Contents

Workers Comp & Human Rights: The Interplay

Workers Comp & Human Rights: The Interplay

Issue 1 Concurrent Jurisdiction

It is an accepted principle that there is concurrent jurisdiction between the workers’ compensation and human rights regime, absent words in the relevant statute to the contrary. ¹

Issue 2 The Right to Proceed to Human Rights

The question will arise as to the impact of an initial decision to pursue a workers’ comp claim upon a subsequent human rights application. All workers’ compensation statutes are based on the same theme of the statute, being in essence, “no-fault” workplace insurance. The bargain made by the legislation is that workers will receive its protections for workplace injuries, but will, in turn, relinquish the right to sue the employer. This principle will, however, not bar a subsequent human rights complaint.

An analysis of the fundamental distinction between a workers’ compensation claim and a human rights complaint speaks to the essential differences between the two remedies, which will allow a later human rights complaint to proceed: ²

The right to dignity and self-respect in the workplace and the right to a safe and discrimination free workplace are not matters under the WSIA, not compensable claims under WSIA and fall outside the exclusive jurisdiction of the WSIB.

To the same conclusion is the decision of the Alberta Human Rights Tribunal: ³

The Workers’ Compensation regime and the Alberta Human Rights regimes have very different aspects. It is only the Alberta Human Rights Commission that is concerned with a determination of whether discrimination occurred and provides unique remedies to those who have been discriminated against.

This principle will allow the applicant to make a subsequent human rights complaint following the workers’ compensation application.

It is to be recalled that this subsequent allegation of a human rights violation may be brought through the human rights process or by a grievance under the collective agreement. ⁴

Issue #3 Issue Estoppel to Defend the Human Rights Complaint

The law is hence that there may be a workers’ compensation claim followed by human rights complaint. That does end the issue, as the issue will then arise as to whether the prior decision binds the outcome of the human rights matter. It is to be recalled that the employee may raise a human rights issue before the workers’ compensation board.

This will see the employer raise the defence of issue estoppel. The accepted test for this argument is as follows: ⁷

I would appear, on first reading, that the WCB did deal with the issue of adverse human rights treatement, as it stated “the evidence does not support that the worker was subjected to discrimination”.

The HR Tribunal continued, however, to note that the WCB decision applied a different test from that which governed the human rights case. The test used by the WCAT focused on the test to receive WC benefits:

the worker has a psychological injury;
work-related events or stressors are the predominant cause of the injury;
the work-related events were “excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker”; and
there is “objective confirmation of events.”

The WCAT did not, hence, apply the test that would be used by the HR Tribunal, summarized as follows:

Julien has a protected characteristic;
Julien experienced an adverse impact; and
Julien’s protected characteristic was a factor in the adverse impact that he experienced.

The HR Tribunal then observed that the WCAT stated that it had found no evidence that the employee was “treated differently” from other employees. This, the Tribunal noted was not the fundamental test to assess the human rights complaint.

The review by the HR Tribunal continued to conclude that the WCAT applied a test which was not reflective of the human rights standard:

Similarly, the WCB Decision focuses on whether the alleged actions of the employer were “normal” or were intended to harass, bully, or discriminate against Julien. Before the Tribunal, however, the question is simply whether the complainant’s protected characteristic was “a factor” in the adverse impact that they experienced. The complainant need not prove “intent” to discriminate. “Normal” employer actions – for example, discipline, promotions, dismissals, etc. – can nevertheless be discriminatory where an employee’s protected characteristic is “a factor” in those actions.

The HR Tribunal also observed that the WCA and its regulations and guidelines directed the WCAT to answer “manifestly different questions from this to be considered by the Tribunal”.

For these reasons, the HR Tribunal denied the defence of issue estoppel as the same legal issue had not been decided.

This does not foreclose the possibility of the success of this defence in a future case.

Director Concedes “Same Issue”

Such a defence did succeed in an earlier case in February of 2019, also before the Alberta Human Rights Tribunal. ⁸ The Tribunal had before two allegations, one being racial discrimination and the second a claim of unfair treatment due to a mental disability. The racial issue had been out before the WCAT. The Director of the Human Rights Commission conceded that this legal issue was the same as that before the Tribunal. The Tribunal found that the defence of issue estoppel did succeed. The second issue was not out before the WCAT and this claim was allowed to proceed.

Splitting the Case

In arbitral and common law cases, the employee is not allowed to split the case by putting forward one claim in the first proceeding and then raising a new assertion in the second.

The analysis in these contexts issue is not simply whether the same issue was raised in the prior decision but it is more expansive. The question is whether the same question could have been raised. The applicant must put forward its entire case in the first process. They cannot split the case: ¹¹

In the WCAT case, the employee had submitted that he had been subjected to an abusive work environment. The case was unsuccessful. While there was medical evidence considered, which considered the employee’s mental state, the decision “did not address whether mental disability was a factor” in the dismissal, this being the subject of the human rights complaint. The defence, in this instance, failed.

Discretion to Apply Issue Estoppel

Even where the test of issue estoppel has been completely met, the second tribunal retains discretion to apply this defence.

The leading case on issue estoppel, the Supreme Court of Canada in Danyluk, stated that the Tribunal should review the wording of the statute empowering the initial decision and examine whether it gives that body exclusive jurisdiction. This was not the case in Danyluk which arose from an initial decision of the Employment Standards Officer under Ontario’s Employment Standards Act. Similarly, the WCA in the case of Julien did likewise.

The Tribunal in assessing this issue of residual discretion in Julien, also noted that the HR complaint involved allegations of adverse treatment due to family status, which was not before the WCAT. This allegation would thus have continued in any event. As this issue was one intertwined with the race allegation, which was before the WCAT, the Tribunal stated it would be difficult to distinguish the family status as a unique concern.

Further, the hearing before the HR Tribunal had heard most of the complainant’s evidence and there would be not savings of resources and also could lead to confusion.

These reasons are reflective of the ad hoc approach to assessing the exercise of this discretion to refuse the plea, which the Tribunal stated, in obiter, it would have done, had all the tests of issue estoppel been established.

Disability was Pre-existing and not Compensable under WCA

The Ontario HRT considered this argument in a complaint made based on adverse treatment due to a physical disability and gender. The gender issue was not before the WCB and was allowed to proceed.

The employee had argued unsuccessfully that she was entitled to benefits due to a work related injury. It was found, however, that the disability arose not from the most recent employment, but rather was due a pre-existing medical condition. The same issue test was clearly not applicable and the disability complaint was allowed to proceed. ¹²

Canadian Human Rights Commission & Workers’ Comp & Prior Grievance

A 2025 decision of the Canadian Human Rights Tribunal considered an unusual case in which the applicant had been before three different decision makers prior to the CHRT. The complainant had applied for workers’ compensation benefits, a Canada Labour Code Unfair Representation Complaint and a grievance under the collective agreement. ¹³

The Tribunal noted that on a motion to dismiss prior to the full hearing, a dismissal order should be made “only in the clearest of cases”, which may be distinctive. The essential issue is whether the substance of the complaint has been “appropriately dealt with” by the prior decision maker.

Workers’ Compensation Claim

The Tribunal determined that the WorkSafeBC case dealt with a physical disability and not a mental illness. The same issue as was before the Human Rights Tribunal was thus not considered.

In addition, on a more general basis, the Board could not consider the remedy of general damages for violating a protected human rights.

Unfair Representation Complaint

This issue before the CIRB was clearly not a human rights matter and the question of issue estoppel obviously failed.

Grievance

The hearing before the labour arbitrator was also determined not to be a bar to the human rights complaint. It is clear that such a decision maker may consider a human rights remedy, unlike the workers compensation board.

The arbitrator had concluded that Air Canada did not discriminate against the employee when it terminated his employment and had satisfied its duty to accommodate.

The employer had argued that this decision considered the issue of the alleged mental disability and hence the same issue test had been met. The reasons of the Tribunal then take on the task of determining whether the labour arbitrator in fact reviewed and digested the issue of a mental disability. It was then concluded that the decision does not clearly deal with this issue and hence dismissed the motion.

Once again, this case did not again raise the issue of the grievance case splitting the issues. This submission should have been made and likely would have succeeded.

Footnotes

Supreme Court of Canada British Columbia (Workers’ Compensation Board) v. Figliola In this case holding that the WCB had authority to consider human rights issues
Toronto District School Board v Elementary Teachers’ Federation of Ontario
Baraby v SGS
This statement is not fulsome as the grievance process must be used in most jurisdictions, and is not permissive. Also in Ontario, the human rights issue may be raised by a civil proceeding with a companion action.
Van Woundenberg v. Sheridan College Institute of Technology and Advanced Learning ⁵
1. Did the other proceeding have concurrent jurisdiction to decide human rights issues;
2. Was there an opportunity for the applicant or their privies to know the case to be met and have the chance to meet it;
3. Was the previously decided legal issue essentially the same as what is being complained of to the Tribunal; and
4. Would it be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?
The application of this test becomes one applied on a case-by-case basis. The human rights tribunal will take pains to examine the prior decision to determine if it truly met the same legal issue as is put before it.

This is so even if, by all accounts, the issue of a human rights violation has been raised in the workers’ compensation claim.

Julien v Brazeau Defence Fails

A vivid example of this is seen in a 2023 decision of the Alberta Human Rights Tribunal. ⁶ Julien v Brazeau
Kebede v SGS
Van Woundenberg v. Sheridan College Institute of Technology and Advanced Learning ⁹

Parties should not be permitted to restrict Code arguments in one proceeding so that they may pursue a subsequent claim before the Tribunal at a later date, commonly referred to as “splitting one’s case” which is not permitted by the Tribunal. See Taylor v. Ontario (Community Safety and Correctional Services), 2016 HRTO 1306.

[50] In the grievance/arbitration proceeding, the applicant, through his Union had every opportunity to raise Code issues and either failed to do so or they were not accepted.

This argument was not raised in this instance.

Issue Estoppel Fails: Same Issue not Considered

The issue of issue estoppel arose again in an April 2022 decision, also of the Alberta HRT. ¹⁰ Hoefman v LMT
Paris v Bramic Creative.
Loconte v Air Canada