Can a collective agreement discriminate on Charter grounds?
Can a collective agreement discriminate on Charter grounds, even if the employer is not subject to the Charter? An arbitrator says “No”
In York University Faculty Association v. York University, an arbitrator held that s. 54 of the Labour Relations Act, 1995 means that a collective agreement cannot discriminate on Charter grounds, even if the Charter does not otherwise apply to the employer.
In December 2005, the Ontario legislature passed amendments to the Human Rights Code that abolished mandatory retirement. However, the amendments did not come into effect until December 2006. Between the passage of the amendments in December 2005 and the date they came into effect a year later, York University forced a number of faculty members to retire in accordance with a mandatory retirement provision contained in the collective agreement between the University and the York University Faculty Association.
YUFA filed grievances on behalf of the faculty members. It challenged the mandatory retirement provision using s. 54 of the Labour Relations Act, 1995, which provides:
54. Discrimination Prohibited – A collective agreement must not discriminate against any person if the discrimination is contrary to the Human Rights Code or the Canadian Charter of Rights and Freedoms.
YUFA argued that s. 54 adopted the definitions of discrimination contained in both the Code and the Charter and made them applicable to all collective agreements in Ontario, regardless of whether an employer was otherwise subject to the Charter. The Charter prohibited discrimination on the basis of age. Unlike the Code, it did not contain an age cap permitting discrimination against persons over age 65. YUFA maintained that the forced retirements were contrary to the Charter, and therefore violated s. 54 of the Labour Relations Act.
The University argued that the reference to the Charter in s. 54 was intended to apply only to collective agreements involving employers governed by the Charter. Since the University was not ‘government’ and therefore not subject to the Charter, the Charter’s definition of discrimination did not apply to the parties’ collective agreement.
The arbitrator’s decision
Arbitrator Pamela Picher agreed with YUFA. She held:
What the Legislature has done through section 54 of the OLRA … is to incorporate by reference, as the discrimination that is prohibited for any person under a collective agreement, the definition of discrimination as spelled out in both the Code and the Charter. What the Legislature has done through section 4 … is to prohibit under any collective agreement in Ontario discrimination against any person as defined in either the Charter or the Code. To find that the protection against discrimination contrary to the Charter is limited to collective agreements involving employers that are subject to the Charter would require clear language to that effect, which is not found in section 54. Without such clear language, to find the limitation on the Charter protection sought by the University would fly in the face of the plain words used by the Legislature and would alter their meaning, which is something an arbitrator is without jurisdiction to do.
… Section 54 does not incorporate the Charter itself. Instead it incorporates by reference the description of discrimination under the Charter. Section 54 defines the prohibited grounds of discrimination by adopting, and adopting only, the prohibition against discrimination that is set out in the Charter. The reference to the Charter in section 54 is an abbreviated way of further defining the scope of the prohibition against discrimination in collective agreements beyond that as defined in the Human Rights Code. The Ontario Legislature did not extend the limits of the Charter itself beyond the scope of application as defined in section 32 of the Charter. As stated, it simply used a shorthand way of adopting within section 54 of the OLRA the standard of prohibited discrimination that is contained in the Charter.
Accordingly, in the result, the Arbitrator concludes that on the basis of the plain meaning of the words used by the Legislature in section 54, as reinforced by both the legislative history of section 54 and the recent decision of Arbitrator Raymond in Re York University and YUSA, … that section 54 of the OLRA prohibits all collective agreements in Ontario from discriminating against any person if the discrimination is contrary to either the Canadian Charter of Rights and Freedoms or the Human Rights Code, whether or not the employer is itself subject to the Charter.
The arbitrator concluded that YUFA could proceed with its claim that the forced retirement of faculty members during the transition period before the amendments to the Human Rights Code came into effect violated s. 54 of the Labour Relations Act.