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By Tony Poland, LegalMatters Staff • Toronto employment lawyer Jeffrey M. Andrew says he expects it will be “business as usual” following a Human Rights Tribunal of Ontario (HRTO) ruling that dealt with the jurisdiction of workplace human rights claims.
Andrew, a partner with Cavalluzzo LLP, says the interim decision in Weilgosh v. London District Catholic School Board “essentially affirmed a long-standing practice in Ontario” and he doesn’t expect to see a major shift in the way human rights complaints by unionized workers are handled.
He says the ruling reasserts a unionized worker’s right to pursue employment-related human rights claims through their grievance procedure or at the HRTO.
‘A worker has the right to make parallel complaints’
“The tribunal said a worker has the right to make parallel complaints but the HRTO still has the jurisdiction to say they are not going to deal with it until it is dealt with by the grievance arbitration process,” he tells LegalMattersCanada.ca. “At the same time, the HRTO retains the right to exercise its authority.”
In making its decision, Andrew says the tribunal considered submissions by a London, Ont. teacher and a Peel police officer in an effort to determine jurisdiction of workplace human rights claims.
There are competing issues when it comes to who should hear the complaints, Andrew says. First, there is the argument that human rights are individual rights and a person should be allowed to choose how they are adjudicated. But there is the “tension” surrounding what forum should be used in a human rights issue – labour arbitration or the Human Rights Tribunal or Ontario, he says.
In Weilgosh v. London District Catholic School Board, the employers relied on the Supreme Court of Canada (SCC) ruling in Northern Regional Health Authority v. Horrocks, which found that an employment discrimination dispute involving a unionized employee should be settled by a labour arbitrator appointed under the collective agreement, not by a human rights adjudicator.
“Based on the Supreme Court jurisprudence, the basic principle is that if the factual and legal issue in dispute essentially arises under the collective agreement, then it must be arbitrated under the collective agreement in front of a grievance arbitrator,” says Andrew.
Supreme Court ruling based on ‘specific technical issues’
However, the SCC decision was based on “specific technical issues,” he says.
“The court looked at the labour relations statute in Manitoba and determined that grievance arbitration was intended to be the exclusive forum for the resolution of workplace disputes for unionized employees,” says Andrew. “Then they looked at the human rights statute in that province and determined that there was no express or implied intention in that statute that would give employees a parallel right to go to the tribunal at the same time as arbitration. It is a technical reading of the two statutes together.”
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He explains that because each province has its own labour and human rights laws, the Supreme Court ruling might not necessarily apply to all unionized workers in Canada. And that is the case in Ontario, where the HRTO ruled against the employers.
“What this decision says is that under Ontario’s Labour Relations Act, grievance arbitration is the exclusive mechanism for dealing with the human rights of these workers,” Andrew says. “On the other hand, they looked at the Ontario Human Rights Code and found provisions which allow the tribunal to consider whether or not those workers have another mechanism to deal with their complaints. They are reaffirming employees can file both at the tribunal and arbitration.
He says while the ruling should not come as much of a surprise, he understands why employers would not favour it.
‘Uncertainty of dealing with two tribunals’
“It is not because they are against human rights,” Andrew says. “They just do not want to have to deal with complaints of workplace violations in multiple forms. They do not want to spend the time and money and face the uncertainty of dealing with two tribunals.”
It is also important to note that while arbitration is a proven and effective means of adjudicating a complaint, unions typically believe workers are entitled to take their concerns to the HRTO, he says.
“The principal view of unions is that human rights are still the workers’ right so if a worker wishes to pursue their claim at the tribunal, they should be able to do that,” Andrew says. “Some collective agreements say the employee has to agree to the filing of an individual grievance on their behalf. They can go instead to the tribunal but it will be an expense that they must bear. They must hire their own lawyer or paralegal to file the complaint.
“However, without that requirement, a complaint by a unionized worker is likely going to be deferred by the tribunal to allow the union will to deal with it through the grievance and arbitration process,” he adds.
While Weilgosh v. London District Catholic School Board provides some clarification on a unionized worker’s right to file a complaint with the HRTO, Andrew says he doesn’t expect a sea change in the employment landscape.
“The question is, what practical effect will this have? My view is, in most cases, not much at all,” he says. “In my experience, unions take claims that their members’ human rights have been violated very seriously and advance them to arbitration or try to resolve them through the legal process. The bottom line is nothing really changes. This just helps clarify the issue.”
