In Northern Regional Health Authority v Horrocks, 2021 SCC 42 [Horrocks], the Supreme Court of Canada (the "SCC") determined that where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision-maker empowered by that legislation (i.e. a labour arbitrator) is exclusive, unless competing statutory tribunals "carve into that sphere of exclusivity" through clearly expressed legislative intent.
In Horrocks, this meant that a human rights adjudicator did not have jurisdiction to determine a human rights complaint brought by a unionized employee in Manitoba. However, unionized employers outside of Manitoba should not assume that human rights tribunals lack jurisdiction over unionized employees alleging human rights violations. The decision in Horrocks specifically considered the legislative regime and language in Manitoba's Labour Relations Act (MLRA) and Human Rights Code (MHRC). Other human rights statutes throughout Canada may differ and must be carefully considered. Human rights statutes in particular jurisdictions (such as British Columbia, to be discussed further below) provide for concurrent jurisdiction over complaints arising under a collective agreement, meaning they provide the relevant decision-maker with the discretion to defer consideration of a complaint if it is capable of being dealt with through another process (e.g. a grievance). If so, employers subject to those human rights regimes may not be able to rely on the decision in Horrocks, as labour arbitrators may not have exclusive jurisdiction.
The dispute involved a unionized employee of the Northern Regional Health Authority (the "NRHA") who filed a discrimination complaint with the Manitoba Human Rights Commission alleging that her employer failed to adequately accommodate her disability. The complaint was heard by an adjudicator appointed under the MHRC (the "Adjudicator"). The employee had disclosed an alcohol addiction to her employer and her employment was terminated when she refused to enter into an agreement that required her to abstain from alcohol. Her union grieved the termination and her employment was reinstated on essentially the same terms as the agreement she had previously refused to sign. Soon after, her employment was terminated for an alleged breach of those terms.
The NRHA contested the Adjudicator's jurisdiction, arguing that the SCC's previous decision in Weber v Ontario Hydro, 2 SCR 929, recognized the exclusive jurisdiction of an arbitrator appointed under a collective agreement, and that this extended to human rights complaints in a unionized workplace.
The Adjudicator disagreed, concluded they had jurisdiction, and ultimately determined that the NRHA had discriminated against the employee.
On judicial review, the Manitoba Queen's Bench overturned the Adjudicator, but its decision was then overturned by the Manitoba Court of Appeal, reinstating the decision of the Adjudicator.
The SCC Decision
The majority of the SCC set aside the Manitoba Court of Appeal's decision, finding that the Adjudicator did not have jurisdiction over the complaint. Instead, jurisdiction was exclusive to the labour arbitrator pursuant to the collective agreement and the MLRA.
First, the SCC considered whether the relevant statutory scheme granted exclusive jurisdiction to the labour arbitrator, and over what matters.
Mandatory dispute resolution clauses in labour relations legislation often provide that a labour arbitrator has exclusive jurisdiction to determine disputes related to the interpretation, application and alleged violation of the collective agreement. This creates exclusive jurisdiction and may only be ousted if legislation includes clear language expressing the contrary (for example, that a human rights adjudicator has jurisdiction to consider the matter). The MLRA contained a mandatory dispute resolution clause and the MHRC did not contain a provision clearly ousting the exclusive jurisdiction of the labour arbitrator under the MLRA. So, the labour arbitrator had exclusive jurisdiction.
Next, after concluding that the legislation granted exclusive jurisdiction to the labour arbitrator, the SCC considered the essential nature of the claim to determine whether it fell within the scope of the labour arbitrator's exclusive jurisdiction.
This involved an assessment of the collective agreement and an examination of the dispute in light of the factual context. The SCC confirmed that the analysis turns on the facts of the dispute instead of on the legal characterization of the claim. In Horrocks, the factual context of the complaint related to how the NHRA had exercised its management rights under the collective agreement. Therefore, the employee's claim was within the exclusive jurisdiction of the labour arbitrator.
Application to British Columbia - Concurrent Jurisdiction
The SCC found that legislative intent does not provide for labour arbitrators to have exclusive jurisdiction where there is express or implied concurrent jurisdiction. Although both Manitoba and British Columbia labour relations legislation provide for the final settlement of disputes arising from a collective agreement,1 the British Columbia Human Rights Code (BCHRC) contains provisions that imply that unionized employees may go to the human rights tribunals, whereas the Manitoba Human Rights Code does not.
In British Columbia, the BCHRC states that:
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. 2
The SCC specifically recognized this provision in the BCHRC as empowering the decision-maker to defer consideration of a complaint if it is capable of being dealt with through the grievance process, and that such a provision provides that the British Columbia Human Rights Tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process. If concurrent jurisdiction is provided for, labour arbitrators do not have exclusive jurisdiction.
The SCC also mentioned that the federal human rights regime provides for concurrent jurisdiction. There is the possibility that other provincial courts outside of Manitoba may distinguish the decision in Horrocks based on differing language in their applicable human rights statutes. Although it remains to be seen, unionized employers in provinces with substantially similar language in their labour and human rights statutes to that in Manitoba will likely be subject to the decision in Horrocks, while unionized employers in British Columbia, the federal jurisdiction or provinces with similar human rights statutes may not have the same certainty of exclusive labour arbitrator jurisdiction.
1.MHRC s. 78(1), BCHRC s. 84(2)
2.BCHRC s. 25(2)
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