January 30, 2022
Note: An Ontario Human Rights Tribunal has since ruled on this matter in the Ontario context. Please see “Jurisdiction and Human Rights: An Ontario Perspective” for an updated discussion.
“Arbitrators have exclusive jurisdiction over human rights cases if there is a collective agreement” is the sort of headline that announced the decision of the Supreme Court of Canada in Northern Regional Health Authority v. Horrocks, a case out of Manitoba.
The Supreme Court ruled that an adjudicator appointed under Manitoba’s Human Rights Code had ho jurisdiction to decide a complaint of a unionized employee suspended after allegedly attending work under the influence of alcohol.
The employee alleged that they were an alcoholic. Alcoholism is a disease, and thus a prohibited ground of discrimination under most human rights legislation. The employee filed a complaint under the Human Rights Code.
The employer contested jurisdiction, relying upon a long line of decisions that protect the exclusive jurisdiction of labour arbitrators under the Labour Relations Act. These are the same cases that employers rely upon to keep individual unionized employees from proceeding with court actions instead of or parallel to grievances and arbitrations.
This finding is particularly important in this case because under the Code the individual has control of the process, while the grievance and arbitration process is controlled by the union. The employee was at odds with his union, and could not rely upon them to process a grievance to an arbitrator, or if they did, to resolve it the way she wished. This means there are access to justice concerns.
The Supreme Court decided that the union’s duty of fair representation was enough protection for the employee, and that where the arbitrator is given exclusive jurisdiction over the subject matter of a dispute, an adjudicator appointed under the Code has no jurisdiction.
This is where it is important to read the decision carefully, and understand that it is examining and based upon the law in Manitoba.
Provincial laws are not always the same, even when they are similar.
Ontario courts considering the issue of jurisdictional conflict between arbitrators and adjudicators have held that the jurisdiction is concurrent, not exclusive. This means that a complaint under Ontario’s Human Rights Code that arises in a unionized environment might be the subject matter of a grievance, or of a complaint to the Human Rights Tribunal of Ontario.
Ontario law provides that either decision maker may defer dealing with the case if they believe that the other forum is more appropriate. For example, if the human rights issue is tied into a larger dispute headed to arbitration a Code adjudicator might decline to decide the case before them. If a Code adjudicator has already decided the issue, an arbitrator will normally not allow it to be argued again even if it is part of a larger grievance. The Supreme Court in its decision holds that such provisions necessarily imply that either an adjudicator or arbitrator may have jurisdiction.
Many employers find the possibility of multiple proceedings cumbersome and unfair, especially if it means that they get caught in the middle of a fight between a union and its member. Being told that there will probably be only one decision actually made is cold comfort and, in a few rare cases, the Human Rights Tribunal may decide to allow a complaint to proceed if they do not feel the grievance resolution adequately addressed the human rights issues, creating the risk of multiple awards.
Since the strength of unions depends on solidarity, allowing individuals to reject a grievance resolution and go off on their own might impair the credibility of the union.
Though individual employees might feel concurrent jurisdiction favours them by giving them choices, in the long run, if the union’s strength is diminished, they may think twice – though if they lose their job, they may not care much about the union going forward. Over 25 years after the Supreme Court ruled against judges having jurisdiction in these situations, we still find challenges, and in rare cases, the facts are unusual enough to create an exception to the exclusive jurisdiction principle.
The Manitoba and Ontario laws are sufficiently different that we do not believe that Ontario’s approach should change because of the Horrocks decision. The issue might rise, and we will watch for those sorts of cases, and track future developments.
In the meantime, if you find yourself facing jurisdictional issues the labour lawyers at Weilers LLP would be pleased to help you sort it out.