In Weilgosh v London District Catholic School Board [Weilgosh], the Human Rights Tribunal of Ontario (the “Tribunal”) confirmed that it has concurrent jurisdiction with labour arbitrators to decide employment-related human rights matters that arise in unionized workplaces.
Background
The Tribunal addressed the preliminary issue of jurisdiction in two underlying applications. These applications were brought by unionized employees who alleged violations of the Human Rights Code [Code] by their employers, the London District Catholic School Board and the Regional Municipality of Peel Police Services Board.
The Tribunal considered the Supreme Court of Canada’s (the “Court”) prior decision in Northern Regional Health Authority v Horrocks [Horrocks]. In Horrocks, the Court examined the relevant legislation and concluded that labour arbitrators have sole jurisdiction to decide human rights matters raised by unionized workers in Manitoba’s provincially regulated workplaces, to the exclusion of Manitoba’s Human Rights Commission.
The Tribunal applied the first part of the two-step analysis developed by the Court in Horrocks to resolve jurisdictional questions between labour arbitrators and competing statutory tribunals to the applications before it. Analysis of the first part of the Horrocks test yielded two questions:
- Does the Labour Relations Act, 1995 [LRA] or the Police Services Act [PSA] grant exclusive jurisdiction to a decision-maker appointed under labour legislation?
- If the answer to the first question is “yes”, is there clearly expressed legislative intent to displace a labour arbitrator’s exclusive jurisdiction?
The Tribunal found that the LRA and the PSA granted labour arbitrators the exclusive jurisdiction to decide disputes arising from collective agreements. However, the Code expresses a clear legislative intent to displace that exclusivity, and to carve out concurrent jurisdiction for the Tribunal to decide claims of discrimination and harassment under the Code.
In coming to this finding, the Tribunal made reference to a previous decision by the Ontario Court of Appeal that upheld concurrent jurisdiction between labour arbitrators and the Tribunal. The Tribunal noted that the Code confers upon it the power to dismiss an application where another proceeding, including arbitration, has appropriately dealt with the application’s substance, as well as to defer an application “on such terms as it may determine, on its own initiative or at the request of a party”, including deferral of the application to a labour arbitrator. The Tribunal concluded that “the broad discretion provided to Tribunal decision-makers indicates a positive expression of the Legislature to maintain concurrent jurisdiction, thereby displacing labour arbitration as the sole forum for disputes arising from a collective agreement”.
Subsequently, the Tribunal allowed the two applications to proceed by way of the Tribunal’s adjudicative process.
Takeaways for Employers
Weilgosh confirms that, despite Horrocks, the Tribunal and labour arbitrators share concurrent jurisdiction over employment-related human rights matters that arise in Ontario’s provincially regulated, unionized workplaces. Employees of such workplaces continue to have the choice of pursuing these matters before the Tribunal or a labour arbitrator.
The Weilgosh decision also highlights the broad deferral powers the Code grants the Tribunal. Per these powers and the Tribunal’s Rules of Procedure, employers may also request that the Tribunal defer consideration of an application to a labour arbitrator.
