Neighbouring Tribunals and ‘Lateral Adjudicative Poaching’: Forum Shopping for Human Rights in British Columbia v Figliola

One necessary implication of the growth of the administrative state—and the legislative delegation of various social and economic responsibilities to the executive—is the diffusion of human rights jurisdiction over a broad cross-section of decision-makers. To the degree that a large number of actors and tribunals make decisions with either direct or incidental effects on people’s human rights, the landscape of human rights adjudication is being transformed into one with many more nodes of dispute resolution and points of entry for claimants than in the past.

This reality, in turn, raises a range of issues relating to consistency, overlap, accountability, and efficiency. In more stark terms, it pits claimants’ entitlements to fair, full, and reviewable findings relating to human rights against defendants’ interests in final, binding decisions. The tension between these competing policy objectives was recently considered by the Supreme Court of Canada (“SCC”) in British Columbia (Workers’ Compensation Board) v Figliola, [2011] 3 SCR 422, and resolved in favour of finality—or, perhaps more precisely, on the basis of finality as a proxy for fairness.

Facts

The case began with a decision by the British Columbia Workers’ Compensation Board (“WCB”) pursuant to its Chronic Pain Policy to award fixed compensation to complainant workers suffering from chronic pain. The complainants appealed to the Board’s Review Division on the basis that a fixed award for chronic pain was patently unreasonable under s. 59 of the Administrative Tribunals Act, SBC 2004, c 45 and constituted a violation of the guarantee against discrimination on the basis of disability pursuant to s. 8 of the Human Rights Code, RSBC 1996, c 210.

The Review Officer relied on the SCC’s decision in Tranchemontagne v Ontario (Director, Disability Support Program), [2006] 1 SCR 513, that human rights tribunals do not have exclusive jurisdiction over human rights and that barring explicit statutory language to the contrary, other tribunals have concurrent jurisdiction to apply human rights legislation. In assuming jurisdiction over the human rights complaint, the Review Officer found that the Board’s Chronic Pain Policy was not contrary to s. 8.

The complainants further appealed to the Workers’ Compensation Appeal Tribunal (“WCAT”) but before the appeal was heard, the Tribunal’s authorizing statute was amended so as to explicitly remove its jurisdiction over human rights that would have been assumed by the common law. Consequently, consideration of the complaint by WCAT was statutorily barred, leaving open recourse to judicial review.

Instead of engaging the court’s supervisory role, however, the complainants relocated their s. 8 claim to a new administrative milieu, the Human Rights Tribunal (“HRT”). In response, WCB brought a motion asking the Tribunal to dismiss the new complaint under s. 27(1)(f) of the HRC which grants it authority to dismiss claims that have already been “appropriately dealt with.” The HRT opted not to exercise this authority, found that the WCB’s Policy violates s. 8, and so sparked a struggle through the court system between the WCB and the complainants regarding the appropriate scope of the HRT’s discretion to determine whether the substance of a complaint has been “appropriately dealt with” when two bodies share concurrent jurisdiction over human rights.

Decision

The SCC unanimously found that the HRT’s decision to assert jurisdiction over the complaint was patently unreasonable in that it was based on predominantly irrelevant factors outside the scope of its mandate, causing it to be set aside and the complaints dismissed. The SCC was split five to four, however, on the proper test to be applied in determining whether a matter has been appropriately dealt with, diverging theoretically on the basis of who (ie. the courts or administrative decision-makers) should be tasked with navigating the proper balance between the competing policy considerations at stake.

Writing for five Justices, Abella J. found that the underlying purpose of s. 27(1)(f) is to create “territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching.” It is a codification, in other words, of the cumulative policy rationales undergirding the doctrines of issue estoppel, collateral attack, and abuse of process: “finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness.”

The claimants’ attempt to raise the same arguments at the HRT amounted to forum shopping,  problematic both from the perspective of procedure (ie. an inefficient use of limited administrative resources) and substantive justice (ie. raising the possibility of inconsistent results). The correct test to be applied by a Tribunal in determining the scope of s. 27(1)(f) is: (1) whether there was concurrent jurisdiction to decide the issues; (2) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and (3) whether there was an opportunity for the complaints 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 Tribunal’s.

Approach

Interestingly, all nine Justices agreed that the interpretive approach applied by the Tribunal was problematic in that it relied too heavily on the strict requirements of existing legal doctrines aimed at preventing multiplicity of proceedings (ie. issue estoppel, collateral attack, and abuse of process). The court rejected that s. 27(1)(f) is a wholesale codification of these doctrines, finding instead that it is to be interpreted and applied in terms of their underlying policy objectives. In other words, the Court adopted an approach in which a particular legal outcome is reached in light of policy-oriented evaluative criteria.

This approach is effective in that it remains cognizant of the inherent limits of formal legal tests as proxies for particular policy considerations. It recognizes, in other words, that it is policy—and not a sterile, normatively neutral legal analysis—that does the heavy-lifting in an adjudicative body’s decision-making calculus. It also brings the discussion of underlying policy considerations to the forefront, allowing decisions to be evaluated on the basis of their ability to strike a socially desirable balance within a matrix of competing policy objectives as opposed to a “correct” or “incorrect” application of black letter law.

A Conception of Fairness and Access to Justice

Given the Court’s implicit endorsement and application of such an approach, it becomes possible to evaluate the policy considerations and balances struck in reaching its conclusion. The conception of fairness that informed Abella J.’s reasoning on behalf of the majority of the Court was one that denied that “access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice.” In other words, access to justice is to be understood as access to final justice, which may or may not be the same thing as substantive justice.

This conception, one that is beneficial to employers in the workplace compensation context, is premised on the need to maximize the efficient allocation of resources; thus, Abella J. finds that “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.” In this vein, she rejects the argument that the matter should be remitted to the Tribunal to be reconsidered in light of the correct test, finding that there is “no point in wasting the parties’ time and resources by sending the matter back for an inevitable result.”

It is this focus on resource allocation, in turn, which is taken up by Cromwell J. in his concurring opinion on behalf of four members of the Court. He emphasizes that the intention of s. 27(1)(f) is to “achieve the necessary balance between finality and fairness through the exercise of discretion.” This discretion, in turn, is to belong to the HRT, an administrative agency with expertise in the polycentric decision-making that defines the human rights realm. Thus, the Tribunal erred not because it failed to apply the three-pronged approach delineated by Abella J. (an approach which glosses over the stark differences between the procedural safeguards of various administrative decision-makers with concurrent jurisdiction over human rights) and thereby assigned insufficient weight to efficiency considerations, but because it failed to conduct a flexible, global assessment as between the competing policy objectives at stake.

Overall, the divergence between the two opinions of the Court can be framed in terms of an institutional preference for vertical as opposed to horizontal review. It can also be understood as a normative judgment about the degree of freedom that should be given to human rights tribunals in striking the appropriate balance between efficiency and fairness—assuming, as Abella J. declines to do, that the two can at times mean two very different things.