Canada: Labour Arbitration Preferred Over Human Rights Adjudication

A recent decision out of Manitoba, Northern Regional Health Authority v. Manitoba (Human Rights Commission), 2016 MBQB 89, examines the overlapping jurisdiction between labour arbitration boards and human rights tribunals with respect to complaints of prohibited discrimination in employment.

Linda Horrocks worked as a health care aid in a personal care home for the Northern Regional Health Authority (the "Employer"). Her employment was governed by a collective agreement between the Employer and the Canadian Union of Public Employees, Local 8600 (the "Union").  Horrocks struggled with an alcohol addiction.  As a result of a grievance settlement arising out of an incident of intoxication at work, Horrocks, the Employer and the Union signed a memorandum of agreement whereby the employee agreed to abstain from consuming alcohol.

Shortly after entering into the agreement, the Employer was informed that Horrocks was observed to be visibly intoxicated outside the workplace and, on another occasion, was suspected to be intoxicated during a telephone call. Horrocks denied drinking.  She was dismissed from employment.  Neither Horrocks nor the Union grieved the dismissal.  Instead, approximately six months later, Horrocks filed a complaint of discrimination with the Manitoba Human Rights Commission.  She alleged that she had been subjected to discrimination in employment on the basis of disability and, specifically, that she was dismissed because of her alcohol addiction.

The adjudicator determined that she had jurisdiction to hear and decide the complaint under The Human Rights Code, C.C.S.M. c. H175 (the "Code").  She then held that the complainant had a disability related to alcohol addiction within the meaning of the Code, she required accommodation in the workplace on the basis of that disability, and she was treated adversely by the Employer and her disability was a factor in that treatment.  Finally, the adjudicator concluded that the Employer failed to meet the onus of showing that its actions were justified; it could not demonstrate that it had made reasonable efforts to accommodate the complainant to the point of undue hardship and/or that the conditions it imposed were bona fide occupational requirements.

The Employer applied for judicial review of the adjudicator's decision, arguing, in part, that she erred in law when she accepted jurisdiction over the complaint. The essential nature of the dispute, the Employer said, was within the exclusive jurisdiction of a labour arbitrator in accordance with the terms of the collective agreement and The Labour Relations Act, C.C.S.M. c. L10 (the "Act").

The Court allowed the appeal. It determined the issue of jurisdiction between labour arbitration and human rights adjudication should be assessed on a standard of correctness.  The Court reviewed several Supreme Court of Canada decisions that examine the overlapping jurisdiction between administrative tribunals, including Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39 ("Morin").  Following those decisions, the Court held that an adjudicative body must examine the essential character of the dispute in the factual context.  The focus must not be the legal characterization of the dispute.

In this case, the essential character of the dispute was whether there was just cause to terminate the employment of a unionized employee with an alleged addiction problem, and whether an alleged breach of the memorandum of agreement between the employee, the Employer and the Union constituted just cause for termination of employment. The Court held that the Tribunal erred by focusing on the legal characterization of the dispute, which was whether there was a violation of the complainant's human rights.

The Court held further that the legislative provisions in both the Act and the Code support the exclusive jurisdiction of labour arbitration over the dismissal of a unionized employee.  It is well accepted that arbitrators have the authority to interpret and apply human rights legislation.  The Court noted in this regard the Supreme Court of Canada's decision in Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324, 2003 SCC 42.

The Court distinguished the facts of the case from those in Morin, where the essential nature of the dispute was whether the collective agreement itself was discriminatory.  Furthermore, in Morin, the union and employees were adverse in interest and a labour arbitrator would not have had jurisdiction over all the parties to the dispute.

There was no evidence as to why the Union or Horrocks did not file a grievance regarding her dismissal, and no evidence that the Union's interests were opposed to that of Horrocks. The Court concluded that the issues in the case were ones that are routinely and appropriately decided by labour arbitrators.  The Court set aside the adjudicator's decision and held the dispute had to be determined in  accordance with the grievance procedure in the collective agreement.

The Court's findings in this case accord with the prevailing view in the jurisprudence. The fact that the Union did not choose to file a grievance on the issue is irrelevant. When the issue in dispute arises out of the collective agreement, an employee cannot do an end run around the grievance procedure by alleging a human rights violation.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Sarah Dickson
Events from this Firm
22 Nov 2018, Workshop, Vancouver, Canada

Managing and accommodating employees with disabilities is one of the more complex issues faced by employers today.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions