Archive for the ‘Human Rights Tribunal of Ontario’ Category

HRTO Releases Weilgosh – Tribunal has Concurrent Jurisdiction for Unionized Employees

Posted: October 5, 2022 in Human Rights Tribunal of Ontario, Jurisdiction
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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 in Ontario post-Horrocks

Posted: October 25, 2021 in Human Rights Tribunal of Ontario, Jurisdiction
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By:     Wade Poziomka, Paul Champ & David Baker

Last week, the Supreme Court of Canada issued its decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 423. Since its release, some commentary on this decision has claimed that the jurisdiction of human rights tribunals is ousted in favour of labour arbitrators with respect to unionized employees.

While this may be the case for unionized employees in Manitoba, a careful review of this decision indicates this is likely not the case in other jurisdictions, including Ontario. The Court held that the mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising out of collective agreement, but it specifically recognized that an expression of legislative intent can still confer concurrent jurisdiction. Ideally this intent should be explicitly stated, however even absent specific language, the statutory scheme may disclose that intention. This is found at paragraph 33 of the decision, wherein the Court lists some statutory provisions by way of example.  The Court said,

[T]he mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising from a collective agreement. Consequently, some positive expression of the legislature’s will is necessary to achieve that effect. Ideally, where a legislature intends concurrent jurisdiction, it will specifically so state in the tribunal’s enabling statute. But even absent specific language, the statutory scheme may disclose that intention. For example, some statutes specifically empower a decision-maker to defer consideration of a complaint if it capable of being dealt with through the grievance process (see, e.g., Human Rights Code, R.S.B.C. 1996, c. 210, s.25; Canada Labour Code, ss. 16(1.1) and 98(3), Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss 41 and 42). Such provisions necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process.

The key difference between the Manitoba legislation and human rights statutes in other jurisdictions is the existence of an explicit ‘deferral to another proceeding’ provision. This is highlighted by Justice Karakatsanis’ dissent in Horrocks. The main point of departure for Justice Karakatsanis was her view that section 29(3) of the Manitoba Human Rights Code could and should be broadly interpreted as a “deferral” provision, signaling legislative intent to confer concurrent jurisdiction, even though it did not use same “deferral” language as other statutes.  Justice Karakatsanis found in paragraphs 118-119 of the decision that section 29(3) of the Manitoba Code may be “less explicit than the deferral clauses found in Ontario, British Columbia, and the CHRA”, but that it should be interpreted in the same way. Obviously, and unfortunately for victims of discrimination in Manitoba, the majority of the Court did not agree.

Prior to the Horrocks decision, it was widely accepted in Ontario that the Human Rights Tribunal of Ontario had concurrent jurisdiction with labour arbitrators for human rights disputes arising out of unionized workplaces. To suggest that has changed post-Horrocks, in our view, is simply wrong.

Like the statutes and sections referred to by the majority, and as expressly referenced in the dissent, the Ontario Human Rights Code has a provision which specifically contemplates the deferral of an application. Sections 45 and 45.1 state:

The Tribunal may defer an application in accordance with the Tribunal rules.

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application..

In our view, the statutory scheme for human rights in Ontario demonstrates legislative intent of concurrent jurisdiction. Most significantly, the Ontario Court of Appeal in Ontario (Human Rights Commission) v Naraine, 2001 CanLII 21234, (2001), 209 DLR (4th) 465 (ON CA) held that the Ontario legislature intended to confer concurrent jurisdiction over human rights matters on labour arbitrators and the human rights tribunal. Referring to the deferral provision in the Ontario Human Rights Code at the time as contemplating concurrency through “synchronized discretion” with labour arbitrators, the Court of Appeal observed that this was evidently the legislature’s intent.  The Court of Appeal highlighted the policy reasons behind concurrency, observing that “there may be circumstances where an individual unionized employee finds the arbitral process foreclosed, since the decision whether to proceed with a grievance is the union’s and not the employee’s.”  The Court of Appeal added that assigning exclusive jurisdiction to labour arbitrators in Ontario could “render chimerical the rights of individual unionized employees.”

We pause to note that the Ontario Court of Appeal’s judgment in Naraine was written by Abella J.A., as she then was, before she was elevated to the Supreme Court of Canada. Since Justice Abella joined in the majority decision in Horrocks written by Justice Brown, it must be assumed that Abella J was not agreeing to overturn herself in Naraine.

Human rights are quasi-constitutional rights belonging to individuals. Should the Human Rights Tribunal of Ontario interpret Horrocks to deny persons in Ontario access to the Tribunal to seek redress for alleged human rights violations, that would effectively strip the individualized nature of these rights from unionized employees.

Grievances are owned by unions, not individuals. Unions can choose whether or not to advance a grievance for a number of reasons, and even when a grievance is advanced, can decide whether to include allegations of human rights breaches or not. The individual has little control over that process, short of the ability to file a complaint against a union for unfair representation. While some unfamiliar with labour law may believe that this is a legitimate option, in practicality, very few unfair representation complaints have been successful because the case law in that area has afforded unions broad discretion in when to advance grievances with very few exceptions.

While unions may have good reason not to advance a grievance where there are legitimate human rights issues at play, we must also recognize that the quasi-constitutional nature of human rights should also afford individuals to be permitted to have those allegations determined by an expert human rights body – the Human Rights Tribunal of Ontario.

While Horrocks may appear definitive at first glance, a careful reading indicates that it has not changed the legal status quo in other provinces.  

HRTO Inappropriately Releases Individuals as Respondents in Human Rights Applications – When Did an Organizational Respondent become Sufficient?

Posted: November 25, 2017 in Human Rights Tribunal of Ontario, Proof
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Smart keyboard with personal activities symbol set. Personal responsibility, safety, questions, business and access concept.

The Ontario Human Rights Code’s preamble states its purpose, in part, is “the creation of a climate of understanding and mutual respect for the dignity and worth of each person”. The Code is not intended to “punish” a person or company that engages in discrimination. Rather it is remedial or restorative, aiming to compensate the person who has experienced discrimination. The overriding goal of the Code is ultimately the elimination of discrimination within the Province of Ontario.

When an individual who believes she or he has experienced discrimination is completing an application, it is important to carefully consider who will be named as respondents. It is important to applicants that the perpetrators of discrimination are held to account – whether they are individual or an organization. A finding of discrimination will often provide validation to an applicant and re-affirm his or her value as a person, as well as their dignity and sense of belonging. In these cases, individuals who are alleged to have engaged in discrimination should be named along with the company.

Naming Individual Respondents – Two Scenarios

 

Over the past few years, a troubling trend has emerged in the Human Rights Tribunal of Ontario’s case law relating to the naming and removal of individual respondents. To fully flush this out, it is important to distinguish between two very different scenarios:

  1. Betty files an application against her employer, a regional municipality. In addition to naming the municipality as a respondent, she also names the mayor, the deputy mayor and the COO – all of whom were not involved personally with the facts that give rise to her human rights application.
  1. John files an application against his employer, a regional municipality, and also against his immediate supervisor who regularly made inappropriate remarks and slurs toward John because of his race.

Scenario one above happens all too often and is a legitimate concern. Naming individuals who have nothing to do with the facts of an application unnecessarily adds to the complexity of a proceeding and is inappropriate.

Scenario two, however, is markedly different. John should be permitted to pursue an application against his immediate supervisor – the individual who engaged in conduct that was demeaning and derogatory toward John on the basis of his race. Of course, the employer is also responsible for John’s conduct by virtue of section 46.3 of the Code which imputes liability to a corporation for the employee’s actions and omissions done in the course of his employment.

The Tribunal Goes Too Far to Remedy Inappropriate Naming of Individual Respondents

 

In an effort to counter the inappropriate naming of individual respondents (such as in scenario 1, above), the Tribunal has gone too far. Its jurisprudence now encroaches into the territory of appropriately named individual respondents. Consider the following:

In Delargie v. St. Joseph’s Healthcare Hamilton (2015),[i] Vice-Chair Alison Renton considered a request from the respondents to remove an individual respondent who was named along with the organizational respondent. The Tribunal specifically noted that the individual respondent’s conduct was “central to this case”; however, it removed the individual respondent nonetheless, stating at paragraph 8:

In the circumstances of this case, the individual conduct of the personal respondent is central to this case. While the organizational respondent has not explicitly stated that it would assume liability for the personal respondent in the event that Code violations were found, a joint Response was filed on behalf of both respondents, and the respondents submit both that the personal respondent was not acting outside the scope of her authority and that the factors set out in Persaud, above, support their request to remove the personal respondent. Implicitly the organizational respondent has represented that it will assume liability for the personal respondent’s actions. [bolding added]

The reasoning of the Tribunal in Delargie appears to be – the individual respondent is alleged to have engaged in actions that on their own may be a violation of the Code; however there is an organization  with the financial capacity to assume liability for the employee’s actions, such that we should remove the individual who may have engaged in discriminatory conduct. What happened to accountability? What message does it send when the Tribunal will simply release individuals accused of discrimination because they work for a company that has money? Is the overarching aim of the Code being furthered by this practice? When did section 46.3 of the Code (which imputes liability on the employer for the employee’s actions) become sufficient to release the individual employee?

In Breau v. Halton (Regional Municipality) (2016),[ii] the Applicant raised these principles when opposing a request to remove the individual respondents. Specifically, in opposition to the request, the Applicant stated:

The Code is remedial and restorative – it is not punitive. The Applicant is not requesting that the personal respondents remain a part of the Application for punitive reasons, but rather because the Applicant, and society at large, have an interest in ensuring that remedies are ordered against perpetrators of discrimination in order to achieve one of the primary purposes of the Code, the elimination of discrimination…

There is a troubling trend appearing recently in Tribunal jurisprudence that appears to simply release personal respondents should the corporate respondent accept liability on their behalf and agree to cover any remedy ordered. In the Tribunal’s search for efficiency, it seemingly, in some cases, fails to give credence to the remedial nature of the Code and something is lost in that process. Individuals should be held to account for their independent, discriminatory actions. In this case, the personal respondents should not be removed.

Again, the Tribunal removed the individual respondents, stating at paragraph 14:

…There is an organization respondent (the Regional Municipality of Halton) in the proceeding that is alleged to be liable for the same alleged conduct as them, no issue has been raised to the organization respondent’s deemed or vicarious liability for their alleged conduct, there is no issue as to the ability of the organization respondent to respond to or remedy any infringements of the Code, and no real prejudice would be caused to the applicant or any other party as a result of removing them as respondents to the Application. The reasons that the applicant raised to continue the proceeding against the [individual respondents] have some merit, but I do not agree that they are sufficiently compelling to continue the proceeding against them…

If we hope to reduce discrimination in Ontario, holding individual perpetrators of discrimination accountable for their actions is important. If we hope to provide redress to those who have experienced discrimination, allowing them to advance their claim against each party who perpetrated the discrimination is important. If the perpetrator simply becomes a witness to the process, something meaningful for an applicant is lost.

I recognize the Tribunal wishes to eliminate the number of respondents to ensure the hearing does not become unnecessarily complex. Proceeding against the individuals who are alleged to have individually perpetrated the discrimination, alongside the organizational respondent if there is one, is necessary if we hope to prevent discrimination and provide meaningful redress.

Another practical consideration is that organizational respondents may go bankrupt. Without an individual respondent, some applicants may find themselves without any potential for compensation.

Steps in the Right Direction?

 

The same arguments put forward in Delargie were raised before the Tribunal recently in Nakazi v. Bowland Dental Laboratories (2017).[iii] In an interim decision, Vice-Chair Laurie Letheren refused to remove the individual respondent, stating:

Although there are two corporate respondents to this Application, there remains a possibility that the Tribunal could find that [the individual respondent] was personally liable for his own conduct which amounted to a breach of the Code…it remains potentially open to the Tribunal to make findings of liability and require monetary remedies specifically from the personal respondents for their actions if it was to find that these actions were discriminatory.[iv]

This ruling may seem narrow, in that the Tribunal would only retain an individual respondent where there is a possibility that liability may fall outside of the vicarious liability provision in section 46.3 of the Code. I do not believe this is what the adjudicator in this decision meant to imply because she then went out to cite the Divisional Court in  Human Rights Commission v. Farris (2012),[v] where that Court, stated:

The fact that a corporate respondent may also be jointly and severally liable for the conduct of employees is not a basis to insulate the employees from personal liability…The purpose of s. 46.3 of the Code is to confirm the parallel statutory liability of corporations for the actions of their employees, not to replace it.

The Divisional Court goes on to explicitly state in Farris that one of the “fundamental principles of human rights law” is:

…a finding of corporate liability is not meant to act as a shield against a finding of individual liability where the acts of the individual constitute a violation of the Code.

Unfortunately, to date, the Divisional Court’s guidance on this issue has not been consistently followed by the Tribunal.

Conclusion

 
Hopefully, we are seeing a reversal of the Tribunal’s trend to remove individual respondents where an organization is also named as a respondent.

Future applicants to the Tribunal should give thought to whether individuals have personally engaged in behaviour which could be a violation of the Code – if they have, they should be named as respondents. The inappropriate naming of chief executive officers, mayors, chiefs of police, etc, who do not have personal involvement in the facts giving rise to the application, should be avoided. It is time to bring a principled approach back to who will be held to account for discrimination.

[i] Delargie v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 1329

[ii] Breau v. Halton (Regional Municipality), 2016 HRTO 1055

[iii] Nakazi v. Bowland Dental Laboratories, 2017 HRTO 1204

[iv] It should be noted that there were also concerns about the ability of one of the organizational respondents to satisfy a remedy that may be ordered.

[v] Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.)

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