Supreme Court declares labor arbitrator to have exclusive jurisdiction over allegations of human rights violations arising from unionized workplace – Government, public sector

Canada: Supreme Court declares labor arbitrator to have exclusive jurisdiction over allegations of human rights violations arising from a unionized workplace

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On October 22, 2021, the Supreme Court of Canada released its decision in North Regional Health Authority v
Horrocks, 2021 SCC 42 [Horrocks]. The question before the Court was whether a labor arbitrator had exclusive jurisdiction over an alleged violation of the The Human Rights Code in Manitoba (the “Coded“), which stems from a unionized workplace. Brown J., speaking for the majority of the Court, held that although the Coded grants broad jurisdiction to the Manitoba Human Rights Commission (the “Commission”) to receive, investigate and refer human rights complaints to arbitration, if any, nothing in the
Coded replaced the exclusive jurisdiction of a labor arbitrator to settle all disputes arising from the collective agreement under The labor relations law (the “LRA“).

Linda Horrocks was a unionized employee of the appellant, Northern Regional Health Authority (“NRHA”). She had previously been suspended for working under the influence of alcohol. Ms Horrocks then entered into a “last-ditch deal” with the NRHA, which required her to abstain from alcohol consumption and to undergo drug treatment. She was subsequently fired by the NRHA for an alleged violation of these conditions.

Ms. Horrocks’ union has not filed a grievance against her dismissal. Instead, Ms Horrocks filed a complaint with the Commission, alleging that the NRHA failed to reasonably take into account her disability. The case was sent back to the chief adjudicator for decision, but the NRHA objected, arguing that the dispute fell under the exclusive jurisdiction of a labor arbitrator under his collective agreement.

In the end, the Supreme Court accepted.

Following its previous decision in Weber v Ontario Hydro, [1995] 2 SCR 929, the Court established a two-part test to be applied when resolving jurisdictional issues between labor arbitrators and competing statutory tribunals, such as human rights arbitrators:

  • First, the relevant legislative regimes must be examined to determine whether a labor arbitrator has exclusive jurisdiction and, if so, over what matters. At this point, the Court noted that labor relations law in Canada often contains a mandatory dispute resolution clause. These clauses will normally grant exclusive jurisdiction to an arbitrator (or other agreed upon decision maker) to decide all questions arising out of the interpretation, application or violation of a collective agreement, subject only to legislative intent. otherwise clearly expressed.
  • Second, if the statutory scheme grants an arbitrator exclusive jurisdiction over all matters arising from a collective agreement, then the essential character of the dispute must be examined to determine whether it falls within that jurisdiction. At this point, it is the factual the nature of the dispute, not how the dispute is legally characterized, it matters.

Applying the two-part test to Ms Horrocks’ complaint, the Court noted that the Manitoba legislature had included a mandatory dispute resolution clause in section 78 of the LRA, which required that every collective agreement include a mechanism to resolve any differences regarding the meaning, application or violation of the agreement. In this case, the NRHA and Ms. Horrocks’ union had chosen labor arbitration as a compulsory mechanism.

Meanwhile, under the Coded, the Court concluded that the Commission had broad jurisdiction to receive and investigate human rights complaints and that it could refer such complaints to adjudication. No provision of Coded, however, expressly shifted the exclusive jurisdiction of an arbitrator under Article 78 of the
LRA. The Court therefore concluded that a labor arbitrator had exclusive jurisdiction over all disputes arising out of the meaning, application or violation of the collective agreement.

Proceeding to the second step of the test, the Court concluded that the essential nature of Ms Horrocks’ complaint arose squarely from the exercise by the NRHA of its rights under the collective agreement or from a potential violation thereof. . In fact, the essence of the complaint was that the NRHA had exercised its management rights under the collective agreement in a manner that was inconsistent with its obligation, both under the agreement and by law, to comply. to the Coded. As such, the dispute fell within the exclusive jurisdiction of a labor arbitrator and was never properly the jurisdiction of the chief arbitrator.

Finally, it should also be noted that the Court in
Horrocks declined to review an aspect of its recent standard of review decision, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. The Court confirmed that since the issue of judicial review concerned the limits of jurisdiction between two statutory tribunals, the appropriate standard of review was correctness. In so doing, the Court expressly rejected the argument that the Vavilovframework should be amended to increase deference to an administrative decision-maker in determining the essential nature of the dispute before him.

Following Horrocks, parties to collective agreements should expect that workplace disputes will normally fall within the exclusive jurisdiction of labor arbitrators. While each case will depend on the particular legislative scheme at issue and the factual nature of the dispute in question, it will likely be rare for problems arising in the context of employment to fall outside the jurisdiction of labor arbitrators given the mandatory clauses of the contract. dispute settlement. which are contained in labor relations legislation across Canada. In addition, if a legislature wishes to confer jurisdiction on another statutory decision-maker to hear a dispute arising out of a unionized workplace, clear and express language will be required to create concurrent jurisdiction.

Miranda Grayson is a Winnipeg lawyer practicing labor and administrative law.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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