The Supreme Court of Canada’s decision in Northern Regional Health Authority v. Horrocks[i] (“Horrocks”) was released on October 10, 2021. Since its release there has been extensive commentary on whether or not Horrocks applies in Ontario. If found to apply, it would oust the jurisdiction of the Human Rights Tribunal of Ontario (“the Tribunal”) in favour of labour arbitrators with respect to unionized employees in provincially-regulated workplaces.
Shortly after Horrocks was released, I co-authored a blog along with Paul Champ and David Baker – you can read it here. Our view was that Horrocks did not apply in Ontario and the Tribunal retained concurrent jurisdiction with respect to human rights matters. That question was considered by a three-member panel[ii] of the Tribunal on May 11, 2022 in a case called Weilgosh v. London District Catholic School Board[iii] and the Tribunal released its decision today.
Applying the test in Horrocks, the Tribunal in Weilgosh found that an arbitrator appointed under the Labour Relations Act[iv] “has exclusive jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement in Ontario, subject to a clear legislative intent to displace this exclusive jurisdiction…”[v]
Next the Tribunal turned to whether there was clear legislative intent to displace this exclusive jurisdiction, noting that the provisions of the Ontario Human Rights Code “are less clear than the British Columbia and federal statutes, but the legislative history plainly shows that the Legislature contemplated concurrency”.[vi] The Tribunal also noted that the Ontario Court of Appeal upheld concurrent jurisdiction between labour arbitrators and the Tribunal in Ontario (Human Rights Commission) v. Naraine,[vii] even though Naraine was decided prior to the amendments to the Code in Ontario in 2008.
The Tribunal found that “the language used in the Code signals a legislative intent that the Tribunal maintains concurrent jurisdiction” and “despite being presumptively aware of the decisions in Weber and Naraine, and the fact that the Tribunal had continued to hear cases arising from collective agreements, the Legislature did not take steps to limit or narrow the deferral and dismissal powers in sections 45 and 45.1. This signals a clear intent to permit Tribunal decision-makers the power to decide whether to defer applications that could be decided elsewhere, including by arbitration, by grievance, by review or otherwise.”[viii] Where the Legislature chose to limit the Tribunal’s jurisdiction in other cases, it expressly did so.
The Tribunal concluded that there “is a clear legislative intent to carve out concurrent jurisdiction for the Tribunal to decide claims of discrimination and harassment under the Code.”[ix]
The takeaway in Ontario is the status quo. Unionized employees in provincially-regulated workplaces in Ontario who allege discrimination can choose to file a grievance or pursue an application to the Tribunal without their union.
Several matters for unionized employees already before the Tribunal (many of which are out of time to file a grievance) have been deferred awaiting the Weilgosh decision. Those applicants will now be able to move forward and have their applications heard on their merits.
ENDNOTES
[i] Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (Link to decision here)
[ii] In the vast majority of cases, the Tribunal wil appoint one adjudicator to hear a case. The appointment of adjudicators signals the importance of this decision. The three adjudicators appointed were Jeanie Theoharis, Marla Burstyn, and Anthony Tamburro
[iii] Weilgosh v. London District Catholic School Board, 2022 HRTO 1194
[iv] Labour Relations Act, 1995, S.O. 1995, c.1 (Link to statute here)
[v] Weilgosh at para 18.
[vi] Weilgosh at para 36.
[vii] Ontario (Human Rights Commission) v. Naraine, 2001 CanLII 21234 (ON CA) (Link to decision here)
[viii] Weilgosh at para 41.
[ix] Weilgosh at para 46.
Human Rights Law in Ontario 