The Human Rights Tribunal of Ontario recently held a preliminary hearing to determine whether allegations made under the Human Rights Code (Code) fell within the exclusive jurisdiction of a labour arbitrator, or whether the Tribunal had concurrent jurisdiction over employment-related human rights matters in a unionized workplace.  

The applications in Weilgosh v. London District Catholic School Board, 2022 HRTO 1194, were filed by unionized employees of the London District Catholic School Board and the Regional Municipality of Peel Police Services Board. The Tribunal found that the provisions of Ontario’s Labour Relations Act (LRA) and Police Services Act (PSA) grant a labour arbitrator exclusive jurisdiction to decide claims arising from disputes that in their essential character relate to the interpretation, application or alleged violation of a collective agreement (CA); however, the Code demonstrates a clear legislative intent to displace the labour arbitrator’s exclusive jurisdiction.  Accordingly, the Tribunal found that it had concurrent jurisdiction to decide discrimination and harassment claims that fall within the scope of a CA governed by the LRA and PSA. 

Prior SCC Decision

Notably, in 2021, the Supreme Court of Canada (SCC) decided otherwise in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, when it found that Manitoba’s Human Rights Commission (MHRC) does not have concurrent jurisdiction over human rights claims in a unionized workplace; rather, jurisdiction over such claims is held exclusively by a labour arbitrator. 

The decision in Weilgosh is more aligned with the dissent in Horrocks, in which Justice Karakatsanis  opined that the SCC’s jurisprudence did not establish a rule of exclusive jurisdiction in cases involving two statutory tribunals, and that although the dispute fell within the scope of the CA, it was nonetheless also within the jurisdiction of the MHRC under Manitoba’s Human Rights Code. Justice Karakatsanis found, therefore, that the MHRC had concurrent jurisdiction over the dispute and acted appropriately in proceeding with the human rights dispute.  Notably, Justice Karakatsanis referred to provisions of the Ontario Code that permit the Tribunal to defer human rights applications pending the completion of related proceedings in other forums and to decline to deal with applications where the substance of the matter has been appropriately dealt with in another proceeding (sections 45 and 45.1, respectively) as indicators of concurrent jurisdiction. 

Tribunal Decision

In its decision, the Tribunal recalled that in Horrocks, the SCC articulated the following two-step analysis to resolve jurisdictional questions between labour arbitrators and other statutory tribunals:

• The legislation in question must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over which matters. If the legislation has a mandatory dispute resolution clause, an arbitrator empowered under that clause has exclusive jurisdiction to decide all disputes arising from the CA, subject to a clearly expressed legislative intent to the contrary.
• If at step one 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 Tribunal stated that its decision would address the first step of the Horrocks analysis and, more specifically, it would ask:

a. Do the LRA or the PSA grant exclusive jurisdiction to a decision-maker appointed under labour legislation?

b. If the answer to question above is “yes”, is there clearly expressed legislative intent to displace a labour arbitrator’s exclusive jurisdiction? 

Do the LRA or the PSA grant exclusive jurisdiction to a decision-maker appointed under labour legislation?

After conducting an analysis of the LRA and PSA and considering previous caselaw, the Tribunal found that both statutes grant a labour arbitrator exclusive jurisdiction to decide claims arising from disputes which in their essential character relate to the interpretation, application, or violation of a CA.

Is there clearly expressed legislative intent to displace a labour arbitrator’s exclusive jurisdiction? 

Next, the Tribunal concluded that the Code endows the Tribunal with concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a CA in Ontario.  In coming to this conclusion, the Tribunal noted that the Ontario Court of Appeal  upheld concurrent jurisdiction between labour arbitrators and the Tribunal. As well, the Tribunal referred to the SCC’s accurate identification in Horrocks of the fact that, “human rights tribunals have not only regularly held that they have concurrent jurisdiction, but have exercised it, even where there exists or has existed a parallel labour arbitration proceeding dealing with the substance of the complaint.”

The Tribunal also relied on the Code’s legislative history and “broad language” as indications of the Legislature’s intention that the Tribunal would have concurrent jurisdiction.  It stated that following the amendment of the Code in 2008, ss. 45 and 45.1 of the Code, give the Tribunal the power to “defer an application in accordance with the Tribunal rules,” and to dismiss an application if it “is of the opinion that another proceeding has appropriately dealt with the substance of the application,” respectively.  The Tribunal concluded that the Legislature’s failure to narrow or limit these powers:

… signals a clear intent to permit Tribunal decision-makers the power to decide whether to defer applications that could be decided elsewhere, including by arbitration, by grievance, by review or otherwise. The broad discretion provided to Tribunal decision-makers indicates a positive expression of the Legislature to maintain concurrent jurisdiction, thereby displacing labour arbitration as the sole forum for disputes arising from a collective agreement.

Bottom Line for Employers

In Weilgosh, the Tribunal determined that the Code endows the Tribunal with concurrent jurisdiction over human rights issues that arise in a unionized workplace (as did the caselaw in Ontario prior to Horrocks), i.e., unionized employees may choose to pursue human rights claims through arbitration or through the Tribunal. Accordingly, as things stand at this time, and despite Horrocks, little has changed in Ontario; employees in unionized workplaces may continue to choose between pursuing human rights claims before a labour arbitrator or before the Tribunal.

When we wrote about Horrocks, we cautioned unionized employers outside Manitoba not to automatically assume that the decision stood for the proposition that human rights tribunals throughout Canada lack jurisdiction over such disputes. We noted that since each Canadian jurisdiction has its own distinct human rights legislation with its own wording, each jurisdiction’s statute needed to be scrutinized to determine whether its wording demonstrates an express intention to carve into the labour arbitrator’s exclusive jurisdiction over human rights disputes in unionized workplaces. The outcome in Weilgosh is evidence of the importance of engaging in such an exercise.   

If, in reliance on Horrocks, a unionized employer in Ontario  sought the dismissal of an employee’s human rights claim before the Tribunal, we encourage them to seek the advice of experienced employment counsel. 

Finally, unionized employers should take note of the following finding of the Tribunal in Weilgosh:

The mere fact that the Tribunal maintains concurrent jurisdiction does not necessarily mean that the Tribunal will address all applications that are filed with it. The Tribunal may defer consideration of an application “on such terms as it may determine, on its own initiative or at the request of a party.” Rule 14.1 of the Tribunal’s Rules of Procedure.

Accordingly, if an employer prefers to have an employee’s human rights claim decided by a labour arbitrator rather than the Tribunal, it may request that the Tribunal defer its consideration of the employee’s application to a labour arbitrator.  The Tribunal routinely defers matters proceeding concurrently in a grievance/arbitration process and other forums and will sometimes inform the parties that it intends to defer matters on its own initative. Employers that wish to request a deferral should seek the advice of counsel.