Unionized employers in Ontario should be aware that, following a recent decision of the Ontario Divisional Court, unionized employees can now choose to make human rights complaints to the Human Rights Tribunal of Ontario (“HRTO”) rather than being limited to grievance arbitration.
Prior to the Supreme Court of Canada’s decision of Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (“Horrocks”), it was generally understood that labour arbitrators held exclusive jurisdiction over any workplace disputes concerning unionized employees that are governed by the collective agreement. It is well established that labour arbitrators have jurisdiction to interpret employment-related legislation such as the Ontario Human Rights Code.
In Horrocks, the Supreme Court of Canada opened the door to the possibility that human rights tribunals share jurisdiction with labour arbitrators over human rights issues, meaning a unionized employee can choose the grievance arbitration procedure or a human rights complaint to the HRTO. Recently, in London District Catholic School Board v. Weilgosh, 2024 CanLII 20606, the Ontario Divisional Court confirmed that this concept applies in Ontario and the HRTO shares jurisdiction with labour arbitrators.
Going forward, unionized employees in Ontario will have the option to file a human rights complaint in lieu of grievance arbitration. With that said, there are a few caveats on this recourse. If there is an ongoing grievance arbitration on related matters with the same employee, and the human rights issue could be dealt with, the HRTO has the power to do the following:
- Dismiss the complaint if another proceeding (i.e., grievance arbitration) has properly dealt with the substance of the application; or
- Defer the application until the grievance arbitration has been decided.
By Ben Currie
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