Tribunal finds clear legislative intent to displace labour arbitrator's exclusive jurisdiction
The Ontario Human Rights Tribunal has concurrent jurisdiction to decide discrimination and harassment claims within the scope of collective agreements governed by Ontario’s Labour Relations Act (LRA) or Ontario’s Police Services Act (PSA), said the tribunal has ruled.
In Weilgosh v. London District Catholic School Board, 2022 HRTO 1194, the two applicants brought two applications before the Ontario Human Rights Tribunal. The tribunal scheduled a hearing to address the preliminary issue of whether it had jurisdiction over the matters that the parties raised in both applications. The respondents, which included the London District Catholic School Board and the Regional Municipality of Peel Police Services Board, requested an order dismissing the two applications.
The Ontario Human Rights Commission, the Ontario English Catholic Teachers’ Association, the Peel Regional Police Association Board, the Canadian Union of Public Employees, and Empowerment Council, Systemic Advocates in Addictions and Mental Health served as intervenors in the case.
The tribunal held the preliminary hearing in May 2022. The respondents argued that dismissal of the applications was proper because the tribunal lacked jurisdiction to hear them and because a labour arbitrator had exclusive jurisdiction over the allegations. On the other hand, the applicants and intervenors claimed that the tribunal had concurrent jurisdiction.
The tribunal rejected the respondents’ request for an order dismissing the applications for lack of jurisdiction.
The tribunal applied the two-step analysis that the Supreme Court of Canada provided in Northern Regional Health Authority v. Horrocks, 2021 SCC 42. Specifically, the tribunal had to address the first step in the Horrocks analysis by answering two questions.
The first question was whether the LRA or the PSA granted exclusive jurisdiction to a decision-maker appointed under labour legislation. The tribunal found that an arbitrator appointed under the LRA or under the PSA had exclusive jurisdiction to decide discrimination and harassment claims within the scope of a collective agreement in Ontario, subject to a clear legislative intent to displace this exclusive jurisdiction.
The second question was whether there was a clearly-expressed legislative intent to displace a labour arbitrator’s exclusive jurisdiction.
According to the tribunal, the broad language in the Ontario Human Rights Code showed a clear legislative intent to displace labour arbitration as the sole forum for disputes arising from a collective agreement, to allow the tribunal to maintain concurrent jurisdiction over claims of discrimination and harassment under the code and to give the tribunal’s decision-makers the power to decide whether to defer applications that arbitration, grievance, review, or other means could determine.
This was despite the fact that the LRA’s and the PSA’s provisions granted a labour arbitrator exclusive jurisdiction to decide claims arising from disputes essentially relating to the interpretation, application, or alleged violation of a collective agreement in Ontario, the tribunal said.
The tribunal noted that the legislature made no steps to limit or to narrow the deferral and dismissal powers in ss. 45 and 45.1 of the code, despite being presumptively aware of the decisions in Weber v. Ontario Hydro, [1995] 2 SCR 929, and in Ontario (Human Rights Commission) v. Naraine, 2001 CanLII 21234, and despite the fact that the tribunal continued to hear cases arising from collective agreements.
On the other hand, where the legislature wanted to limit the scope of the tribunal’s jurisdiction relating to other decision-makers in certain circumstances, it expressly limited such scope in the code, the tribunal said.
