Ontario court upholds HRT’s finding that it has concurrent jurisdiction with labour arbitrators over complaints by unionized employees post-Horrocks

London District Catholic School Board v. Weilgosh, [2024] O.J. No. 1127, Ontario Superior Court of Justice, March 13, 2024, N.L. Backhouse, G.W. King and J. Krawchenko JJ.

After her union had filed grievances on her behalf relating to the same or similar allegations, a school board employee complained to the Human Rights Tribunal of Ontario that her employer had discriminated against her and failed to accommodate her. The school board raised a preliminary objection to the complaint by arguing, with reliance on the SCC decision in Horrocks (2021 SCC 42), that the labour arbitrators appointed under the Labour Relations Act had exclusive jurisdiction over human rights claims arising from disputes under a collective agreement, and therefore the complaint was not within the Tribunal’s jurisdiction. The Tribunal dismissed this argument and held that it had concurrent jurisdiction to adjudicate employment-related human rights matters in a unionized workplace, including the subject complaint (see 2022 HRTO 1194). The school board sought judicial review of the decision with the Ontario Superior Court of Justice.

The Court reviewed the two-part test established in Horrocks and determined that the Tribunal had correctly applied it, resulting in the finding that the Tribunal had concurrent jurisdiction. Given the mandatory dispute resolution clause of the LRA (satisfying the first part of the test), the only way for labour arbitrators’ exclusive jurisdiction to have been displaced by concurrent jurisdiction was with a clearly expressed legislative intent to displace it. The Court was satisfied with the Tribunal’s finding that there was “clear legislative intent to carve out concurrent jurisdiction for the Tribunal to decide claims of discrimination and harassment under the Code.” In making this finding, the Tribunal had pointed out that the Human Rights Code in Ontario provides the Tribunal with broad discretion to defer applications in accordance with its rules, which includes instances where the claim could be the subject of a grievance under a collective agreement, and broad power to dismiss a claim if it is of the opinion that another proceeding has appropriately dealt with the substance of the application. This signaled the legislature’s intent to allow the Tribunal concurrent jurisdiction over such matters.

The Court dismissed the application for judicial review, finding that in considering the broad language used in the Code, its statutory scheme and the broader legal context of the legislative and jurisprudential history of the Code in Ontario, the Tribunal had correctly applied Horrocks to find concurrent jurisdiction.

This case was digested by Kara L. Hill of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please feel free to contact her directly at [email protected].