In October 2022, the Ontario Human Rights Tribunal (Tribunal)
released its interim decision in Weilgosh v. London District Catholic School
Board. The Tribunal held that it has concurrent
jurisdiction with labour arbitrators over claims of discrimination
and harassment within the scope of a collective agreement governed
by the Ontario Labour Relations Act, 1995 or the
Police Services Act.
The interim decision arose from two separate Tribunal cases
involving alleged discrimination in unionized environments:
Weilgosh v. London Catholic District School Board and A.P.
Fernandes and McNulty v. Regional Municipality of Peel
Police Services Board and Daniel Johnstone. The respondents in
these two cases argued that, following the Supreme Court of Canada
(SCC) decision of Northern Regional Health Authority v.
Horrocks (Horrocks), the Tribunal had no jurisdiction to
hear human rights claims arising in unionized environments.
In Horrocks, the SCC confirmed that labour arbitrators
have exclusive jurisdiction over disputes arising from a collective
agreement. However, the SCC held that this exclusive jurisdiction
can be overridden where a competing statutory scheme demonstrates
an intention to displace the arbitrator's exclusive
jurisdiction. The SCC found no such legislative intent under the
Manitoba Human Rights Code and, therefore, upheld the
exclusive jurisdiction of labour arbitrators in Manitoba over
discrimination and harassment claims.
Applying Horrocks, the Tribunal found that both the
Ontario Labour Relations Act, 1995 and Police Services
Act provide labour arbitrators exclusive jurisdiction to
decide human-rights-related claims of discrimination and harassment
falling within the scope of a collective agreement.
However, the Tribunal also held that the Ontario legislature
intentionally displaced the exclusive jurisdiction of labour
arbitrators by providing the Tribunal with concurrent jurisdiction
under the Ontario Human Rights Code (Code). The Tribunal
emphasized that the legislature did not take steps to limit the
Tribunal's deferral and dismissal powers in sections 45 and
45.1 of the Code. As such, this signalled the Tribunal's
concurrent jurisdiction to deal with claims of human-rights-related
harassment and discrimination.
In conclusion, the decision in Weilgosh v. London District
Catholic School Board confirms the Tribunal's position
that unionized employees in Ontario have recourse for
human-rights-related discrimination and harassment claims through
both labour arbitration and the Ontario Human Rights Tribunal.
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