Appeal Watch: Jurisdictional Questions between Human Rights Tribunals and Labour Arbitrators

The question of overlapping jurisdiction between a human rights tribunal and a labour arbitrator  on a complaint of discrimination is set to reach the Supreme Court of Canada (“SCC”), following the granting of a leave to appeal for Northern Regional Health Authority v Manitoba Human Rights Commission, 2017 MBCA 98 [Northern Regional], last month.

Background

Linda Horrocks was a health care aid at the Northern Lights Manor, a personal care home run by the Northern Regional Health Authority (“NRHA”). As she was a member of the Canadian Union of Public Employees, Local 8600, a collective agreement governed the employment relationship between Horrocks and Northern Lights. The collective agreement prohibited discrimination on the basis of the employee’s physical or mental disability, which is also a statutory protection under the Manitoba Human Rights Code, CCSM c H175 [the Code]. Horrocks struggled with an alcohol addiction. The NRHA conceded that this addiction constituted a disability protected under the collective agreement and the Code. During meetings held with her to discuss her chronic absenteeism, Horrocks failed to disclose her disability and the counselling she was receiving at the time to her employer (Northern Regional, para 9).

On June 3, 2001, Horrocks was intoxicated at work and the NRHA suspended her work without pay pending an investigation. At a meeting to discuss her suspension, she disclosed her addiction and was enrolled in a program offered by the Addictions Foundation of Manitoba (“AFM”). She had signed a three-month abstinence agreement the day prior (para 10). On June 21, Horrocks refused to sign an agreement proposed by the NRHA, which including terms that required her complete abstinence from alcohol, participation in weekly AFM counselling, mental health counselling, and a residential rehabilitation treatment program, and permanent submission to random alcohol and drug testing by the employer. Following advice from the union, Horrocks refused to sign the proposed agreement, claiming that the terms were discriminatory on the basis of her disability. The union told the NRHA that “if [the complainant] signs it then she would be setting herself up to fail” (para 12).

Nearly a month later, Horrocks’s employment was terminated and the NRHA’s reasoning included the incident of her intoxication at work and a lack of “reasonable assurance” that her addiction was being treated and controlled. The NRHA cited the proposed agreement that Horrocks had refused to sign as a reasonable effort to accommodate her disability. The union grieved this first termination on the basis that it occurred without just cause. NRHA denied the grievance and the union requested arbitration. A settlement agreement just prior to an arbitration hearing, between the union, the NRHA and Horrocks, included terms very similar to the earlier proposed agreement. Under this agreement, a breach of these conditions — abstinence or random testing, among others — would constitute just cause for termination. Following this settlement agreement, Horrocks’s employment was terminated a second time for her intoxication at work, which constituted just cause under the above conditions.

Rather than filing a grievance under the collective agreement, Horrocks brought a complaint under the Code. This gave rise to a jurisdictional objection by the NRHA, which argued that the dispute’s essential character was within the exclusive jurisdiction of the collective agreement and, therefore, a labour arbitrator. The Chief Adjudicator argued that she had jurisdiction to decide the claim under the Code, thereby holding that Horrocks’s addiction fell under the protection of the Code and was a factor upon which Horrocks was treated adversely. The main test for discrimination in the employment context is whether the employer met the standard of reasonable accommodation to the point of undue hardship and/or whether such a discriminatory condition is a bona fide occupational requirement.  The adjudicator found that the NRHA did not meet this test.  

The NRHA applied for judicial review of the Chief Adjudicator’s decision. Specifically on the matter of jurisdiction, the NRHA argued that the adjudicator erred in her decision and the matter was for a labour arbitrator under the terms of the collective agreement and The Labour Relations Act, CCSM c L10 [the Act]. The reviewing judge set aside the Chief Adjudicator’s jurisdictional decision on judicial review and found that the dispute was essentially about whether there was just cause to terminate employment, which fell exclusively under the purview of the collective agreement.

The Manitoba Court of Appeal Decision

The Court of Appeal (MBCA) allowed the appeal. While it found that the reviewing judge erred in overturning the Chief Adjudicator’s decision on the matter of jurisdiction, it also found that the Chief Adjudicator’s view of her jurisdiction was too broad (Northern Regional, para 43). By reviewing the NRHA’s objection to her jurisdiction over the dispute, “the Chief Adjudicator was doing much more than simply evaluating the evidence and interpreting or applying a home statute, the Code […] the Chief Adjudicator’s jurisdictional decision has implications well beyond the instant case” (para 43).

The Court first found that the jurisdictional question between labour arbitration and human rights adjudication is to be decided on a standard of review of correctness (para 44). It decided this on the basis of several SCC decisions in which questions of jurisdiction between two administrative bodies were at issue, including Weber v Ontario Hydro, [1995] 2 SCR 929, and Quebec (Commission des drouts de la personne et des drouts de la jeunesse) v Quebec (Attorney General), 2004 SCC 39.

Further, the Court also held that the provisions of the Act and the Code point towards exclusive jurisdiction of labour arbitrators when the dispute concerns the dismissal of a unionized employee. The Court also found that the essential nature of the dispute in this case is not whether the collective agreement itself is discriminatory, but whether the actions of the employer were discriminatory, a kind of dispute that is often decided through labour arbitration. It stated that “the interplay of the Act and the Code leads to the conclusion that an alleged breach of the Code […] is a matter within the exclusive jurisdiction of a labour arbitrator appointed pursuant to the relevant collective agreement to hear and decide” (para 67). Therefore, the Court set aside the Chief Adjudicator’s decision regarding jurisdiction and found that the matter should be decided through the procedure outlined in the collective agreement.

The Potential Supreme Court Decision

With this central question of the jurisdictional boundaries between labour arbitration and human rights adjudication making its way to the SCC, the decision could have significant implications for employees making human rights claims involving employment relationships governed by a collective agreement.

Depending on how strongly the SCC draws the line between the exclusive jurisdiction of a labour arbitrator and that of a human rights tribunal, the decision could also have ramifications for how inclined labour arbitrators feel to incorporate and interpret human rights legislation. Jurisprudence has established the labour arbitrator’s responsibility to interpret and apply human rights legislation in deciding such disputes, such as Parry Sound (District) Social Services Administration Board v OPSEU, Local 324, 2003 SCC 42, but a decision that draws black-and-white jurisdictional lines may, in practice, further separate labour arbitration from the human rights realm and the ideas that govern it.

Importantly, the SCC could shed light on a key question for those whose jobs are governed by collective agreements: what is a unionized employee’s right to file complaints of discrimination under human rights legislation? And, according to law, is either the labour arbitration mechanism or the human rights mechanism more well positioned to approach questions of discrimination? The Court could provide insight into which realm can, when such issues are on the docket, more effectively balance the unequal power relationships between employee and employer, fairly assess questions of reasonable accommodation, and provide sufficient recourse to those who have been discriminated against on the basis of a disability.