What about a unionized employee bringing a complaint to the Human Rights Tribunal of Ontario?

The Human Rights Tribunal of Ontario (HRTO) recently released a decision that helps answer such questions. In October 2021, the Supreme Court of Canada made a decision in Northern Regional Health Authority v. Horrocks that ruled that an adjudicator appointed under the Manitoba Human Rights Code did not have jurisdiction to hear a complaint of discrimination of a unionized employee on the basis that disputes concerning the termination of a unionized worker lie within the exclusive jurisdiction of a labour arbitrator, including alleged human rights violations. This Horrocks decision, however, applied to Manitoba’s Human Rights Code, and the Manitoba Human Rights Code and the Ontario Human Rights Code are different.
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The HRTO recently addressed the question of whether Horrocks applies in Ontario and whether the HRTO has jurisdiction to hear human rights complaints of unionized employees. Weilgosh v. London District Catholic School Board, released in October 2022, applied the two-step analysis set out in the Horrocks decision. In short, the HRTO ruled that it does have jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement of a unionized worker.

Weilgosh applied Horrock’s two-step test used to resolve jurisdictional questions between labour arbitrators and competing statutory tribunals. “First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters… Where the legislation includes a mandatory dispute resolution clause, an arbitrator under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary.”

If the first step determines that the legislation grants the labour arbitrator exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction.

In Weilgosh, the HRTO decided that the Ontario Human Rights Code demonstrates a clear legislative intent to expressly displace a labour arbitrator’s exclusive jurisdiction. As such, the HRTO has concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement in Ontario.

The Supreme Court in Horrocks discussed two possible scenarios where the competing statute demonstrates an intention to displace the labour arbitrator’s exclusive jurisdiction: (i) when the legislation enacts a ‘complete code’ that confers exclusive jurisdiction over certain types of disputes on a competing tribunal, or (ii) when the legislation endows a competing tribunal with concurrent jurisdiction. Horrocks found that Manitoba’s Human Rights Code did not carve out concurrent jurisdiction for human rights adjudicators under that statute.

The adjudicators in Weilgosh examined the Ontario legislation and agreed that the broad language used in Ontario’s Human Rights Code signals a legislative intent that the HRTO maintains concurrent jurisdiction over human rights complaints. “The broad discretion provided to Tribunal decision-makers indicates a positive expression of the Legislature to maintain concurrent jurisdiction, thereby displacing labour arbitration as the sole forum for disputes arising from a collective agreement.” In other words, a unionized employee in Ontario can choose whether they want to bring their human rights complaint to an arbitrator under the collective agreement or to the Human Rights Tribunal of Ontario. The HRTO has found a clear legislative intent to be endowed with concurrent jurisdiction on claims of discrimination and harassment under the Ontario Human Rights Code.
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Multiple factors are important when a worker, whether unionized or non-unionized, has a human rights complaint. If you are a worker in Ontario and have a human rights complaint, you may be advised to speak promptly with a lawyer or licensed paralegal who handles human rights tribunal matters in order to know more about your options.