Unionized Employers in Ontario Take Note: The HRTO and Labour Arbitrators Now Have Overlapping Jurisdiction
In a long-awaited decision, an Ontario court has confirmed that unionized employees in Ontario can pursue human rights claims by filing an application with the Human Rights Tribunal of Ontario (“HRTO”) or by having their union file a grievance, but not both. In London District Catholic School Board v. Weilgosh [Weilgosh], the Divisional Court of the Ontario Superior Court of Justice (the “Court”) dismissed an employer’s application for judicial review challenging the HRTO’s jurisdiction to resolve the human rights application of a unionized employee.
This is highly notable because it contrasts with a recent decision of the Supreme Court of Canada (“SCC”) called Northern Regional Health Authority v. Horrocks [Horrocks]. In Horrocks, the SCC held that labour arbitrators have exclusive jurisdiction over human rights claims relating to unionized workplaces in Manitoba.
Weilgosh has major implications for Ontario employers because it means that unionized employees in Ontario can pursue human rights claims by having their union file a grievance or by filing an HRTO application (but not both), as discussed in greater detail below.
Background
Ms. Weilgosh filed an HRTO application against her employer, the London District Catholic School Board (the “School Board”), alleging that it had discriminated against her in violation of the Ontario Human Rights Code (the “Ontario Code”). Notably, Ms. Weilgosh was a unionized employee whose terms and conditions of employment were governed by a collective agreement between her union and the School Board. This is notable because the Ontario Labour Relations Act provides that any disputes relating to a collective agreement are to be resolved through arbitration by a labour arbitrator.
Subsequently, the SCC released its decision in Horrocks, in which it held that labour arbitrators have exclusive jurisdiction over human rights claims arising from disputes under a collective agreement in Manitoba. In other words, the SCC held that human rights arbitrators appointed under Manitoba’s Human Rights Code (the “Manitoba Code”) have no jurisdiction over human rights complaints relating to unionized workplaces in Manitoba. The SCC reached this conclusion based on the specific wording of the Manitoba Code and Manitoba’s labour relations legislation.
In light of the SCC’s decision in Horrocks, the School Board then raised a preliminary objection with the HRTO, arguing that it did not have jurisdiction to adjudicate Ms. Weilgosh’s human rights application because it related to her employment as a unionized employee. The HRTO ultimately dismissed this preliminary objection because it found that it had overlapping jurisdiction with labour arbitrators over human rights claims relating to unionized workplaces. The HRTO reached this conclusion because it found that the specific wording in the Ontario Code suggested that the Ontario legislature intended labour arbitrators and the HRTO to have overlapping jurisdiction for such claims. In particular, the HRTO found that this was expressed through sections of the Ontario Code which empower the HRTO to defer or dismiss applications concerning complaints that are/were the subject of another legal proceeding, because this implies that both the HRTO and labour arbitrators both have jurisdiction over such complaints.
The School Board subsequently applied to the Court for judicial review, arguing that labour arbitrators have exclusive jurisdiction to decide human rights complaints relating to unionized workplaces in Ontario.
The Court’s Decision
The Court dismissed the School Board’s application for judicial review because it found that the HRTO was correct about having overlapping jurisdiction with labour arbitrators to resolve human rights complaints relating to unionized workplaces in Ontario.
In reaching this conclusion, the Court ruled that the HRTO was correct in finding that the wording of the Ontario Code showed that the legislature intended labour arbitrators and the HRTO to have overlapping jurisdiction over human rights claims arising out of unionized Ontario workplaces.
In the result, the Court held that the HRTO therefore did have jurisdiction to adjudicate Ms. Weilgosh’s human rights application and that it was right to dismiss the School Board’s preliminary objection challenging its jurisdiction. Consequently, the Court dismissed the School Board’s application for judicial review.
The Bottom Line and What This Means to You
As noted above, Weilgosh has major implications for Ontario employers because it means that unionized employees in Ontario can pursue human rights claims by having their union file a grievance or by the employee filing an HRTO application on their own.
Crucially, there are significant differences between grievance arbitration under a collective agreement and human rights applications before the HRTO. For example, collective agreements typically require grievances to be filed promptly in order to be considered. On the other hand, employees have up to one year to file a human rights application with the HRTO. This difference in timelines can seriously impact an employer’s ability to defend itself. This is because an employee filing an HRTO application one year after alleged discrimination took place can deprive the employer of being able to obtain relevant evidence, due to memories fading and the loss/destruction of documents over time, compared to when a grievance must be filed shortly after the alleged discrimination.
Another major difference is that unionized employees do not have the power to file a grievance against their employer without the support of their union. This is because unions have the power to decide whether they will file a grievance against an employer on behalf of a unionized employee. Unions usually vet these grievances with their lawyers and/or qualified specialists to determine the merits of the allegations. On the other hand, a unionized employee can file a potentially meritless HRTO application on their own without the support of their union. As a result, Weilgosh means that employers with unionized workplaces will likely face more human rights complaints than they otherwise would. This is because unionized employees in Ontario can simply file an HRTO application against their employer if their union refuses to file a grievance alleging discrimination. In contrast, unionized employees in Manitoba cannot file a human rights complaint against their employer if their union declines to file a grievance on their behalf.
Similarly, employers with unionized workplaces may have more difficulty achieving reasonable settlements where employees file HRTO applications against them, compared to grievances involving alleged discrimination. This is because unions have the power to decide whether to settle a grievance, regardless of whether the employee wants to continue pursuing it to arbitration. Additionally, unions often agree to settlements that employees do not want to accept because employees often overestimate the value of their claims. In other words, employees who file HRTO applications are less likely to agree to reasonable settlements compared to unions, which can force employers to spend substantial amounts on legal fees to defend themselves.
Ultimately, these are only a few of the major implications that Weilgosh is likely to have for Ontario employers with unionized workplaces, and it will likely be years before the full implications become apparent.
If you require assistance with defending against a human rights complaint, whether it is in the form of a grievance or a human rights application, please do not hesitate to contact us for expert legal advice and guidance.
