Human Rights and Arbitrations

September 23, 2020

By Brian Babcock

May unhappy unionized employees take a grievance to an arbitrator, and at the same time apply to a human rights tribunal?

Allowing two proceedings to address the same or similar complaints is inefficiency, both in terms of cost and the risk of inconsistent rulings.

In Ontario, this problem is reduced because arbitrators will consider human rights issues at a hearing if there are also other issues which give the arbitrator jurisdiction. The Human Rights Tribunal will usually defer to those rulings. However, this does not eliminate the problem entirely. In certain situations, employees sometimes receive a “second kick at the can”, under a process at the Tribunal which includes a fairness element. Since human rights is about fairness, that concern is often paramount.

This issue also arises in other provinces. A Manitoba case, Northern Regional Health Authority v Manitoba Human Rights Commission, is now on it’s way to the Supreme Court of Canada. The case arises out of a Human Rights Commission adjudicator’s decision, similar to those of our Human Rights Tribunal.

The complainant claimed that her former employer had discriminated against her on the basis of disability. At the hearing, the employer objected on the basis that the essential character of the dispute was within the exclusive jurisdiction of an arbitrator under the collective agreement.  That phrase “essential character of the dispute” is well established as part of the test as to jurisdiction. There is a long history of cases, mostly involving choices between the courts and arbitration.

The employer tried to extend that concept to the boundaries between two tribunals.

The adjudicator ruled that she had jurisdiction under The Human Rights Code of Manitoba.  On judicial review, her decision was overturned. As explained in a recent article, jurisdictional errors are one of the limited reasons why courts on a review will reverse an administrative ruling.

The issue then went to the Manitoba Court of Appeal, where the court took a fresh approach, deciding that the judge on judicial review was wrong about the essential character of the dispute, but that the adjudicator also erred.

In this case, it was undisputed that the complainant suffered from alcohol dependency, which is a disability protected under both the collective agreement and the Code. She had not disclosed the disability to her employer, despite the fact that she worked with vulnerable patients at a care home. It was also undisputed that she was intoxicated at work. She was suspended pending investigation, at which time she revealed her addiction and enrolled in a treatment program.

The employer proposed a return to work agreement which among other things required abstinence. The complainant, with the support of her union, refused to sign. She was terminated.

The union grieved, and filed for arbitration. The complainant meanwhile continued treatment. Prior to the arbitration hearing, a settlement was reached which saw her return to work under terms similar to those proposed by the employer previously, including abstinence.

Unfortunately, she allegedly was unable to abstain. The employer received reports that she was intoxicated outside the workplace prior to her return to work. This time, the termination was not grieved.

About six months after the deadline to grieve expired, the complainant filed her claim with the Commission. The employer denied discrimination, and challenged the jurisdiction.

In the adjudicator’s view:

  1. The essential character of the dispute arose from the alleged human rights violation, not out of the operation of the collective agreement. In the adjudicator’s opinion, the workplace was just the context for the discrimination.
  2. The parties could not, through the settlement agreement, contract out of the provisions of the Code. She would consider the appropriateness of agreement through the lens of the Code.
  3. The fact that the complainant had grieved initially, and signed the settlement agreement did not prevent the complaint from proceeding. The second termination was a “fresh opportunity” to elect a forum.

On the merits, the employer was found to have discriminated, and had not reasonably accommodated the complainant’s disability. The relief granted included reinstatement and lost wages and benefits, plus compensation for injury to her feelings and dignity.

The first judge who heard the judicial review decided that the adjudicator was in error as to the essential character of the dispute. He determined that the central issue was whether just cause existed to terminate, a classic issue for arbitration.

Arbitrators in Manitoba are required to consider the provisions of the Code, and to enforce the rights and obligations under the Code. The judge determined that the legislative intent was that “any dispute involving the termination of a unionized employee, including any human rights violation associated with the termination, is within the exclusive jurisdiction of labour arbitration.”

He also stated that arbitration was a “better fit” for deciding the dispute.

The Court of Appeal considered the appropriate standard for review on appeal (correctness on the part of both the judge and the adjudicator), and reviewed that long history of jurisdiction cases I referred to above that considered the essential character of a dispute. They then point out that determining that essential character is only the first step. Next, the decision-maker must determine whether that character fits within their jurisdiction. Jurisdiction is not always exclusive. In cases on non-exclusivity, an issue of deference arises.

The Supreme Court has considered the intersection of human rights legislation and workplace disputes before. The Court of Appeal summarizes these cases as establishing that:

  • arbitrators have jurisdiction to decide, and the responsibility to consider, human rights and employment-related legislation in a grievance arbitration
  • there is no legal presumption of exclusivity. Each situation depends on the governing legislation and the factual matrix on a case by case basis
  •  a complainant should not be denied access to justice. They should have an effective remedy. This is particularly relevant where the union will not support an employee through the grievance and arbitration process.
  • exclusivity is less likely in cases where the arbitrator’s jurisdiction does not include all parties to the dispute
  • even in cases of concurrent jurisdiction, multiplicity of proceedings should be avoided. This is sometimes referred to as the rule against “forum shopping”. This does not apply where the first proceeding was unfair or an injustice might result.

Because the Human Rights Commission had jurisdiction over discrimination, and the complainant had not had access to arbitration, the judge erred in his decision. This was not a case of “forum shopping”.  Since the complainant had abandoned her rights to grieve in the settlement agreement, the essential character of the dispute was not relevant, according to the Court of Appeal.

Further, the appeal court found that the duty to accommodate took the dispute out of the employment context. This is squarely a human rights issue. Consistency in methodology of accommodation, especially where there are safety issues, is of vital interest of the Commission, which goes beyond the specific employment context. The arbitrator ‘s jurisdiction is not exclusive.

However, the adjudicator took too generous a view of her jurisdiction. She had no jurisdiction to decide issues of discipline or discharge and related remedies. The decision not to grieve ended the employment relationship permanently. There was no “fresh opportunity”. That would encourage forum hopping.

Furthermore, the settlement agreement was not contracting out of the Code. The process was not unfair.  Issues surrounding the first termination were settled and outside the adjudicator’s jurisdiction. The adjudicator erred in not giving weight to the settlement. A proper hearing would only have considered whether the employer had discriminated after that agreement was in place.

The case was sent back to the review judge for further consideration.

Now, the Supreme Court will have the final say on the principles to be applied. As Ontario law is similar to Manitoba law, and the Supreme Court tends to structure their decisions to be applicable across Canada, this upcoming decision may affect how Ontario courts and tribunals address jurisdictional issues in the future. Hopefully, this guidance will create greater clarity and simplicity, allowing parties to understand the proper route for disputes. The prospect of examining jurisdiction on a case by case basis is expensive and unwieldy.