Case In Point

Divisional Court Confirms Concurrent Jurisdiction Model Applies to Human Rights Disputes in Unionized Workplaces

Case In Point

Divisional Court Confirms Concurrent Jurisdiction Model Applies to Human Rights Disputes in Unionized Workplaces

Date: March 19, 2024

The Divisional Court has confirmed that Ontario labour arbitrators share concurrent jurisdiction with the Human Rights Tribunal of Ontario (Tribunal) over human rights disputes that arise in a unionized workplace.  

As reported in our FTR Now of October 6, 2022, in Weilgosh v. London District Catholic School Board, the Tribunal determined it shared jurisdiction with labour arbitrators to decide claims of discrimination and harassment under the Human Rights Code (Code) falling within the scope of a collective agreement governed by the Labour Relations Act, 1995 (LRA) .

This was a significant decision as it was the first Ontario case to consider how Northern Regional Health Authority v. Horrocks (Horrocks)  would apply in this province. In Horrocks the Supreme Court of Canada held that the Manitoba Human Rights Commission did not hold concurrent jurisdiction over a human rights dispute involving a unionized workplace. Rather, a labour arbitrator held exclusive jurisdiction over the dispute.

In London District Catholic School Board v. Weilgosh (Weilgosh) the Divisional Court considered an application for review of the Tribunal’s earlier decision on jurisdiction. The Divisional Court dismissed the application and held the Tribunal’s decision on jurisdiction was correct. On this point, the Divisional Court stated:

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.

Key Takeaways for Employers

The Weilgosh decision provides certainty for Ontario employers that the statutory regime created under the Code allows for the Tribunal to maintain concurrent jurisdiction over human rights issues which arise in a unionized workplace.

However, the Tribunal maintains the power to defer applications where parallel proceedings have been commenced before a labour arbitrator, and to dismiss applications under section 45.1 of the Code where another proceeding (such as a labour arbitration) has properly dealt with the substance of the application. Where parallel proceedings are commenced, the Tribunal will likely defer to the labour arbitration regime and await the outcome of that process before considering whether to proceed with an application.

If you require further information regarding the Weilgosh decision or have questions about how the decision could impact your organization, please contact your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©