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ARBITRATORS - Jurisdiction

Friday, January 15, 2021 @ 6:16 AM  


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Appeal by the plaintiff from the dismissal of her action. The appellant was an employee of the Ontario Public Service and a member of the respondent union. In 2011, the union initiated several grievances on the appellant’s behalf that asserted discrimination and harassment by her managers and co-workers. In 2012, independent of the union, the appellant made a complaint before the Human Rights Tribunal of Ontario. At the appellant’s request, in 2017, the union withdrew the grievances so that her human rights application could proceed. In 2019, the appellant commenced the within action against the Crown and the union in relation to the discrimination and harassment arising from her employment. The motion judge dismissed the action on the basis the court lacked jurisdiction.

HELD: Appeal dismissed. The motion judge properly interpreted s. 46.1 of the Human Rights Code, together with Weber v. Ontario Hydro, as not extending concurrent jurisdiction to the courts and labour arbitrators to hear matters involving violations of the Code arising in a workplace governed by a collective agreement. There was no ground to presume the legislature intended by enacting s. 46.1 to grant the Superior Court jurisdiction over claims that otherwise should be heard by labour arbitrators or the Human Rights Tribunal. The motion judge did not err in finding the wrongs pleaded by the appellant in her statement of claim were, subject to the limited concurrent jurisdiction of the Human Rights Tribunal, within the exclusive jurisdiction of the labour arbitrator. He did not err in finding the essential character of the dispute arose in the workplace and was governed by the collective agreement. The appellant’s allegations fell squarely within the non-discrimination provisions of the collective agreement. On the motion judge’s finding that the appellant could pursue all her complaints, including those against the union, before the Human Rights Tribunal, a remedy was not practically unavailable to the appellant.

Nelson v. Ontario, [2020] O.J. No. 5213, Ontario Court of Appeal, A. Hoy, D.M. Brown and J.A. Thorburn JJ.A., November 30, 2020. Digest No. TLD-January112021010