
Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Becker v. Cariboo Chevrolet
Oldsmobile Pontiac Buick GMC Ltd., 2006 BCSC 43, 42 Admin. L.R. (4th) 266; Weber
v. Ontario Hydro, [1995] 2 S.C.R. 929; Villella v. Vancouver (City),
2005 BCHRT 405, [2005] B.C.H.R.T.D. No. 405 (QL); Schweneke v. Ontario
(2000), 47 O.R. (3d) 97; Workers’ Compensation Appeal Tribunal (B.C.) v.
Hill, 2011 BCCA 49, 299 B.C.A.C. 129; Allman v.
Amacon Property Management Services Inc., 2007 BCCA
302, 243 B.C.A.C. 52.
Statutes and Regulations Cited
Administrative Tribunals Act, S.B.C.
2004, c. 45, ss. 44, 59.
Attorney General Statutes Amendment Act, 2007, S.B.C. 2007, c. 14, s. 3.
Canadian Charter of Rights and Freedoms,
s. 15 .
Civil Code of Québec, S.Q. 1991,
c. 64, art. 2848.
Human Rights Amendment Act, 1995, S.B.C.
1995, c. 42.
Human Rights Code, R.S.B.C. 1996,
c. 210, ss. 8, 25(2) [rep. & sub. 2002, c. 62,
s. 11], (3) [rep. idem], 27(1), (2) [rep. & sub. idem,
s. 12].
Human Rights Code Amendment Act, 2002,
S.B.C. 2002, c. 62.
Workers Compensation Act, R.S.B.C. 1996,
c. 492, ss. 96.4(2), 99, 245 to 250, 251.
Authors Cited
British Columbia. Official Report of Debates of the Legislative
Assembly (Hansard), vol. 9, 3rd Sess., 37th Parl., October 28,
2002, p. 4094.
British Columbia. Official Report of Debates of the Legislative
Assembly (Hansard), vol. 21, 3rd Sess., 38th Parl., May 16, 2007,
pp. 8088‑93.
British Columbia. Official Report of Debates of the Legislative
Assembly (Hansard), vol. 21, 4th Sess., 35th Parl., June 22, 1995,
p. 16062.
British Columbia. Workers’ Compensation Board. Rehabilitation
Services and Claims Manual, vols. I and II, updated June 2011 (online: http://www.worksafebc.com/publications/policy_manuals/rehabilitation_services_and_claims_manual/default.asp).
Lange, Donald J. The Doctrine of Res Judicata in Canada,
3rd ed. Markham, Ont.: LexisNexis Canada, 2010.
Lovett, Deborah K., and Angela R. Westmacott. “Human
Rights Review: A Background Paper”, prepared for Administrative Justice
Project, Ministry of Attorney General of British Columbia, 2001 (online: http://www.llbc.leg.bc.ca/public/PubDocs/bcdocs/350060/hrr.pdf).
APPEAL
from a judgment of the British Columbia Court of Appeal (Huddart, Frankel and
Tysoe JJ.A.), 2010 BCCA 77, 2 B.C.L.R. (5th) 274, 316 D.L.R. (4th) 648, 284
B.C.A.C. 50, 481 W.A.C. 50, 3 Admin. L.R. (5th) 49, [2010] B.C.J. No. 259
(QL), 2010 CarswellBC 330, setting
aside a decision of Stromberg‑Stein J., 2009 BCSC 377, 93 B.C.L.R.
(4th) 384, 96 Admin. L.R. (4th) 250, [2009] B.C.J. No. 554 (QL), 2009
CarswellBC 737. Appeal allowed.
Scott A. Nielsen and Laurel Courtenay, for the appellant.
Lindsay Waddell, James
Sayre and Kevin Love, for the respondents Guiseppe Figliola,
Kimberley Sallis and Barry Dearden.
Jessica M. Connell and Katherine Hardie, for the respondent the British
Columbia Human Rights Tribunal.
Jonathan G. Penner, for the intervener the Attorney General of British Columbia.
Peter A. Gall, Q.C.,
and Nitya Iyer, for the intervener the Coalition of BC Businesses.
Sheila Osborne‑Brown and Philippe Dufresne, for the intervener the Canadian Human
Rights Commission.
Janice R. Ashcroft, for the intervener the Alberta Human Rights Commission.
Ryan D. W. Dalziel, for the intervener the Vancouver Area Human Rights Coalition
Society.
The judgment
of LeBel, Deschamps, Abella, Charron and Rothstein JJ. was delivered by
[1]
Abella J. — Litigants hope to have their legal issues resolved as equitably
and expeditiously as possible by an authoritative adjudicator. Subject only to
rights of review or appeal, they expect, in the interests of fairness, to be
able to rely on the outcome as final and binding. What they do not expect is
to have those same issues relitigated by a different adjudicator in a different
forum at the request of a losing party seeking a different result. On the
other hand, it may sometimes be the case that justice demands fresh litigation.
[2]
In British Columbia, there is legislation giving
the Human Rights Tribunal a discretion to refuse to hear a complaint if the
substance of that complaint has already been appropriately dealt with in
another proceeding. The issue in this appeal is how that discretion ought to
be exercised when another tribunal with concurrent human rights jurisdiction
has disposed of the complaint.
Background
[3]
Guiseppe Figliola, Kimberley Sallis, and Barry
Dearden suffered from chronic pain. Mr. Figliola suffered a lower back injury
while trying to place a sixty-pound, steel airshaft in the centre of a roll of
paper. Ms. Sallis fell down a set of slippery stairs while delivering letters
for Canada Post. Mr. Dearden, who also worked for Canada Post, developed back
pain while delivering mail.
[4]
Each of them sought compensation from the
British Columbia’s Workers’ Compensation Board for, among other things, their
chronic pain. The employers were notified in each case.
[5]
The Board’s chronic pain policy, set by its
board of directors, provided for a fixed award for such pain:
Where a Board officer determines that a
worker is entitled to [an] award for chronic pain . . . an award equal to 2.5%
of total disability will be granted to the worker.
(Rehabilitation
Services and Claims Manual, vol. I, Policy No. 39.01, Chronic Pain, at
para. 4(b); later replaced by vol. II, Policy No. 39.02, Chronic Pain
(online).)
[6]
Pursuant to this policy, the complainants
received a fixed compensation award amounting to 2.5% of total disability for
their chronic pain. The Workers’ Compensation Board expresses partial
disability as a percentage of the disability suffered by a completely disabled
worker. This is intended to reflect “the extent to which a particular injury
is likely to impair a worker’s ability to earn in the future” (Rehabilitation
Services and Claims Manual, vol. II, Policy No. 39.00).
[7]
Each complainant appealed to the Board’s Review
Division, arguing that a policy which set a fixed award for chronic pain was
patently unreasonable, unconstitutional under s. 15 of the Canadian Charter
of Rights and Freedoms , and discriminatory on the grounds of disability
under s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210.
[8]
At the Review Division, the Review Officer, Nick
Attewell, found that only the Workers’ Compensation Appeal Tribunal (“WCAT”)
had the authority to scrutinize policies for patent unreasonableness. He also
concluded that, since the combination of s. 44 of the Administrative
Tribunals Act, S.B.C. 2004, c. 45 (“ATA”), and s. 245.1 of the Workers
Compensation Act, R.S.B.C. 1996, c. 492, expressly deprived the WCAT
of jurisdiction over constitutional questions, this meant that he too had no
such jurisdiction.
[9]
The Review Officer accepted that he had
jurisdiction over the Human Rights Code complaint. This authority
flowed from this Court’s decision in Tranchemontagne v. Ontario (Director, Disability
Support Program), 2006 SCC
14, [2006] 1 S.C.R. 513, where the majority concluded that human rights
tribunals did not have exclusive jurisdiction over human rights cases and that
unless there was statutory language to the contrary,
other tribunals had concurrent jurisdiction to apply human rights legislation.
[10]
In careful and thorough reasons, the Review Officer concluded
that the Board’s chronic pain policy was not contrary to s. 8
of the Code and therefore not discriminatory.
[11]
The complainants appealed Mr. Attewell’s
decision to the WCAT. Before the appeal was heard, the B.C. legislature
amended the Administrative Tribunals Act and the Workers Compensation
Act, removing the WCAT’s authority to apply the Code (Attorney
General Statutes Amendment Act, 2007, S.B.C. 2007, c. 14). The
effect of this amendment on a Review Officer’s authority to address the Code
is not before us and was not argued by any of the parties.
[12]
Based on the amendments, the complainants’
appeal of the Review Officer’s human rights conclusions could not be heard by the
WCAT, but judicial review remained available. Instead of applying for judicial
review, however, the complainants filed new complaints with the Human Rights
Tribunal, repeating the same s. 8 arguments about the Board’s chronic pain
policy that they had made before the Review Division. They did not proceed
with their appeal to the WCAT from the conclusions of the Review Officer
dealing with whether he had jurisdiction to find the chronic pain policy to be
patently unreasonable.
[13]
The Workers’ Compensation Board brought a motion
asking the Tribunal to dismiss the new complaints, arguing that under s.
27(1)(a) of the Code, the Tribunal had no jurisdiction, and that
under s. 27(1)(f), the complaints had already been appropriately dealt with by
the Review Division. Those provisions state:
27 (1) A member or panel may, at any time after a complaint is
filed and with or without a hearing, dismiss all or part of the complaint if
that member or panel determines that any of the following apply:
(a) the
complaint or that part of the complaint is not within the jurisdiction of the
tribunal;
. . .
(f) the substance of the
complaint or that part of the complaint has been appropriately dealt with in
another proceeding;
[14]
The Tribunal rejected both arguments (2008 BCHRT
374 (CanLII)). Of particular relevance, it did not agree that the complaints
should be dismissed under s. 27(1)(f). Citing British Columbia (Ministry of
Competition, Science & Enterprise) v.
Matuszewski, 2008 BCSC 915, 82 Admin.
L.R. (4th) 308, and relying on this Court’s decision in
Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, the Tribunal
concluded that “the substance of the Complaints was not
appropriately dealt with in the review process. . . . [T]he issue raised is an
appropriate question for the Tribunal to consider and the parties to the
Complaints should receive the benefit of a full Tribunal hearing” (para. 50).
[15]
On judicial review, the Tribunal’s decision was
set aside by Justice Stromberg-Stein (2009 BCSC 377, 93 B.C.L.R. (4th) 384).
She concluded that the same issues had already been “conclusively decided” by
the Review Officer and that the Tribunal had failed to take into proper account the principles of res judicata,
collateral attack, and abuse of process (paras. 40 and 54). She found that for
the Tribunal to proceed would be a violation of the principles of consistency,
finality and the integrity of the administration of justice. In her view, the
complaints to the Tribunal were merely a veiled attempt to circumvent judicial
review:
The Tribunal would be ruling on the correctness
of the Review Division decision. That is not the role of the Tribunal and to
do so constitutes an abuse of process. [para. 56]
[16]
As for which standard of review applied, her
view was that the Tribunal’s decision ought to be set aside whether the
standard was correctness or patent unreasonableness.
[17]
The Court of Appeal restored the Tribunal’s
decision (2010 BCCA 77, 2 B.C.L.R. (5th) 274). It interpreted s. 27(1)(f) as
reflecting the legislature’s intention to confer jurisdiction on the Tribunal
to adjudicate human rights complaints even when the same issue had previously
been dealt with by another tribunal. This did not represent the Tribunal
exercising appellate review over the other proceeding, it flowed from the
Tribunal’s role in determining whether the previous proceeding had
substantively addressed the human rights issues.
[18]
On the question of the standard of review, the
Court of Appeal concluded that the issue revolved around s. 27(1)(f). Since a
decision under s. 27(1)(f) is discretionary, the appropriate standard according
to the jurisprudence is patent unreasonableness: see Workers’
Compensation Appeal Tribunal (B.C.) v. Hill, 2011 BCCA 49, 299 B.C.A.C.
129; Berezoutskaia v. Human Rights Tribunal (B.C.), 2006 BCCA 95, 223
B.C.A.C. 71; Hines v. Canpar Industries Ltd., 2006 BCSC 800, 55 B.C.L.R. (4th) 372; and Matuszewski.
This was based on s. 59(3) of the ATA, which sets out the relevant
standard, and on s. 59(4), which sets out a number of indicia:
59 (1) In a judicial review proceeding, the standard of review to
be applied to a decision of the tribunal is correctness for all questions except
those respecting the exercise of discretion, findings of fact and the
application of the common law rules of natural justice and procedural fairness.
. . .
(3) A court must not set aside a
discretionary decision of the tribunal unless it is patently unreasonable.
(4) For the purposes of subsection (3),
a discretionary decision is patently unreasonable if the discretion
(a) is
exercised arbitrarily or in bad faith,
(b) is
exercised for an improper purpose,
(c) is
based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory
requirements into account.
[19]
The Court of Appeal concluded that the
Tribunal’s decision was not patently unreasonable.
[20]
I agree with the conclusion that, based on the
directions found in s. 59(3) of the ATA, the Tribunal’s decision is to
be reviewed on a standard of patent unreasonableness. In my respectful view,
however, I see the Tribunal’s decision not to dismiss the complaints in these
circumstances as reaching that threshold.
Analysis
[21]
The question of jurisdiction is not seriously at
issue in this appeal. Since Tranchemontagne, tribunals
other than human rights commissions have rightly assumed that, absent
legislative intent to the contrary, they have concurrent jurisdiction to apply
human rights legislation. That means that at the time these
complaints were brought, namely, before the amendments to the ATA removed
the WCAT’s human rights jurisdiction, both the Workers’ Compensation Board and
the Human Rights Tribunal had ostensible authority to hear human rights
complaints. Since the complainants brought their complaints to the Board, and
since either the Board or the Tribunal was entitled to hear the issue, the
Board had jurisdiction when it decided the complainants’ human rights issues. But
based on their concurrent jurisdiction when this complaint was brought to the
Board, there is no serious question that the Tribunal, in theory, also had
authority over these human rights complaints. This means that s. 27(1)(a) of
the Code is not in play.
[22]
The question then arises: when two bodies share
jurisdiction over human rights, what ought to guide the Tribunal under s.
27(1)(f) in deciding when to dismiss all or part of a complaint that has
already been decided by the other tribunal?
[23]
In Matuszewski, Pitfield J. explored the contours and
concepts of this provision. In that case, the collective agreement had banned
the accrual of seniority while an employee was on long-term disability.
The union grieved, alleging that the provision was discriminatory. The
arbitrator concluded that it was not. The union did not seek judicial review
from the arbitrator’s decision. One of the employees in the bargaining unit
filed a complaint with the Human Rights Tribunal alleging that the same
collective agreement provision was discriminatory. The Human Rights Tribunal
refused to dismiss this fresh complaint.
[24]
On judicial review of the Tribunal’s decision, Pitfield J.
concluded that the Tribunal’s refusal to dismiss the complaint was patently
unreasonable. In his view, s. 27(1)(f) is the statutory mechanism through
which the Tribunal can prevent conflicting decisions arising from the same
issues. This flows from the concurrent jurisdiction exercised over the Code
by the Tribunal and other tribunals. While s. 27(1)(f) does not call for a
strict application of the doctrines of issue estoppel, collateral attack, or
abuse of process, the principles underlying all three of these doctrines are
“factors of primary importance that must be taken into account when exercising
discretion under s. 27(1)(f) of the Human Rights Code to proceed, or to
refrain from proceeding, with the hearing of a complaint” (para. 31).
[25]
I agree with Pitfield J.’s conclusion that s. 27(1)(f) is the
statutory reflection of the collective principles underlying those doctrines,
doctrines used by the common law as vehicles to transport and deliver to the
litigation process principles of finality, the avoidance of multiplicity of
proceedings, and protection for the integrity of the administration of justice,
all in the name of fairness. They are vibrant principles in the civil law as
well (Civil Code of Québec, S.Q. 1991, c. 64, art. 2848; Boucher v. Stelco Inc., 2005 SCC 64,
[2005] 3 S.C.R. 279; Rocois Construction Inc. v. Québec Ready Mix Inc.,
[1990] 2 S.C.R. 440, at p. 448).
[26]
As a result, given that multiple tribunals
frequently exercise concurrent jurisdiction over the same issues, it is
not surprising that the common law doctrines also find expression in the
administrative law context through statutory mechanisms such as s. 27(1)(f). A
brief review of these doctrines, therefore, can be of assistance in
better assessing whether their underlying principles have been respected in
this case.
[27]
The three preconditions of issue estoppel are
whether the same question has been decided; whether the earlier decision was
final; and whether the parties, or their privies, were the same in both
proceedings (Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248,
at p. 254). These concepts were most recently examined by this Court in Danyluk,
where Binnie J. emphasized the importance of finality
in litigation: “A litigant . . . is only entitled to one bite at the cherry. .
. . Duplicative litigation, potential inconsistent results, undue costs, and
inconclusive proceedings are to be avoided” (para. 18). Parties should
be able to rely particularly on the conclusive nature of administrative
decisions, he noted, since administrative regimes are designed to facilitate
the expeditious resolution of disputes (para. 50). All of this is guided by
the theory that “estoppel is a doctrine of public policy that is designed to
advance the interests of justice” (para. 19).
[28]
The rule against collateral attack similarly
attempts to protect the fairness and integrity of the justice system by
preventing duplicative proceedings. It prevents a party from using an
institutional detour to attack the validity of an order by seeking a different
result from a different forum, rather than through the designated appellate or
judicial review route: see Canada (Attorney General) v. TeleZone Inc.,
2010 SCC 62, [2010] 3 S.C.R. 585, and Garland v. Consumers’ Gas Co.,
2004 SCC 25, [2004] 1 S.C.R. 629.
[29]
Both collateral attack and res judicata
received this Court’s attention in Boucher. The Ontario Superintendent
of Pensions had ordered and approved a partial wind-up report according to
which members of the plan employed in Quebec were not to receive early retirement
benefits, due to the operation of Quebec law. The employees were notified, but
chose not to contest the Superintendent’s decision to approve the report.
Instead, several of them started an action against their employer in the Quebec
Superior Court claiming their entitlement to early retirement benefits. LeBel
J. rejected the employees’ claim. Administrative law, he noted, has review
mechanisms in place for reducing error or injustice. Those are the mechanisms
parties should use. The decision to pursue a court action instead of judicial
review resulted in “an impermissible collateral attack on the Superintendent’s
decision”:
Modern adjective law and administrative law have
gradually established various appeal mechanisms and sophisticated judicial
review procedures, so as to reduce the chance of errors or injustice. Even so,
the parties must avail themselves of those options properly and in a timely
manner. Should they fail to do so, the case law does not in most situations
allow collateral attacks on final decisions . . . . [para. 35]
[30]
In other words, the harm to the justice system
lies not in challenging the correctness or fairness of a judicial or
administrative decision in the proper forums, it comes from inappropriately
circumventing them (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,
[2003] 3 S.C.R. 77, at para. 46).
[31]
And finally, we come to the doctrine of abuse of
process, which too has as its goal the protection of the fairness and integrity
of the administration of justice by preventing needless multiplicity of
proceedings, as was explained by
Arbour J. in Toronto (City). The case involved a recreation instructor who was convicted of
sexually assaulting a boy under his supervision and was fired after his
conviction. He grieved the dismissal. The arbitrator decided that the
conviction was admissible evidence but not binding on him. As a result, he
concluded that the instructor had been dismissed without cause.
[32]
Arbour J. found that the arbitrator was wrong
not to give full effect to the criminal conviction even though neither res
judicata nor the rule against collateral attack strictly applied. Because
the effect of the arbitrator’s decision was to relitigate the conviction for
sexual assault, the proceeding amounted to a “blatant abuse of process” (para.
56).
[33]
Even where res judicata is not strictly
available, Arbour J. concluded, the doctrine of abuse of process can be
triggered where allowing the
litigation to proceed would violate principles such as “judicial economy,
consistency, finality and the integrity of the administration of justice”
(para. 37). She stressed the goals of avoiding
inconsistency and wasting judicial and private resources:
[Even]
if the same result is reached in the subsequent proceeding, the relitigation will
prove to have been a waste of judicial resources as well as an unnecessary
expense for the parties and possibly an additional hardship for some witnesses.
Finally, if the result in the subsequent proceeding is different from the
conclusion reached in the first on the very same issue, the inconsistency, in
and of itself, will undermine the credibility of the entire judicial process,
thereby diminishing its authority, its credibility and its aim of finality.
[para. 51]
(See also R. v. Mahalingan, 2008 SCC 63, [2008] 3
S.C.R. 316, at para. 106, per Charron J.)
[34]
At their heart, the foregoing doctrines exist to
prevent unfairness by preventing “abuse of the decision-making process” (Danyluk,
at para. 20; see also Garland, at para. 72, and Toronto (City),
at para. 37). Their common underlying principles can be summarized as follows:
• It is in the interests of the public and the parties
that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher,
at para. 35).
• Respect for the finality of a judicial or
administrative decision increases fairness and the integrity of the courts,
administrative tribunals and the administration of justice; on the other hand,
relitigation of issues that have been previously decided in an appropriate forum
may undermine confidence in this fairness and integrity by creating
inconsistent results and unnecessarily duplicative proceedings (Toronto
(City), at paras. 38 and 51).
• The method of challenging the validity or correctness
of a judicial or administrative decision should be through the appeal or
judicial review mechanisms that are intended by the legislature (Boucher,
at para. 35; Danyluk, at para. 74).
• Parties should not circumvent the appropriate review
mechanism by using other forums to challenge a judicial or administrative
decision (TeleZone, at para. 61; Boucher, at para. 35; Garland,
at para. 72).
• Avoiding unnecessary relitigation avoids an
unnecessary expenditure of resources (Toronto (City), at paras. 37 and
51).
[35]
These are the principles which underlie s.
27(1)(f). Singly and together, they are a rebuke to the theory that access to
justice means serial access to multiple forums, or that more adjudication
necessarily means more justice.
[36]
Read as a whole, s. 27(1)(f) does not codify the
actual doctrines or their technical explications, it embraces their underlying
principles in pursuit of finality, fairness, and the integrity of the justice
system by preventing unnecessary inconsistency, multiplicity and delay. That
means the Tribunal should be guided less by precise doctrinal catechisms and
more by the goals of the fairness of finality in decision-making and the
avoidance of the relitigation of issues already decided by a decision-maker
with the authority to resolve them. Justice is enhanced by protecting the
expectation that parties will not be subjected to the relitigation in a
different forum of matters they thought had been conclusively resolved. Forum
shopping for a different and better result can be dressed up in many attractive
adjectives, but fairness is not among them.
[37]
Relying on these underlying principles leads to
the Tribunal asking itself whether there was concurrent jurisdiction to decide
human rights issues; whether the previously decided legal issue was essentially
the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or
their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally
mirrored the one the Tribunal prefers or uses itself. All of these questions
go to determining whether the substance of a complaint has been “appropriately
dealt with”. At the end of the day, it is really a question of whether it
makes sense to expend public and private resources on the relitigation of what
is essentially the same dispute.
[38]
What I do not see s. 27(1)(f) as
representing is a statutory invitation either to “judicially review” another
tribunal’s decision, or to reconsider a legitimately decided issue in order to
explore whether it might yield a different outcome. The section is oriented
instead towards creating territorial respect among neighbouring tribunals,
including respect for their right to have their own vertical lines of review
protected from lateral adjudicative poaching. When an adjudicative body
decides an issue within its jurisdiction, it and the parties who participated
in the process are entitled to assume that, subject to appellate or judicial
review, its decision will not only be final, it will be treated as such
by other adjudicative bodies. The procedural or substantive correctness of the
previous proceeding is not meant to be bait for another tribunal with a
concurrent mandate.
[39]
I see the discretion in s. 27(1)(f), in fact, as
being limited, based not only on the language of s. 27(1)(f), but also on the
character of the other six categories of complaints in s. 27(1) in whose
company it finds itself. Section 27(1) states:
27
(1) A member or panel may, at any time after a complaint is filed and with or
without a hearing, dismiss all or part of the complaint if that member or panel
determines that any of the following apply:
(a) the
complaint or that part of the complaint is not within the jurisdiction of the
tribunal;
(b) the
acts or omissions alleged in the complaint or that part of the complaint do not
contravene this Code;
(c) there
is no reasonable prospect that the complaint will succeed;
(d) proceeding
with the complaint or that part of the complaint would not
(i) benefit
the person, group or class alleged to have been discriminated against, or
(ii) further
the purposes of this Code;
(e) the
complaint or that part of the complaint was filed for improper motives or made
in bad faith;
(f) the
substance of the complaint or that part of the complaint has been appropriately
dealt with in another proceeding;
(g) the contravention alleged
in the complaint or that part of the complaint occurred more than 6 months
before the complaint was filed unless the complaint or that part of the
complaint was accepted under section 22(3).
[40]
Each subsection in s. 27(1) refers to
circumstances that make hearing the complaint presumptively unwarranted:
complaints that are not within the Tribunal’s jurisdiction; allege acts or
omissions that do not contravene the Code; have no reasonable prospect
of success; would not be of any benefit to the complainant or further the
purposes of the Code; or are made for improper motives or in bad faith.
These are the statutory companions for s. 27(1)(f). The fact that the word
“may” is used in the preamble to s. 27(1) means that the Tribunal does have an
element of discretion in deciding whether to dismiss these complaints. But it
strikes me as counterintuitive to think that the legislature intended to give
the Tribunal a wide berth to decide, for example, whether or not to dismiss
complaints it has no jurisdiction to hear, are unlikely to succeed, or are
motivated by bad faith.
[41]
This is the context in which the words
“appropriately dealt with” in s. 27(1)(f) should be understood. All of the
other provisions with which s. 27(1)(f) is surrounded lean towards encouraging
dismissal. On its face, there is no principled basis for interpreting s.
27(1)(f) idiosyncratically from the rest of s. 27(1). I concede that the word
“appropriately” is, by itself, easily stretched into many linguistic
directions. But our task is not to define the word, it is to define it in its
statutory context so that, to the extent reasonably possible, the legislature’s
intentions can be respected.
[42]
Nor does the legislative history of s. 27(1)(f)
support the theory that the legislature intended to give the Tribunal a wide
discretion to re-hear complaints decided by other tribunals. Formerly, ss.
25(3) and 27(2) of the Code required the Tribunal to consider the
subject matter, nature, and available remedies of the earlier proceeding in
deciding whether to defer or dismiss a complaint without a hearing. These
factors were interpreted by the Human Rights Commission to include the
administrative fairness of the earlier proceeding, the expertise of the
decision-maker, which forum was more appropriate for discussing the issues, and
whether the earlier proceeding could deliver an adequate remedy, factors which
provided hurdles to the dismissal of complaints: see D. K. Lovett and A. R.
Westmacott, “Human Rights Review: A Background Paper” (2001) (online), at pp.
100-101.
[43]
The legislature removed these limiting factors
in 2002 in the Human Rights Code Amendment Act, 2002, S.B.C.
2002, c. 62. By removing factors which argued against dismissing a
complaint, the legislature may well be taken to have intended that a different
approach be taken by the Tribunal, namely, one that made it easier to dismiss
complaints. This is consistent with the statement of the then Minister of
Government Services, the Hon. U. Dosanjh, on second reading of the Human
Rights Amendment Act, 1995, S.B.C. 1995, c. 42, which included s. 22(1),
the almost identically worded predecessor to s. 27(1). While he did not
specifically refer to each of the subsections of s. 22(1) or their discrete
purposes, it is clear that his overriding objective in introducing this
legislative package, which included these provisions, was to reduce a
substantial backlog and ensure “a system . . . which will be efficient and
streamlined”:
In
this proposed legislation, you now have the power to
defer consideration of a complaint pending the outcome of another proceeding,
so that there is no unnecessary overlap in the proceedings.
.
. .
You have the power to dismiss the complaints, as I indicated, and
that has been expanded. [Emphasis added.]
(British Columbia, Official
Report of Debates of the Legislative Assembly (Hansard), vol. 21,
4th Sess., 35th Parl., June 22, 1995, at p. 16062)
[44]
This then brings us to the Tribunal’s use of the Danyluk
factors. Not only do I resist re-introducing by judicial fiat the types of
factors that the legislature has expressly removed, it is not clear to me that
the Danyluk factors even apply. They were developed to assist courts in
applying the doctrine of issue estoppel. Section 27(1)(f), on the other hand,
is not limited to issue estoppel. As Pitfield J. explained in Matuszewski,
s. 27(1)(f) does not call for the technical application of any of the common
law doctrines — issue estoppel, collateral attack or abuse of process — it
calls instead for an approach that applies their combined principles. Notably,
neither Stromberg-Stein J. nor the Court of Appeal referred to the Danyluk factors
in their respective analyses.
[45]
Moreover, importing the Danyluk factors
into s. 27(1)(f) would undermine what this Court mandated in Tranchemontagne
when it directed that, absent express language to the contrary, all
administrative tribunals have concurrent jurisdiction to apply human rights
legislation. That means that Danyluk factors such as the prior
decision-maker’s mandate and expertise, are presumed to be satisfied.
Encouraging the Tribunal to nonetheless apply a comparative mandate and
expertise approach would erode Bastarache J.’s conclusion that human rights
tribunals are not the exclusive “guardian or the gatekeeper for human rights
law” (Tranchemontagne, at para. 39).
[46]
This brings us to how the Tribunal exercised its
discretion in this case. Because I see s. 27(1)(f) as reflecting the
principles of the common law doctrines rather than the codification of
their technical tenets, I find the Tribunal’s strict adherence to the
application of issue estoppel to be an overly formalistic interpretation of the
section, particularly of the phrase “appropriately dealt with”. With respect,
this had the effect of obstructing rather than implementing the goal of
avoiding unnecessary relitigation. In acceding to the complainant’s request
for relitigation of the same s. 8 issue, the Tribunal was disregarding Arbour J.’s admonition in Toronto (City) that
parties should not try to impeach findings by the “impermissible route of
relitigation in a different forum” (para. 46).
[47]
“Relitigation in a different forum” is exactly
what the complainants in this case were trying to do. Rather than challenging
the Review Officer’s decision through the available review route of judicial
review, they started fresh proceedings before a different tribunal in search of
a more favourable result. This strategy represented, as Stromberg-Stein J.
noted, a “collateral appeal” to the Tribunal (para. 52), the very trajectory
that s. 27(1)(f) and the common law doctrines were designed to prevent:
. . . this case
simply boils down to the complainants wanting to reargue the very same issue
that has already been conclusively decided within the same factual and legal
matrix. The complainants are attempting to pursue the matter again, within an
administrative tribunal setting where there is no appellate authority by one
tribunal over the other. [para. 54]
[48]
The Tribunal’s analysis made it complicit in this attempt to
collaterally appeal the merits of the Board’s decision and decision-making
process. Its analysis represents a litany of factors having
to do with whether it was comfortable with the process and merits of the Review
Officer’s decision.
[49]
To begin, it questioned whether the Review Division’s process met
the necessary procedural requirements. This is a classic judicial review
question and not one within the mandate of a concurrent decision-maker. While
the Tribunal may inquire into whether the parties had notice of the case to be
met and were given an opportunity to respond, that does not mean that it can
require that the prior process be a procedural mimic of the Tribunal’s own,
more elaborate one. But in any event, I agree with
Stromberg-Stein J. that there were no complaints about the complainants’
ability to know the case to be met or the Board’s jurisdiction to hear it:
Each
of the complainants participated fully in the
proceedings; each knew the case to be met and had the chance to meet it. Each
of the complainants had the benefit of competent and experienced counsel who
raised the human rights issues within the workers’ compensation context. The
issues were analyzed and addressed fully by the Review Division. It was
implicit in their submissions to the Review Division that they accepted the
Review Division had full authority to decide the human rights issue. [para. 52]
(See also Rasanen
v. Rosemount Instruments Ltd. (1994), 112 D.L.R. (4th) 683 (Ont. C.A.), at
p. 705.)
As long as the complainants had a chance to air their
grievances before an authorized decision-maker, the extent to which they
received traditional “judicial” procedural trappings should not be the
Tribunal’s concern.
[50]
The Tribunal also criticized the Review Officer
for the way he interpreted his human rights mandate:
. . . the Review Officer, who, in the absence of
evidence, made findings about the appropriate comparator group, that the
dignity of the Complainants was not impacted by the Policy, and that there was
a [bona fide justification] for the Policy. There was no analysis
regarding where the onus lay in establishing a [bona fide justification]
or what the applicable interpretive principles with respect to human rights
legislation are. . . . Further, any discriminatory rule must not discriminate
more than is necessary; hence, there must be consideration given to possible
alternatives to the impugned rule which would be less discriminatory while
still achieving the objective . . . . [para. 46]
These too are precisely the kinds
of questions about the merits that are properly the subject of judicial review,
not grounds for a collateral attack by a human rights tribunal under the guise
of s. 27(1)(f).
[51]
In addition, the Tribunal held that the decision
of the Review Officer was not final. It is not clear to me what the Tribunal
was getting at. “Final” means that all available means of review or appeal
have been exhausted. Where a party chooses not to avail itself of those steps,
the decision is final. Even under the strict application of issue estoppel,
which in my view is not in any event what s. 27(1)(f) was intended to
incorporate, the Review Officer’s decision was a final one in these
circumstances. Having chosen not to judicially review the decision as they
were entitled to do, the complainants cannot then claim that because the
decision lacks “finality” they are entitled to start all over again before a
different decision-maker dealing with the same subject matter (Danyluk,
at para. 57).
[52]
The Tribunal concluded that the parties were not the same before
the Workers’ Compensation Board as they were before the Tribunal. This, the
Tribunal held, precluded the application of the doctrine of issue estoppel. This too represents the strict application of issue estoppel
rather than of the principles underlying all three common law doctrines.
Moreover, it is worth noting, as Arbour J. observed in Toronto (City),
that the absence of “mutuality” does not preclude the application of abuse of
process to avoid undue multiplicity (para. 37).
[53]
Finally, the Tribunal suggested that Review
Officers lacked expertise in interpreting or applying the Code. As previously
mentioned, since both adjudicative bodies had concurrent jurisdiction at the
time the complaint was heard and decided, this is irrelevant. Bastarache J.,
in Tranchemontagne, expressly rejected the argument that the
quasi-constitutional status of human rights legislation required that there be
an expert human rights body exercising a supervisory role over human rights
jurisprudence. As he explained, human rights legislation must be offered
accessible application to further the purposes of the Code by fostering
“a general culture of respect for human rights in the administrative system”
(paras. 33 and 39; Nova Scotia (Workers’ Compensation Board) v.
Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; and Council of Canadians with Disabilities v. VIA Rail
Canada Inc., 2007 SCC 15, [2007] 1
S.C.R. 650).
[54]
Because the Tribunal based its decision to proceed with these
complaints and have them relitigated on predominantly irrelevant factors and
ignored its true mandate under s. 27(1)(f), its decision, in my respectful
view, is patently unreasonable. Since it was patently unreasonable in large
part because it represented the unnecessary prolongation and duplication of
proceedings that had already been decided by an adjudicator with the requisite
authority, I see no point in wasting the parties’ time and resources by sending
the matter back for an inevitable result.
[55]
I would therefore allow the appeal, set aside the Tribunal’s
decision and dismiss the complaints. In accordance with the Board’s request,
there will be no order for costs.
The reasons of
McLachlin C.J. and Binnie, Fish and Cromwell JJ. were delivered by
Cromwell J. —
I.
Introduction
[56]
I agree with my colleague Abella J. that the
decision of the Human Rights Tribunal was patently unreasonable (2008 BCHRT 374
(CanLII)). However, I do not, with respect, share Abella J.’s interpretation
of the discretion conferred by s. 27(1)(f) of the Human Rights Code,
R.S.B.C. 1996, c. 210, nor do I agree with her decision not to remit the
complaints to the Tribunal.
[57]
I do not subscribe to my colleague’s
understanding of what lies at the heart of the common law finality doctrines or
of the principles underlying s. 27(1)(f) of the Human Rights Code.
Abella J. writes that what is at the heart of these finality doctrines is
preventing abuse of the decision-making process and that the discretion
conferred by s. 27(1)(f) is a limited one, concerned only with finality,
avoiding unnecessary relitigation and pursuing the appropriate review
mechanisms. I respectfully disagree.
[58]
The common law has consistently seen these
finality doctrines as being concerned with striking an appropriate balance
between the important goals of finality and fairness, more broadly considered.
Finality is one aspect of fairness, but it does not exhaust that concept or
trump all other considerations. As for s. 27(1)(f), it confers, in very broad
language, a flexible discretion on the Human Rights Tribunal to enable it to
achieve that balance in the multitude of contexts in which another tribunal may
have dealt with a point of human rights law. In my view, both the common law
and in particular s. 27(1)(f) of the Code are intended to achieve the
necessary balance between finality and fairness through the exercise of
discretion. It is this balance which is at the heart of both the common law
finality doctrines and the legislative intent in enacting s. 27(1)(f). In my
respectful view, a narrow interpretation of the Tribunal’s discretion under s.
27(1)(f) does not reflect the clear legislative intent in enacting the
provision.
[59]
I would allow the appeal and remit the Workers’
Compensation Board’s motion to dismiss the complaints under s. 27(1)(f) to the
Tribunal for reconsideration in light of the principles I set out.
II.
Analysis
A. Common Law Finality Doctrines
[60]
The leading authorities from this Court on the
application of finality doctrines in the administrative law context are Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, and Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,
[2003] 3 S.C.R. 77. Both emphasized the importance of balance and discretion in
applying these finality doctrines.
[61]
In Danyluk, the question was whether Ms.
Danyluk’s court action for damages for wrongful dismissal was barred by issue
estoppel arising from an adverse decision of an employment standards officer.
Writing for a unanimous Court, Binnie J. noted that while finality is a
compelling consideration, issue estoppel is a public policy doctrine designed
to advance the interests of justice (para. 19). He noted that the common law
finality doctrines of cause of action estoppel, issue estoppel, and collateral
attack have been extended to the decisions of administrative officers.
Importantly, however, he added that in the administrative law context, “the
more specific objective [of applying these doctrines] is to balance fairness to
the parties with the protection of the administrative decision-making process”
(para. 21). Thus, even when the traditional elements of the finality doctrines
are present, the court must go on to exercise a discretion as to whether or not
to allow the claim to proceed. He noted that this discretion existed even when
the estoppel was alleged to arise from a court decision, but added that such
discretion “is necessarily broader in relation to the prior decisions of
administrative tribunals because of the enormous range and diversity of the
structures, mandates and procedures of administrative decision makers”: para.
62 (emphasis added); see also D. J. Lange, The Doctrine of Res Judicata in
Canada (3rd ed. 2010), at pp. 227-29. Binnie J. quoted Finch J.A. (as he
then was) to the effect that “[t]he doctrine of issue estoppel is designed as
an implement of justice, and a protection against injustice. It inevitably
calls upon the exercise of a judicial discretion to achieve fairness according
to the circumstances of each case”: British Columbia (Minister of Forests)
v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.), at
para. 32, cited in Danyluk, at para. 63. Binnie J. then held that it is
“an error of principle not to address the factors for and against the exercise
of the discretion . . . . The objective is to ensure that the operation of
issue estoppel promotes the orderly administration of justice but not at the
cost of real injustice” (paras. 66-67).
[62]
To assist decision-makers in achieving the
appropriate balance, the Court set out a detailed (although non-exhaustive)
list of factors for a court to consider when exercising its discretion: the
wording of the statute from which the power to issue the administrative order
derives; the purpose of the legislation; the availability of an appeal; the
safeguards available to the parties in the administrative procedure; the
expertise of the administrative decision-maker; the circumstances giving rise
to the prior administrative proceedings; and the potential injustice (Danyluk,
at paras. 68-80). I note in passing that this list reflects a much broader
conception of the discretion at common law than my colleague Abella J.
envisions under s. 27(1)(f). The three factors to be considered set out at
para. 37 of her reasons are limited to whether the previous decision-maker had
concurrent authority to decide the matter, whether the issue was essentially
the same and whether in the earlier proceeding the parties (or their privies)
had an opportunity to know the case and have a chance to meet it.
[63]
Nothing would be served by my reviewing the Danyluk
factors in detail. It is particularly noteworthy, however, that in that case,
the Court refused to apply issue estoppel even though Ms. Danyluk, represented
by counsel, had not pursued an administrative review of the employment
standards officer’s decision and that her claim of substantial injustice turned
largely on the facts that she had received neither notice of the employer’s
allegation nor an opportunity to respond (para. 80). Also of importance was
that the legislation did not view the employment standards proceedings as an
exclusive forum for complaints of this nature (para. 69). To characterize Danyluk
as simply emphasizing the importance of finality in litigation is an incomplete
account of the Court’s approach in that case.
[64]
I turn next to Toronto (City) v. C.U.P.E.,
Local 79. It concerned the role of the abuse of process doctrine when an
arbitrator reviewing an employee’s dismissal decided to make his own assessment
of the facts relating to the conduct giving rise to a criminal conviction and
on which the dismissal was based. Front and centre in Arbour J.’s analysis (on
behalf of a unanimous Court on this point) was the importance of maintaining a
“judicial balance between finality, fairness, efficiency and authority of
judicial decisions” (para. 15). Referring to Danyluk, she acknowledged
that there are many circumstances in which barring relitigation would create
unfairness and held that “[t]he discretionary factors that apply to prevent the
doctrine of issue estoppel from operating in an unjust or unfair way are
equally available to prevent the doctrine of abuse of process from achieving a
similar undesirable result” (para. 53). She thus emphasized the importance of
maintaining a balance between fairness and finality and the need for a flexible
discretion to ensure that this is done.
[65]
I conclude that the Court’s jurisprudence
recognizes that, in the administrative law context, common law finality
doctrines must be applied flexibly to maintain the necessary balance between
finality and fairness. This is done through the exercise of discretion, taking
into account a wide variety of factors which are sensitive to the particular
administrative law context in which the case arises and to the demands of
substantial justice in the particular circumstances of each case. Finality and
requiring parties to use the most appropriate mechanisms for review are of
course important considerations. But they are not the only, or
even the most important considerations.
[66]
The need for this “necessarily broader”
discretion (to use Binnie J.’s words at para. 62 of Danyluk) in applying
the finality doctrines in the administrative law setting is well illustrated by
the intricate and changing procedural context in which the complainant workers
found themselves in this case. I will use the facts of Mr. Figliola’s
case as an example.
[67]
As a result of a workplace injury, Mr.
Figliola received a 3.5% functional disability award from the Workers’
Compensation Board, consisting of 1% for lumbar spine and 2.5% for chronic
pain, determined under the Board’s Policy No. 39.01. He appealed the Board’s
decision to the Review Division which is an internal appeal body. He raised
four issues. He complained that his injury had not been properly assessed under
the policy and in addition that the policy was patently unreasonable, violated
s. 15 of the Canadian Charter of Rights and Freedoms and was contrary to
the Human Rights Code.
[68]
Subject to Board practices and procedures, the
Review Officer may conduct a review as the officer considers appropriate: Workers
Compensation Act, R.S.B.C. 1996, c. 492 (“Act”), s. 96.4(2). As I
understand the record, the review in this case was a paper review on the basis
of written submissions on behalf of Mr. Figliola. His employer did not
participate and there was no oral hearing. Although the Review Officer was
undoubtedly the only appropriate forum in which to review the application of
the Board’s policy to the facts of Mr. Figliola’s case, the role of the Review
Officer with respect to his other complaints is much less clear.
[69]
With respect to Mr. Figliola’s claims that the
policy was patently unreasonable, the Review Officer found that he had no
authority at all. He noted that he was bound by s. 99 of the Act to apply a
Board policy that applied to the case. While the appeals tribunal to which
appeals lie from the Review Division had authority to consider the validity of
a policy (s. 251 of the Act), even it had no authority “to make binding
determinations as to the validity of policy. Rather, it is required to refer
to the Board of Directors its determinations and is bound by the decision of
the Board of Directors as to whether the policy should be maintained or
changed” (A.R., vol. I, at p. 6). The Review Officer reasoned that “[i]t would
be odd if [the appeals tribunal] was required to go through such a process but
the Review Division had even greater authority of considering and deciding
whether a policy was valid” (ibid.). He therefore concluded that the
Review Division had no general jurisdiction to find a policy of the Board
invalid on the basis that it was patently unreasonable.
[70]
As for Mr. Figliola’s Charter claims, the
Review Officer similarly found that he had no jurisdiction to consider them at
all. As he put it,
[a]mendments to the Act resulting from
the Administrative Tribunals Act (the “ATA”) took effect on
December 3, 2004. Those amendments stated that [the appeals tribunal] has no
jurisdiction over constitutional questions . . . . Although this
change did not specifically refer to the Review Division, the Review Division
considers that the change indicates a statutory intent that it does not have
jurisdiction over constitutional questions, including Charter questions.
[A.R., vol. I, at p. 7]
[71]
Turning finally to Mr. Figliola’s claims under
the Human Rights Code, the Review Officer relied on Tranchemontagne
v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1
S.C.R. 513, for his conclusion that he had authority to decline to apply the
policy if it conflicted with the Code, given the provision in s. 4 of
the Code that it prevails in the event of conflict with any other
enactment. If I am reading the Review Officer’s decision correctly, I
understand him to reason that his statutory obligation to apply Board policies
(s. 99 of the Act) conflicts with the Code’s prohibitions against
discrimination. However, because the Code prevails in the event of
conflict, the Review Officer can determine whether the policy is consistent
with the Code. Assuming, without deciding, that this is the correct
view and therefore that the Review Officer can assess the policy’s compliance
with the Code, there remains the question of what remedy the Review
Officer can fashion if he or she concludes that the policy is not compliant.
According to the Board’s submissions, the process that was followed at the
relevant time (although it was not formalized until later) was this: if the
Review Officer found the Code challenge had merit, he or she would not
apply the policy to the particular case. The policy itself would be referred
to the Board “for inclusion in the Policy and Research Division’s work plan as
a high priority project” (A.F., at para. 59).
[72]
As noted earlier, the Review Officer’s decisions
are appealable to the Workers’ Compensation Appeal Tribunal (“WCAT”), with
certain exclusions not relevant here. Mr. Figliola pursued such an appeal and
it was set down for an oral hearing. The WCAT, it should be noted, has
extensive authority to review the matter, including hearing evidence; it is not
simply an appeal in the usual sense (ss. 245 to 250 of the Act). However, the Administrative
Tribunals Act, S.B.C. 2004, c. 45 (“ATA”), was amended effective
October 18, 2007, removing the WCAT’s jurisdiction to apply the Code: Attorney General Statutes Amendment Act, 2007, S.B.C. 2007, c. 14, s. 3. Thus in midstream, Mr. Figliola lost
the right to a thorough, evidence-based review of the merits of the Review
Officer’s decision on the human rights issue.
[73]
The question of what this amendment did to the
Review Officer’s authority to address the Code issues is not before us.
However, the amendment taking away the WCAT’s jurisdiction would appear to
engage the same reasoning that led the Review Officer to conclude that he had
no jurisdiction with respect to the attacks on the Board’s policy as being
patently unreasonable and contrary to the Charter . As noted earlier, the
Review Officer reasoned that as the WCAT did not have this jurisdiction, it
followed that the Review Division did not have that jurisdiction either. Thus
it seems (although I need not decide the point) that the ATA amendments
taking away the WCAT’s Code jurisdiction not only took away a right of
review on the merits, but also had the effect of taking away the Review
Officer’s authority to test Board policies against the Code which he
exercised in this case. I recognize that the Board takes the opposite view,
maintaining that even though Code jurisdiction was removed from the
WCAT, a review officer may still review Board policies for consistency with the
Code. It is not my task to resolve this issue here. One thing is
certain, however. The amendments were intended to reverse the effects of the
Court’s decision in Tranchemontagne in relation to the human rights
jurisdiction of the WCAT (British
Columbia, Official Report of Debates of the Legislative Assembly (Hansard),
vol. 21, 3rd Sess., 38th Parl., May 16, 2007, at pp. 8088-93).
[74]
I simply wish to note the rather complex,
changing and at times uncertain process available in the workers’ compensation
system to address the human rights issue in this case. To my mind, this
underlines the wisdom of applying finality doctrines with considerable
flexibility in the administrative law setting. The decision that is relied on
by the Board in this case as being a final determination is in fact an internal
review decision given after a paper review in which the employer did not
participate. Whether the Review Officer had authority to consider the question
is at least debatable. (Of course, Mr. Figliola’s position before the Review
Officer was that he did have authority.) The remedy available in the
proceedings was a decision not to apply the policy and refer it to the Board
for study. At the time Mr. Figliola raised the point before the Review
Officer, there was a right of appeal to the WCAT which included the opportunity
to call evidence. In the midst of the proceedings, that right was removed and
indeed the whole authority of the WCAT to even consider Code issues was
removed. It surely cannot be said that there was any legislative intent that
the Review Officer was to have exclusive jurisdiction over the human rights
questions.
[75]
It seems to me that whether a Review Officer’s
decision in these circumstances should bar any future consideration by the
Human Rights Tribunal of the underlying human rights complaint cannot properly
be addressed by simply looking at the three factors identified by my colleague,
viz., whether the Review Officer had concurrent jurisdiction to decide a point
that was essentially the same as the one before the Human Rights Tribunal and
whether there had been an opportunity to know the case to meet and a chance to
meet it. There is, as Danyluk shows, a great deal more to it than
that. The kinds of complications we see in this case are not uncommon in
administrative law, although this case may present an unusually cluttered
jurisdictional and procedural landscape. The point, to my way of thinking, is
that these are the types of factors that call for a highly flexible approach to
applying the finality doctrines, a flexibility that in my view exists both at
the common law and, as I will discuss next, under s. 27(1)(f) of the Code.
B. Statutory Interpretation
[76]
My colleague is of the view that s. 27(1)(f)
confers a “limited” discretion, the exercise of which is to be guided uniquely
“by the goals of the fairness of finality in decision-making and the avoidance
of the relitigation of issues” (para. 36). Putting aside for the moment
whether the discretion is “limited” or “broad”, I have difficulty with my
colleague’s treatment of the relevant factors which she identifies.
[77]
I repeat the three factors identified as those
to be considered: whether the previous adjudicator had concurrent authority to
decide the matter, whether the issue decided was essentially the same, and
whether the previous process provided an opportunity to the parties or their
privies to know the case to be met and have a chance to meet it (Abella J.’s
reasons, at para. 37). However, at para. 49 of my colleague’s reasons, the
question of whether the Review Division’s process met the “necessary procedural
requirements” is dismissed as “a classic judicial review question and not one
within the mandate of a concurrent decision-maker”. Thus if I understand
correctly, the Tribunal is to consider whether the earlier process was fair but
cannot consider at all whether the earlier process met the “necessary
procedural requirements”. I would have thought that the “necessary procedural
requirements” would include the obligation to act fairly. But if that is so, I
do not understand how procedural fairness can be at the same time a question
beyond the concurrent decision-maker’s mandate (para. 49) and a proper factor
for the Tribunal to consider in exercising its discretion under s. 27(1)(f)
(para. 37).
[78]
It would also seem to me that whether the
adjudicator had authority to decide the matter is generally the sort of issue
that is raised on judicial review, but it figures here as a factor to be
considered in exercising the Tribunal’s discretion (para. 37). In my
respectful view, relevant factors cannot simply be dismissed as “classic
judicial review question[s]” and therefore “not one within the mandate of a
concurrent decision-maker” (para. 49). This was not the approach in Danyluk.
Rather, all relevant factors need to be considered and weighed in exercising
the discretion.
[79]
Be that as may be, it remains that my
colleague’s conception of s. 27(1)(f) is that it confers a more limited
discretion to apply the finality doctrines than has been recognized at common
law with respect to decisions of administrative decision-makers. With respect,
and for the following reasons, I cannot accept this interpretation of the
provision.
[80]
We must interpret the words of the provision “in
their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of
Parliament”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42,
[2002] 2 S.C.R. 559, at para. 26, quoting E. A. Driedger, Construction of
Statutes (2nd ed. 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 21.
[81]
I turn first to the grammatical and ordinary
sense of the words. It is difficult for me to imagine broader language to
describe a discretionary power than to say the Tribunal may dismiss a complaint
if the substance of it has been appropriately dealt with elsewhere. To my way
of thinking, the grammatical and ordinary meaning of the words support an
expansive view of the discretion, not a narrow one. I agree with my colleague
that this provision reflects the principles of the finality doctrines rather
than codifies their technical tenets (para. 46). However, as I discussed
earlier, the “principles” of those doctrines, especially as they have developed
in administrative law, include a search for balance between finality and
fairness and a large measure of discretion to allow that balance to be struck
in the wide variety of decision-making contexts in which they may have to be
applied. The provision’s focus on the “substance” of the complaint and the use
of the broad words “appropriately dealt with” seem to me clear indications that
the breadth of the common law discretion is expanded, not restricted.
[82]
I turn next to look at the provision in the
context of the rest of the section in which it is found. It is suggested that
s. 27(1)(f) should be read narrowly because the character of the other six
categories of discretion conferred by s. 27(1) relates to clear circumstances
in which dismissal would be appropriate. The premise of this view is that all
of the other parts of s. 27(1) clearly call for a narrow discretion.
Respectfully, I do not accept this premise. It is the case, of course, that
some of the other grounds of discretionary dismissal set out in s. 27(1) do
indeed arise in circumstances in which it would be demonstrably undesirable to
proceed with the complaint: Abella J.’s reasons, at paras. 39-41. For example,
it is hard to see how the Tribunal has discretion, in any meaningful sense of
the word, to refuse to dismiss a complaint not within its jurisdiction (s.
27(1)(a)), or which discloses no contravention of the Code (s.
27(1)(b)). However, not all of the categories set out in s. 27(1) are of this
character: see, e.g., Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick
GMC Ltd., 2006 BCSC 43, 42 Admin. L.R. (4th) 266, at paras. 38-42.
In my view, the nature of the discretion in the various paragraphs of s. 27(1)
is influenced by the content of each paragraph rather than the use of “may” in
the section’s opening words.
[83]
Section 27(1)(d) confers discretion to dismiss
where the proceeding would not benefit the person, group or class alleged to
have been discriminated against or would not further the purposes of the Code.
Exercising this discretion requires the Tribunal to consider fundamental
questions about the role of human rights legislation and human rights
adjudication. The discretion with respect to these matters is thus
wide-ranging, grounded in policy and in the Tribunal’s specialized human rights
mandate (Becker, at para. 42). It does not share the
character of some of the other more straightforward provisions in s. 27(1), but
is similar in breadth to the discretion set out in s. 27(1)(f). In s. 27(1)(f),
the breadth of the discretion is apparent from the very general language
relating to the “substance” of the complaint and whether it has been dealt with
“appropriately”. I see nothing in the structure of or the context provided by
s. 27(1) read as a whole that suggests a narrow interpretation of the
discretion to dismiss where the “substance” of a complaint has been
“appropriately” dealt with.
[84]
A further element of the statutory context is
the provision’s legislative history. That history confirms that it was the
legislature’s intent to confer a broad discretion to dismiss or not to dismiss
where there had been an earlier proceeding. It is significant that the Human
Rights Code previously set out in s. 25(3) mandatory factors to take into
account in the exercise of this discretion in deferring a complaint.
The now repealed s. 27(2) provided that those same factors had to be considered
when dismissing a complaint. These factors included the subject matter
and nature of the other proceeding and the adequacy of the remedies available
in the other proceeding in the circumstances. However, the legislature
removed these specified factors (Human Rights Code
Amendment Act, 2002, S.B.C. 2002, c. 62, ss. 11 and
12). This is consistent with an intention to confer a more open-ended
discretion. That intention is explicit in the Official
Report of Debates of the Legislative Assembly (Hansard). Indeed, in
response to the question as to why the mandatory factors were removed, the
Honourable Geoff Plant, then-Attorney General of British Columbia and
responsible minister for this legislation, said the following:
The
fundamental issue in any attempt to seek the exercise of this power is whether
there is another proceeding capable of appropriately dealing with the substance
of the complaint. Our view is that that test is sufficient to ensure that the
power is exercised in a case-by-case way in accordance with the principles and
purposes of the code. It may well be that the panel members will consider
the facts and factors that are now referred to in subsection (3), but we did
not think it was necessary to tie the hands of a panel or a tribunal member
with those specific criteria.
. . .
. . . [What
the amendment] does is express the principle or the test pretty broadly and
pretty generally. [Emphasis added.]
(Official Report of Debates of the
Legislative Assembly (Hansard), vol. 9, 3rd Sess., 37th Parl., October
28, 2002, at p. 4094)
[85]
The intent was clearly to broaden, not to
narrow, the range of factors which a tribunal could consider. I would also add,
with respect, that the comments of the Minister of Government Services at second
reading of the Human Rights Amendment Act, 1995, S.B.C. 1995, c. 42,
cited by Abella J., at para. 43, have nothing to do with the scope of
discretion under s. 27(1)(f) or its predecessor provisions.
[86]
A further aspect of the legislative context is
the legal framework in which the legislation is to operate. I have developed
earlier my understanding of the common law approach to the discretionary
application of finality doctrines in the administrative law context. Read
against that background, my view is that the provision may most
realistically be viewed as further loosening the strictures of the common law
doctrines.
[87]
It is also part of the pre-existing legal
framework that under earlier legislation (Human Rights Code, R.S.B.C.
1996, c. 210, s. 27), the Commissioner of Investigation and Mediation had
developed a policy about how to decide whether to proceed with a complaint that
had been the subject of other proceedings. That policy called for
consideration of factors such as these:
(1)
the administrative fairness of the other proceeding; (2) the expertise of the
decision-makers and investigators; (3) whether the case involves important
human rights issues which invoke the public interest enunciated by the Code;
(4) which forum is more appropriate for discussion of the issues; (5) whether
the other proceeding protects the complainant against the discriminatory
practice; and (6) whether there is a conflict between the goals and intent of
the Code and the other proceedings, and practical issues including the time
which each procedure would take and the consequences in terms of emotional
strain, personal relations and long term outcome of processes.
(D. K. Lovett and A. R.
Westmacott, “Human Rights Review: A Background Paper” (2001) (online),
at p. 100, fn. 128)
[88]
The use of the broad language employed in s.
27(1)(f), introduced into the pre-existing practice, does not support the view
that the discretion was narrowly conceived; it supports the opposite inference.
[89]
A final contextual element relates to the similarly
worded power to defer a complaint pending its resolution in another forum under
s. 25(2) of the Code. That provision reads as follows:
25. . . .
(2) If at any time after a complaint is
filed a member or panel determines that another proceeding is capable of
appropriately dealing with the substance of a complaint, the member or
panel may defer further consideration of the complaint until the outcome of the
other proceeding.
[90]
The power to defer a complaint is not based on
the finality doctrines because when deferral is being considered there has been
no other final decision. Nonetheless, the legislature chose to use essentially
the same language to confer discretion to defer as it did to confer the
discretion to dismiss. The repetition of this language in s. 27(1)(f) suggests
to me that a broad and flexible discretion was intended.
[91]
Looking at the text, context and purpose of the
provision, I conclude that the discretion conferred under s. 27(1)(f) was
conceived of as a broad discretion.
C. Exercising the Discretion
[92]
As I see it, s. 27(1)(f) broadens the common law
approach to the finality doctrines in two main ways. By asking whether the
substance of the complaint has been addressed elsewhere, the focus must be on
the substance of the complaint — its “essential character” to borrow a phrase
from Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at para. 52; and Villella
v. Vancouver (City), 2005 BCHRT 405, [2005] B.C.H.R.T.D. No. 405 (QL), at
para. 21. The focus is not on the technical requirements of the common law
finality doctrines, such as identity of parties, mutuality, identity of claims
and so forth. The section compels attention to the substance of the matter,
not to technical details of pleading or form. If the Tribunal concludes that
the substance of the complaint has not in fact been dealt with previously, then
its inquiry under s. 27(1)(f) is completed and there is no basis to dismiss the
complaint. Where the substance of the matter has been addressed previously,
the important interests in finality and adherence to proper review mechanisms
are in play. It then becomes necessary for the Tribunal to exercise its
discretion, recognizing that those interests must be given significant weight.
[93]
Faced with a complaint, the substance of which
has been addressed elsewhere, the Tribunal must decide whether there is
something in the circumstances of the particular case to make it inappropriate
to apply the general principle that the earlier resolution of the matter should
be final. Other than by providing that the previous dealing with the substance
of the complaint has been appropriate, the statute is silent on the factors
that may properly be considered by the Tribunal in exercising its discretion to
dismiss or not to dismiss. This exercise of discretion is “necessarily case
specific and depends on the entirety of the circumstances”: Schweneke v.
Ontario (2000), 47 O.R. (3d) 97 (C.A.), at paras. 38 and 43, cited with
approval in Danyluk, at para. 63. Danyluk, however, provides a
useful starting point for assembling a non-exhaustive group of relevant
considerations.
[94]
The mandate of the previous decision-maker and
of the Tribunal should generally be considered. Is there a discernable
legislative intent that the other decision-maker was intended to be an
exclusive forum or, on the contrary, that the opposite appears to have been
contemplated? The purposes of the legislative schemes should also generally be
taken into account. For example, if the focus and purpose of the earlier administrative
proceeding was entirely different from proceedings before the Human Rights
Tribunal, there may be reason to question the appropriateness of giving
conclusive weight to the outcome of those earlier proceedings. The existence
of review mechanisms for the earlier decision is also a relevant
consideration. Failure to pursue appropriate means of review will generally
count against permitting the substance of the complaint to be relitigated in
another forum. However, as Danyluk shows, this is not always a decisive
consideration (paras. 74 and 80). The Tribunal may also consider the safeguards
available to the parties in the earlier administrative proceedings. Such
factors as the availability of evidence and the opportunity of the party to
fully present his or her case should be taken into account. A further relevant
consideration is the expertise of the earlier administrative decision-maker.
As Binnie J. noted in Danyluk, the rule against collateral attack has
long taken this factor into account. While not conclusive, the fact that the
earlier decision is “based on considerations which are foreign to an
administrative appeal tribunal’s expertise or raison d’être” may
suggest that it did not appropriately deal with the matter: para. 77, citing R.
v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, at para. 50. The
circumstances giving rise to the prior administrative proceedings may also be a
relevant consideration. In Danyluk, for example, the fact that the
employee had undertaken the earlier administrative proceedings at a time of
“personal vulnerability” was taken into account (para. 78).
[95]
The most important consideration, however, is
the last one noted by Binnie J. in Danyluk, at para. 80: whether giving
the earlier proceeding final and binding effect will work an injustice. If
there is substantial injustice, or a serious risk of it, poor procedural
choices by the complainant should generally not be fatal to an appropriate
consideration of his or her complaint on its merits.
[96]
The Tribunal’s approach to the s. 27(1)(f)
discretion is in line with the Danyluk factors. For example, in Villella,
the Tribunal discussed a number of the factors which it should consider. It
emphasized that the question was not whether, in its view, the earlier
proceeding was correctly decided or whether the process was the same as the
Tribunal’s process. The Tribunal recognized that it is the clear legislative
intent of s. 25 that proceedings before the Tribunal are not the sole means
through which human rights issues can be appropriately addressed. However, the
Tribunal also noted that s. 27(1)(f) obliged it to examine the substance of the
matter and not to simply “rubber stamp” the previous decision (para. 19). This
requires looking at such factors as the issues raised in the earlier
proceedings; whether those proceedings were fair; whether the complainant had
been adequately represented; whether the applicable human rights principles had
been canvassed; whether an appropriate remedy had been available; and whether the
complainant chose the forum for the earlier proceedings. This flexible and
global assessment seems to me to be exactly the sort of approach called for by
s. 27(1)(f).
D. Application
[97]
At the end of the day, I agree with Abella J.’s
conclusion that the Tribunal’s decision not to dismiss the complaint under s.
27(1)(f) was patently unreasonable within the meaning of s. 59 of the ATA.
For the purposes of that section, a discretionary decision is patently
unreasonable if, among other things, it “is based entirely or predominantly on
irrelevant factors” (s. 59(4)(c)), or “fails to take statutory requirements
into account” (s. 59(4)(d)). While in my view, the Tribunal was entitled to
take into account the alleged procedural limitations of the proceedings before
the Review Officer, it committed a reversible error by basing its decision on
the alleged lack of independence of the Review Officer and by ignoring the
potential availability of judicial review to remedy any procedural defects. More
fundamentally, it failed to consider whether the “substance” of the complaint
had been addressed and thereby failed to take this threshold statutory
requirement into account. It also, in my view, failed to have regard to the
fundamental fairness or otherwise of the earlier proceeding. All of this led
the Tribunal to give no weight at all to the interests of finality and to
largely focus instead on irrelevant considerations of whether the strict
elements of issue estoppel were present.
[98]
However, I do not agree with my colleague’s
proposed disposition of the appeal. In her reasons, Abella J. would allow the
appeal, set aside the Tribunal’s decision and dismiss the complaints. In my
opinion, the appeal should be allowed and, in accordance with what I understand
to be the general rule in British Columbia, the Workers’ Compensation Board’s
application to dismiss the complaints under s. 27(1)(f) should be remitted to
the Tribunal for reconsideration. As the Court of Appeal held in Workers’
Compensation Appeal Tribunal (B.C.) v. Hill, 2011 BCCA 49, 299 B.C.A.C.
129, at para. 51, “the general rule is that where a party succeeds on judicial
review, the appropriate disposition is to order a rehearing or reconsideration
before the administrative decision-maker, unless exceptional circumstances
indicate the court should make the decision the legislation has assigned to the
administrative body” (see also Allman v. Amacon Property Management Services
Inc., 2007 BCCA 302, 243 B.C.A.C. 52). This case does not present exceptional
circumstances justifying diverging from this general rule.
[99]
I would therefore allow the appeal without costs
and remit the Workers’ Compensation Board’s application under s. 27(1)(f) to
the Tribunal for reconsideration.
Appeal allowed.
Solicitor
for the appellant: Workers’ Compensation Board, Richmond.
Solicitor
for the respondents Guiseppe Figliola, Kimberley Sallis and Barry
Dearden: Community Legal Assistance Society, Vancouver.
Solicitor
for the respondent the British Columbia Human Rights
Tribunal: British Columbia Human Rights Tribunal, Vancouver.
Solicitor
for the intervener the Attorney General of British
Columbia: Attorney General of British Columbia, Victoria.
Solicitors
for the intervener the Coalition of BC Businesses: Heenan Blaikie,
Vancouver.
Solicitor
for the intervener the Canadian Human Rights Commission: Canadian
Human Rights Commission, Ottawa.
Solicitor
for the intervener the Alberta Human Rights Commission: Alberta
Human Rights Commission, Calgary.
Solicitors for the
intervener the Vancouver Area Human Rights Coalition Society: Bull,
Housser & Tupper, Vancouver.