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Unionized Employees Can Bring Human Rights Claims to OHRT or Labour Arbitrators

In October 2022, the Ontario Human Rights Tribunal (Tribunal) released its interim decision in Weilgosh v. London District Catholic School Board. The Tribunal held that it has concurrent jurisdiction with labour arbitrators over claims of discrimination and harassment within the scope of a collective agreement governed by the Ontario Labour Relations Act, 1995 or the Police Services Act.

The interim decision arose from two separate Tribunal cases involving alleged discrimination in unionized environments: Weilgosh v. London Catholic District School Board and A.P. Fernandes and McNulty v. Regional Municipality of Peel Police Services Board and Daniel Johnstone. The respondents in these two cases argued that, following the Supreme Court of Canada (SCC) decision of Northern Regional Health Authority v. Horrocks(Horrocks), the Tribunal had no jurisdiction to hear human rights claims arising in unionized environments.

In Horrocks, the SCC confirmed that labour arbitrators have exclusive jurisdiction over disputes arising from a collective agreement. However, the SCC held that this exclusive jurisdiction can be overridden where a competing statutory scheme demonstrates an intention to displace the arbitrator’s exclusive jurisdiction. The SCC found no such legislative intent under the Manitoba Human Rights Code and, therefore, upheld the exclusive jurisdiction of labour arbitrators in Manitoba over discrimination and harassment claims.

Applying Horrocks, the Tribunal found that both the Ontario Labour Relations Act, 1995 and Police Services Act provide labour arbitrators exclusive jurisdiction to decide human-rights-related claims of discrimination and harassment falling within the scope of a collective agreement. However, the Tribunal also held that the Ontario legislature intentionally displaced the exclusive jurisdiction of labour arbitrators by providing the Tribunal with concurrent jurisdiction under the Ontario Human Rights Code(Code). The Tribunal emphasized that the legislature did not take steps to limit the Tribunal’s deferral and dismissal powers in sections 45 and 45.1 of the Code. As such, this signalled the Tribunal’s concurrent jurisdiction to deal with claims of human-rights-related harassment and discrimination.

In conclusion, the decision in Weilgosh v. London District Catholic School Board confirms the Tribunal’s position that unionized employees in Ontario have recourse for human-rights-related discrimination and harassment claims through both labour arbitration and the Ontario Human Rights Tribunal.

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