Last fall, the Supreme Court of Canada found labour arbitrators had exclusive jurisdiction over human rights claims under Manitoba’s human rights legislation. Based on the Supreme Court’s ruling, the Manitoba Human Rights Commission was prevented from hearing a human rights claim where a collective agreement provided for a grievance procedure to resolve the dispute before a labour arbitrator. This would have significant impacts on unionized employers who were grappling with employees filing both grievances and human rights claims.
The Supreme Court’s case dealt with Manitoba legislation. Whether other provincial human rights legislation similarly prevented human rights tribunals from hearing unionized employees' workplace human rights claims remained an open question. When both a labour arbitrator and human rights tribunal can hear a claim, this is referred to as concurrent jurisdiction. Since the early 2000s, Ontario courts have found the Human Rights Tribunal of Ontario (“HRTO”) has concurrent jurisdiction with labour arbitrators to hear human rights claims.
The HRTO Continues to Have Concurrent Jurisdiction with Labour Arbitrators
In a highly anticipated decision issued in October 2022, the HRTO found that it continued to have concurrent jurisdiction with labour arbitrators to hear human rights claims brought by unionized employees. The decision is disappointing to employers, who may continue to deal with the status quo of both grievances and human rights claims being filed simultaneously and having to address them in two forums.
The HRTO distinguished Ontario’s Human Rights Code from Manitoba’s human rights legislation by finding that 2008 amendments to Ontario’s human rights legislation signalled a legislative intent that the HRTO maintains concurrent jurisdiction. The HRTO gave the following reasons:
- Since 2008, human rights claims can be filed directly with the HRTO compared with the previous scheme, which required individuals to file claims with the Ontario Human Rights Commission who played a gatekeeping role;
- Ontario’s Human Rights Code allows the HRTO to “defer an application in accordance with the Tribunal rules”, for instance, where the claim could be the subject of a grievance under a collective agreement; and
- The HRTO has the broad power to dismiss a claim if it “is of the opinion that another proceeding has appropriately dealt with the substance of the application.”
The HRTO found that the broad discretion provided to it under the Human Rights Code indicates a positive expression by the legislature for the HRTO to maintain concurrent jurisdiction, displacing labour arbitration as the sole forum for disputes arising from a collective agreement.
The HRTO went on to indicate that even though it maintains concurrent jurisdiction with labour arbitrators, this does not necessarily mean the HRTO will address all applications filed with it by unionized employees. The HRTO continues to have the power to defer consideration of a claim “on such terms as it may determine, on its own initiative or at the request of a party.”
In practice, where a unionized employee has filed a grievance and then a human rights claim, a request to defer the human rights claim pending the outcome of the grievance is often granted by the HRTO. The HRTO also has the ability to dismiss a claim where a labour arbitrator has properly dealt with the substance of the claim. In other words, once a grievance involving human rights allegations is resolved, the human rights claim may be dismissed by the HRTO.
The HRTO’s decision confirms the status quo will continue. The HRTO continues to have concurrent jurisdiction with labour arbitrators to hear human rights claims brought by unionized employees.
Where unionized employees have filed a grievance and a human rights claim, employers can continue to request that the HRTO defer the human rights claim pending the outcome of the grievance process. The HRTO’s recent decision indicates no intention by the HRTO to alter its deferral process. Following the resolution of the grievance, employers should evaluate whether the substance of the human rights claim has been resolved and bring a dismissal request to the HRTO.If you have any questions regarding this subject, please contact the author or your regular Fasken lawyer.
 Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (CanLII), https://canlii.ca/t/jjtkc
 Weilgosh v. London District Catholic School Board, 2022 HRTO 1194 (CanLII), https://canlii.ca/t/js8nf