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Jurisdiction and Human Rights: An Ontario Update

Jurisdiction and Human Rights: An Ontario Update

July 2, 2024

By Brian Babcock

We have posted two articles about how the Horrocks case at the Supreme Court of Canada decided that in Manitoba, grievance arbitrators had sole jurisdiction over human rights complaints in a union environment, displacing the human rights tribunals. In the second article, we discussed how an Ontario tribunal had said that the differences in Ontario law mean that the Human Rights Tribunal of Ontario has concurrent jurisdiction with arbitrators. Concurrent jurisdiction generally means that disputes can go into either forum, but not both at the same time. It is a bit more complicated than that because, because the HRTO complaint may still proceed if the tribunal does not find that the arbitration was an effective forum for the dispute to be resolved. But that seldom happens.


Now Ontario’s Divisional Court has released its decision on the judicial review of the earlier tribunal decision.

The Court applies the Horrocks test and agrees that the prior practice of concurrent jurisdiction remains the law in Ontario. The HRTO retains jurisdiction over complaints even if there is a collective agreement which allows a grievance arbitrator to exercise concurrent jurisdiction.

The Court examines the reasons of the HRTO and agrees that Ontario legislation differs from Manitoba, and applying the 2001 Ontario Court of Appeal decision of Ontario (Human Rights Commission) v. Naraine, discussed in our earlier article. Naraine determined that there was concurrent jurisdiction between the HRTO and arbitrators.

In spite of Horrocks, Naraine remains the law of Ontario. Though the existence of a competing tribunal in itself is insufficient to displace the jurisdiction or primacy of arbitration, the wording of the Ontario Human Rights Code meets the Horrocks standard of “some indication” from the legislature that it intended to maintain concurrent jurisdiction. It was not necessary that the result be spelled out using any magic words referring specifically to arbitration in the Code.

The Code expressly excludes jurisdiction at the Tribunal if there is a court proceeding over the same dispute. If the legislature had intended to displace the Tribunal in cases involving possible arbitration, it could have said so, being alive to the jurisdictional issue.

The Divisional Court decision is thoroughly reasoned, with extensive refences to precedent cases. Though an appeal to the Court of Appeal is possible, we would expect this decision to be upheld.


  • Where the union starts a labour arbitration, the individual employee may still bring a claim to the HRTO.
  • The HRTO will almost always defer to the arbitrator.
  • But if the union , for instance, makes a tactical or strategic settlement, the HRTO proceeding exists to protect the individual’s rights.



Weilers LLP has a proud tradition of pioneering employment law in Thunder Bay and Northwestern Ontario. We combine this with our progressive approach which reflects recent trends and ongoing developments in the law.

Today, over 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.