1. 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 “EVERYBODY’S BUSINESS”: DO THE RENAUD RULES STILL PLAY A ROLE IN CANADIAN WORKPLACE HUMAN RIGHTS ENFORCEMENT? Elizabeth Shilton

2. 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.)

3. 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

4. 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

5. Two Factors 1.Expansion of scope of arbitration 2.Rules governing access to adjudication before HRTs in direct access jurisdictions

6. 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

7. 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)

8. 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)

9. 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?

10. 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)

11. 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?