Divisional Court: Human Rights Code Establishes Concurrent Jurisdiction Between the Human Rights Tribunal of Ontario and Labour Arbitrators

On March 13, 2024, the Ontario Divisional Court released its long-awaited decision in London District Catholic School Board v. Weilgosh, 2023 ONSC 3857 (“Weilgosh”). The decision confirms that the Human Rights Tribunal of Ontario (the “Tribunal”) and labour arbitrators share concurrent jurisdiction over human rights complaints arising from a provincially regulated collective agreement.

Horrocks and the Test for Resolving Jurisdictional Contests over Human Rights Issues

The central issue in Weilgosh stems from the Supreme Court of Canada’s decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (“Horrocks”).

In Horrocks, the Supreme Court considered whether the Manitoba Human Rights Commission could adjudicate a human rights complaint from a unionized employee. The employee alleged that she was subjected to disability-based discrimination in her dismissal from employment. Instead of asking her union to grieve her dismissal, the employee filed a complaint with the Manitoba Human Rights Commission pursuant to Manitoba’s Human Rights Code.

The Supreme Court established a two-part analysis for resolving jurisdictional contests between labour arbitrators and competing statutory tribunals. Under the first part of the analysis, the relevant legislation must be examined to determine whether it grants exclusive jurisdiction to the labour arbitrator and, if so, over what matters. If the labour arbitrator exercises exclusive jurisdiction, the second part of the analysis determines whether the dispute falls within the scope of the labour arbitrator’s jurisdiction, having regard to the ambit of the collective agreement and the factual circumstances underpinning the dispute.

After conducting the relevant analysis, the Supreme Court concluded that labour arbitrators exercise exclusive jurisdiction over the human rights allegations of unionized employees in Manitoba’s provincially regulated workplaces. Of note, section 78(1) of The Labour Relations Act in Manitoba mandates arbitration of “all differences” arising from a collective agreement, including whether a unionized employee is dismissed for discriminatory reasons. Manitoba’s Human Rights Code does not expressly displace the exclusive jurisdiction established by this mandatory arbitration provision.