Human Rights Tribunal Takes On Forum Hopping
The BC Human Rights Tribunal has breathed new life into the concept of what it means to further the purposes of the Human Rights Code with the result that employers have some hope in stopping forum hopping and serial litigation. Mahdi v. Hertz Canada Limited could prove to be one of the Tribunal's most important dismissal decisions yet.
Mr. Mahdi is a long time unionized employee of Hertz. Over the course of about four years he pursued multiple grievances about his vacation rights. He had some success following hearings or by way of settlement.
Before the last of his vacation grievances was settled, he filed a human rights complaint alleging religious discrimination; specifically that his request for vacation during Ramadan was denied. He also claimed the vacation denials were in retaliation for his previous human rights complaint. He had never raised an issue of religious discrimination in his vacation grievances, he knew that Hertz had not yet been notified of the human rights complaint and he never mentioned the complaint before the last grievance was settled.
After the last of the vacation grievances was settled, Hertz was served with the human rights complaint. It then applied to have the complaint dismissed on the grounds that the matter had been dealt with in another proceeding and that the complaint would not further the purposes of the Code.
The Tribunal ruled that it could not find the matter had been dealt with in another proceeding since there had never been a human rights issue raised in the grievances. Fortunately though, the Tribunal considered the principles of finality and fairness in deciding that adjudicating the complaint would not further the purposes of the Code.
The Tribunal noted that Mahdi's failure to raise the matter of Ramadan in his vacation request meant that Hertz and the Union never had the opportunity to consider accommodation. The Tribunal also noted that collective agreement arbitrators have the duty to consider and apply the Code to any human rights issues that are raised, and stated: "It is concurrent jurisdiction to that of the Tribunal. One forum is not superior to the other."
The Tribunal then applied the doctrines of res judicata and issue estoppel (pithily summarized by the Supreme Court of Canada as "[a] litigant ... is only entitled to one bite at the cherry" (Danyluk, para. 18)) and concluded:
It is inconsistent with the purposes of the Code to permit employees to follow internal processes such as grievances and arbitrations under collective agreements and then file complaints where the outcome of those processes is not to their liking. In this matter; where the central issue is denial of vacation, and the complainant advanced that the sole reason for the denial [w]as a breach of the Collective Agreement, and where the grievance is settled by Hertz without knowledge of the Complaint, it does not further the purposes of the Code for the Tribunal to then hear the Complaint on the basis of alleged discrimination. This is especially the case when those allegations could have been but were not initially raised in an integrated and comprehensive way.
This decision is not only important for employers, it is helpful to the Tribunal itself. The Tribunal's concurrent jurisdiction to hear any human rights complaint - even when human rights issues are being addressed in other proceedings - has been under attack because it encourages forum hopping and serial litigation, thus wasting resources, creating double, triple (or more) jeopardy for employers and risking inconsistent results. By deciding against the re-litigation of human rights issues that were or could have been properly dealt with in other proceedings, the Tribunal is protecting the integrity of the Code and its own jurisdiction.
dismissal of complaint forum hopping forum shopping issue estoppel jurisdiction of arbitrators purposes of the Code res judicata