The Human Rights Tribunal of Ontario Confirms Concurrent Jurisdiction of Labour Arbitrators and the Tribunal over Human Rights Code Claims of Unionized Employees

Decision is a major win for unionized employees

12 October 2022
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The Human Rights Tribunal of Ontario (“HRTO”) released its Interim Decision in Karen Weilgosh v London District Catholic School Board and A.P. Fernandes; Geraldine McNulty v Regional Municipality of Peel Police Services and Daniel Johnstone, confirming it has concurrent jurisdiction with labour arbitrators to hear human rights claims falling within the scope of a collective agreement. This decision is a major win for unionized employees, as it affirms their right to pursue employment related human rights claims at either the HRTO or through their grievance procedure, notwithstanding the Supreme Court of Canada’s decision in Northern Regional Health Authority v Horrocks.

The HRTO consolidated two matters for the purpose of determining the preliminary jurisdictional issue. The two underlying applications were brought by Karen Weilgosh, a teacher, and Geraldine McNulty, a police officer, alleging Human Rights Code violations at the hands of their respective employers, the London District Catholic School Board and the Regional Municipality of Peek Police Services Board. The HRTO also heard submissions from four intervenors, including the Ontario English Catholic Teachers’ Association (“OECTA”) (Ms. Weilgosh’s union), represented by Cavalluzzo’s own Chris Perri and Kylie Sier.

The Supreme Court of Canada in Horrocks considered the same jurisdictional issue, but came to the opposite conclusion in light of Manitoba’s distinct legislative landscape. There the Court developed a two-step analysis for resolving jurisdictional questions as between labour arbitrators and competing statutory tribunals: (1) does the relevant legislation grant arbitrators exclusive jurisdiction, and if so, over what matters (e.g. through a mandatory dispute resolution clause, absent express legislative intent to the contrary), and (2) if so, does the dispute fall within the scope of that jurisdiction?

The HRTO examined the Labour Relations Act, 1995 and Police Services Act, and found arbitrators hearing claims of unionized teachers and police officers respectively have exclusive jurisdiction to decide human rights claims falling within the scope of a collective agreement. Nevertheless, the Human Rights Code expresses a clear legislative intent for the Tribunal to carve into labour arbitrators’ sphere of exclusivity, and establishes concurrent jurisdiction.

While the HRTO clearly confirmed the concurrent jurisdiction of labour arbitrators and the HRTO, it emphasized that it retains discretion over whether to exercise its jurisdiction in the circumstances of a particular case, and can defer or dismiss applications for example. This approach maintains the status quo in Ontario, which has been in place since the Supreme Court recognized concurrent jurisdiction in Weber v Ontario Hydro in 1995, affirmed by the Ontario Court of Appeal in Ontario (Human Rights Commission) v Naraine.

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