TOP COURTS LIMITS ACCESS TO HUMAN RIGHTS FOR UNIONIZED EMPLOYEES

Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (CanLII):

Part of the Court’s (the majority) wrongheaded reasoning is the reliance on the so-called duty of fair representation to mitigate the limitations on individual human rights:

“[36]                        The respondents argue that interpreting the arbitrator’s jurisdiction as exclusive with respect to human rights issues raises access to justice concerns. This is because employees’ access to labour arbitration is controlled by their union. If a union declines to advance a claim to arbitration, the employee is left without recourse (Naraine, at para. 62; A.T.U., at paras. 66‑67). This is said to be particularly undesirable since human rights are “quintessentially individual rights, and their enforcement should lie within the control of the rights holder” (Shilton, “Choice, but No Choice”, at p. 502). The answer to this concern is, however, governed by Weber, inasmuch as this Court placed control over unionized workers’ ability to advance workplace‑related Charter claims — most of which relate no less to “quintessentially individual rights” — in the hands of labour unions.

 

Anyone with any experience in duty of fair representation complaints knows that these complaints do not provide much if any protection for employees.  From the BC Labour Relations Board annual report (20230):  In BC in 2020, precisely NIL section 12 (duty of fair representation) complaints were granted.  In the last 10 years, 15 complaints were granted.  In the past 10 years, the Board disposed on 747 complaints.

The head note reads:

On appeal from the court of appeal for manitoba

                    Labour relations — Jurisdiction of arbitrator — Human rights dispute arising from collective agreement — Unionized employee suspended after attending work under influence of alcohol and later terminated for breaching abstinence agreement — Employee filing human rights complaint alleging that employer failed to adequately accommodate disability — Whether exclusive jurisdiction of labour arbitrator appointed under collective agreement and empowered by provincial labour legislation extends to adjudicating human rights disputes arising from collective agreement — The Labour Relations Act, C.C.S.M., c. L10, s. 78 — The Human Rights Code, C.C.S.M., c. H175, ss. 22, 26, 29(3).

                    H was suspended for attending work under the influence of alcohol. After H disclosed her alcohol addiction and refused to enter into an agreement requiring that she abstain from alcohol and engage in addiction treatment, her employment was terminated. H’s union filed a grievance and her employment was reinstated on substantially the same terms as the agreement H had refused to sign. Shortly thereafter, H’s employment was terminated for an alleged breach of those terms. H filed a discrimination complaint with the Manitoba Human Rights Commission, which was heard by an adjudicator appointed under The Human Rights Code. The employer contested the adjudicator’s jurisdiction, arguing that Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, recognizes exclusive jurisdiction in an arbitrator appointed under a collective agreement, and that this extends to human rights complaints arising from a unionized workplace. The adjudicator disagreed, finding that she had jurisdiction because the essential character of the dispute was an alleged human rights violation. She went on to consider the merits of the complaint and found that the employer had discriminated against H.

                    On judicial review, the reviewing judge found error in the adjudicator’s characterization of the essential character of the dispute, and set aside her decision on the issue of jurisdiction. The Court of Appeal allowed H’s 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. Nevertheless, 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.

                    Held (Karakatsanis J. dissenting): The appeal should be allowed and the reviewing judge’s order reinstated in part.

                    Per Wagner C.J. and Abella, Côté, Brown, Rowe and Kasirer JJ.: The adjudicator did not have jurisdiction over H’s complaint. 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. Competing statutory tribunals may carve into that sphere of exclusivity, but only where such legislative intent is clearly expressed. In the instant case, the essential character of H’s complaint falls squarely within the labour arbitrator’s mandate, and there is no clear express legislative intent to grant concurrent jurisdiction to the human rights adjudicator over such disputes. The reviewing judge’s order setting aside the adjudicator’s decision should be reinstated.

                    Exclusive arbitral jurisdiction, as explained by the Court in Weber, captures disputes that are factually related to the rights and obligations under the collective agreement, even where those same facts give rise to other legal claims based in statute or the common law. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. However, not all actions in the courts between a unionized employer and employee are precluded, because an arbitrator’s exclusive jurisdiction extends only to disputes that expressly or inferentially arise out of the collective agreement, and not every workplace dispute will fall within this scope. In addition, the exclusive jurisdiction of a labour arbitrator is subject to the residual curial jurisdiction to grant remedies that lie outside the remedial authority of a labour arbitrator.

                    When it has considered the relationship between the respective spheres of jurisdiction held by labour arbitrators and statutory tribunals, the Court has affirmed that Weber’s exclusive jurisdiction model applies — where matters arise from the interpretation, application, administration or violation of the collective agreement, the claimant must proceed by arbitration and no other forum has the power to entertain an action in respect of that dispute. Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes; rather, depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction.

                    However, exclusive arbitral jurisdiction is not a mere preference that should be disregarded whenever a competing statutory scheme is present, but an interpretation of the mandate given to arbitrators by statute. The unavoidable conclusion to be drawn from the Court’s jurisprudence is that mandatory dispute resolution clauses signal a legislative intention to confer exclusive jurisdiction on the labour arbitrator or other dispute resolution forum provided for under the agreement. The text and purpose of a mandatory dispute resolution clause remains unchanged, irrespective of the existence or nature of competing regimes, and its interpretation must therefore remain consistent. Conditioning the effect of a mandatory dispute resolution clause on the nature of the competing forum would result in persistent jurisdictional confusion, leaving members of the public unsure where to turn to resolve a dispute.

                    It is therefore necessary to consider whether a competing statutory scheme demonstrates an intention to displace the arbitrator’s exclusive jurisdiction. In some cases, it may enact a complete code that confers exclusive jurisdiction over certain kinds of disputes on a competing tribunal; in other cases, the legislation may endow a competing tribunal with concurrent jurisdiction over disputes that would otherwise fall solely to the labour arbitrator for decision. However, the mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising from a collective agreement; some positive expression of the legislature’s will is necessary. Where a legislature intends concurrent jurisdiction, it will specifically so state in the competing tribunal’s enabling statute. But even absent specific language, the statutory scheme may disclose that intention: in some statutes, certain provisions necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process, or the legislative history will show that the legislature contemplated concurrency. In these circumstances, an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent.

                    Accordingly, resolving jurisdictional contests between labour arbitrators and competing statutory tribunals entails a two-step analysis. First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters. Where the legislation includes a mandatory dispute resolution clause, an arbitrator empowered under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary. Secondly, if it is determined that the arbitrator has exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction. The scope will depend on the precise language of the statute but, in general, it will extend to all disputes that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement. This requires analysing the ambit of the collective agreement and accounting for the factual circumstances underpinning the dispute. The relevant inquiry is into the facts alleged, and not the legal characterization of the matter.

                    In the present case, two statutes are relevant. First, The Labour Relations Act contains, in s. 78, a mandatory dispute resolution clause that discloses a legislative intent to grant exclusive jurisdiction to the labour arbitrator over all disputes arising from the collective agreement. Secondly, s. 22(1) of The Human Rights Code provides that any person may file a complaint alleging that another person has contravened the Code, and ss. 26 and 29(3) direct the Commission to investigate complaints and, where appropriate, to request the designation of an adjudicator to hear the complaint. While such provisions vest broad jurisdiction in the Commission over Code violations, they are — absent express displacement of the exclusive jurisdiction of a labour arbitrator — insufficient to support a finding that the Commission holds concurrent jurisdiction. Thus, the arbitrator’s jurisdiction under The Labour Relations Act over disputes that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement is exclusive and, more particularly, exclusive of the Commission. The essential character of H’s complaint, which arises from the employer’s exercise of its rights under, and from its alleged violation of, the collective agreement, represents such a dispute. The claim therefore falls solely to an arbitrator to adjudicate. While H alleges a human rights violation, this is not sufficient to displace the exclusive jurisdiction of the labour arbitrator.

                    Per Karakatsanis J. (dissenting): The appeal should be dismissed. The statutory schemes under The Labour Relations Act and The Human Rights Code point to concurrent jurisdiction. Although labour arbitration may well have been the more appropriate forum, the adjudicator was not wrong to conclude that she had jurisdiction, nor was she wrong to rule on the merits.

                    Deciding jurisdictional issues between two tribunals involves a two-step analysis. The first step is to consider both statutory schemes to determine whether the legislature intended for exclusive or concurrent jurisdiction. A liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature, or by ousting the jurisdiction of the intended forum. The second step is to consider the essential character of the dispute to determine whether it falls within one or both of the statutory schemes. This inquiry turns on the facts of the dispute rather than the legal characterization of the claim.

                    Apart from establishing this framework, the Court’s jurisprudence does not provide a rule that, absent express legislative intent to the contrary, arbitral jurisdiction is exclusive over disputes that fall within the scope of a collective agreement, nor a rebuttable rule that the exclusive jurisdiction model, followed in Weber, applies in every case involving two statutory tribunals. Generally, when statutory tribunals are established, courts should give way to the special grant of jurisdiction given to such tribunals so as not to undermine the benefits intended by the legislature, including the provision of speedy and affordable dispute resolution. However, the reasoning from Weber favouring exclusive labour arbitration over civil litigation in the courts does not readily apply to jurisdictional issues between different statutory tribunals. When two tribunals are created with overlapping mandates and areas of expertise, the legislative schemes must be viewed as a whole. The legislature may very well have assigned the same tasks to two forums and may have intended for more than one adjudicative body to have jurisdiction over a dispute.

                    Turning to the first step of the analysis in the instant case, The Labour Relations Act confers broad jurisdiction to arbitrators to deal with matters related to a collective agreement. However, the Act does not specifically oust the Commission’s jurisdiction under The Human Rights Code. Nor does anything in the Code oust the Commission’s jurisdiction over a unionized employee, or oust the jurisdiction of the arbitrator under the Act. Nothing in either scheme suggests the legislature meant for one scheme to prevail over the other. There is no doubt that the labour scheme is designed to rely heavily upon arbitration for matters within the scope of a collective agreement. But so too does the human rights scheme rely heavily upon the Commission to address discrimination. In the jurisprudence, the jurisdiction of human rights tribunals has only been ousted 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. No such express or strong language exists in The Labour Relations Act. The Act does not clearly confer exclusive jurisdiction on labour arbitrators, and The Human Rights Code does not remove human rights complaints of unionized employees from the Commission’s jurisdiction.

                    Under the second step of the analysis, the Court must consider the essential nature of H’s dispute to determine whether it falls within the jurisdiction of a labour arbitrator, or that of the Commission, or both. The claim is about whether H’s employer discriminated against her on the basis of mental or physical disability — and therefore violated the collective agreement and The Human Rights Code — when it terminated her employment for allegedly violating her undertaking to abstain from alcohol. This dispute falls within the scope of the collective agreement, which specifically prohibits the employer from discriminating on the basis of disability and provides a grievance and arbitration procedure for any dispute arising out of the agreement’s interpretation, application, or alleged violation. Given this context, H’s discrimination claim can easily be characterized as arising out of an alleged violation of the collective agreement. A labour arbitrator accordingly has jurisdiction over it. However, the dispute also falls within the Commission’s jurisdiction and within the mandate of the Code, as does the processing of H’s complaint. There is no exception for a complaint made by a unionized employee who may be subject to a collective agreement. H’s claim thus falls within both a labour arbitrator’s mandate under The Labour Relations Act and the Commission’s mandate under The Human Rights Code.

                    There is agreement with the majority that where two tribunals have concurrent jurisdiction over a dispute, the decision‑maker must consider whether to exercise its jurisdiction in the circumstances of a particular case. When the Commission shares jurisdiction with a labour arbitrator over a human rights dispute, a number of factors may guide the Commission’s discretion to hear the complaint of a unionized employee, including: whether the claim is about the collective agreement itself rather than a violation of it; whether the union involved is opposed in interest to the complainant such that they could be left without legal recourse; whether a labour arbitrator would not have jurisdiction over every party possibly affected; and whether the Commission is a better fit.

                    These factors have different implications for the exercise of discretion. If the union is adverse in interest or is unwilling to pursue a grievance, unionized employees should still have legal recourse to adjudicate their human rights complaints before the Commission. Conversely, if the claim is about the violation of the collective agreement, if the union is supportive, and if the arbitrator has jurisdiction over the necessary parties, there will be a compelling case for a human rights forum to defer to the labour arbitration regime. Additionally, an inquiry into which forum is a better fit permits a broad consideration of the circumstances of the complaint. The remedy sought by the complainant may be highly relevant. If a complainant seeks a declaration, damages, or systemic changes, a human rights tribunal may be the better fit. On the other hand, if a complainant seeks reinstatement, there is a strong case for labour arbitration to have primary responsibility. Finally, access to justice and efficiency favour deferring to labour arbitration. As a general rule, the Commission should decline jurisdiction unless labour arbitration is not a realistic alternative.

                    In the present case, there was no clear evidence before the human rights adjudicator that the union would not assist or support H. And there are good reasons why the Commission or the adjudicator could have exercised their discretion to defer to the labour arbitration scheme: the dispute was about discrimination arising under the collective agreement, and the remedy sought — reinstatement — was squarely within the powers of a labour arbitrator. However, because the human rights adjudicator in this case clearly had jurisdiction, it cannot be said that she was wrong to proceed. In any event, it would not be appropriate, nearly a decade after the events giving rise to the dispute and over six years after the adjudicator’s decision on the merits, to set aside the adjudicator’s decision on jurisdiction. The remedies available on judicial review are discretionary and reflect a public interest in the orderly administration of affairs, including the need for finality and certainty.

Cases Cited

By Brown J.

                    Applied: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; considered: St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; 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;Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; referred to: Stene v. Telus Communications Company, 2019 BCCA 215, 24 B.C.L.R. (6th) 74; Bruce v. Cohon, 2017 BCCA 186, 97 B.C.L.R. (5th) 296; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38, 253 N.S.R. (2d) 144; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160, 398 D.L.R. (4th) 91; New Brunswick v. O’Leary, 1995 CanLII 109 (SCC), [1995] 2 S.C.R. 967; Allen v. Alberta, 2003 SCC 13, [2003] 1 S.C.R. 128; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Wainwright v. Vancouver Shipyards Co. (1987), 1987 CanLII 166 (BC CA), 14 B.C.L.R. (2d) 247; Johnston v. Dresser Industries Canada Ltd. (1990), 1990 CanLII 6808 (ON CA), 75 O.R. (2d) 609; Côté v. Saiano, 1998 CanLII 12963 (QC CA), [1998] R.J.Q. 1965; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495; A.T.U., Local 583 v. Calgary (City), 2007 ABCA 121, 75 Alta. L.R. (4th) 75; Calgary Health Region v. Alberta (Human Rights & Citizenship Commission), 2007 ABCA 120, 74 Alta. L.R. (4th) 23; Human Rights Commission (N.S.) v. Halifax (Regional Municipality), 2008 NSCA 21, 264 N.S.R. (2d) 61; Canpar Industries v. I.U.O.E., Local 115, 2003 BCCA 609, 20 B.C.L.R. (4th) 301; Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145; Cadillac Fairview Corp. v. Human Rights Commission (Sask.) (1999), 1999 CanLII 12358 (SK CA), 177 Sask. R. 126; Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465; Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207; McLeod v. Egan, 1974 CanLII 12 (SCC), [1975] 1 S.C.R. 517.

By Karakatsanis J. (dissenting)

                    Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929; 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; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704; Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465; Greater Essex District School Board and OSSTF (OMERS Pension Plan), Re (2015), 256 L.A.C. (4th) 1; Human Rights Commission (N.S.) v. Halifax (Regional Municipality), 2008 NSCA 21, 264 N.S.R. (2d) 61; Calgary Health Region v. Alberta (Human Rights & Citizenship Commission), 2007 ABCA 120, 74 Alta. L.R. (4th) 23; Université de Sherbrooke v. Commission des droits de la personne et des droits de la jeunesse, 2015 QCCA 1397; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC), [1990] 1 S.C.R. 1298; Mason v. Gen‑Auto Shippers and Teamsters Local Union 938, [1999] OLRB Rep. 242; Creed v. International Brotherhood of Electrical Workers, Local Union 339, [1999] O.L.R.D. No. 3422 (QL); Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364; Blatz v. 4L Communications Inc., 2012 CanLII 42311; Qumsieh v. Brandon School Division, 2019 MBHR 3; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422; Zulkoskey v. Canada (Minister of Employment and Social Development), 2016 FCA 268; Dick v. Pepsi Bottling Group (Canada), Co., 2014 CanLII 16055; A.T.U., Local 583 v. Calgary (City), 2007 ABCA 121, 75 Alta. L.R. (4th) 75; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Fingland v. Ontario (Ministry of Transportation), 2008 ONCA 812, 93 O.R. (3d) 268; Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 2000 CanLII 16991 (ON CA), 51 O.R. (3d) 641.