In London District Catholic School Board v. Weilgosh, 2024 CanLII 20606 (ON SCDC), the Ontario Superior Court of Justice, Divisional Court (Divisional Court) rejected an employer’s argument that the Human Rights Tribunal of Ontario lacked jurisdiction to hear its case, and that labour arbitrators appointed under Ontario’s Labour Relations Act (LRA) have exclusive jurisdiction to decide human rights complaints arising from disputes under a collective agreement.

As previously discussed, the Tribunal had found that it was endowed with concurrent jurisdiction over human rights issues that arise in a unionized workplace and, accordingly, unionized employees may choose to pursue human rights claims through labour arbitration or through the Tribunal.

Decision of the Divisional Court

To establish that the Tribunal’s finding was correct, the court noted that the Supreme Court of Canada (SCC) held in Northern Regional Health Authority v. Horrocks, 2021 SCC 4, that an examination of the relevant legislation is required to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters. 

The Divisional Court found that the LRA has a mandatory dispute resolution clause and an arbitrator empowered under that clause has exclusive jurisdiction to decide all disputes arising from the collective agreement.  The court noted that the matter in question involves a human rights claim of discrimination arising from the collective agreement.

Next, the court noted that in accordance with Horrocks, once it is established that an arbitrator has exclusive jurisdiction to decide all disputes arising from the collective agreement, such jurisdiction is subject to clearly expressed legislative intent to displace a labour arbitrator’s exclusive jurisdiction. Although concurrent jurisdiction requires “some positive expression of the legislature’s will,” the use of specific language of “concurrent jurisdiction” is not required; a “competing statutory scheme may disclose that intention.”  In Horrocks, the SCC also noted that on occasion the provisions of a statute will be ambiguous, and the legislature’s intention of concurrency will be shown in the legislative history.   

The court concluded:

In considering the broad language used in the Ontario Code, its statutory scheme and the broader legal context of the legislative and jurisprudential history of the Ontario Code, the HRTO correctly applied Horrocks to find concurrent jurisdiction. In the words of Horrocks, in these circumstances, applying an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent.

Bottom Line for Employers

The decision of the Divisional Court confirms that employees in unionized workplaces in Ontario may continue to choose between pursuing human rights claims before a labour arbitrator or before the Tribunal.

It is important to note, however, that should an employer prefer to have an employee’s human rights claim decided by a labour arbitrator rather than the Tribunal, it may request that the Tribunal defer its consideration of the employee’s application to a labour arbitrator:

The Tribunal may defer consideration of an application “on such terms as it may determine, on its own initiative or at the request of a party.” (Rule 14.1 of the Tribunal’s Rules of Procedure)

Employers that wish to request a deferral are encouraged to seek the support of experienced counsel. 

Employers should also be aware that if a labour arbitration proceeding is commenced simultaneously with an application to the Tribunal, the Tribunal may, on its own initiative, defer consideration of the application and decide whether to move forward with it only after reviewing the arbitrator’s decision.  If the Tribunal determines that the arbitrator handled the application in an appropriate manner, it may then dismiss the application under s. 45.1 of the Code.