The Human Rights Tribunal of Ontario confirmed last month that union members can still file human rights applications. This decision follows the Supreme Court of Canada decision in Horrocks, which many interpreted as limiting union members’ options.
Historically, Ontario union members could file a grievance or file a Human Rights Tribunal application if they experienced discrimination on the job. Some members filed both, in which case typically the grievance arbitration proceeded first. The Tribunal dismissed member’s applications later if the arbitrator dealt with the discrimination issue appropriately. Often, a union member will choose to make a Tribunal application if they see their case differently than the union, if they wish to self-represent or choose their own lawyer, or because they just aren’t familiar with the grievance process. Sometimes, a union chose to take a case to the Tribunal on behalf of a member.
This practice was exceptional. Normally, unionized employees cannot sue their employers. For the vast majority of workplace issues unrelated to illegal discrimination, union members’ only option is to file a grievance.
However, the Horrocks decision, was seen as a statement from the Supreme Court that unionized employees no longer had the option to proceed at the Human Rights Tribunal. Since its release multiple employers across the country asked that human rights tribunals dismiss unionized employees’ applications .
Recently, the Human Rights Tribunal of Ontario released its first decision addressing the rights of union members post-Horrocks. In Weilgosh v London District Catholic School Board, 2022 HRTO 1194 (CanLII), the Tribunal explained that it had “concurrent jurisdiction” with labour arbitrators because of the wording of the Ontario Human Rights Code. In other words, the Supreme Court in Horrocks was looking at the Manitoba Human Rights Code, which is different from the Ontario Human Rights Code. This different wording meant that Ontario union members have the right to proceed at the Tribunal, even if Manitoba’s union members do not. However, the Tribunal’s decision also includes a reminder that it has the discretion to defer consideration of any application.
This decision may be judicially reviewed or Horrocks may be interpreted differently by other decision-makers in the months to come. In the meantime, this decision provides useful clarification for union members weighing their options.
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