Divisional Court Confirms that Unionized Employees in Ontario can make Applications to the HRTO

Divisional Court Confirms that Unionized Employees in Ontario can make Applications to the HRTO

The Ontario Divisional Court dismissed the London District Catholic School Board’s application for judicial review in London District Catholic School Board v. Weilgosh, 2024 CanLII 20606 (ON SCDC), after finding that the Human Rights Tribunal of Ontario’s conclusions that the Human Rights Code (Code) clearly shows legislative intent for concurrent jurisdiction over human rights matters were correct.

The Weilgosh Interim Decision

The Human Rights Legal Support Centre had successfully represented the applicant, Karen Weilgosh before the Human Rights Tribunal of Ontario (HRTO) in Weilgosh v. London District Catholic School Board, 2022 HRTO 1194 (Weilgosh). In this decision, the HRTO held it maintained concurrent jurisdiction with labour arbitrators in Ontario despite the Supreme Court of Canada’s decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (Horrocks), which found that labour arbitrators in Manitoba have exclusive jurisdiction over all matters in unionized workplaces that relate to the collective agreement.

Read more about Horrocks and Weilgosh here.

LDCSB Files for Judicial Review

The London District Catholic School Board subsequently filed an application for judicial review of Weilgosh to the Ontario Divisional Court, arguing that the HRTO should have reached the same result as the Court in Horrocks because the wording of the Code did not set out a clear legislative intent to grant concurrent jurisdiction. The HRLSC again represented Weilgosh before the Divisional Court in response to the judicial review application at a hearing in June 2023.

Judicial Review Decision

In March 2024, the Divisional Court dismissed the application for judicial review in London District Catholic School Board v. Weilgosh, 2024 CanLII 20606 (ON SCDC), finding the HRTO’s conclusions were correct. The Code showed a clear legislative intent for concurrent jurisdiction in the deferral and dismissal powers set out in sections 45 and 45.1, which were not present in the Manitoba Code considered in Horrocks. The HRTO’s conclusion was also supported by the legislative history of the Code as well as the Ontario Court of Appeal’s decision in Ontario (Human Rights Commission) v. Naraine, 2001 CanLII 21234 (ON CA), which held that prior amendments to the Code and Labour Relations Act reflected a legislative intention to create concurrent jurisdiction.

As a result of the Divisional Court’s decision, the HRTO maintains concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement and unionized employees in Ontario still have the choice of pursuing human rights claims by way of a grievance or an application to the HRTO.