Under the Ontario Human Rights Code (the “Code”), every person has a right to equal treatment with respect to employment without discrimination on the basis of listed protected grounds. These include race, place of origin, colour, creed, sex, sexual orientation, gender identity, age, family status and disability.
As we recently reported, non-federally regulated employees that have been discriminated against can commence proceedings before the Human Rights Tribunal of Ontario (the “Tribunal”). Remedies may include significant damages awards.
Can unionized employees also approach the Tribunal with discrimination complaints, or do they need to argue a grievance under the collective agreement in a labour arbitration?
Collective agreements contain a method for settling disputes
In the labour context, collective agreements provide for arbitration proceedings to resolve disputes concerning the interpretation, application and alleged violation of the agreement, pursuant to section 48 of the Labour Relations Act. Collective agreements also prohibit discrimination.
As a result, unionized employees who allege discrimination in the workplace can seek recourse through a grievance arbitration commenced by their union. The issue is whether this confers exclusive jurisdiction on the labour arbitrator to decide on human rights complaints or whether this jurisdiction is shared with human rights tribunals.
Recent Supreme Court decision found exclusive jurisdiction for labour arbitration in Manitoba
Last year, the Supreme Court of Canada considered this issue in the context of the Manitoba legislation in Northern Regional Health Authority v Horrocks.
The employee in this case argued that her employer failed to accommodate her disability adequately. After she was terminated, her union filed a grievance, which was settled through an agreement reinstating her employment. After she was terminated again, she complained to the Manitoba Human Rights Commission, which decided that it had jurisdiction to hear the complaint. The employer appealed.
The matter made its way to the Supreme Court. The Court applied a two-step test to determine whether the Commission shared jurisdiction with the labour arbitrator.
Does the labour legislation grant exclusive jurisdiction and does the human rights legislation clearly displace this?
The Court first considered whether the Manitoba labour legislation granted exclusive jurisdiction to the arbitrator. The Court found that it did, with the purpose of the legislative provision to channel all disputes arising from the collective agreement to labour arbitration.
Furthermore, the Court found that the Manitoba Human Rights Code did not expressly displace this exclusive jurisdiction.
Does the dispute fall within the scope of the labour arbitrator’s exclusive jurisdiction?
As such, the Supreme Court turned to the second step and looked at whether the dispute fell within the scope of the labour arbitrator’s exclusive jurisdiction. The Court found that the employee’s complaint fell within the arbitrator’s exclusive jurisdiction because the dispute concerned an alleged violation of the collective agreement, namely whether the employer exercised its management rights consistent with the agreement’s anti-discrimination provision.
As a result, the Commission did not have jurisdiction to hear the employee’s human rights complaint.
New Ontario Human Rights Tribunal decision considered whether the Ontario legislation granted exclusive jurisdiction to labour arbitrators
The new decision of the Tribunal in the case of Weilgosh v London District Catholic School Board considered whether the Ontario legislation had the same effect and granted exclusive jurisdiction over human rights issues to labour arbitrators.
The Tribunal held a preliminary hearing regarding two applications to decide this matter. The applicant employees argued that the Tribunal had concurrent jurisdiction, whereas the respondent employers argued that labour arbitrations had exclusive jurisdiction over employment-related human rights matters in unionized workplaces.
Labour Relations Act conferred exclusive jurisdiction on labour arbitrators
Following the test laid down by the Supreme Court in Northern Regional Health Authority v. Horrocks, the Tribunal first considered whether the Ontario labour legislation granted labour arbitrators exclusive jurisdiction over alleged collective agreement violation.
The Tribunal decided that the Labour Relations Act conferred exclusive jurisdiction on labour arbitrators. One of the applications related to a collective agreement under the Police Services Act, which the Tribunal found also conferred exclusive jurisdiction on labour arbitrators to decide claims falling within the scope of a collective agreement.
However, the Code expressly displaced the labour arbitrator’s exclusive jurisdiction
The Tribunal then considered whether the Code demonstrated a clear legislative intent to expressly displace the labour arbitrator’s exclusive jurisdiction. The Tribunal decided that the language used in the Code signalled a legislative intent that the Tribunal maintains concurrent jurisdiction to hear cases arising from collective agreements.
The adjudicators opined that the broad powers given by the Code to the Tribunal to defer an application or dismiss it, if it is of the opinion that another proceeding has appropriately dealt with the substance of the application, signalled an intent on the part of the legislature that the Tribunal is to maintain concurrent jurisdiction. Where the legislature chose to limit the scope of the Tribunal’s jurisdiction, it did so expressly. For example, the Code explicitly states that the Tribunal does not have jurisdiction to hear an application where the person has commenced civil proceedings.
Human Rights Tribunal of Ontario has concurrent jurisdiction, but must consider whether to exercise it
Contrary to the situation in Manitoba, the Tribunal has jurisdiction to determine claims of discrimination falling within the scope of collective agreements.
However, this does not necessarily mean that the Tribunal will address all applications that are filed with it. Where it has concurrent jurisdiction with labour arbitration, it must still consider whether to exercise its jurisdiction in the particular circumstances of the case.
Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Human Rights Matters in the Workplace
Grosman Gale Fletcher Hopkins LLP helps employers facing grievances, including on human rights issues. In a non-unionized context, we assist employees that have faced discrimination or harassment, as well as employers that have had human rights claims filed against them. Our knowledgeable employment and labour lawyers can get you through your workplace issue. Contact us online or at 416.364.9599 to schedule a consultation.
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