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Volume XII, Number 334


November 30, 2022

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Human Rights Tribunal of Ontario Confirms that Unionized Employees Still Have a Choice of Forum for Human Rights Complaints

On October 4, 2022, the Human Rights Tribunal of Ontario (HRTO), released its decision in Weilgosh v. London District Catholic School Board. This HRTO decision was highly anticipated, following the Supreme Court of Canada decision in Northern Regional Health Authority v. Horrocks, in 2021. The Court in Horrocks concluded that unionized employees in Manitoba may not file human rights complaints with the Manitoba Human Rights Commission. Instead, they must go through the labour arbitration process because labour arbitrators have exclusive jurisdiction over matters arising out of the collective agreement, including alleged human rights breaches.

Prior to Horrocks, Ontario jurisprudence indicated that the HRTO and labour arbitrators had concurrent jurisdiction over human rights matters arising in unionized workplaces. Accordingly, employees could choose whether to pursue a human rights claim through the arbitration process or the HRTO. The release of the Horrocks decision by Canada’s highest court put this traditional interpretation in question.

Weilgosh confirms that the status quo in Ontario remains, distinguishing the Supreme Court’s decision in Horrocks, based on the unique language in the Ontario Human Rights Code. As a result, employees and applicants may choose to pursue human rights claims before labour arbitrators or the HRTO.

The employers in Weilgosh brought Requests for an Order During Proceedings, asking the HRTO to conclude that it did not have jurisdiction to hear the applications, as the alleged human rights breaches fell within the exclusive jurisdiction of a labour arbitration under the collective bargaining agreement.

To answer the question, the HRTO adopted the Supreme Court’s two-step analysis in Horrocks:

  1. Does the Ontario Labour Relations Act (OLRA) and the Police Services Act (PSA) grant exclusive jurisdiction to a decision maker appointed under labour legislation?

  2. If the answer is “yes,” is there a clearly expressed legislative intent to displace a labour arbitrator’s exclusive jurisdiction over human rights matters?

Exclusive Jurisdiction of Labour Arbitrators

The HRTO concluded that section 48 of OLRA, and its subsequent interpretation by the courts, provides that labour arbitrators have exclusive jurisdiction over matters arising out of a collective agreement, which incorporates by default matters arising under the Code. The HRTO reached the same conclusion with respect to the PSA.

Legislative Intent to Displace a Labour Arbitrator’s Exclusive Jurisdiction

The HRTO concluded that despite the granting of exclusive jurisdiction under the labour statutes, the Code demonstrates a clear legislative intent to displace the labour arbitrator’s exclusive jurisdiction over matters arising under the Code. The HRTO based its decision on sections 45 and 45.1 of the Code. Section 45 allows the HRTO to “defer an application in accordance with the Tribunal Rules,” whereas section 45.1 allows the HRTO to dismiss an application if it is “of the opinion that another proceeding has appropriately dealt with the substance of the application.”

The HRTO concluded that the existence of these provisions constitutes a legislative intent that the HRTO should have concurrent jurisdiction alongside other proceedings. The Manitoba Human Rights Code does not have similar provisions, which is the distinguishing factor for the differing conclusions between the Supreme Court and the HRTO on the second step in the analysis.

Indeed, the HRTO made it clear that having concurrent jurisdiction does not mean that it will address all applications filed by unionized employees. Pursuant to its powers under the tribunal’s Rules of Procedure, the HRTO may defer to the jurisdiction of labour arbitrators at its discretion.

Takeaway for Employers

This decision confirms the status quo in Ontario. Unless this decision is successfully set aside through judicial review, this ruling means that unionized employees may continue to bring individual complaints to the HRTO.

However, employers may still ask the HRTO to exercise its discretion to defer to the labour arbitration process and decline to hear an application brought before it by a unionized employee with access to the labour arbitration process.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 280

About this Author

Kathryn J. Bird Labor & Employment Lawyer Ogletree, Deakins, Nash, Smoak & Stewart, Law Firm Toronto Ontario

Kathryn Bird is an employment, human rights, and labour lawyer in Ogletree Deakin’s Toronto office. Kathryn is a recognized leader in workplace law in Canada and was the winner of a Lexpert Rising Star award in 2020. Kathryn advises employers, social service providers, school boards, and municipalities regarding issues arising from the employment relationship and the provision of services to the public.  Kathryn also assists school boards, colleges, and universities with legal matters related to the provision of educational services to students.

Shir Fulga, Ogletree Deakiins Law Firm, Toronto, Articling Student
Articling Student

Shir is an Articling Student at Ogletree Deakins’ Toronto office.

Shir holds a Juris Doctor from Queen’s University, Faculty of Law and an Honours Bachelor of Arts in Philosophy and Spanish from Queen’s University.

During her time in law school, Shir worked as a Teaching Assistant for the Queen’s Workplace Law course and as a Research Assistant in the area of comparative constitutional law and legal ethics. She received the Baker & McKenzie award in labour law and a Second Honourable Mention in the Phanor J Eder...