Human Rights Tribunal of Ontario decides it has concurrent jurisdiction to hear Human Rights claims of unionized employees

On Oct. 4, 2022, the Human Rights Tribunal of Ontario (the "Tribunal"), issued an Interim Decision in Weilgosh v. London District Catholic School Board ("Weilgosh"),^[1] on the preliminary issue of whether allegations made by unionized employees under the Ontario Human Rights Code (the "Code") fall within the exclusive jurisdiction of a labour arbitrator or whether the Tribunal has concurrent jurisdiction to hear those matters.^[2]

The Tribunal considered the two-step test set out by the Supreme Court of Canada in Northern Regional Health Authority v. Horrocks ("Horrocks")^[3]:

1. First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters … Where the legislation includes a mandatory dispute resolution clause, an arbitrator empowered under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary.
2. If at the first step it is determined that the legislation grants the labour arbitrator exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction … The scope of an arbitrator's exclusive jurisdiction will depend on the precise language of the statute …

In reaching its decision in Weilgosh, the Tribunal focused on step one of the Horrocks test: do the Ontario Labour Relations Act ("LRA") and the Ontario Police Services Act ("PSA") grant exclusive jurisdiction to an arbitrator appointed under their respective legislative schemes?

The Tribunal found that under both, the LRA and PSA , labour arbitrators have exclusive jurisdiction to determine disputes related to the interpretation, application and alleged violation of the collective agreement, including claims of discrimination and harassment falling within the scope of said collective agreements.

The Tribunal then focused its analysis on the Code to determine whether its language showed "a clear legislative intent to displace [a labour arbitrator's] exclusive jurisdiction" under the LRA and PSA .

Quoting Horrocks, the Tribunal noted that "where a legislature intends concurrent jurisdiction, it will specifically so state in the tribunal's enabling statute."^[4] The Tribunal looked at three amendments to the Code that occurred in 2008. Section 34(1) of the Code now provides individuals with the ability to file claims directly with the Tribunal (removing the Human Rights Commission gatekeeping role). Section 45 of the Code now gives the Tribunal the ability to "defer an application in accordance with the Tribunal rules"; however, the Tribunal noted that it does not specifically indicate that the deferral power extends to disputes that could be the subject of a grievance under a collective agreement. And section 45.1 of the Code provides the Tribunal with the power to dismiss an application if it "is of the opinion that another proceeding has appropriately dealt with the substance of the application."

The Tribunal also considered a 2001 decision from the Ontario Court of Appeal, Ontario (Human Rights Commission) v. Naraine,^[5] where the Court upheld the concurrent jurisdiction of labour arbitrators and the Tribunal. The Tribunal noted that this, along with "the fact that the Tribunal had continued to hear cases arising from collective agreements" without the Legislature taking any steps to limit or narrow the deferral and dismissal powers in sections 45 and 45.1 of the Code, signals a clear intent to grant Tribunal decision-makers broad discretion to decide whether to defer applications that could be decided elsewhere, including by labour arbitrators.

The Tribunal therefore determined that the Legislature clearly intended to maintain the Tribunal's concurrent jurisdiction with respect to Code related matters in a unionized workplace, and displace labour arbitrators' exclusive jurisdiction under both the LRA and PSA to decide claims of discrimination and harassment under the Code.^[6]

Key takeaways

It is important to emphasize that the Weilgosh decision addresses the specific language contained within the LRA , PSA and the Code. As such, this decision only concerns collective agreements subject to the aforementioned legislative schemes within the province of Ontario. Elsewhere in Canada however, such as in Manitoba, Alberta and Quebec, courts and tribunals have taken hardline views that human rights claims should proceed through the grievance process.

Further, this is a decision of an administrative tribunal, interpreting a decision of our highest court, the Supreme Court of Canada. It is likely that given the significance of this matter, it will require court intervention. However, the challenge is that this decision is an Interim Decision of the Tribunal, which means, (1) it is not subject to the Tribunal's process on requests for reconsideration^[7] and (2) the parties' ability to request judicial review of this decision is fairly limited as the courts will generally not interfere before the end of a Tribunal proceeding (attempts to judicially review interim decisions are often quashed for being "premature"^[8]). Despite this, given the importance of this decision, it remains possible that the Divisional Court may agree to hear a review of this decision before the conclusion of the proceedings. We will keep tracking any developments in this respect.  

Lastly, it is important to note that while the Tribunal has decided that it maintains concurrent jurisdiction with labour arbitrators, Weilgosh does not mean that the Tribunal has to, or will always address applications filed by unionized employees. Where an applicant who is a unionized employee has also filed a grievance under the collective agreement, it is still likely that the Tribunal will defer the application until the grievance process under the collective agreement has been completed. In other words, the Weilgosh decision confirms the status quo in Ontario. As such, employers should keep in mind that the Tribunal will likely maintain its deference to labour arbitrators in human rights matters that have also been grieved.

If you would like to discuss the Weilgosh decision further or have any questions, please contact the authors or a member of the Employment, Labour & Equalities Group.