On March 13, 2024, the Ontario Divisional Court released its long-awaited decision in London District Catholic School Board v. Weilgosh, 2023 ONSC 3857 (“Weilgosh”). The decision confirms that the Human Rights Tribunal of Ontario (the “Tribunal”) and labour arbitrators share concurrent jurisdiction over human rights complaints arising from a provincially regulated collective agreement.
Horrocks and the Test for Resolving Jurisdictional Contests over Human Rights Issues
The central issue in Weilgosh stems from the Supreme Court of Canada’s decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (“Horrocks”).
In Horrocks, the Supreme Court considered whether the Manitoba Human Rights Commission could adjudicate a human rights complaint from a unionized employee. The employee alleged that she was subjected to disability-based discrimination in her dismissal from employment. Instead of asking her union to grieve her dismissal, the employee filed a complaint with the Manitoba Human Rights Commission pursuant to Manitoba’s Human Rights Code.
The Supreme Court established a two-part analysis for resolving jurisdictional contests between labour arbitrators and competing statutory tribunals. Under the first part of the analysis, the relevant legislation must be examined to determine whether it grants exclusive jurisdiction to the labour arbitrator and, if so, over what matters. If the labour arbitrator exercises exclusive jurisdiction, the second part of the analysis determines whether the dispute falls within the scope of the labour arbitrator’s jurisdiction, having regard to the ambit of the collective agreement and the factual circumstances underpinning the dispute.
After conducting the relevant analysis, the Supreme Court concluded that labour arbitrators exercise exclusive jurisdiction over the human rights allegations of unionized employees in Manitoba’s provincially regulated workplaces. Of note, section 78(1) of The Labour Relations Act in Manitoba mandates arbitration of “all differences” arising from a collective agreement, including whether a unionized employee is dismissed for discriminatory reasons. Manitoba’s Human Rights Code does not expressly displace the exclusive jurisdiction established by this mandatory arbitration provision.
Weilgosh and Adjudicative Jurisdiction over Human Rights Complaints in Ontario
The opposite conclusion was reached in respect of the jurisdictional contest between the Tribunal and labour arbitrators appointed under Ontario legislation.
In a preceding decision (2022 HRTO 1194), the Tribunal concluded that it had overlapping jurisdiction to decide human rights claims raised by unionized employees. Although the Labour Relations Act, 1995 (“LRA”) and Police Services Act confer exclusive jurisdiction on labour arbitrators, the Tribunal held that this exclusive jurisdiction was displaced by the Ontario Human Rights Code (the “Code”).
The Divisional Court in Weilgosh upheld the Tribunal’s decision on judicial review. The Divisional Court found that, unlike Manitoba’s Human Rights Code, the Ontario Code contains provisions that expressly empower the Tribunal to defer or dismiss complaints appropriately dealt with in other proceedings (viz., sections 45 and 45.1). The Divisional Court also considered the legislative history of the Code and, specifically, symmetrical amendments to the LRA and the Code that conferred synchronized adjudicative powers on labour arbitrators and the Tribunal. Taken together, the broad language and legal context of the Code signaled a legislative intent for the Tribunal and labour arbitrators to maintain concurrent jurisdiction over human rights claims arising from a collective agreement.
Weilgosh is the first court decision to consider how Horrocks applies to the Code. The Divisional Court’s confirmation of the Code’s concurrent jurisdiction model brings welcome clarification to employers, unions, and employees of Ontario’s provincially regulated workplaces.
About the author
Cassandra Ma is legal counsel for Bell Canada and a member-at-large of the OBA’s Consitutional, Civil Liberties and Human Rights Law Section Executive. She also is the CPD liaison for the OBA Workers’ Compensation Section, after having served as its past chair (2022-2023), chair (2021-2022), vice chair (2020-2021), and newsletter editor (2019-2020).
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.