OPSEU/SEFPO is deeply concerned about a recent court ruling and the sweeping implications it could have for the protection of union members’ human rights.
In October 2021, the Supreme Court of Canada issued its decision Northern Regional Health Authority v Horrocks to dismiss a human rights complaint, finding that a Manitoba human rights adjudicator did not have jurisdiction to hear a complaint filed by a unionized employee. Instead, the Court determined that, under the Manitoba Labour Relations Act and Human Rights Code, labour arbitrators have exclusive jurisdiction to decide human rights complaints. Such complaints cannot proceed to the Manitoba Human Rights Commission, even if the unionized employees have not filed grievances.
The Horrocks decision is creating shockwaves in Ontario and other provinces. If applied in Ontario, this decision could take away the option for members to file complaints to the Human Rights Tribunal of Ontario. This would create a troubling dual system for the enforcement of human rights in employment. In addition, it would block the ability of unions to pursue human rights complaints to the tribunal on behalf of the union or individual members. The timing cannot be worse particularly because of the alarming increases of homophobia, Islamophobia, anti-Black, and anti-Indigenous racism in Ontario. We are also seeing the rise of anti-Asian racism at unprecedented levels.
The question now is how the Supreme Court ruling will play out with the Human Rights Tribunal of Ontario. The Tribunal has scheduled two test cases in the coming months. In both, employers will argue that, following Horrocks, labour arbitrators have exclusive jurisdiction and the employees’ complaints must be dismissed. OPSEU/SEFPO and several other unions have applied to intervene in these test cases to support the employees’ position that Ontario has concurrent jurisdiction over human rights. In other words, Ontario legislation gives union members a choice between filing a grievance under their collective agreement or a complaint to the Tribunal. Either claim can proceed to adjudication.
For many years, Ontario has recognized this right for unionized employees to choose between filing a grievance with the union and filing an application with the tribunal. Although labour arbitrators have the same jurisdiction as the tribunal, and the same authority to order remedies, the autonomy of unionized employees is respected. This right to choose the most appropriate forum has also provided a layer of consistency for union and non-union employees. A dual system for protection of human rights would risk creating different outcomes or tiers for human rights justice.
Under our current system, unions can also choose to file human rights complaints on behalf of members. Following Horrocks, the Tribunal may eliminate that option.
In all spheres of life, choice is good, and choice creates accountability. For all equity seeking groups, and particularly racialized and Indigenous communities facing systemic racism and oppression, the Human Rights Tribunal has been widely seen as a shield, which has effectively supported labour arbitrators to issue rulings that are fair, far reaching, and consistent with established law. There is genuine fear and apprehension that the HRTO may now close its doors to our most vulnerable communities.
OPSEU/SEFPO stands behind the principles of equity, diversity, and inclusion by applying them at all levels of the organization. Members and staff have engaged in numerous campaigns to spotlight anti-racism and discrimination at workplaces and in the union. In addition to raising awareness, OPSEU/SEFPO remains committed to taking concrete steps that stop acts of racism and discrimination. This includes but is not limited to dismantling anti-Black, anti-Indigenous, anti-Asian and all other forms of racism.
We are appealing to the Human Rights Tribunal to carefully consider the implications of withdrawing its services to unionized employees. The knowledge and institutional expertise of the Tribunal must remain equally available to all workers, both unionized and non-unionized. If the access to HRTO services is restricted, it will deny marginalized and oppressed workers their autonomy and the right to choose. It will also undermine our collective work to protect human rights and build a more equitable society.
JP Hornick, OPSEU/SEFPO President
Laurie Nancekivell, OPSEU/SEFPO First Vice-President/Treasurer