Human rights tribunal has no power to rule on union worker’s claim: SCC

By Tony Poland, LegalMatters Staff • A Supreme Court of Canada (SCC) ruling denying a unionized employee the right to challenge her termination before a human rights tribunal – her only recourse was through her union and the grievance arbitration process in its collective agreement – is a “strong statement,” re-affirming and expanding existing jurisprudence but there are still questions to be answered, says Toronto employment lawyer Jeffrey M. Andrew.

In the ruling, the SCC was told a Manitoba healthcare worker who suffered from alcohol dependence was fired from her job after it was alleged that she violated a last-chance agreement her union had negotiated with her employer as a result of a previous discharge grievance. The woman claimed alcohol dependency as a disability and rather than filing a grievance with her union, she brought her complaint to the province’s Human Rights Commission.

Supreme Court overturned earlier decision

Her employer argued that this human rights dispute between a unionized worker and her employer regarding an issue covered by the collective agreement must be settled by the grievance arbitration process. The Supreme Court agreed and overturned the human rights decision that it could hear the matter even if an arbitrator could also do so.

“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,” Chief Justice Richard Wagner writes in Northern Regional Health Authority v. Horrocks. “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 [the employee’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.”

Andrew, a partner with Cavalluzzo LLP, says the ruling relied on the 1995 SCC decision in Weber v. Ontario Hydro, which found that under a collective agreement an arbitrator has exclusive jurisdiction over issues in a dispute which could be challenged under the collective agreement. 

“It gets a bit complicated but essentially what the court was saying in Weber was you must determine the essential factual character of the dispute, not the legal characterization, and then decide if it could be the subject of a grievance by your union. That sounds easy, but sometimes it can be difficult,” he says.

Ruling gives clarification

The recent Supreme Court decision gives clarification when dealing with human rights cases and union grievance arbitration, says Andrew.

“We will see how it plays out, but the Court makes a pretty strong statement that grievance arbitration may be the sole mechanism to enforce your human rights with your employer if you are unionized. This is often a bread-and-butter collective agreement issue. That’s a takeaway from this,” he says. “However, the case is certain to create more litigation outside of Manitoba as to whether the principle applies elsewhere like Ontario or the federal sector. It raises the question, ‘Does this mean that it is grievance arbitration or nothing for human rights claims for unionized workers?’ I suspect that we will probably see challenges from employers outside of Manitoba asserting this.”

“This is a long evolution,” Andrew tells LegalMattersCanada.ca. “It is certainly going to be a very important ruling in the human rights field.”

He explains that each province and territory has its own labour and human rights legislation, as does the federal sector.

“For example, Ontario’s Labour Relations Act does not expressly say you can only deal with a human rights complaint through a union grievance, nor does the Human Rights Code say that the Human Rights Tribunal of Ontario is the only source of a remedy,” says Andrew. “We would not be having these debates if they did. But an issue of human rights in a unionized workplace is usually uncontroversial as a basis to grieve. So, I expect there will be strong arguments in favour of the exclusivity of grievance arbitration. But in the end, the right to file a claim at a human rights tribunal will come down to the careful interpretation of each jurisdiction’s legislation.”

Possible to file grievance and make human rights claim

He says that to date in Ontario and other jurisdictions, it is possible to file a grievance with the union and also make concurrent a human rights complaint.

The human rights tribunal then usually defers a hearing until the union matter is settled, unless the worker clearly expresses a desire to not pursue the grievance process. Now, the recent SCC ruling “could really simplify the process, but not without some controversy.” 

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“It does provide significantly more guidance because it is a Weber type of decision in the field of human rights. People have just accepted there are the two bodies to hear a complaint ­– grievance arbitration and human rights tribunals ­– that are concurrent,” Andrew says. “This decision advances pretty strong arguments that that may not be the case.”

He says the ruling in Northern Regional Health Authority v. Horrocks will not on its own settle this question for good.

‘It sets out a process’

“It just sets out a process to decide if the labour arbitrator has exclusive jurisdiction or not,” says Andrew. “The first step is to examine the legislation. Was it designed to give the labour arbitrator exclusivity? The second step is to examine the factual issues in the case to decide if it is something that can be challenged with a grievance.”

He says he found the dissenting opinion by Justice Andromache Karakatsanis interesting.

“Her view is you basically look at both human rights legislation and the grievance arbitration legislation,” Andrew says. “Then you use a liberal interpretation to decide if it is clear that legislation intended that one body and not the other should have exclusive jurisdiction. Her view is the answer was no in Manitoba. You could proceed down both tracks concurrently. That has been the historical model.

“This then leaves the question, ‘What is going to happen in Ontario and other jurisdictions outside Manitoba? What is going to happen federally?’” he asks.

Andrew says there are cases presently before the human rights tribunals that have been deferred. 

“What happens to them now? Are some parties going to try to make the case that a human rights tribunal should not be allowed to hear the deferred complaint? I predict that some are going to try on those arguments and see what happens,” he says.

Andrew says he doubts the SCC ruling is going to be welcomed by some human rights advocates.

Can be seen as a question of individual rights

“For some, this is a question of individual rights,” he says, “When you’re unionized the law basically gives the union the exclusive jurisdiction to represent you as long as it acts within its duty of fair representation.

“The union is your exclusive representative. It can make the decisions on whether file a grievance or to take your case to arbitration, or whether to settle, even if you don’t like the proposed settlement. It must still review your case thoroughly and give it careful consideration before deciding. It cannot act in a bad faith or discriminatory manner. In my experience, unions take these obligations very seriously and are quite careful in handling member claims.”

But when it comes to human rights, some are opposed to giving a union such exclusive power, says Andrew, believing an individual should be allowed to proceed with a human rights complaint on their own whether or not a grievance is filed.

“The claim is basically that you are an individual with human rights which are almost constitutional in importance and that you should ultimately have control over how you wish to assert those rights, not the union alone,” he says.

“This is an evolution. This ruling is certainly going to be an important one in the human rights field. But just how far will it reach?” Andrew asks. “This decision is a clear departure from how human rights complaints have been addressed. That’s what makes this noteworthy.”

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