November 3, 2022
We wrote a while ago about the Supreme Court of Canada decision that got sensationalist headlines because the court ruled that under Manitoba legislation, arbitrators had exclusive jurisdiction over human rights complaints where there was a collective agreement that contained the usual privative clause protecting arbitrators’ jurisdiction. Prior to that time, the presumption was that arbitrators and human rights tribunal adjudicators had what is called “concurrent jurisdiction”. That is, if there was an arbitration over a breach of the collective agreement, the arbitrator had jurisdiction over a human rights claim if it was included in the grievance, but a complainant could still go to the Human Rights Commission separately. The fact that they had a collective agreement did not oust the tribunal.
A BRIEF REVIEW
The Horrocks case said that because Manitoba arbitrators have exclusive jurisdiction over disputes under a collective agreement, and employers violating human rights was contrary to those agreements as well as the Human Rights Code, unionized employees had no choice of jurisdiction.
The question of jurisdiction is important because filing a complaint with a human rights tribunal is a decision of an individual employee. Filing for arbitration is a decision of a union. As the court recognized in Horrocks, this can result in a situation of conflict. Granting exclusive jurisdiction to the arbitrator will not help the employee, who is the vulnerable and allegedly victimized party in the situation. Therefore, from the viewpoint of protecting vulnerable employees, which is the intent of the Human Rights Code, concurrent jurisdiction makes a lot of sense. Of course, there are imperfections in a system where more than one adjudicator has jurisdiction. For instance, it can become a race as to who is first at filing. Despite this, and maybe only because we grew up in the system of concurrent jurisdiction, we believe that concurrent jurisdiction works in Ontario.
In our earlier article, we predicted that because of differences in the wordings of the Ontario legislation, the result would likely be different and concurrent jurisdiction would still be the rule in Ontario. That now appears to be the case, although the decision in question may be subject to further judicial review or appeal.
Weilgosh v. London District Catholic School Board is a preliminary decision strictly on the issue of jurisdiction in which the tribunal intentionally considered the Horrocks case. The Weilgosh case grouped together various employers and advocacy groups to address the jurisdictional issue. The Ontario Human Rights Commission, the policy making arm of the system, also joined in to make submissions. The complainants all took the position that the tribunal had jurisdiction while the respondents disagreed. Various interest groups and the Commission argued in favor of concurrent jurisdiction.
As discussed in Horrocks, Ontario has a long tradition of saying that arbitrators have exclusive jurisdiction under a collective agreement. This is usually interpreted to mean that the jurisdiction of the Superior Courts (and inferior courts like small claims court as well) is ousted in favour of expert arbitrators.
We have always suspected that most judges are not comfortable with the delicate balance of collective bargaining relationships, and are quite content not to have to exercise jurisdiction in the first instance (arbitrators’ decisions, in very limited situations, are still subject to judicial review). However a judicial review hearing much less messy than a hearing at first instance, because the judicial review does not look in detail at the facts, focusing instead on legal issues.
Despite the fact that our labour legislation is worded differently than Manitoba’s, the concern or confusion arose from a line in the Horrocks decision where the Supreme Court stated that where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of an arbitrator empowered by the legislation is exclusive.
The question therefore was whether the Supreme Court’s statement was limited to the Manitoba legislation, or extended to labour arbitrators in other provinces.
The tribunal hearing the Weilgosh case accepted that the Supreme Court decision meant that the labour arbitrator, even in Ontario, would have exclusive jurisdiction except to the extent that legislation might carve out human rights tribunals, preserving concurrent jurisdiction because of differences in how the legislation is worded. The tribunal said that there had to be a clear expression of legislative intent to carve out human rights tribunals.
The tribunal had no difficulty finding that the Ontario Human Rights Code demonstrates a clear legislative intent to expressly displace the labour arbitrators’ exclusive jurisdiction. They did so without any lengthy analysis. The tribunal did rely heavily upon the fact that even in Horrocks, the Supreme Court discussed the possibility of two scenarios:
- one where the legislation is a complete code resulting in exclusive jurisdiction; and
- the second where the legislation clearly creates concurrent jurisdiction.
The Supreme Court in Horrocks said that the question of jurisdiction depended upon the wording of the legislation in question, not on any judicial whims or overarching principles.
This Tribunal decision is also consistent with an Ontario Court of appeal decision from 2001, Ontario (Human Rights Commission) v. Naraine, which upheld the concept of concurrent jurisdiction. Although the Human Rights Code has been amended since, Naraine was considered in Horrocks by the Supreme Court; the Court specifically decided not to comment upon the Ontario legislation because the Ontario legislation was not an issue in that specific case.
This leaves open the possibility that during a future judicial review or appeal, a different answer might result, but since Naraine is a Court of Appeal case, a case would need to reach the Court of Appeal or Supreme Court to have a different result.
We will have to stay tuned to see what will happen with this issue going forward; but for cases going to a hearing soon, we are confident the principle of concurrent jurisdiction will be applied.
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Today, 75 years later, our litigation lawyers and our employment law lawyers are an overlapping group who work closely together and attempt to seek the best remedies in the best manner to focus on your end goal – proper compensation if you are an employee or minimizing cost (or avoiding a negative precedent) if you are an employer.
Whether you are an employee who believes that they have been discriminated against, or an employer facing allegations of discrimination, please give us a call to see if Weilers LLP are the right lawyers for you.