On March 13, 2024, the Ontario Divisional Court’s decision in London District Catholic School Board v. Weilgosh confirmed that the Human Rights Tribunal of Ontario (the “HRTO”) and labour arbitrators share concurrent jurisdiction to determine employment-based human rights claims arising in unionized workplaces.[1] This is a significant decision for unionized workers in Ontario, as it allows them autonomy to pursue remedies for human rights claims either through the grievance process established under their collective agreement, or as individual applicants at the HRTO.
In this case, the employee was a member of the Ontario English Catholic Teachers’ Association (“OECTA”) who claimed that her school board employer discriminated against her on the basis of disability. The OECTA filed a number of grievances on the employee’s behalf, who then later filed her own application at the HRTO.
Shortly after the employee filed her application, the Supreme Court of Canada released its decision in Northern Region Health Authority v. Horrocks (“Horrocks”), which held that in Manitoba, labour arbitrators have exclusive jurisdiction over human rights issues arising in the workplace for unionized employees.[2]
The Supreme Court in Horrocks developed a two-step analysis for resolving jurisdictional questions as between labour arbitrators and competing statutory tribunals: (1) whether the relevant legislation grants arbitrators exclusive jurisdiction, and if so, over what matters; and (2) whether the dispute falls within the scope of that jurisdiction.
This decision prompted the employer to file a Request for an Order during Proceedings with the HRTO seeking to dismiss the employee’s application. The employer argued that the conclusion in Horrocks should also apply in Ontario and that the HRTO had no jurisdiction to adjudicate the employee’s human rights claim. The HRTO’s three-member panel dismissed the employer’s preliminary objection and found that it had jurisdiction to adjudicate the employee’s application.
The HRTO examined the Ontario Labour Relations Act, 1995 and found that arbitrators have exclusive jurisdiction to decide human rights claims falling within the scope of a collective agreement in Ontario. Nevertheless, the Ontario Human Rights Code (“the Code”) and its legislative history express a clear intent to displace arbitrators’ exclusive jurisdiction and establish concurrent jurisdiction with the HRTO. This conclusion was drawn from an analysis of sections 45 and 45.1 of the Code, granting the HRTO authority to defer or dismiss claims if another proceeding appropriately addresses the application’s substance.
The HRTO also noted that concurrent jurisdiction was consistent with the Supreme Court of Canada’s decision in Weber v. Ontario Hydro and the more recent Ontario Court of Appeal’s decision in Ontario (Human Rights Commission) v. Naraine.[3]
The employer subsequently sought judicial review of the HRTO’s decision to the Divisional Court. The Court dismissed the application for judicial review and found that the HRTO’s decision was reasonable and correct. Justice Blackhouse, writing for the Court, wrote at paragraph 66:
“In considering the broad language used in the Ontario Code, its statutory scheme and the broader legal context of the legislative and jurisprudential history of the Ontario Code, the HRTO correctly applied Horrocks to find concurrent jurisdiction. In the words of Horrocks, in these circumstances, applying an exclusive arbitral jurisdiction model would defeat, not achieve the legislative intent.”
As a result, concurrent jurisdiction remains in Ontario. Unionized employees therefore have the right to choose whether to pursue human rights claims at the HRTO or through the grievance procedure. However, the HRTO maintains the power to defer applications where parallel proceedings have been commenced before a labour arbitrator, and to dismiss applications under section 45.1 of the Code where a labour arbitration has properly dealt with the substance of the application.
About the author
Sarah Mills is an associate lawyer at Blaney McMurtry LLP. She has developed a broad practice in all areas of employment, labour and human rights law. Sarah is a passionate advocate for her clients and regularly appears before private arbitrators, various levels of courts and tribunals. She provides representation on a wide range of workplace matters, including wrongful dismissal, employment standards, human rights applications, grievance arbitrations and occupational health and safety. In addition to her litigation practice, Sarah also provides practical and strategic advice on accommodation, employment contracts, workplace policies and severance packages.
[2] Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (CanLII)
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