Supreme Court of Canada Finds Labour Arbitrators Have Exclusive Jurisdiction Over Human Rights Complaints
In October, 2021, the Supreme Court of Canada issued its decision in Northern Regional Health Authority v. Horrocks, finding that labour arbitrators have exclusive jurisdiction over human rights complaints involving unionized workers, unless there is clear legislative intent to create shared jurisdiction. This means that unionized workers in jurisdictions that do not have such express legislative wording in place, such as Manitoba, cannot bring a claim to the human rights tribunal for incidents of discrimination. Instead, these employees are limited to pursuing a remedy through the grievance process.
In this case, the employee in question was suspended for attending work while impaired. The employee subsequently disclosed that she was suffering from an alcohol addiction. The employer offered her the opportunity to return to work provided she agreed to the terms of a last chance agreement. When she refused, her employment was terminated. The union grieved her dismissal, and the employee was eventually reinstated under similar terms as had been proposed in the last chance agreement, including that she abstain from alcohol and participate in addiction treatment.
When the employee breached the terms of this agreement, her employment was again terminated. The union declined to pursue a further grievance. The employee then filed a complaint with the Manitoba Human Rights Commission alleging that her dismissal was discriminatory.
Decision of the Adjudicator
The employer contested the human rights adjudicator’s jurisdiction to hear the complaint, arguing that arbitrators appointed under a collective agreement have exclusive jurisdiction over complaints arising from a unionized workplace, including human rights complaints. The adjudicator disagreed, finding that they had jurisdiction as the essential character of the dispute was an alleged human rights violation. The adjudicator concluded that the employer had discriminated against the employee when it terminated her employment.
Judicial Review and Appeal
The employer brought an application for judicial review of the adjudicator’s decision, which resulted in the adjudicator’s decision with respect to the issue of jurisdiction being set aside. The employee subsequently appealed to the Manitoba Court of Appeal.
The Court of Appeal allowed the employee’s appeal, finding that although disputes concerning the termination of a unionized worker’s employment are typically within the exclusive jurisdiction of a labour arbitrator, the adjudicator had jurisdiction in this case for a number of reasons. This included the fact that, as the union had declined to pursue a grievance relating to the employee’s dismissal, allowing exclusive jurisdiction in this case would preclude her from seeking recourse in any forum.
Appeal to the Supreme Court of Canada
The employer brought a further appeal to the Supreme Court of Canada to determine the issue of whether or not a labour arbitrator has exclusive jurisdiction over human rights complaints involving a unionized workplace. In finding that the adjudicator did not have jurisdiction in this matter, the Supreme Court held 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 (usually a labour arbitrator), is exclusive. The court noted that tribunals created by statute, such as a Human Rights Tribunal, may carve into that sphere of exclusivity, but only where such legislative intent is clearly expressed. In Manitoba, there is no such clear express legislative intent to grant concurrent jurisdiction. As a result, the Judicial Review decision setting aside the adjudicator’s decision was reinstated.
This decision does not mean that the Supreme Court of Canada has ousted the jurisdiction of human rights tribunals in any situation where a unionized employee wishes to pursue a discrimination complaint. Rather, the decision in Horrocks makes it clear that it is essential to review the applicable statutory regime in order to determine whether there is exclusive or concurrent jurisdiction before determining what venue to pursue a complaint in. In some cases, a unionized worker’s sole option will be to file a grievance, but that will not always be the case.
It will be interesting to see how this decision is applied in other jurisdictions, such as Ontario, where concurrent jurisdiction between labour arbitrators and the Human Rights Tribunal has long been accepted.