CITATION: London District Catholic School Board v. Weilgosh, 2023 ONSC 2588

DIVISIONAL COURT FILE NO.: DC-22-00000610-00JR

DATE: 20230427

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: London District Catholic School Board Applicant

AND:

K. Weilgosh Respondent

BEFORE: Justice O’Brien

COUNSEL: C. Sinal and J. Herbers for the London District Catholic School Board

T. Young and M. Scotto di Luzio for Ms. Weilgosh

M. Horner for the Ontario Human Rights Commission

B. Blumenthal for the Human Rights Tribunal of Ontario

A. Telford, and K. Sier for Ontario English Catholic Teachers’ Association

K. Rowen, and E. Home for Peel Regional Police Association

G. Bennett and S. Yeboah for Ms. McNulty

D. Paul for the Canadian Union of Public Employees

L. Pearce for the Police Association of Ontario and the Toronto Police Association

K. Spector for the Empowerment Council

S. Regenbogen for Regional Municipality of Peel Police Services Board

A. Laryea, K. Provost-Yombo and E. McBain-Ashfield for the Coalition of Black Trade Unionists

HEARD: April 18, 2023

ENDORSEMENT

Overview

[1] This endorsement addresses eight motions for leave to intervene in the underlying application for judicial review of an interim decision of the Human Rights Tribunal of Ontario (“Tribunal” or “HRTO”).

[2] The respondent to the judicial review, Ms. Weilgosh, filed an application with the HRTO against her employer, the London District Catholic School Board (“LDCSB”) alleging discrimination and failure to accommodate. Following the release of the Supreme Court of Canada’s decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, the LDCSB raised a preliminary objection before the Tribunal. The LDCSB argued that the Tribunal lacked jurisdiction to hear Ms. Weilgosh’s application given that her union had filed grievances on her behalf relating to the same or similar allegations. In Horrocks, the Supreme Court addressed the question of when the jurisdiction of a labour arbitrator over disputes arising from a collective agreement is exclusive. The HRTO joined the hearing of the interim issue in Ms. Weilgosh’s case with another proceeding raising the same preliminary jurisdictional objection, McNulty v. Regional Municipality of Peel Police Service Board (“McNulty application”). The HRTO issued a single decision addressing the issue of its jurisdiction in the two cases.

[3] In its decision, reported at Weilgosh v. London District Catholic School Board, 2022 HRTO 1194, the HRTO rejected the LDCSB’s preliminary objection, finding, at para. 47, that the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”) “demonstrates a clear legislative intent to displace the labour arbitrator’s exclusive jurisdiction.” The Tribunal therefore concluded it had concurrent jurisdiction to determine claims of discrimination and harassment falling within the scope of the collective agreement. The LDCSB seeks judicial review of that determination.

[4] In case management, the parties were directed to address the issue of potential prematurity of this application, given that the HRTO’s decision was interim. Nothing in my reasons on these motions should be read as weighing in on the question of whether the application is premature. However, whether addressed on this application or at another time, the question of the Tribunal’s jurisdiction is important and will broadly affect unionized litigants making allegations under the Code.

[5] A number of individuals and organizations therefore have sought status in this court as party interveners or friends of the court. The HRTO granted the Ontario English Catholic Teachers’ Association (“OECTA”) party status as the bargaining agent for Ms. Weilgosh. The Tribunal also granted the Canadian Union of Public Employees (“CUPE”) and the Empowerment Council intervener status akin to friends of the court (although that term is not used in the Tribunal rules). Their participation was limited to providing written legal submissions. The Ontario Human Rights Commission (“OHRC”) intervened before the HRTO as an added party under s. 37(2) of the Code with the consent of the applicant. It was agreed during case management that the OHRC would continue as a party before this court.

[6] One of the central issues on these motions is whether the parties in the McNulty application before the Tribunal should have status before this court, even though the unsuccessful party on the interim order in that application, the Regional Municipality of Peel Police Services Board (“Peel Board”), did not file an application for judicial review. The successful parties in that application, Ms. McNulty and the Peel Regional Police Association (“PRPA”) now seek intervener status. The Peel Board objects to Ms. McNulty and the PRPA being granted status but alternatively submits that if they are granted status, it should be granted status as well.

[7] In addition to the organizations and individuals already named, the Police Association of Ontario (“PAO”) and the Toronto Police Association (“TPA”) together seek intervener status as a friend of the court, as does the Coalition of Black Trade Unionists (“CBTU”). These organizations did not participate in the hearing below.

[8] For the reasons that follow, I grant party status to all the individuals and organizations who had party status in the proceeding below. I also grant status as a friend of the court to CUPE and the Empowerment Council. I deny intervener status to the PAO and TPA and to the CBTU.

Test for Intervener Status

[9] Rules 13.01 and 13.02 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 allow the court to grant leave to intervene as an added party or friend of the court. A proposed intervener seeking status as an added party must first meet one of the criteria set out in Rule 13.01(1):

(a) the person claims an interest in the subject matter of the proceeding;

(b) the person claims they may be adversely affected by a judgment in the proceeding; or

(c) the person claims there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

[10] Rule 13.01(2) provides that the court shall consider whether the intervention will unduly delay or prejudice the existing parties:

13.01(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and make such order as is just.

[11] Rule 13.02 addresses intervening as a friend of the court. Pursuant to r. 13.02, “[a]ny person may, with leave of a judge or at the invitation of the presiding judge or associate judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.”

[12] In determining whether to grant leave, particularly where leave is sought to intervene as a friend of the court, the court will consider the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (Ltd.), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.). Intervener status will be more readily granted in cases raising public interest issues: John Doe v. Ontario (Information and Privacy Commissioner), 1991 8373 (ON SCDC), 87 D.L.R. (4th) 348 (Ont. Div. Ct.).

[13] Rule 13.03 addresses the situation where leave is sought in this court or the Court of Appeal. It provides in relevant part:

13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.

(2) Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of Ontario or a judge designated by either of them.

[14] I am designated by the Associate Chief Justice of Ontario to hear this motion.

[15] The Court of Appeal has recently addressed the treatment under r. 13.03 (2) of parties who were added as parties in the proceeding appealed from. In Dorsey v. Canada (Attorney General), 2022 ONCA 762, at para. 12, Sossin J.A. states that generally interveners who were added as parties in the proceeding below should expect to continue as parties on appeal, with their status to be confirmed during the case management process. However, this is not a right of participation on the appeal. Where there are intervening events or exceptional circumstances that might justify declining to grant their continuing intervention as a party, the issue will be decided on a r. 13.03 motion.

[16] In Trinity Western University v. The Law Society of Upper Canada, 2014 ONSC 5541 (Div. Ct.), 122 O.R. (3d) 553, at para. 10, Nordheimer J. (as he then was) observed that where there are multiple applicants for leave to intervene, with some favouring the applicant and others favouring the respondent, there should be some balance in the positions to be advocated when granting intervener status. This factor is not determinative but should be taken into account together with other relevant considerations. Each situation must be considered on its own facts. In R. v. Doering, 2021 ONCA 924, Fairburn A.C.J.O. granted intervener status to three police associations in spite of the absence of other public interest groups raising countervailing policy-based considerations. She did so in a context where no such countervailing groups had sought status.

Individuals/Organizations with Party Status Below

[17] The applicant and respondent both submit that the organizations and individuals with party status below in the McNulty application (the “McNulty parties”) should not be granted standing in this court. The LDCSB submits that the Peel Board’s decision not to file an application for judicial review constitutes the type of exceptional circumstance, as referenced in Dorsey, that would justify denying them status in this court. The respondent states that the McNulty parties also do not offer a distinct and helpful contribution that is not already covered by the parties to the Weilgosh application. She is concerned that their involvement will widen the focus and increase the complexity of the application.

[18] I disagree that the McNulty parties should be denied status in this court. The Tribunal chose to combine the preliminary objections in the two cases, which were heard by a panel of three adjudicators, presumably to ensure a thorough and well-informed consideration of an issue affecting its jurisdiction. Permitting the McNulty parties standing in this court respects the Tribunal’s choice of procedure on the issue and provides a more fulsome foundation for this court’s decision.

[19] More importantly, granting them status ensures fairness to the McNulty parties. In the underlying decision, the HRTO’s analysis was divided into two parts. It first found that both the Labour Relations Act, 1995, S.O. 1995, c. 1 Sched. A (the “LRA”) and the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”) granted arbitrators appointed under each statute exclusive jurisdiction to decide claims of discrimination and harassment falling within the scope of the collective agreement. It then addressed the question of whether the Code demonstrates a clear legislative intent to displace a labour arbitrator’s exclusive jurisdiction, finding that it does. On this second question, the Tribunal’s analysis focused only on the Code. The Tribunal applied its interpretation of the Code to say that the labour arbitrator’s exclusive jurisdiction under both statutes was displaced.

[20] The focus of the LDCSB’s application is entirely on the second part of the Tribunal’s analysis, the interpretation of the Code, which it says does not support concurrent jurisdiction. It does not raise any argument regarding an arbitrator’s exclusive jurisdiction under the LRA.

[21] No steps have been taken to date in the McNulty matter since the underlying decision. If this court were to conclude that, properly interpreted, the Code does not displace a labour arbitrator’s exclusive jurisdiction, the analysis may apply equally to the McNulty case as to the Weilgosh case. In those circumstances, the Tribunal would no longer have jurisdiction in the McNulty case, with the previously successful parties to that application having had no opportunity to participate in the court’s disposition. This is the type of interest that forms a solid basis to ground an intervention.

[22] With respect to the argument that the McNulty parties will change the focus of the application in this court, I have reviewed their outlines of proposed arguments in their facta on these motions. They only focus on the PSA and its regime to the extent of informing the proper interpretation of the Code. There is no attempt, for example, to challenge the conclusion that the PSA grants exclusive jurisdiction to labour arbitrators on issues of discrimination and harassment falling within the scope of the collective agreement. I view these parties’ contributions, therefore, as providing a distinct and helpful perspective on the interpretation of the Code, which is the issue the applicant has focused on in its application. Although under Dorsey, parties to the underlying proceeding would not generally need to demonstrate a distinct and helpful perspective in order to continue as parties, they have done so here.

[23] For these reasons, the McNulty parties shall have status as parties in this court on the terms outlined below. This includes the Peel Board. Although the Peel Board did not file an application for judicial review, it is only fair to permit its participation given that I am granting leave for the successful parties on the McNulty application to participate.

[24] OECTA was also granted party status in the proceeding below. There was no objection to it continuing as a party before this court. It is therefore granted party status on the terms set out below.

Empowerment Council

[25] The Empowerment Council seeks to intervene as a friend of the court. None of the parties objects to its participation in this role. The Empowerment Council advocates for clients in the addiction and mental health systems. In my view, it will provide a distinct and useful perspective on this application. Its perspective is informed by the experience of individual union members with mental health and addiction disabilities, including their access to justice concerns in a unionized workplace. It has expertise relating to the specific issues before this court. It has been granted leave to intervene in numerous cases relating to the human rights and access to justice of persons with mental health and addiction disabilities, including Horrocks, which is central to this application. It was also granted leave to intervene in the decision under review.

[26] It shall be granted leave to intervene as a friend of the court on the terms set out below.

Canadian Union of Public Employees

[27] CUPE is the largest union in Canada, including representing approximately 280,000 workers in Ontario. One of CUPE’s local unions represents a bargaining unit of employees of the LDCSB. These employees range from educational assistants and English as a second language instructors to plumbers and carpenters. It seeks leave to intervene as a party or alternatively as a friend of the court. It was granted intervener status in the underlying proceeding. None of the parties objects to CUPE’s participation in this court.

[28] I find it appropriate to grant CUPE leave to intervene as a friend of the court. It has a distinct and useful perspective informed by its wide experience in labour relations. Specifically, it has expertise in a variety of schemes for collective bargaining and labour dispute resolution under which its members work beyond the LRA. Its extensive experience in litigating Code-based harassment and discrimination, both at the Tribunal and in labour arbitrations, will also be of assistance to the court.

Police Association of Ontario and Toronto Police Association

[29] The PAO is the provincial umbrella organization for police associations in Ontario. The TPA is the bargaining agent for members of the Toronto Police Service. These proposed interveners seek to intervene as friends of the court.

[30] I do not find it appropriate to grant them intervener status given the participation of the PRPA, which is one of the McNulty parties. The PAO and TPA distinguish themselves from the PRPA in part on the basis that the PAO represents a number of smaller police associations with few members, for whom access to the HRTO is important.

[31] However, the PRPA emphasizes in its factum that it, too, has more limited resources than bigger unions like CUPE and OECTA. It states that this makes its members’ pursuit of workplace human rights complaints through the arbitration process more difficult. I am satisfied that the PRPA can sufficiently address the perspectives the PAO and TPA seek to represent regarding the challenges of a smaller bargaining agent. It is also well-placed to assist the court with how the PSA regime can inform an interpretation of the Code.

[32] I am mindful of the benefit of achieving some balance between the positions pursued by those granted intervener status. There is already one police association and two other unions intervening in favour of the position that the HRTO has concurrent jurisdiction with a labour arbitrator, which is also the position the PAO and TPA would support.

[33] In all of the circumstances, the PAO and TPA’s request for leave to intervene is denied.

Coalition of Black Trade Unionists

[34] The CBTU advocates for Black unionized workers. It works to, among other things, improve economic development and employment opportunities for workers of African descent, challenge public policies that disadvantage workers of colour, and challenge systemic forms of discrimination within the labour movement. It seeks to intervene as a friend of the court.

[35] I recognize that the CBTU has a distinct perspective on behalf of Black workers within unionized workplaces. However, in my view, the existing parties and interveners will adequately address the legal arguments CBTU wishes to advance. For example, the CBTU wishes to emphasize the HRTO’s broad remedial powers and ability to award systemic remedies. The Empowerment Council, which also represents a disadvantaged group of individuals within trade unions, seeks to advance submissions emphasizing the public nature of the human rights system, including its mandate to address broad systemic discrimination and award public interest remedies. The Empowerment Council has the additional benefit over the CBTU of having intervened in Horrocks and in the hearing below, thus adding to its expertise.

[36] Although an overlap in submissions can be permitted, I am mindful that the bulk of the parties seeking to participate wish to advance arguments in favour of concurrent jurisdiction. Keeping in mind the value of some balance in perspectives, as well as that the existing parties and interveners can sufficiently address arguments the CBTU seeks to advance, I deny the CBTU’s request for intervener status.

Disposition

[37] Therefore, I order as follows:

(1) The following individuals or organizations are granted leave to intervene in the application as parties: The OHRC, the OECTA, Ms. McNulty, the PRPA, and the Peel Board.

(2) The following organizations are granted leave to intervene in the application as friends of the court: CUPE and the Empowerment Council.

(3) The following organizations are denied leave to intervene: The POA and TPS and the CBTU.

(4) All interveners listed in paragraphs 1 and 2 above shall be limited to filing a factum of no more than ten pages. As required by my previous direction, all intervener facta shall be filed and uploaded to CaseLines by no later than May 15, 2023. The interveners also shall be limited to providing oral submissions of no more than ten minutes, or such other amount as directed by the panel hearing the application.

(5) The interveners are directed to ensure they do not duplicate the submissions of the primary parties to the application or of one another.

(6) No costs shall be ordered for or against any intervener.

(7) There are no costs of this motion.

O’Brien J.

Date: April 27, 2023