HR | Atlantic - Positive Change at Work

Supreme Court of Canada offers up limits on forum shopping, awarding costs and grieving long standing practice

Jan 11, 2012

Legal ScalesThe closing months of 2011 saw the Supreme Court of Canada offer up three important rulings of interest to employers on limiting the number of times an employee can raise a claim before different tribunals, the ability of different human rights tribunals to award costs, and the ability to rely on past practice.

British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52

A worker, injured while on the job, sought compensation from the Workers’ Compensation Board (WCB) for chronic pain.  WCB had a policy of fixing chronic pain awards at 2.5% of total disability.  The worker appealed this award to the Workers’ Compensation Review Division, arguing that the fixed award was patently unreasonable, unconstitutional and discriminatory on the grounds of disability pursuant to s.8 of the BC Human Rights Code.  The Review Board determined that it had the jurisdiction to hear and decide the human rights complaint and found the fixed award did not violate s.8.  Instead of applying for judicial review of this decision, the worker launched a new complaint to the BC Human Rights Tribunal, which essentially recycled the same arguments made to the Workers’ Compensation Board.  The Human Rights Tribunal concluded that the substance of the complaint was not dealt with appropriately by the Review Division and overturned the decision.

The Supreme Court of Canada found that the complainant was attempting to re-litigate the matter in a different forum, when the proper remedy was to challenge the Review Division’s decision through judicial review.

This decision confirms that an employee must choose one arena for arguing a claim — an employee gets one kick at the can.  An employee cannot re-argue a matter that failed in another administrative hearing.  Practically speaking, this means that employers can take some assurance that a decision of a particular administrative body is final and cannot be subsequently disallowed by a contrary decision by a different tribunal.

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53

This decision involved the Human Rights complaint of a former employee of the Canadian Forces.  She successfully alleged that she had experienced discrimination on the grounds of sex and was awarded $4,000 in damages.  However, the Canadian Human Rights Commission held that it had the authority to award costs in addition to the damages and awarded an additional $47,000.  The Supreme Court held that the Commission had no authority to make a costs award and overturned it.

The Canadian Human Rights Commission is unique in Canada in that it does not have the power to award costs.  However,  all provincial human rights legislation provides the provincial Human Rights tribunals with the power to award costs.   Therefore, employers are reminded to take note that in addition to damages, a human rights claimant may also seek costs, which are often significantly larger than the award itself.

Nor-man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59
An arbitrator ruled that the Employer’s practice of excluding casual service when calculating vacation benefits breached the terms of the collective agreement, but that the Union was barred from grieving that exclusion due to its long standing acquiescence to the practice.  The arbitrator’s decision was upheld by the Manitoba Court of Queen’s Bench, but overturned by the Manitoba Court of Appeal.

The Supreme Court of Canada restored the arbitrator’s finding, finding that if the Union is aware that the employer is applying a provision incorrectly, but says nothing, the Union cannot later insist on its rights under the language.  The Supreme Court also noted that arbitrators have the authority to determine whether a party is estopped (prevented) from asserting a right under a collective agreement because of a long-standing practice.

This decision is positive for Employers as it clearly establishes that a Union cannot insist on the strict enforcement of its rights if it has not informed the Employer that its rights have been violated in the first place.  If the Union has a problem with a policy or practice of the Employer, the onus is on the Union to express its dissatisfaction by launching a timely grievance.  In the absence of such a grievance, the Employer is perfectly justified in assuming the Union has no issue with its policy or practice and should feel safe to continue the practice without fear that the Union might attempt to assert its rights without warning.  The Employer had the right to rely on the practice until the collective agreement expired.


contributed by Matt Walters, articling clerk at MacLeod Robinson MacLean

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