HRTO confirms it has concurrent jurisdiction with labour arbitrators

October 31, 2022 | Kayla Cockburn

This month, the Human Rights Tribunal of Ontario released a decision in Weilgosh v. London District Catholic School Board, 2022 HRTO 1194 confirming the approach of the Tribunal that it has concurrent jurisdiction with labour arbitrators over human rights claims by unionized employees.

In Weilgosh, the Tribunal held a preliminary hearing regarding two applications in order to decide whether allegations of a breach of the Human Rights Code in a unionized workplace fall within the exclusive jurisdiction of a labour arbitrator.

In 2021 the Supreme Court of Canada, in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, found that Manitoba’s human rights legislation does not grant concurrent jurisdiction to human rights adjudicators and labour arbitrators with respect to matters engaging the human rights of unionized employees. The Supreme Court held that, in accordance with Manitoba’s statutory regime, labour arbitrators had exclusive jurisdiction over any dispute related to the collective agreement, including human rights issues.

The Human Rights Tribunal of Ontario in Weilgosh has distinguished the Ontario Human Rights Code from the Manitoba legislation and held that in Ontario it was the Legislature’s intent to create a system where the Tribunal would have authority to maintain jurisdiction over human rights issues arising from disputes engaging a collective agreement.

In its reasons, the Tribunal noted that the Code grants it a broad power to defer a hearing pending the completion of another process and to dismiss an application if it deems that another proceeding, such as an arbitration, has appropriately dealt with the issues raised. The Tribunal found that the Legislature empowered it to decide on a case-by-case basis whether to maintain its jurisdiction over a matter engaging legal rights protected by the Code.

This recent decision by the Human Rights Tribunal of Ontario has confirmed the Tribunal’s existing approach and perpetuates the existing system in which decisions by labour arbitrators might not be final, and employers may be required to re-litigate issues decided in grievance arbitrations, increasing costs for employers, such as school boards, at a time when resources and time are very limited.

School boards should ensure that they updated policies and procedures to protect employees’ Code protected rights, that there are processes to ensure efficient, effective neutral investigations of potential breaches of the Code, and that resolutions may be facilitated before a dispute results in both a grievance and an application to the Tribunal.

Should you have any questions, please feel free to reach out to a member of Miller Thomson’s Education group.

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