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Labour - Remedial LRA Exclusivity (Weber) - Exception: Concurrent Jurisdiction. London District Catholic School Board v. Weilgosh
In London District Catholic School Board v. Weilgosh (Div Court, 2024) the Divisional Court considered a JR by a school board against an HRTO interim decision that it had 'concurrent jurisdiction' to hear an HRC-labour matter which had been filed in substance both before the HRTO and the OLRB.
These quotes are a furthering of recent messy Horrocks (SCC, 2021) doctrine addressing this same issue, setting out a test for exclusive versus concurrent jurisdiction (Horrocks is explained in detail):Background
[3] Karen Weilgosh filed an application with the HRTO against her employer, the Applicant, alleging discrimination and a failure to accommodate. Subsequently, the Supreme Court of Canada issued Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585 [Horrocks]. There, the court held that labour arbitrators appointed under labour legislation in Manitoba have exclusive jurisdiction over human rights claims arising from disputes under a collective agreement. Following Horrocks, the Applicant raised a preliminary objection before the HRTO. It argued that the HRTO lacked jurisdiction to hear the application given that Ms. Weilgosh’s union had filed grievances on her behalf relating to the same or similar allegations. The HRTO proceeded to a hearing on the interim issue, joining together another proceeding raising the same preliminary objection, McNulty v. Regional Municipality of Peel Police Service Board (the “McNulty application”).
[4] The Supreme Court established a two-part test in Horrocks to resolve jurisdictional issues between labour arbitrators and competing statutory tribunals. Under Step 1, the relevant labour legislation should be examined to determine whether it grants a labour arbitrator exclusive jurisdiction, and if so, over what matters arising from a collective agreement. Legislation with a mandatory dispute resolution clause establishes exclusive jurisdiction, subject to clearly expressed legislative intent to the contrary. Under Step 2, the question is whether the dispute falls within the scope of the labour arbitrator’s jurisdiction.[1]
Decision under Review
[5] In the Decision, the HRTO resolved the preliminary issue under Step 1 of the test. It determined that labour arbitrators appointed under both the LRA and the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”) have exclusive jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement. It reached this conclusion based on the mandatory dispute resolution clause under s. 48 of the LRA and, in the absence of an analogous provision under the PSA, appellate case law.[2]
[6] The HRTO went on to find, as the Supreme Court indicated in Horrocks, that this exclusive jurisdiction under both statutes was displaced by a positive expression of legislative intent to establish a regime of concurrent jurisdiction over human rights claims.[3] Applying the Supreme Court’s guidance at para. 33 of Horrocks, it pointed first to the broad provisions in s. 45 and 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Ontario Code” or “Code”) empowering the HRTO to defer or dismiss complaints if another proceeding has appropriately dealt with it. The HRTO did note that these provisions were more ambiguous than federal human rights legislation and B.C.’s Human Rights Code, which the Supreme Court cited in Horrocks as examples of statutory schemes disclosing an intent to establish concurrent jurisdiction. Those statutes specifically provide for deferrals where complaints are capable of being dealt with by the grievance process.[4]
[7] The analysis did not end there. Horrocks then instructs that where the provisions of a statute may be more ambiguous, but the legislative history plainly shows that the legislature contemplated concurrency, applying an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent.[5] The HRTO determined that the “unique legislative history” of the LRA and the Ontario Code more clearly indicated a legislative intent to establish concurrent jurisdiction.
[8] In 2001, the Court of Appeal determined in Ontario (Human Rights Commission) v. Naraine, 2001 CanLII 21234 (Ont. C.A.) [Naraine] that, following amendments to the LRA empowering labour arbitrators to apply the Ontario Code, the OHRC’s deferral power under the Ontario Code signaled an intention to shift from exclusive to concurrent jurisdiction.[6]
[9] The legislature passed major amending legislation to the Ontario Code (“Bill 107”) that came into effect in 2008. Among other things, Bill 107 removed the gatekeeper role of the OHRC and instead permitted individuals to apply directly to the HRTO. The direct access model remains in place today. Applying the interpretive presumption that the legislature is aware of existing law when it enacts new laws, the HRTO reasoned in the Decision that the legislature knew of Naraine when it passed Bill 107. Therefore, it found that the lack of constraints on the HRTO’s broad powers under ss. 45 and 45.1 to defer or dismiss complaints appropriately dealt with in other proceedings demonstrates an intent to maintain concurrent jurisdiction.[7]
[10] In the Decision, the HRTO dismissed the requests of the Applicant and the Regional Municipality of Peel Police Services Board to dismiss the applications for lack of jurisdiction.
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The HRTO’s finding that it has concurrent jurisdiction is correct
[32] In Horrocks, the Supreme Court held that Manitoba’s Human Rights Code[14](the “Manitoba Code”) did not carve out concurrent jurisdiction for human rights adjudicators appointed under that statute and that only labour arbitrators have jurisdiction to adjudicate claims of discrimination falling within the scope of a collective agreement in Manitoba. The relevant sections of the Manitoba Code considered in Horrocks were s.22(1) and ss.26 and 29(3). Section 22(1) provides that any person may file a complaint alleging that another person has contravened the Code and ss.26 and 29(3) direct the Commission to investigate complaints and where appropriate, to request the designation of an adjudicator to hear the complaint. The Manitoba Code did not contain similar provisions to the Ontario Code’s ss. 45 and 45.1 to defer or dismiss complaints appropriately dealt with in other proceedings.
The Horrocks Legal Framework
[33] Horrocks requires that, first, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters. Here, there is no dispute that i) the LRA has a mandatory dispute resolution clause;[15] ii) that an arbitrator empowered under that clause has exclusive jurisdiction to decide all disputes arising from the collective agreement;[16] and iii) that the Weilgosh Application is a human rights claim of discrimination that arises from the collective agreement.
[34] Horrocks then instructs, and the Decision noted, that an arbitrator therefore has exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary[17]. At paragraph 34 of its Decision, the HRTO quotes Horrocks at paragraph 33:
[33] ... [T]he mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising from a collective agreement. Consequently, some positive expression of the legislature’s will is necessary to achieve that effect. Ideally, where a legislature intends concurrent jurisdiction, it will specifically so state in the tribunal’s enabling statute. But even absent specific language, the statutory scheme may disclose that intention. For example, some statutes specifically empower a decision-maker to defer consideration of a complaint if it is capable of being dealt with through the grievance process (see, e.g., Human Rights Code, R.S.B.C. 1996, c. 210, s. 25; Canada Labour Code, ss. 16(l.1) and 98(3); Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 41 and 42). Such provisions necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process. In other cases, the provisions of a statute may be more ambiguous, but the legislative history will plainly show that the legislature contemplated concurrency (see, e.g., Canpar Industries v. I.U.O.E., Local 115, 2003 BCCA 609, 20 B.C.L.R. (4th) 301). In these circumstances, applying an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent.
[35] Horrocks is clear that concurrent jurisdiction over human rights matters between labour arbitrators and human rights adjudicators requires “some positive expression of the legislature’s will”. Horrocks is also clear that the use of the specific language of “concurrent jurisdiction” is not required and that a competing “statutory scheme may disclose that intention.”[18]
[36] Regarding “some positive expression of the legislature’s will”, the Horrocks majority provided examples of legislative schemes – including the B.C. Code and the Canadian Human Rights Act - that reflected a legislative intent for concurrent jurisdiction. In these two examples the statutory schemes explicitly contemplate that the deferral powers extend to disputes that could be subject to a grievance under a collective agreement.[19] The court continues to examine these conclusions in light of some non-Ontario case law [at paras 39-45], and with respect to the Ontario Court of Appeal 2001 decision in OHRV v Naraine [at paras 46-57]. Lastly, the court continues with a consideration of HRC 45 ['Deferral of application'] and 45.1 ['Dismissal in accordance with rules'] on this 'concurrency jurisdiction' issue:No error in finding concurrent jurisdiction despite s.45 and 45.1 of the Ontario Code not specifically referencing grievance arbitrations
[58] The Applicant asserts that the HRTO erred in finding that concurrency existed notwithstanding the lack of any specific reference to grievance or arbitration proceedings in its deferral (s.45) and dismissal (s.45.1) powers.
[59] The Horrocks decision cannot be properly understood to preclude a finding of concurrent jurisdiction because the Ontario Code makes no specific reference to grievance or arbitration proceedings in its deferral (s.45) and dismissal (s.45.1) powers. This argument ignores the express direction of the Court in Horrocks that legislative intent to confer jurisdiction can be inferred from language that is more ambiguous than an express reference to grievance arbitrations.[34]
[60] The Applicant provides no argument to suggest that the word “proceeding” should or could be interpreted to exclude a grievance arbitration. Referring to a grievance arbitration as a “proceeding” is common before human rights tribunals labour arbitrators, and this court.
[61] HRTO Rules 8.2.1, 11 and 14 all support an interpretation that the HRTO, in exercising its powers to make its Rules of Procedure under Rule 43(1) of the Code, itself understood that the law in Ontario included grievances and arbitrations as proceedings within the scope of its broad deferral and other procedural powers. There is nothing in section 45, Rule 14 or elsewhere that manifests any indication that grievance or arbitration proceedings are not subject to the HRTO’s deferral powers. There are no express exceptions to the HRTO’s deferral powers.
[62] Rule 14.4 refers to “other legal proceedings”. The HRTO has consistently interpreted section 45 to apply to many types of legal proceedings, including various administrative bodies,[35] and criminal proceedings.[36] The Divisional Court has also confirmed that a “proceeding” may apply to a wide range of administrative decision-making fora.[37]
[63] The HRTO has also consistently recognized its concurrent jurisdiction over unionized applicants.[38] As a general rule, the HRTO defers applications where there are ongoing grievance or arbitration proceedings. The HRTO jurisprudence confirms that various factors may apply in the exercise of its discretion to defer, including the nature of the other proceeding.[39] The HRTO typically exercises its discretion to defer in light of arbitration proceedings in recognition of the well-established law that a grievance arbitrator has the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement.[40]
The Decision did not invert the test under Horrocks
[64] The Applicant submits that instead of looking for evidence of legislative intent to displace the exclusive jurisdiction of labour arbitrators, the HRTO incorrectly treated its task as looking for evidence of an intent to displace concurrent jurisdiction.
[65] I am not persuaded by this argument. The continuity the HRTO highlighted in the human rights adjudication regime before and after Bill 107 supports its reasoning that the legislature deliberately chose not to remove concurrent jurisdiction. The Code’s legislative history demonstrates a legislative intent to displace exclusive jurisdiction.
[66] In considering the broad language used in the Ontario Code, its statutory scheme and the broader legal context of the legislative and jurisprudential history of the Ontario Code, the HRTO correctly applied Horrocks to find concurrent jurisdiction. In the words of Horrocks, in these circumstances, applying an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent.[41] . Northern Regional Health Authority v. Horrocks
In Northern Regional Health Authority v. Horrocks (SCC, 2021) the Supreme Court of Canada considered the vexed issue of which legal regime had jurisdiction over a human rights complaint that occured in a employment/labour relations context (another Weber exclusive jurisdiction issue). The issue is similar to that of 'paramountcy' [as in Croplife Canada v Toronto (Ont CA, 2005) but instead of being between competing levels of goverment here it's between competing adjudicators at the same level of government (here a provincial human rights tribunal and a labour arbitrator):[1] Labour relations legislation across Canada requires every collective agreement to include a clause providing for the final settlement of all differences concerning the interpretation, application or alleged violation of the agreement, by arbitration or otherwise. The precedents of this Court have maintained that the jurisdiction conferred upon the decision‑maker appointed thereunder is exclusive. At issue in this case, principally, is whether that exclusive jurisdiction held by labour arbitrators in Manitoba extends to adjudicating claims of discrimination that, while falling within the scope of the collective agreement, might also support a human rights complaint.
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[5] ... Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed. The majority of the court considers these nebulous issues at paras 13-41. In this case the labour relations regime was dominant, but the case softened Weber's exclusivity to allow for as yet undefined exceptions where 'concurrent jurisdiction' exists:[41] Where two tribunals have concurrent jurisdiction over a dispute, the decision‑maker must consider whether to exercise its jurisdiction in the circumstances of a particular case. For the reasons given below, concurrency does not arise in this case. I would therefore decline to elaborate here on the factors that should guide the determination of the appropriate forum.
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