Canada: The Human Rights Tribunal Of Ontario Weighs In On The Jurisdiction Over The Human Rights Complaints Of Unionized Employees

The Human Rights Tribunal of Ontario recently confirmed its concurrent jurisdiction over the human rights complaints of unionized employees.

In Weilgosh v. London District Catholic School Board, 2022 HRTO 1194 (“Weilgosh”), the Human Rights Tribunal of Ontario (the “HRTO”) confirmed that it shares concurrent jurisdiction with labour arbitrators over the human rights complaints of unionized employees. Significantly, Weilgosh addresses how the recent Supreme Court of Canada (the “SCC”) decision, North Regional Health Authority v. Horrocks, 2021 SCC 42 (“Horrocks”), applies in Ontario.

In Horrocks, a unionized employee who was dismissed for breaching a last chance agreement brought a complaint before the Manitoba Human Rights Commission alleging discrimination based on disability contrary to the Manitoba Human Rights Code.

The issue of jurisdiction over human rights complaints brought by unionized employees made its way to the SCC. The SCC in Horrocks held that the Manitoba Labour Relations Act, like the Ontario Labour Relations Act, granted exclusive jurisdiction to labour arbitrators over all disputes arising from collective agreements. However, it recognized that other statutes might “carve into” that jurisdiction if the legislature clearly intended that effect. A fulsome analysis of Horrocks is available  here.

In Weilgosh, the HRTO decided whether Horrocks ousts its jurisdiction over the human rights complaints of unionized employees in Ontario's provincially regulated workplaces.

The HRTO held that it shares concurrent jurisdiction with labour arbitrators over the human rights complaints of unionized employees. It found that the broad language used in the Ontario Human Rights Code  (the “Code”)pertaining to certain deferral and dismissal powers indicated that the Ontario Legislature intended for overlapping jurisdiction. Further, the HRTO held that the Ontario Legislature was presumptively aware of decisions upholding concurrent jurisdiction while making amendments to the Code  in 2008, and made no subsequent attempt to limit or narrow these deferral or dismissal powers.

As a result, the HRTO found that notwithstanding the provisions of the Ontario Labour Relations Act and Police Services Act granting a labour arbitrator exclusive jurisdiction to decide disputes arising from a collective agreement, the Code grants the HRTO with concurrent jurisdiction with labour arbitrators over human rights complaints.

Going Forward

While Weilgosh provides useful guidance regarding jurisdiction under the Code, this issue is anything but settled. The decision may still be judicially reviewed by the Ontario Divisional Court. Moreover, labour arbitrators may have a differing view on the subject. However, for now, the clearest guidance points to concurrent jurisdiction between labour arbitrators and the HRTO.

Co-Authored by Liam Billings, an Articling Student in the firm's Toronto office.

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