Canada: No More Human Rights Forum Shopping?

Last Updated: August 30 2013
Article by Lindsey Taylor

The HR Space is edited by Louise Béchamp, Karen M. Sargeant and Brian P. Smeenk

A few weeks ago, we reported on the recent decision in Baker v. Navistar Canada Inc., which confirmed that unionized employees are not able to bring employment claims to court. Rather, these claims must be brought within the framework of the special legal relationship between the union and the employer, either by way of a grievance or by way of a complaint to the respective Labour Relations Board, if there were grounds to do so.  But what about human rights issues - where should a unionized employee address those?  And can a unionized employee pursue claims in both arbitration and human rights forums? A recent case from the British Columbia Human Rights Tribunal, Mahdi v. Hertz Canada, says "no". 

The Facts

Mr. Mahdi is an employee of Hertz and is a member of the Canadian Office and Professional Employees Union, Local 378 (the "Union").  

Mr. Mahdi is also an African-Canadian Muslim who complained that he was denied opportunities to take vacation leave for Ramadan, over four years. Each year, Mr. Mahdi requested an extended period of vacation in about August to correspond with Ramadan.  And each year his vacation request was denied, citing business concerns as the reason for the denial. Mr. Mahdi filed numerous grievances in relation to his vacation concerns.  Each grievance was settled or otherwise resolved following an arbitration hearing. 

The last of Mr. Mahdi's vacation grievances proceeded to arbitration hearing in February 2012. After two days of hearing, the parties settled the grievance. At no time in the course of that hearing or on settlement did Mr. Mahdi or the Union allege that the denial of vacation was discriminatory and/or that it was in retaliation for a previous human rights complaint filed years before. At no time did the Union or Mr. Mahdi mention that Mr. Mahdi had already filed a human rights complaint concerning the same subject. But, he had. 

In August 2011, Mr. Mahdi had filed a human rights complaint concerning the very same vacation requests (the "Complaint"). He complained that the denial of his vacation requests constituted discrimination on the basis of race, colour, place of origin and religion.   

Hertz applied to have the Complaint dismissed on the grounds that the Complaint would not further the purposes of the Code and/or that it had already been dealt with in another proceeding. 

The Decision

The underlying issue in all grievances and the Complaint were the same: whether the denial of vacation was appropriate. That underlying issue was dealt with in the course of the grievance procedure. Unfortunately, though, the Tribunal could not dismiss the matter on the second ground - that the matter had already been dealt with in another proceeding - because the human rights issues alleged in the Complaint had not previously been raised by Mr. Mahdi, and therefore, had not been dealt with.

Fortunately though, the Tribunal dismissed the Complaint on the first ground - that it would not further the purposes of the Code to proceed. In doing so, the Tribunal said the following: 

"It is inconsistent with the purposes of the Code to permit employees to follow internal processes such as grievances and arbitrations under collective agreements and then file complaints where the outcome of those processes is not to their liking. In this matter; where the central issue is denial of vacation, and the complainant advanced that the sole reason for the denial as a breach of the Collective Agreement, and where the grievance is settled by Hertz without knowledge of the Complaint, it does not further the purposes of the Code for the Tribunal to then hear the complaint on the basis of alleged discrimination. This is especially the case when those allegations could have but were not initially raised in an integrated and comprehensive way".

Significant factors leading to this determination included:

  • the evidence to be tendered to the Tribunal would be substantially the same as that in the arbitration, leading to the possibility of an inconsistent result; 
  • Mr. Mahdi had effectively split his case by not raising the discrimination issue in the grievance process.  It was not conducive to the goals of the Code including fairness, finality, consistency and resource conservation, for him to fail to do so;
  • Mr. Mahdi failed to alert Hertz to the existence of the Complaint in the course of the arbitrations. The failure to do so was unfair and misleading, and caused prejudice; and 
  • there would be an unnecessary duplication of resources if the matter was allowed to proceed that could have been avoided had the discrimination issue been raised and considered in the course of the arbitration proceedings.

The Takeaway for Employers

Some jurisdictions have dealt with the issue of forum shopping by encouraging human rights issues in unionized workplaces to be resolved through the grievance and arbitration provisions of the collective agreement unless the employee's complaint is against both the employer and the union. However, in other jurisdictions, such as British Columbia and Ontario, to date there has been considerable uncertainty regarding the ability of a unionized grievor to engage in forum-shopping by pursuing a human rights complaint through a human rights commission (or tribunal) in addition to the grievance proceedings.

The decision in Mahdi should give employers throughout the country some comfort that forum-shopping and serial litigation may not be tolerated. Even in circumstances where it is not appropriate to dismiss a complaint on the basis that it has already been dealt with in another proceeding, as in Mahdi, an employer may be able to argue principles of fairness, finality, conservation of resources and consistency in adjudicated decisions to avoid an employee getting a second kick at the can.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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