Where to Go for Workplace Justice?

October 29, 2021

Is labour arbitration the only avenue for unionized employees to seek redress for human rights violations? This issue—arbitral jurisdiction vis-à-vis the jurisdiction of other courts and tribunals to hear disputes in unionized workplaces—has been the subject of considerable legal debate. In Linda Horrocks v Northern Regional Health Authority, the SCC recently held that, absent legislative intention to the contrary, a final dispute resolution clause in a labour relations statute provides for exclusive arbitral jurisdiction over alleged human rights violations in unionized workplaces.

Facts:

Linda Horrocks claimed that her employer, the Northern Regional Health Authority (“NRHA”) in Manitoba, had failed to adequately accommodate her disability. Ms. Horrocks had disclosed her alcohol addiction to NRHA but refused to enter into a “last chance agreement,” which would have required her to abstain from alcohol consumption and to seek addiction treatment. As a result, NRHA terminated her. Ms. Horrocks’ union grieved her termination, which led to reinstatement on substantially the same terms as the last chance agreement. Shortly thereafter, the NRHA terminated Ms. Horrocks’ employment for an alleged breach of those terms. Her union refused to grieve the second termination and Ms. Horrocks filed a complaint with the Manitoba Human Rights Commission.

The SCC’s Analysis

Justice Brown wrote for the majority that, absent legislative intent to the contrary, arbitral exclusivity exists where labour legislation provides for the final settlement of disputes arising from a collective agreement. The mere existence of other statutory bodies does not justify carving into this exclusive sphere.[1] The majority of the Supreme Court provided two caveats to this notion of arbitral exclusivity. First, not all workplace disputes “arise” from the collective agreement, and hence such disputes are outside the exclusive jurisdiction of the arbitrator.[2] Second, arbitrators do not have an exclusive jurisdiction over matters that lie outside their remedial authority, including interlocutory injunctions.[3]

The court devised a two-step test to resolve competing jurisdictional claims as between arbitrators and adjudicators:

Step 1: does the relevant legislation grant the arbitrator exclusive jurisdiction?[4] In the absence of legislative intention to the contrary, a mandatory dispute resolution clause in a labour relations statute qualifies as an “explicit indication of legislative intent to oust the operation of human rights legislation.”[5]

Step 2: what is the scope of arbitral jurisdiction?[6] The Court wrote:

The scope of an arbitrator’s exclusive jurisdiction 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, not the legal characterization of the matter.[7]

The majority of the Court found that an arbitrator had exclusive jurisdiction over Ms. Horrocks’ discrimination. With respect to the first step of the inquiry, the Manitoba Labour Relations Act contains a mandatory dispute resolution provision and the Manitoba Human Rights Code does not expressly provide for concurrent jurisdiction.[8] At the second step of the inquiry, the majority found that the essential character of the complaint concerned the interpretation, application, administration or violation of the collective agreement. The complaint arose from Ms. Horrocks’ attendance at work while inebriated and the signing of a last chance abstinence agreement, the breach of which led to the termination of her employment. The majority held:

It is of course true that Ms. Horrocks alleges a human rights violation. But were that sufficient to displace the exclusive jurisdiction of the labour arbitrator, exclusive arbitral jurisdiction would be significantly undermined, because every human rights complaint would automatically fall within the jurisdiction of the human rights adjudication system. Again, what matters are the facts of the complaint, not the legal form in which the complaint is advanced.[9]

What does this mean for Ontario?

To determine the broader significance of Horrocks outside Manitoba, it is important to closely examine the relevant legislative landscape. Section 29(3) of the Manitoba Human Rights Code provides as follows:

If a complaint is not settled, terminated or dismissed and the Commission is satisfied that additional proceedings in respect of the complaint would further the objectives of this Code or assist the Commission in discharging its responsibilities under this Code, the Commission shall

(a) request the chief adjudicator to designate a member of the adjudication panel to adjudicate the complaint; or

(b) recommend that the minister commence a prosecution for an alleged contravention of the Code.

By contrast, as the SCC noted, British Columbia’s Human Rights Code provides for concurrent jurisdiction. Section 25(2) of the BC Code provides,

“If at any time after a complaint is filed a member or panel determines that another proceeding is capable of appropriately dealing with the substance of a complaint, the member or panel may defer further consideration of the complaint until the outcome of the other proceeding.”[10] The Code further defines a “proceeding” as “a proceeding authorized by another Act and a grievance under a collective agreement.”[11]

The majority in Horrocks found that the deferral power function in BC “necessarily impl[ies] that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process.”[12]

Similarly, section 45 of the Ontario Human Rights Code permits the Tribunal to “defer an application in accordance with the Tribunal rules.”[13] Additionally, section 45.1 provides as follows:

“The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.”[14]

The Ontario legislation would thus appear to provide for deferral, as the BC legislation does.

Though the Ontario Labour Relations Act contains a provision for the final and binding settlement by arbitration of all grievances arising under collective agreements,[15] the language of the Human Rights Code in Ontario provides for concurrent jurisdiction. Given the statutory language in the Labour Relations Act and the Human Rights Code, Horrocks would not appear to mandate a change to Ontario law, and the Human Rights Tribunal of Ontario will continue to have concurrent jurisdiction together with labour arbitrators over workplace human rights violations.[16] However, the exercise of such jurisdiction will be subject to the application of the Tribunal’s rules and the exercise of its discretion to determine that another proceeding has appropriately dealt with the substance of the application.

Finally, Horrocks, as Weber v Ontario Hydro[17] before it, may impose a significant burden on unions in certain jurisdictions where they are required to provide the sole avenue of redress for unionized employees. The burden on unions in such circumstances is twofold. First, unions will have to handle more workplace disputes than they would if their members had access to other legal fora. As the enforcement of human rights is effectively privatized—away from public authorities and downloaded onto private methods, such as arbitration—the representational burden on unions for addressing workplace disputes is thereby increased. Second, unions in such circumstances may face more duty of fair representation (DFR) complaints if they fail or refuse to appropriately address such issues, which have been described as “quasi-constitutional” in nature.

[1] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 5.

[2] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 22.

[3] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 23.

[4] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 40.

[5] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 34.

[6] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 40.

[7] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 40.

[8] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 45.

[9] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 51.

[10] Human Rights Code, RSBC 1996, c 210, s 25(2).

[11] Human Rights Code, RSBC 1996, c 210, s 2.

[12] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 33.