Do unionized employees with Human Rights complaints against their employer need to file a grievance under their collective agreement, or do they have the option to file a complaint with the Alberta Human Rights Commission? Until recently, the law in Alberta was clear: unionized employees could file a grievance under their collective agreement, a complaint with the Alberta Human Rights Commission, or both. Courts had consistently ruled that labour arbitrators and the Human Rights Commission have concurrent jurisdiction over human rights issues arising in a unionized workplace. In other words, both have had legal authority to hear workplace-related human rights complaints and issue binding decisions.
An unfortunate side effect of concurrent jurisdiction is that unionized employees would often simultaneously file a grievance under the applicable collective agreement and an overlapping complaint with the Human Rights Commission. To avoid the risk to duplicative processes coming to different conclusions, the Alberta Labour Relations Board has Marshalling powers to order that one proceeding be held in abeyance while the other proceeds.
However, the Supreme Court of Canada decision issued last Friday in Northern Regional Health Authority v Horrocks ("Horrocks") raises questions about the concurrent jurisdiction model in Alberta.
In Horrocks, a unionized employee filed a complaint under The Human Rights Code of Manitoba alleging her termination was discriminatory due to her mental disability (alcohol addiction). The Manitoba Human Rights Tribunal accepted the complaint and issued an order reinstating the employee. The employer appealed on the grounds that The Labour Relations Act gave labour arbitrators the exclusive jurisdiction to hear matters arising out of a collective agreement.
At the final level of appeal, the Supreme Court held that the resolution of jurisdictional contests between labour arbitrators and statutory tribunals (in this case the Human Rights Commission) requires an analysis of the relevant statutes.
In Horrocks, two Manitoba statutes were relevant. First, The Labour Relations Act contains a section that discloses a clear legislative intent to grant exclusive jurisdiction to the labour arbitrator over all disputes arising from a collective agreement. Second, The Human Rights Code (the "Code") provides that any person may file a complaint alleging that another person has contravened the Code. The Code directs the Commission to investigate complaints and, where appropriate, request the designation of an adjudicator to hear the complaint. This was the framework for the contest over who should have jurisdiction: a human rights tribunal, a labour arbitrator, or both?
The Supreme Court concluded that while the relevant provisions of the Code vest broad jurisdiction in the Commission over human rights violations, they are insufficient to support a finding that the Commission holds concurrent jurisdiction, absent express displacement of the exclusive jurisdiction of a labour arbitrator. In contrast, The Labour Relations Act expressly provided exclusive authority to an arbitrator to decide issues arising from a collective agreement. Therefore, an arbitrator has exclusive jurisdiction over disputes that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement.
On concluding that labour arbitrators held exclusive jurisdiction to hear complaints falling within their ambit (and human rights tribunals have no jurisdiction over such matters), the remaining question in Horrocks was whether or not the complaint, in its essential character, involved the interpretation, application, or alleged violation of the collective agreement. On this issue, the Supreme Court concluded the essential character of the complaint was an alleged violation of the collective agreement. The claim therefore fell solely to a labour arbitrator to adjudicate.
What does this mean for employers in Alberta?
The current jurisprudence in Alberta holds that both grievance arbitration and human rights complaints are available to unionized workers. In the 2007 case of ATU, Local 583 v City of Calgary, the Alberta Court of Appeal held: "...it was not the intent of the Alberta legislature that either labour arbitration boards or the Commission should have jurisdiction over all human rights issues that arise in the unionized workplace to the exclusion of the other tribunal."
Does Horrocks change the law in Alberta?
The focus is on the language used in the legislation and the intent of the provincial legislature. The Supreme Court (in Horrocks) examined whether the legislation demonstrates an intention to grant exclusive jurisdiction to an arbitrator or human rights tribunal. While the Alberta Court of Appeal has previously found there was no such intention in Alberta, the language from Manitoba's legislation mirrors much of that contained in Alberta's Labour Relations Code and the Alberta Human Rights Act. This could allow an Alberta court to follow the Supreme Court's reasoning in Horrocks and arrive at a similar conclusion.
However, Alberta has some different provisions as well. The Marshalling provisions of Alberta's Labour Relations Code mentioned above may be of particular relevance. These provisions give the Labour Board the power to make orders affecting related disputes in different legal forums (e.g., grievance arbitration, Employment Standards, human rights, Labour Board, privacy, WCB). These provisions enable the Labour Board can take steps to avoid duplicative litigation in multiple venues and may suggest legislative recognition that matters can proceed in more than one venue.
Despite these differences, Horrocks may still be used by Alberta employers to prevent disputes going to the Human Rights Commission when they are the subject of arbitration. At a minimum, the reasoning in Horrocks may be used to encourage the Director of the Human Rights Commission to defer or decline hearing a case that is, or ought to be, the subject of grievance arbitration.
We will have to see how a future Alberta case rules on this issue. In the meantime, Horrocks re-opens the possibility that disputes subject to labour arbitration should not be heard by the Human Rights Commission.
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