Name of Case: British Columbia (Workers' Compensation Board) v. Figliola

Date of Decision: October 27, 2011

Supreme Court Panel: Justices Louis LeBel, Marie Deschamps, Rosalie Abella, Louise Charron and Marshall Rothstein; Chief Justice Beverley McLachlin, and Justices Ian Binnie, Morris Fish and Thomas Cromwell (concurring in the result, with separate reasons)

Judgment under Appeal: Judgment of the British Columbia Court of Appeal dated February 17, 2010

Facts: Three workers who suffered from chronic pain as a result of work-related injuries complained in 2006 to the internal appeal body of the British Columbia Workers' Compensation Board, the Review Division, that the WCB's chronic pain compensation policy constituted discrimination contrary to the B.C. Human Rights Code because it limited compensation to an award equal to 2.5 percent of total disability. The Review Division upheld the restricted awards, on the basis that the impugned policy did not contravene the Code, or alternatively, that if it did, there was bona fide and reasonable justification.

Section 96(1) of the B.C. Workers' Compensation Act provides that "the Board has exclusive jurisdiction to inquire into, hear and determine all matters and questions of fact and law arising under this Part, and the action or decision of the Board on them is final and conclusive…." Section 96.4(9) of the Act states that "a decision by the review officer [of the Review Division] ... is final and the Board must comply with that decision."

Despite these provisions, the workers opted to bring a complaint to the B.C. Human Rights Tribunal, repeating their allegation that the Board's policy constituted discrimination contrary to s.8 of the Code, rather than apply for judicial review of the Review Officer's decision.
 
Section 27(1) of the B.C. Human Rights Code provides that "[a] member or panel may, at any time after a complaint is filed, 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."
 
The WCB asked the Tribunal to dismiss the complaints on the basis of these provisions, arguing that the Tribunal did not have jurisdiction to rehear the matter and that the Tribunal should exercise its discretion to dismiss the complaints since their substance had been appropriately dealt with in the proceeding before the Review Division. The Tribunal refused the request and decided to hear the complaints, holding that the complaints had not been appropriately dealt with by the WCB's appeal body.

Judicial History: In a March 2009 decision, [2009] B.C.J. No. 554 (QL), British Columbia Supreme Court Judge Sunni Stromberg-Stein allowed the WCB's application for judicial review of the Tribunal's decision to hear the complaints, ruling that "the Tribunal failed to properly take into account the principles of res judicata, mootness, issue estoppel, collateral attack, and abuse of process, when it decided to proceed with hearing the complaints. Whether the Tribunal decision was subject to s.27(1)(a), and [involved] a jurisdictional question with a standard of review of correctness, or the Tribunal decision was made pursuant to s.27(1)(f), and the standard of review is patently unreasonable, the result is the same." The judge held that "[t]he doctrine of abuse of process is most applicable to the facts of this case. This doctrine engages the inherent power of the court to prevent the misuse of the adjudicative process by engaging in a multiplicity of proceedings in a way that would bring the administration of justice into disrepute."

In a February 17, 2010 decision, [2010] B.C.J. No. 259 (QL), reviewed in Lancaster's Health & Safety/Workers' Compensation Law eNewsletter, May 7, 2010, Issue No. 118, the British Columbia Court of Appeal allowed the three workers' appeal of this ruling and restored the Tribunal's decision to hear the complaints, holding that the Human Rights Code gave the Tribunal discretion to hear cases previously decided by other administrative bodies if it considered that the human rights issues involved had not been adequately addressed, and that the Tribunal had exercised this discretion reasonably.

Writing the unanimous decision of a three-member panel of the Court, Justice David Frankel found that "[o]nce [another] body has dealt with the matter, the Tribunal has the authority, by virtue of s.27(1)(f), to either exercise or not exercise its jurisdiction. Whether the Tribunal proceeds in any given case is a matter within its discretion. In other words, the legislative scheme specifically recognizes that the Tribunal can adjudicate a complaint notwithstanding that another body has already dealt with the substance of the same matter. There is no automatic loss of jurisdiction." Frankel held that, "[g]iven the wording of s.27(1)(f), I can reach no conclusion but that the decision whether to proceed with a complaint is purely discretionary. The use of the word 'may' clearly denotes that the power granted is 'permissive and empowering'."

Justice Frankel ruled on behalf of the Court that "[a]s the common-law doctrines serve merely to inform the exercise of discretion under s.27(1)(f), I am unable to find that the decision to allow the complaints to proceed to a hearing was 'patently unreasonable'…. There is no suggestion that the Tribunal member exercised her discretion arbitrarily, in bad faith, or for an improper purpose.... This being so, her decision should not have been quashed on judicial review."

The Supreme Court of Canada granted the WCB leave to appeal on July 8, 2010.

Issue(s): Does the B.C. Human Rights Tribunal have jurisdiction under the B.C. Human Rights Code to adjudicate a human rights complaint even though the same issue was raised before and decided by the B.C. Workers' Compensation Board?

Supreme Court's Decision: The Supreme Court of Canada unanimously allowed the appeal, ruling that the Tribunal's decision to hear the case was patently unreasonable. However, the Court split 5-4 on the legal analysis by which the conclusion was reached, with the majority ruling that the Tribunal could not hear the case, and the other four justices determining that the matter should be sent back to the Tribunal for reconsideration based on their reasons.

The Majority Reasons:

Writing for the majority, Justice Rosalie Abella first determined that the appropriate standard of review of the Tribunal's decision was patent unreasonableness, pursuant to s.59(3) of the B.C. Administrative Tribunals Act. In addition, she noted that, at the time of the decision, both the Tribunal and the WCB had jurisdiction over these human rights complaints and therefore s.27(1)(a) of the Human Rights Code did not come into play. Accordingly, she characterized the central question as: "[W]hen 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?"
 
In assessing the scope of s.27(1)(f), Abella endorsed the conclusions reached by B.C. Supreme Court judge Ian Pitfield in British Columbia (Ministry of Competition, Science & Enterprise) v. Matuszewski, [2008] B.C.J. No. 1324 (QL), that this provision was "the statutory reflection of the collective principles underlying ... [the] 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." In this regard, she identified three primary doctrines, which, in her words "exist to prevent unfairness by preventing 'abuse of the decision-making process'" and underlie s.27(1)(f): issue estoppel, which refers to whether the same question has been decided in a final decision between the same parties, the rule against collateral attack and the doctrine of abuse of process, both of which attempt to ensure the fairness and integrity of the justice system by preventing duplicative proceedings.

Asserting that "[a]t their heart, the foregoing doctrines exist to prevent unfairness by preventing 'abuse of the decision-making process'," Abella distilled the following principles as comprising the "common underlying principles" of these doctrines, which she held "underlie s.27(1)(f)":
 

• It is in the interests of the public and the parties that the finality of a decision can be relied on….
• 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….
• 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….
• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision….
• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources….

Elaborating on the correlation between the Code provision and these common law doctrines, Abella reasoned:

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.

Accordingly, Abella concluded as follows with respect to how these principles should inform the exercise of the Tribunal's discretion under s.27(1)(f):

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.

Moreover, Justice Abella emphasized that the discretionary provision was not meant to allow one tribunal to review another tribunal's decision. To quote the judge:

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.

Although acknowledging that the use of the word "may" in the preamble to s.27(1) bestows upon the Tribunal an element of discretion, she noted that it should be interpreted as being of the same character as the other six subsections in s.27(1), which all refer to circumstances that make hearing the complaint "presumptively unwarranted." In her view, "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."

Having determined that the Code provision does not "call for the technical application of any of the common law doctrines ... [but] instead for an approach that applies their combined principles," Justice Abella turned to the Tribunal's exercise of its discretion in its decision. Based on her previous analysis, she characterized the Tribunal's "strict adherence" to issue estoppel requirements as "an overly formalistic interpretation of the section." Noting that the workers in this case were clearly attempting to get a more favourable result by starting new proceedings in a different tribunal, she considered the Tribunal to be "complicit in [their] attempt to collaterally appeal the merits of the Board's decision and decision-making process." In particular, she considered that the Tribunal's analysis referred to numerous 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; criticized the Review Officer for his interpretation of his human rights mandate; and suggested that his decision was not final and that he lacked expertise in interpreting or applying the Code.

In the result, concluding that "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," Justice Abella allowed the appeal, set aside the Tribunal's decision, and dismissed the workers' complaints, ruling that there was "no point in wasting the parties' time and resources by sending the matter back for an inevitable result," given that the matter had already been decided by an adjudicator with the requisite authority.

The Minority Reasons:

In contrast, the other four judges, who included Chief Justice Beverley McLachlin, took a broader view of the Tribunal's discretion.

At the outset, Justice Thomas Cromwell, writing on behalf of the minority, expressed his disagreement with the majority's understanding of "what lies at the heart of the common law finality doctrines or of the principles underlying s.27(1)(f)." In particular, Cromwell stated his disagreement with Justice Abella's conclusion that what lay at the heart of those doctrines was the goal of preventing abuse of the decision-making process, and that the discretion conferred by s.27(1)(f) was a limited one, concerned only with finality, avoiding unnecessary relitigation and pursuing the appropriate review mechanisms. In Cromwell's view, 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," and in this context, "[f]inality is one aspect of fairness, but it does not exhaust that concept or trump all other considerations." Further, Cromwell expressed his disagreement with the majority's view of s.27(1)(f), and the implications of the common law doctrines for the interpretation of that section. He stated:

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.

Elaborating on the scope of this discretion, Justice Cromwell asserted that, in his view, "s.27(1)(f) broadens the common law approach to the finality doctrines…. By asking whether the substance of the complaint has been addressed elsewhere, the focus must be on the substance of the complaint.… [T]he focus is not on the technical requirements of the common law finality doctrines." Rather, he declared, "[f]aced 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."

As to how the Tribunal should make this determination, Justice Cromwell set out a number of considerations – including the mandate of the previous decision-maker, the purpose of the legislative schemes, the existence of review mechanisms, and the expertise of the earlier decision-maker – as a guide, elaborating on these as follows:

The mandate of the previous decision-maker and of the Tribunal should generally be considered. Is there a discernible 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 … this is not always a decisive consideration…. 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…. 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.

Finally, Justice Cromwell concluded that, in determining whether or not to exercise its discretion, "[t]he most important consideration … is … whether giving the earlier proceeding final and binding effect will work an injustice." He explained:

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 … [a] complaint on its merits…. 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).

However, despite the dramatically different approach which he would take to s.27(1)(f), Justice Cromwell agreed with the majority that the Tribunal's decision in this case was patently unreasonable because it gave no weight to the interests of finality and focused instead on what he termed "irrelevant considerations of whether the strict elements of issue estoppel were present," basing its decision on "the alleged lack of independence of the Review Officer;" ignoring "the potential availability of judicial review to remedy any procedural defects;" failing to consider "whether the 'substance' of the complaint had been addressed" and failing to have regard to "the fundamental fairness or otherwise of the earlier proceeding." The minority, therefore, held that the matter should be remitted to the Tribunal for reconsideration as to whether it should exercise its discretion under s.27(1)(f) having consideration to the factors set out in their reasons.

Editors' Note: In 2007, the B.C. legislature amended the Administrative Tribunals Act and the Workers Compensation Act, removing the WCAT's authority to apply the Code. The effect of this amendment on a Review Officer's authority to address the Code was not before the court.

Lancaster Reference: For further analysis of the Supreme Court of Canada's decision, see Lancaster's Human Rights and Workplace Privacy eNewsletter, January 5, 2012, Issue No. 177.