In Weilgosh interim decision, HRTO and labour arbitrators share jurisdiction over unionized workplace claims

HRTO finds concurrent jurisdiction under the Code with labour arbitrators over human rights claims in unionized workplaces in the case of Weilgosh v. London District Catholic School Board.

In Weilgosh v. London District Catholic School Board, 2022 HRTO 1194 (Weilgosh), the Human Rights Tribunal of Ontario (HRTO) considered requests to dismiss two applications based on the recent decision of the Supreme Court of Canada (SCC) in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (Horrocks). Horrocks found that labour arbitrators in Manitoba have exclusive jurisdiction over all matters in unionized workplaces that relate to the collective agreement between the employer and union.

Unionized workers.

Karen Weilgosh and Geraldine McNulty, both worked in unionized environments. Both filed applications with the HRTO about issues arising in their workplace. After the release of Horrocks, the employers in both matters filed requests to dismiss Weilgosh and McNulty’s applications.

Human rights complaints and unionized employees:

All unionized workplaces have a collective agreement which include a reference to the Human Rights Code (Code) and incorporate the rights set out in the Code into the agreement.

Each collective agreement includes a process for resolving issues arising between the parties. This process involves the filing of a grievance by the union that proceeds through mediation and then to a hearing before a labour arbitrator. Since the Code is incorporated into every collective agreement, unionized employees can raise human rights issues by having their union file a grievance for them.

Concurrent Jurisdiction:

Unionized employees in Ontario cannot sue their employers directly about employment-related matters. Those issues fall within the exclusive jurisdiction of a labour arbitrator and must be dealt with by way of the grievance process set out in their collective agreement. This is due to section 48(1) of the Labour Relations Act, which is a mandatory dispute resolution clause that states all differences between the parties arising out of the collective agreement must be dealt with through arbitration1.

There has historically been an exception to this exclusive jurisdiction with respect to human rights issues, over which human rights tribunals such as the HRTO also have jurisdiction2. Due to this concurrent jurisdiction, unionized employees in Ontario can choose to proceed by way of a grievance or by an application to the HRTO with respect to employment-related human rights complaints. 

The Horrocks Decision:

In Horrocks, the SCC found that the exclusive jurisdiction of labour arbitrators in Manitoba included human rights complaints. As a result of this decision, the Manitoba Human Rights Commission (MHRC) no longer has jurisdiction over human rights complaints brought by unionized workers, which could only be dealt with through the grievance process.

The SCC reached this conclusion based on its interpretation of Manitoba’s laws related to human rights and labour relations. Manitoba’s Labour Relations Act has a mandatory dispute resolution clause like Ontario’s, which gives labour arbitrators exclusive jurisdiction over all issues arising from the collective agreement. In reviewing Manitoba’s Human Rights Code, the SCC noted the statute must show the Manitoba legislature intended for the MHRC to have concurrent jurisdiction with labour arbitrators in order to displace the exclusive jurisdiction provided by the Labour Relations Act. As an example of statutory intent for concurrent jurisdiction, the SCC pointed to the ability to defer an application pending the conclusion of a grievance, as provided by the B.C. Human Rights Code and the federal Canadian Human Rights Act.

The SCC found there was no such expression of intention for concurrent jurisdiction in Manitoba’s Code. The exclusive jurisdiction of labour arbitrators over all matters arising from the collective agreement was not displaced.

Horrocks and the Ontario Code:

The two applicants, Karen Weilgosh and Geraldine McNulty, both worked in unionized environments. Weilgosh, who retained the Human Rights Legal Support Centre as legal counsel for their application, was a teacher for the London District Catholic School Board (LDCSB). McNulty was a police officer with the Peel Regional Police Services. Both filed applications with the HRTO about issues arising in their workplace. Their unions had also filed grievances about these workplace issues, under the collective agreements that governed their workplaces.

After the release of Horrocks, the employers in both matters filed requests to dismiss Weilgosh and McNulty’s applications. The employers argued Horrocks should apply in Ontario and that the HRTO had no jurisdiction over applications filed by unionized employees. The HRTO heard both requests together and appointed a three member panel for the proceeding.  

HRTO determines Horrocks does not apply to Ontario:

The HRTO in Weilgosh concluded that the Code clearly shows legislative intent for concurrent jurisdiction over human rights matters. Section 45 gives the HRTO the power to defer applications like the BC and Canadian Human Rights Tribunals, which were both cited in Horrocks as examples of legislative intent for concurrent jurisdiction. Intent was also shown by the inclusion of section 45.1, which allows the HRTO to dismiss an application where the substance of the application has been appropriately dealt with in another proceeding.  

Based on Weilgosh, the HRTO has concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement. Unionized employees in Ontario still have the choice of pursuing human rights claims by way of a grievance or an application to the HRTO.

An application for judicial review has been filed by the LDCSB to the Ontario Divisional Court. A hearing should take place in the late spring or early summer of 2023.

1 see Weber v. Ontario Hydro, 1995 CanLII 108 (SCC))

2 see Ontario (Human Rights Commission) v. Naraine, 2001 CanLII 21234 (ONCA)