The Human Rights Tribunal of Ontario (Tribunal) has determined that it has concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement governed by the Labour Relations Act (LRA) and the Police Services Act (PSA). The decision addresses a significant question of law arising from the 2021 decision of the Supreme Court of Canada in Northern Regional Health Authority v. Horrocks (Horrocks).

As we reported in our FTR Now of October 29, 2021, in Horrocks the Supreme Court of Canada held that the Manitoba Human Rights Commission did not hold concurrent jurisdiction over a human rights dispute involving a unionized workplace. Rather, a labour arbitrator held exclusive jurisdiction over the dispute.

In Weilgosh v. London District Catholic School Board (Weilgosh), the Tribunal heard the preliminary issue of whether it has jurisdiction to hear the human rights matters raised in two applications—one involving a unionized employee of the London District Catholic School Board, and the other involving a unionized employee of the Regional Municipality of Peel Police Services Board.

The issue to be decided was whether the allegations made under the Human Rights Code (Code) fall within the exclusive jurisdiction of a labour arbitrator or whether the Tribunal has concurrent jurisdiction over employment-related human rights matters in a unionized workplace.

The Tribunal considered the two-step test articulated in Horrocks (at paras. 39 and 40 of that decision):

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 Weilgosh decision addresses the first step of the Horrocks test.

The Tribunal analyzed the LRA and PSA and determined that they grant a labour arbitrator exclusive jurisdiction to decide claims allegedly arising from disputes which in their essential character relate to the interpretation, application, or violation of a collective agreement.

The Tribunal then analyzed the Code to determine whether it expresses clear legislative intent to displace a labour arbitrator's exclusive jurisdiction under the LRA and the PSA.

It noted that the Code was amended in 2008 and section 45 now gives it the power to "defer an application in accordance with the Tribunal rules." Furthermore, section 45.1 of the Code provides the Tribunal 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." The Tribunal also referred to an earlier Ontario Court of Appeal decision [Ontario (Human Rights Commission) v. Naraine] in which that Court upheld concurrent jurisdiction between labour arbitrators and the Tribunal.

The Tribunal determined that the broad discretion provided to its decision-makers indicates that the Legislature intended for it to maintain concurrent jurisdiction, thereby displacing labour arbitration as the sole forum for human rights disputes falling within the scope of a collective agreement.

Key Takeaways for Employers

The Weilgosh decision addresses an important question for employers regarding how the Tribunal will weigh and value the exclusive jurisdiction afforded to labour arbitrators under the LRA. As expected by many, the Tribunal has found that the statutory regime created under the Code allows for it to maintain concurrent jurisdiction over human rights issues which arise in a unionized workplace.

It is also important for employers to recognize that a key factor in the Tribunal's reasoning was the Legislature's decision to grant the Tribunal the power to defer applications where parallel proceedings have been commenced before a labour arbitrator, and to dismiss applications under section 45.1 of the Code where another proceeding (such as a labour arbitration) has properly dealt with the substance of the application. Practically, then, this decision maintains the status quo for employers with unionized workers. Where parallel proceedings are commenced, it will still be likely that the Tribunal will defer to the labour arbitration regime and await the outcome of that process before considering whether to proceed with an application.

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