Labour arbitrators' exclusive jurisdiction extends to human rights disputes: SCC

Under collective agreements, jurisdiction is not concurrent unless another law states otherwise

Labour arbitrators' exclusive jurisdiction extends to human rights disputes: SCC
Ottawa lawyer Paul Champ represented the respondent in Northern Regional Health Authority v. Horrocks.

A human rights adjudicator did not have jurisdiction to decide a workplace discrimination complaint brought by a unionized health-care aide, the Supreme of Canada ruled on Friday.

In a 6/1 decision in Northern Regional Health Authority v. Horrocks, the majority of the Supreme Court found that the exclusive jurisdiction of a labour arbitrator -- appointed under a collective agreement and empowered by provincial labour legislation -- extends to adjudicating human rights disputes arising from collective agreements, unless otherwise stated in other legislation.

“The court was saying that practically any kind of dispute that arises in a workplace involving human rights will fall under the exclusive jurisdiction of a labour arbitrator, and the Manitoba Human Rights Commission and adjudicators have no  jurisdiction over those matters … in unionized workplaces,” says Paul Champ, a partner in Champ and Associates in Ottawa who represented the respondent Linda Horrocks.

Champ anticipates “a lot of fallout from this decision,” since he believes it will encourage unionized employees to file ‘duty of fair representation’ complaints against their labour unions if those unions don’t advance their human rights grievances; “I think it's going to create a huge burden on unions.”

The concurrent jurisdiction model between labour arbitrators and human rights tribunals, “which is what I think the Manitoba legislature did create here, creates the safety valve for those kinds of issues. And unions shouldn't be the sole arbiter of whether …. a victim of discrimination deserves to have their rights vindicated,” he adds.

Background of the case

Linda Horrocks was a unionized healthcare aide in Northern Regional Health Authority’s personal care home for the elderly in Flin Flon, Manitoba. She was subject to a collective agreement that forbade discrimination based on “physical or mental disability,” which is also a statutorily protected characteristic under the Human Rights Code. Horrocks suffered from alcohol dependence, which the NRHA conceded was a disability protected by the collective agreement and the Code. In 2011 she was found to be intoxicated at work, and the NRHA suspended her without pay pending an investigation. It offered to allow Horrocks to return to work if she entered into an agreement that included terms requiring her total abstinence from alcohol consumption, but Horrocks refused to sign the agreement on the basis that it was discriminatory toward a person with a disability.

The union grieved Horrocks’ termination, and in April 2012 the NRHA agreed to allow her to return to work on terms that included abstinence, counselling and random testing conditions. Later, the NRHA received two reports of Horrocks being intoxicated outside the workplace, and on April 30, 2012, her employment was terminated. Horrocks did not file a grievance under the collective agreement, because she was told the union would not support her in it; instead, she brought a complaint under the Code.

The NRHA objected to the adjudicator’s jurisdiction, arguing that the essential character of the dispute underlying the discrimination complaint was within the exclusive jurisdiction of a labour arbitrator under the collective agreement. The chief adjudicator disagreed, and determined the NRHA had violated the discrimination provisions of the Code on the basis of Horrocks’ alcohol dependency disability.

On judicial review, the reviewing judge found the adjudicator had erred in characterizing the essential character of the dispute, and set aside her decision on the issue of jurisdiction. The Manitoba Court of Appeal allowed Horrocks’ appeal. It agreed that disputes concerning the termination of a unionized worker lie within the exclusive jurisdiction of a labour arbitrator, including alleged human rights violations. However, it held that the adjudicator had jurisdiction in this case and remitted the matter to the reviewing judge to determine whether the adjudicator’s decision on the merits of the complaint was reasonable.

Supreme Court ruling

In Friday’s judgment the majority of the Supreme Court found that, in considering whether jurisdiction is exclusive, one needs to determine whether jurisdiction is displaced expressly by any other legislation, as it could have been by Manitoba’s Human Rights Code. Here, the majority found, the Code did not carve into that exclusivity. If jurisdiction is displaced, however, it could be concurrent, and the court did not close the door on that possibility.

“Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive,” wrote Justice Russell Brown in his reasons, with Chief Justice Richard Wagner and Justices Rosalie Abella, Suzanne Côté, Malcolm Rowe and Nicholas Kasirer concurring.

“Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed,” he continued. “Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is to mandate arbitration of ‘all differences’ concerning the ‘meaning, application, or alleged violation’ of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed.”

Express and unequivocal language

“In some cases, appellate courts have concluded that by virtue of this paramount status [of human rights legislation], express language is required to oust the jurisdiction of a human rights tribunal,” Justice Brown wrote, referencing the decision in Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465, known as the Naraine decision.

“Whether that is so I need not decide here. But in light of the jurisprudence of this Court which I have recounted, I am of the view that the inclusion of a mandatory dispute resolution clause in a labour relations statute must qualify as an explicit indication of legislative intent to oust the operation of human rights legislation.”

Dissent

In dissenting reasons Justice Andromache Karakatsanis found that the complaint could have been decided by either a human rights adjudicator or a labour arbitrator.

“There is no doubt that the labour scheme is designed to rely heavily upon arbitration for matters within the scope of the collective agreement,” Justice Karakatsanis wrote. “But so too does the human rights scheme rely heavily upon the Commission and human rights adjudicators to address discrimination, given the paramount and fundamental importance of human rights legislation …  

“This Court has only ousted the jurisdiction of human rights tribunals when the statutory text of the other tribunal has specifically excluded all other decision-making bodies, thereby indicating that jurisdiction was meant to be exclusive,” she continued. “No such express or strong language exists in the Manitoba Labour Relations Act.”

Determining which forum is a “better fit” for a complaint permits a broad consideration of the circumstances of the complaint, Justice Karakatsanis wrote.

“For example, if a complainant seeks reinstatement, labour arbitration through union representation may be the better fit. On the other hand, if a complainant seeks a declaration, damages, or systemic changes — rather than the re-establishment of the employment relationship — a human rights tribunal may be the better fit.”

Significance of the ruling across Canada

Human rights and labour legislation is broadly uniform across Canada; some variations in provincial human rights statutes “would imply that unionized employees can come to human rights tribunals,” such as in British Columbia, Alberta and Ontario.

There have been six appellate judgments across Canada saying that there was concurrent jurisdiction with human rights tribunals, including in Naraine, he adds, and “we will see how the courts in those provinces determine whether the legislation in those provinces are in some way different from Manitoba’s.”

In Naraine, the Ontario Court of Appeal “held that legislation in Ontario provided for concurrent jurisdiction between human rights tribunals and labor arbitrators, and that human rights legislation was paramount,” says Champ. “It seems like this judgement is overturning [the decision of] Justice Abella from the Ontario Court of Appeal.”

Today’s decision also revisited the Supreme Court’s decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185, known as the Morin decision. That case concerned a term in the collective agreement between teachers’ unions and the province stipulating that experience acquired during the 1996‑1997 school year would not be credited for the purposes of calculating seniority and salary increments.

The Supreme Court’s decision in Morin “expressly left the door open, saying ‘we're unsure in what circumstances there may be concurrent jurisdiction,’” Champ adds. “Until and unless we see legislatures revising legislation, at least in Manitoba and a few other provinces, I think, unfortunately, it's a bad day for working people who are victims of discrimination.”

Craig Neuman, who represented the intervener Canadian Association of Counsel to Employers in the case, told Canadian Lawyer that the court had accepted the jurisdictional proposition advocated by the appellant employer and supported by the CACE.

“We see it as a positive development for employers, but also for unions and employees in unionized work settings,” said Neuman, a partner in Neuman Thompson in Edmonton. “It helps to clarify blurred jurisdictional boundaries between labour arbitrators and human rights tribunals, and will promote timely, comprehensive adjudication of human rights issues when they arise in unionized workplaces, using the effective mechanisms of grievance arbitration under collective agreements. 

“This ruling should also help parties avoid a multiplicity of proceedings with the potential for conflicting outcomes such as those encountered in this particular appeal, which do not serve the interests of affected parties,” he added.

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