In a recent decision, the Human Rights Tribunal of Ontario (HRTO) held that it has concurrent jurisdiction to resolve complaints of discrimination and harassment that arise in a unionized workplace, even if they otherwise fall within the scope of a collective bargaining agreement (“CBA”) governed by the Labour Relations Act (LRA).
History of Discrimination Complaints Involving Unionized Employees
In Ontario, unionized employees are generally required to rely on their unions to address most employment issues or disputes by filing a workplace grievance (a written complaint alleging that a collective agreement has been violated). However, one important exception to this rule is that human rights complaints where unionized employees do not always need to rely on their unions, and can instead rely on an experienced human rights lawyer.
In most cases, a unionized employee may be able to pursue a discrimination claim by filing a complaint at the HRTO addressing workplace discrimination based on a prohibited ground under the Human Rights Code, such as race, age, disability, ethnicity, sex, religion, in the same manner as non-union employees. However, they have sometimes faced challenges when attempting to do so individually outside of the union grievance process.
The Weber Rule
In a decision called Weber v. Ontario Hydro, the Supreme Court of Canada established the “exclusive jurisdiction model” for unionized employees. Under this approach, all unionized workplace complaints must be resolved through the labour (union) arbitration process if the basic issue in dispute is covered by a CBA. In such cases, the courts have no jurisdiction (authority) to resolve a unionized workplace dispute. As a result, this was taken to mean that, in most cases, a unionized employee’s primary option to resolve any workplace issue (including discrimination) is to proceed through the grievance process.
But there are exceptions to the Weber exclusive jurisdiction model.
Unlike in other provinces, the case law traditionally held that unionized employees in Ontario may choose to address a workplace discrimination complaint through either the labour (union) grievance process, or by filing their own human rights complaint with the HRTO. This is referred to as the HRTO and labour arbitrators having “concurrent jurisdiction” over human rights matters arising in unionized workplaces. In other words, employees could choose whether to pursue a human rights claim through the arbitration process or the HRTO.
However, in practice, the HRTO will refuse to resolve a unionized employee’s workplace discrimination complaint only if they have already filed a workplace grievance involving the same facts and issues. In such cases, the HRTO relies on section 45 of the Human Rights Code, or rule 14.1 of its Rules of Procedure, to either dismiss the discrimination complaint or pause it until the unionized employee’s workplace grievance procedure is complete in the parallel labour arbitration proceeding dealing with the substance of the complaint.
The reason for the HRTO’s deferral to a previously filed union grievance is based on legal rules called “res judicata” or “issue estoppel” – basically, to prevent the same issue from being tried twice in two different forums, which could result in contradictory or inconsistent decisions and unnecessary use of court resources.
Accordingly, when employees attempted to bring two separate proceedings involving the same workplace dispute (one in the HRTO focusing on discrimination under the Code, and one through a grievance brought by the union against the employer alleging a violation of the CBA, such as by arguing they were unjustly disciplined), employers would respond by bringing a Request for an Order During Proceedings, asking the HRTO to dismiss the discrimination complaint by arguing the issue could be appropriately dealt with in the employee’s union grievance.
Weilgosh v. London District Catholic School Board
In a recent decision, the HRTO held that it has jurisdiction to hear workplace discrimination complaints filed by unionized employees outside of the union grievance process. In its own words, the HRTO held:
“While the provisions of the LRA and the PSA grant a labour arbitrator exclusive jurisdiction to decide claims arising from disputes that in their essential character relate to the interpretation, application or alleged violation of a collective agreement, the Code demonstrates a clear legislative intent to displace the labour arbitrator’s exclusive jurisdiction. As such, we find that the Tribunal has concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement governed by the LRA and the PSA.”
As a result of the Weilgosh decision, the HRTO affirms that the traditional rule in Ontario remains unchanged: even if they are unionized, employees are generally free to choose to pursue human rights claims themselves by bringing a discrimination complaint directly to the HRTO with the help of a human rights lawyer, or otherwise by filing a workplace grievance with their union to have the issue resolved by a labour arbitrator.
Specifically, the HRTO found that while the Labour Relations Act grants labour arbitrators exclusive jurisdiction over unionized workplace disputes, the Code itself provides the HRTO concurrent jurisdiction over discrimination complaints filed by unionized employees. In the HRTO’s own words, under the Code, there appears to be:
“a clear legislative intent to carve out concurrent jurisdiction for the Tribunal to decide claims of discrimination and harassment under the Code.”
Lessons Learned
The Weilgosh decision basically confirms the traditional rule in Ontario that unionized employees are permitted to bring their own individual complaints to the HRTO with their own human rights lawyer, instead of being forced to rely on their union taking up their cause (which typically does not happen, resulting in a duty of fair representation complaint against the union itself). That said, employers may still ask the HRTO to exercise its discretion under section 45 and 45.1 of the Code to decline to hear a unionized employee’s discrimination complaint and defer to the labour arbitration process. In other words, where a unionized employee commences parallel proceedings in the HRTO (often with the help of an experienced employment lawyer) and labour arbitration, the HRTO will still likely defer to the labour arbitration process and await the outcome of that process before deciding whether to proceed with HRTO application.
Our Toronto Employment Lawyer Can Help
If you are an employee who was recently terminated from your employment and want to know if you have a valid claim for discrimination, wrongful dismissal and severance package, or if you are an employer who needs assistance or advice in responding to a wrongful dismissal and discrimination complaint, our experienced employment lawyer at Bune Law can help. Contact us by phone 647-822-5492 or fill out the contact form to the side. We would be happy to assist in your employment law matter as quickly as possible.
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