Canada: Ontario Human Rights Tribunal Rules That It Has Concurrent Jurisdiction With Labour Arbitrators Over Human Rights Matters

Recently, the Human Rights Tribunal of Ontario in Weilgosh v. London District Catholic School Board determined that the Tribunal had concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement governed by the Ontario Labour Relations Act, 1995 (the "LRA") and the Ontario Police Services Act (the "PSA").

Background

In the case of Northern Regional Health Authority v. Horrocks, the Supreme Court of Canada previously found that labour arbitrators may have exclusive jurisdiction to decide human rights claims, depending on the statutory provisions of a province's labour relations statute and human rights code. In that case, the Supreme Court of Canada determined the Manitoba Human Right Commission did not have concurrent jurisdiction to determine such claims from unionized employees, and instead labour arbitrators had exclusive jurisdiction to determine those claims. In Weilgosh, the Tribunal considered this same issue, but in the context of Ontario's legislation and human rights scheme.

The Decision

The Tribunal considered the two-step test articulated by the Supreme Court in Horrocks to resolve jurisdictional questions between labour arbitrators and competing statutory tribunals. This test is outlined as follows:

First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters (Morin, at para. 15). 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.

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 Tribunal's decision primarily focused on the first step of the Horrocks analysis, which required it to consider whether the LRA or PSA grant exclusive jurisdiction to a decision-maker. The Tribunal found that an arbitrator appointed under the LRA has exclusive jurisdiction to decide human rights claims falling within the scope of a collective agreement, subject to a clear legislative intent to displace this inherent jurisdiction. These powers were inherent in section 48 of the LRA, which, among other things, provide for a mandatory dispute resolution clause granting a labour arbitrator the exclusive jurisdiction to decide disputes arising from the interpretation, application, or violation of a collective agreement, and empowering a labour arbitrator to interpret and apply human rights statutes. The Tribunal reached the same conclusion for the PSA.

However, the Tribunal went on to find that the Ontario Human Rights Code (the "Code") demonstrates a clear legislative intent to displace the labour arbitrator's exclusive jurisdiction. Accordingly, the Tribunal in Weilgosh found that the Tribunal and labour arbitrators have concurrent jurisdiction to decide human rights claims falling within the scope of a collective agreement in Ontario.

In reaching this determination, the Tribunal relied on Ontario (Human Rights Commission) v. Naraine, a 2001 Ontario Court of Appeal decision which upheld concurrent jurisdiction between labour arbitrators and the Tribunal. The Tribunal also found that the broad language used in the Code signals a legislative intent that the Tribunal maintain concurrent jurisdiction. For example, section 45 of the Code gives the Tribunal the power to "defer an application in accordance with Tribunal rules" and section 45.1 provides the Tribunal with the broad power to dismiss an application if it is "of the opinion that another proceeding has appropriately dealt with the substance of the application". Additionally, the Tribunal found that there was no language in the Code expressly limiting the scope of the Tribunal's jurisdiction with respect to other decision-makers, which further supported a finding of concurrent jurisdiction.

Concluding Thoughts

This decision does not necessarily mean that the Tribunal will address all applications involving unionized workplaces filed with it, since the Tribunal may still defer consideration of an application to a labour arbitrator under the Code. It is likely that where there are parallel proceedings, the Tribunal will defer the matter to arbitration. Ultimately, the effect of Weilgosh is that labour arbitrators are not afforded exclusive jurisdiction over human rights matters and therefore unionized employees with human rights complaints have more than one forum to raise their dispute. This may be of particular importance in cases where a union declines to file a grievance on behalf of its member (perhaps because of the perceived weakness of the case). In such circumstances, the member will be able to turn to the Tribunal to pursue their claim even where the union has declined to do so.

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