“EVERYBODY’S BUSINESS”:
DO THE RENAUD RULES STILL PLAY A ROLE IN CANADIAN
WORKPLACE HUMAN RIGHTS ENFORCEMENT?
Elizabeth Shilton
Adjudicating Human Rights in the Workplace:
After Ontario’s Pinto Report, Where Do We Go Next?
November 9-10, 2012
Queen’s University
Kingston, Ontario
What are the Renaud Rules?
• Central Okanagan School District No. 23 v.
Renaud, [1992] 2 SCR 970
• Gohm v. Domtar Inc (1990), 12 C.H.R.R. D/161
(Ont. Bd. Inq.), aff’d (1992) 89 DLR (4th) 305
(Ont. Div. Ct.)
Two types of liability
Type 1 Liability
• Where the union
participates in the
formation of the
discriminatory work rule
Type 2 Liability
• Where the union impedes
an employer’s efforts to
reasonably accommodate
an employer in a particular
case
3
Why is that a problem?
“a radical redistribution of the rights and
obligations of companies and unions”, one
which “imposes on unions a duty with no
corresponding rights [and] subjects them to
liability with no corresponding control”
Justice Archie Campbell, dissenting in the
judicial review of Gohm
Two Factors
1. Expansion of scope of arbitration
2. Rules governing access to
adjudication before HRTs in direct
access jurisdictions
Expanding scope of arbitration
• Weber v Ontario Hydro, [1995] 2 S.C.R. 929
• Parry Sound (District) Social Services
Administration Board v. Ontario Public Service
Employees Union, Local 324, 2003 SCC 42
Jurisdictional Disputes
Quebec (Commission des droits de la personne
et des droits de la jeunesse) v. Quebec
(Attorney General), 2004 SCC 39 (the Morin
case)
Morin Categories
Arbitrators have exclusive
jurisdiction
• The essential character of
the dispute arises from the
collective agreement
DESPITE the fact that it is a
human rights dispute
Arbitrators have concurrent
jurisdiction with HRTs
• The essential character of
the dispute is
“discrimination ”
(but the fact that it is filed as a
discrimination claim is not
determinative)
Potential Morin factors?
• Disputes about whether the terms of the
agreement are discriminatory? (Renaud Type 1)
• Disputes about the negotiation (rather than the
application) of the agreement ? (Renaud Type 1)
• Disputes where the union will not file a
grievance? Where the union is opposed in
interest?
• Disputes affecting large numbers of people?
• Disputes where some respondents are not parties
to the agreement?
Unionized Employees in Direct Access
Jurisdictions
• Deferral (OHRC, s.45)
• Summary Dismissal “if the Tribunal is of the
opinion that another proceeding has
appropriately dealt with the substance of the
application” (Ont HRC, s.45.1)
No More Dual Adjudications
• Figliola v. Workers’ Compensation Board (No. 2),
2011 SCC 52
• Three elements:
– Was there concurrent jurisdiction to decide human
rights issues?
– Were the previously decided legal issue was
essentially the same as what is being complained of to
the Tribunal?
– Was there an opportunity for the complainants or
their privies to know the case to be met and have the
chance to meet it?