In Northern Regional Health Authority v. Horrocks, a case out of Manitoba, the Supreme Court of Canada ruled that labour arbitrators generally have exclusive jurisdiction over human rights disputes arising in a unionized workplace. According to the Supreme Court, workers in such settings cannot choose to take those matters to a human rights tribunal rather than file a grievance, except where legislation clearly allows for concurrent claims in either forum.
In Ontario, until now, the general assumption had been that workers who allege that their rights under the Ontario Human Rights Code were violated by their employer could choose to take their claims to the Human Rights Tribunal of Ontario (HRTO) instead of relying on their union to file a grievance and pursue the matter to arbitration. Does the Horrocks decision change that assumption?
In Horrocks, a nurse grieved her termination for attending work while under the influence of alcohol and was reinstated under a “last-chance agreement” with her employer. She was later terminated for allegedly breaching that agreement, and her union did not grieve this second termination. Instead, she filed a complaint with the Manitoba Human Rights Commissioner, arguing that the employer had breached the Manitoba Human Rights Code by failing to adequately accommodate her addiction. The employer argued the adjudicator appointed under the Code to hear the complaint did not have jurisdiction because of the well-known principle arising out of the Supreme Court’s decision in Weber v. Ontario Hydro, which holds that labour arbitrators have exclusive jurisdiction over issues arising expressly or inferentially from a collective agreement. The employer argued that this extended to human rights complaints in a unionized workplace.
The adjudicator disagreed and found that she had jurisdiction because the essential character of the dispute was an alleged human rights violation. On judicial review, the Manitoba Court of Queen’s Bench set aside her decision, finding the dispute was essentially about whether there was just cause to terminate the grievor’s employment, which fell under the collective agreement. The Court of Appeal overturned this decision: although it agreed that termination disputes are in an arbitrator’s exclusive jurisdiction, including where the dispute alleges human rights violations, the adjudicator could hear the complaint because, among other things, the union did not grieve the termination.
In a 6-1 decision, the Supreme Court allowed the appeal. The majority affirmed that where labour legislation provides for final settlement of disputes arising from a collective agreement through arbitration, an arbitrator will have exclusive jurisdiction over all disputes that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement. Moreover, it is now settled law, following the Supreme Court’s decisions in Weber and in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, that workplace-related legislation is deemed to be incorporated into collective agreements, and it follows that the alleged violation of such legislation (including human rights legislation) falls within the ambit of disputes that arise out of the collective agreement. A labour arbitrator’s jurisdiction over a dispute arising out of employment-related statute would therefore be exclusive.
The exception to this is where another tribunal’s enabling statute “carves out” jurisdiction from an arbitrator such that this other tribunal has overlapping, concurrent, or exclusive jurisdiction over the issue. For example, while a workplace injury claim might well be seen as arising out of the interpretation, application, or alleged violation of the collective agreement, the Workplace Safety and Insurance Act, 1997 very clearly reserves exclusive jurisdiction over these matters to the Workplace Safety and Insurance Board and the Workplace Safety and Insurance Appeals Tribunal, meaning that such claims cannot be dealt with in grievance arbitration.
The majority stated that “carving out” jurisdiction for another forum requires clear legislative intent, and it set out a two-step (or really, three-step) framework for resolving jurisdictional contests between labour arbitrators and competing statutory tribunals. First, it must be determined whether the relevant legislation grants the arbitrator exclusive jurisdiction and, if so, over what matters. Second, it must be determined whether the dispute falls within the scope of that jurisdiction, based on the facts of the specific case. Finally, if two tribunals have concurrent jurisdiction, the decision-maker must determine whether to exercise its jurisdiction or not. The majority, however, did not elaborate on the factors that guide this determination.
On the specific case before it, the majority concluded that Manitoba’s Labour Relations Act, like most other labour relations legislation in the country, does grant labour arbitrators exclusive jurisdiction over disputes arising out of the interpretation, application, or alleged violation of the collective agreement. Moreover, the Court concluded that the Manitoba Human Rights Code does not disclose a clear legislative intent to grant concurrent jurisdiction to the Manitoba Human Rights Commission. As result, the complainant’s claim could only have been filed as a grievance.
It is worth noting that at paragraphs 36 to 38 of its decision, the majority addressed access to justice-related concerns that may arise from reserving exclusive jurisdiction over human rights matters to the grievance and arbitration process – a forum over which the union, and not the individual employee, has complete control. In response to these concerns, the majority essentially stated that any such access to justice issues are the result of clear legislative intent, and, in any event, unions have a duty of fair representation to consider pursuing human rights-related grievances on behalf of their members.
The Court’s lone dissenter, Justice Karakatsanis, agreed that the discrimination claim fell under the collective agreement and an arbitrator’s jurisdiction. However, she found that nothing in the Manitoba Human Rights Code ousted the Commission’s jurisdiction over a unionized employee, leading to a situation of concurrent jurisdiction. In other words, in the minority’s view, the legislature would have had to explicitly oust the Commission’s jurisdiction, rather than explicitly preserve it.
What does this mean for Ontario unions and their members?
As mentioned above, in pre-Horrocks Ontario, it was generally assumed that the HRTO had concurrent jurisdiction with labour arbitrators, such that individual employees were free to forgo the grievance and arbitration process, which is controlled by their union, in favour of filing their own complaint with the HRTO. Indeed, individual employees sometimes choose to file a complaint to the HRTO even though their union has filed a grievance on the same issue. Where this occurs, the general practice has been for the HRTO to defer consideration of the complaint while the grievance and arbitration process is ongoing. This is done pursuant to sections 45 and 45.1 of the Ontario Code, which state as follows:
Deferral of application
45 The Tribunal may defer an application in accordance with the Tribunal rules.
Dismissal in accordance with rules
45.1 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.
In light of Horrocks, do grievance arbitrators in Ontario now have exclusive jurisdiction over alleged human rights violations, such that unionized employees will now be prevented from filing their own complaint to the HRTO, even where their union declined to grieve or arbitrate the matter?
Not surprisingly, at this point, the answer to this question is not entirely clear.
In Horrocks, at paragraph 33, the majority names several specific provincial and federal human rights legislative schemes that do disclose a clear legislative intent to “carve out” concurrent jurisdiction for human rights tribunals/commissions, including the British Columbia Human Rights Code and the federal Canadian Human Rights Act. So, if you are a union or a unionized worker in British Columbia or under federal jurisdiction, then congratulations! – the SCC has already answered this question for you (and by the same token has quite possibly saved you a bundle on future legal opinions). Unfortunately, unions and their members in Ontario are not so lucky, as the Ontario Human Rights Code is not specifically named in paragraph 33 of Horrocks – meaning that we will have to wait until the HRTO weighs in on the issue to get any kind of clarity.
Having said this, it would appear that there is a good argument that the Ontario Human Rights Code, like its B.C. and federal counterparts, does show a clear legislative intention to carve out concurrent jurisdiction for the HRTO. Consider section 25(2) of the BC Human Rights Code, the provision which, according to the majority in Horrocks, discloses a clear legislative intent to carve out jurisdiction for the British Columbia Human Rights Tribunal:
25 (2) 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.
In the majority’s view, such a provision, which empowers the Tribunal to defer consideration of a complaint if it is capable of being dealt with through the grievance process, “necessarily impl[ies]” a legislative intent that the Tribunal have concurrent jurisdiction.
One could argue that sections 45 and 45.1 of the Ontario Human Rights Code accomplish essentially this very thing. Section 45.1, cited above, empowers the HRTO to dismiss an application where it is “of the opinion that another proceeding has appropriately dealt with the substance of the application”. Two conclusions can reasonably be drawn from the wording of this provision: (1) the HRTO has to examine the way in which the other proceeding (i.e. grievance arbitration) has dealt with the human rights issue at hand (as evidenced by the word “appropriately”), and (2) the HRTO will only make this determination after the other proceeding has concluded (as evidenced by the use of the past tense in the bolded passage). In other words, it is difficult to see how s. 45.1 of the Ontario Human Rights Code could be given effect without the HRTO being empowered to defer consideration of a complaint if it is capable of being dealt with through the grievance process – which would mean that, functionally, sections 45 and 45.1 of the Ontario Human Rights Code operate in a similar manner as the legislations specifically mentioned in paragraph 33 of Horrocks.
However, if future decisions do determine that labour arbitrators have exclusive jurisdiction over human rights matters in Ontario, as they now do in Manitoba, unions may very well see an increase in duty of fair representation complaints. Pre-Horrocks, grievors who were dissatisfied with their union’s decision not to grieve allegations of human rights violations could take matters into their own hands and go to the HRTO. Should it be determined that Horrocks has stripped the HRTO of its concurrent jurisdiction for unionized employees, and that grievance arbitration is the only available forum to challenge human rights violations in unionized workplaces, then a dissatisfied grievor’s only recourse may well be to allege that their union has violated its duty of fair representation under section 74 of the Labour Relations Act, 1995 (i.e. that the union has acted in an arbitrary, discriminatory or bad faith manner). It
is already well-known that unions have a “heightened” duty of fair representation to their members where human rights issues are involved; in a world where only labour arbitrators can adjudicate allegations of human rights violations in unionized settings, one can wonder whether there will be increased scrutiny of unions’ decisions not to pursue such allegations at arbitrations in the context of proceedings under section 74.
At least until there is a definitive answer in the case law, unions and labour lawyers may wish to consider exercising extra vigilance when confronted with discrimination claims in the workplace and deciding whether to pursue these claims at arbitration – and maybe brush up on their duty of fair representation knowledge, just to be safe.
Author’s note: Luckily, there are excellent resources on the subject out there – see for example, Michael MacNeil, Michael Lynk & Peter Engelmann, Trade Union Law in Canada (Toronto: Thomson Reuters, 2021), “Chapter 7: Duty of Fair Representation” & “Chapter 11: Trade Union Liability in Human Rights Cases”.
GP 2021-22 articling student, Erin Sobat, co-authored this post.