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It’s Not Exactly Schrödinger's Cat, But Human Rights Tribunal of Ontario Says You Can Be In Two Places At Once

There are various aspects of operating a unionized business that are common to all such employers, chief among which are:

• All unionized employers have collective agreements (or will get them, if only newly-certified); and
• Those collective agreements must provide for the settling of disputes with resort to arbitration.

Typically, this second point means that employees taking issue with any aspect of their employment will go through their Union, file a grievance and then, if not resolved through that process, proceed to arbitration, where an independent third-party adjudicator (not a judge) will hear and decide the matter, making that decision binding on the parties (subject to the administrative law principles and rules for judicial review/appeal).  This general process or approach is in place of most of the various other adjudicative processes available to non-unionized employees.  For instance, a unionized employee who has been fired cannot file a wrongful dismissal lawsuit, but rather initiate a discharge grievance.

However, as the recent decision of the Human Rights Tribunal of Ontario (“HRTO”) in Weilgosh v. London District Catholic School Board demonstrates, human rights adjudication is one significant area where an employee may have the ability to pursue a claim under either (or both!) the grievance and arbitration process as set out in their collective agreement, or through the HRTO’s policy.

In making this pronouncement of “concurrent jurisdiction”, the focus of the HRTO’s decision in Weilgosh was on providing an analysis of last year’s Supreme Court of Canada ruling on the appeal of a Manitoba case (North Regional Health Authority v. Horrocks) in the context of Ontario.  In the Manitoba case, the Supreme Court of Canada held that Manitoba’s Labour Relations Act, like Ontario’s Labour Relations Act, 1995, granted exclusive jurisdiction to labour arbitrators over all disputes arising from collective agreements – the proposition to most unionized employers understand to be the case.  At the same time, however, the Supreme Court of Canada did acknowledge that specific legislation may establish a concurrent jurisdiction for a different adjudicative body.  While the Supreme Court of Canada held that Manitoba’s human rights legislation did not establish that concurrent jurisdiction, the HRTO in Weilgosh has decided that its enabling statute, Ontario’s Human Rights Code, holding at paragraph 25:

The Code demonstrates a clear legislative intent to expressly displace the labour arbitrator’s exclusive jurisdiction. We find that the Tribunal has concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement in Ontario.

This was based on the reasoning that the Code’s “broad language signals a legislative intent that the Tribunal [HRTO] maintains concurrent jurisdiction,”, with the HRTO citing the deferral and dismissal powers under section 45 and 45.1 respectively as evidence of the intent to give the HRTO the ability to decide whether to take something on even if it is otherwise properly the subject of the grievance arbitration process.  The HRTO also cited that the fact that 2008 amendments to the Code did not alter those powers even when lawmakers at the time were “presumptively aware” of the seminal arbitral jurisdiction cases of Weber and Naraine.  Finally, the HRTO contrasted the deferral and dismissal language of sections 45 and 45.1 of the Code with the language of section 34.11 which provides for the specific removal of the HRTO’s jurisdiction where a civil proceeding has been commenced in respect of the same matter.

Takeaways for Unionized Employers

Aside from being the HRTO’s assertion of its own authority and jurisdiction, what does the decision in Weilgosh mean for employers?  First and foremost, we know that employers cannot just ignore any Application that comes from the HRTO on the basis that it is better handled under the collective agreement.  However, what it also reminds us is that there are various ways to approach issues, and strategies to employ, for both sides where employment disputes arise in the unionized context.  The lawyers at CCPartners are experienced and well-versed in every aspect of labour relations, and can help you any time you are confronted with tricky jurisdictional issues, grievance disputes or any manner of workplace issue.

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