Recent Ruling by the Supreme Court of Canada Grants Arbitrators Exclusive Jurisdiction Over Human Rights Disputes

In a recent ruling for the matter of Northern Regional Health Authority v. Horrocks, 2021 SSC 423, (“Horrocks”), the Supreme Court of Canada held that the Manitoba Human Rights Commission did not have jurisdiction to hear a human rights dispute in a unionized workplace. As such, in a dramatic move, the Court ruled that, given the legislative structure of Manitoba, labor arbitrators are granted exclusive jurisdiction over unionized workers’ complaints of human rights violations in the workplace.

Facts

Linda Horrocks (the “Employee”) was employed as a health care aide at the Northern Lights Manor, a personal care home owned and operated by the Northern Regional Health Authority (the “Employer”). The collective agreement between the Employer and the union of the Employee, the Canadian Union of Public Employees, Local 8600 (the “Union”), explicitly prohibits the discrimination on an employee on the basis of the employee’s physical or mental disability. This protection is also provided for under the Manitoba Human Rights Code (the “Manitoba Code”) and hence, is also a statutory protection.

In an act of good faith, the Employee informed the Employer of her alcohol addiction. However, when offered by the Employer, the Employee refused to enter into a “last chance agreement” which would require that she abstain from alcohol and begin addiction treatment. The Union filed a grievance against the Employer; this was settled vis-à-vis an agreement which – despite having substantially the same terms as the “last chance agreement” – reinstated the Employee in her position. Shortly thereafter, the Employer terminated the Employee for an alleged breach of the terms in the new agreement, stipulating that the Employee had been intoxicated at work and possessed a lack of “reasonable assurance” that her addiction was being treated.

The Manitoba Code Complaint

Following her termination, the Employee filed a complaint with the Manitoba Human Rights Commission, which was subsequently heard by an adjudicator appointed pursuant to the Manitoba Code.

Upon the appointment of the adjudicator, the Employer contested the adjudicator’s jurisdiction to hear the complaint, citing the Supreme Court of Canada’s judgment in Weber v. Ontario Hydro, [1995] 2 SCR 929 (“Weber”), which recognizes exclusive jurisdiction in an arbitrator appointed under a collective agreement, and that such jurisdiction extends to human rights complaints arising from a unionized workplace.

The Chief Adjudicator of the Manitoba Human Rights Commission, Sherri Walsh, disagreed with the argument of the Employer, stipulating that she did have jurisdiction. Chief Adjudicator Walsh held that, although Weber does recognize exclusive jurisdiction in labor arbitrators over disputes pertaining to the interpretation, application, administration, or violation of a collective agreement, the essential character of the Horrocks dispute was an alleged human rights violation. Chief Adjudicator Walsh went on to consider the merits of the complaint and found that the Employer had discriminated against the Employee.

Decision of The Manitoba Court of Queen’s Bench, 2016 MBQB 89

After the Employer applied for judicial review, Justice James Edmond found error in the adjudicator’s characterization of the essential character of the dispute and set aside the adjudicator’s decision vis-à-vis the issue of jurisdiction. According to Justice Edmond, the essential character of the dispute was whether the Employer had just cause to terminate the Employee. Justice Edmond stipulated:

“Any such dispute, including any human rights violation associated with the termination, is within the exclusive jurisdiction of labor arbitration.”

Subsequently, Justice Edmond found it unnecessary to decide whether the adjudicator’s decision on the merits of the complaint was reasonable.

Decision of The Manitoba Court of Appeal, 2017 MBCA 98

The Manitoba Court of Appeal upheld Justice Edmond’s conclusion that disputes concerning the termination of a unionized worker in Manitoba fall within the exclusive jurisdiction of a labor arbitrator, including where the dispute alleges a violation of human rights. With that being said, the Court of Appeal held that the adjudicator had jurisdiction for several other reasons:

1. As the Employee only filed a grievance against the initial termination, the Employee had “made a choice to sever” the employment and human rights aspects of her claim by not filing a grievance against the second termination;
2. The discrimination perpetrated against the Employee raised issues that “transcended” the specific context of the employment, because an employer’s accommodation of an employee’s alcohol dependency is “larger than the specifics of what occurred in the employment relationship”; and
3. The Union had no interested in pursuing the claim vis-à-vis arbitration, thus precluding the Employee from bringing her claim to any forum if a labor arbitrator were to hold exclusive jurisdiction.

As a result, the Court of Appeal allowed the appeal and remitted the matter to the Court of Queen’s Bench to determine whether the adjudicator’s decision on the merits regarding the discrimination complaint was reasonable.

Decision of The Supreme Court of Canada

On behalf of the majority, Justice Russell Brown outlined the Supreme Court of Canada’s disagreement with the adjudicator and the Court of Appeal, stipulating:

[5] 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. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. 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.

To conclude, the Supreme Court of Canada allowed the Employer’s appeal and held that the adjudicator did not have jurisdiction to hear the Employee’s discrimination complaint.

Significance

Commentators have emphasized the view that the Supreme Court of Canada’s ruling in Horrocks definitively ousts the jurisdiction of human rights tribunals, in favor of labor arbitrators. Despite these comments and a reading of the veneer of the decision, a careful look at the wording of the decision stipulates that this is the case for unionized employees in Manitoba but is not necessarily true for other jurisdictions.

For instance, in Ontario, recognition of concurrent jurisdiction between arbitrators and the Human Rights Tribunal of Ontario (the “HRTO”) is an established and accepted fact. We are yet to see the impact of Horrocks on jurisdictions like Ontario; however, what has now become clear, is that the applicable statutory regime is an important consideration when assessing whether one or more adjudicators has jurisdiction over a particular dispute.

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