Canada: Unionized Ontario Employers Face Double Jeopardy In Human Rights Cases

Last Updated: February 20 2017
Article by Elizabeth Traynor

Unionized employers regularly deal with employees alleging breaches of their human rights. These allegations can be the subject of the grievance process or an application to the province's forum for hearings into human rights cases. In Ontario, the forum is the Human Rights Tribunal; in Manitoba, it is the Human Rights Commission.

You'll see that I underlined the word "or" in the last paragraph. It seems reasonable that an employer should only be required to answer these allegations in one forum, doesn't it? And a recent Manitoba Court of Queen's Bench decision says the right forum is the grievance process.1

The facts of the case were straightforward: an employee alleged that the termination of her employment was a failure to accommodate her disability (alcoholism). The termination was the subject of a grievance, which was referred to arbitration. However, before the grievance arbitration hearing began, a Memorandum of Agreement ("MoA") was negotiated, the grievor returned to work, and the grievance was withdrawn. Not long after, when the grievor was once again found drinking on the job, her employment was once again terminated and this time, no grievance was filed. The grievor filed a complaint with the Manitoba Commission and an adjudicator took jurisdiction of the matter, finding that there had been a failure to accommodate.

The employer asked the Court of Queen's Bench to judicially review the adjudicator's decision, particularly with respect to her jurisdiction over the matter. The Court found that the essential character of the dispute was:

whether there was just cause to terminate employment of a unionized employee with an alleged addiction problem. A secondary issue is whether an alleged breach of the MoA negotiated between [the employer], the Union and [the grievor] constitutes just cause for termination of employment.2

After reviewing the language in the applicable legislation, the Court said:3

(4) Issues which involve interpretation, application, administration, or violation of the collective agreement, and that MOA entered into pursuant to the collective agreement, were intended to be resolved pursuant to the arbitration procedure set out in the collect agreement and the [Labour Relations Act];

(5) The labour arbitrator is required to apply the substantive rights and obligations of the [Human Rights Code].

(6) To the extent that the dispute raises issues that would fall under the jurisdiction of a labour arbitrator and a human rights adjudicator, I am satisfied, in the factual context of the dispute, that labour arbitration is a "better fit" for determining the dispute.

That's all well and good, but most of my clients are in Ontario, where the Northern Regional decision doesn't help us a bit. A Vice-Chair of the Ontario Tribunal has already specifically refused to follow Manitoba's lead.4

Peter Meade alleged that his employer, National Steel Car Limited discriminated and reprised against him because of his disability. His union, Local 7135 of the Steelworkers, filed several grievances, all of which were settled by the union. However, Mr. Meade did not sign the settlement agreements and filed an Application before the Human Rights Tribunal of Ontario.

The employer's first argument was that the Application should be dismissed because the matter fell under the exclusive jurisdiction of the arbitration process, consistent with the decision in Northern Regional. The Vice-Chair declined to do so, relying instead on the Ontario Court of Appeal's decision in Naraine.5 In her view:

[13] ... [T]he legislature intended that the Tribunal and labour arbitrators have concurrent jurisdiction over human rights claims filed by unionized employees. ... Under s. 45.1, the Tribunal has the power to dismiss applications only if, in its opinion, the substance of the application "has been" appropriately dealt with in another proceeding. ...

[15] Nothing in the Northern Regional, above, decision ... alters my conclusion in this case. That decision is of course not binding in Ontario. What is binding in Ontario is the Court of Appeal's decision in Naraine.

Undeterred, the employer made its second argument. There is no question that the Tribunal has the jurisdiction to dismiss an application where its substance is found to have been "appropriately dealt with" by another proceeding. A number of grievances relating to the same subject matter as the allegations in the Application had been filed and settled by an experienced and sophisticated Union. In my humble opinion, they had been "appropriately dealt with" in the labour relations regime.

The Vice-Chair disagreed. In Ontario, notwithstanding settlements negotiated between Unions and employers in the course of the grievance arbitration processes mandated by legislation and collective agreements, if employees don't specifically agree to the settlement, they will be permitted continue to litigate the same issues before the Human Rights Tribunal. As stated by one Vice-Chair:6

Certainly, I agree with the [employer] that finality in settlements is important. However, a settlement is not final and binding upon a party unless it is also voluntary. This is axiomatic. It is precisely because a settlement represents the voluntary agreement of the parties that it will be upheld and enforced.

In summary, unionized employers in Ontario must be prepared to deal with both the grievance arbitration process and an Application before the Human Rights Tribunal if intransigent employees refuse to agree to the settlements negotiated by their unions.

It's unequivocally double jeopardy for the employer. Perhaps it's time that an Ontario employer asked our Divisional Court for its opinion on the matter.


1 Northern Regional Health Authority v. Manitoba Human Rights Commission and Linda Horrocks, 2016 MBQB 89 (CanLII) ("Northern Regional").

2 Northern Regional, at para. 49

3 Northern Regional, at para. 65.

4 Meade v. National Steel Car Limited, 2016 HRTO 1383 (CanLII).

5 Ontario (Human Rights Commission) v. Naraine, 2001 CanLII 21234 (ON CA).

6 Ma v. University of Toronto, 2015 HRTO 1551 (CanLII).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Elizabeth Traynor
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