Northern Regional Health Authority v. Horrocks: Exclusive Jurisdiction Means Exclusive
Published:
October 27, 2021
Author(s):
On October 22, 2021, the Supreme Court of Canada, in Northern Regional Health Authority v. Horrocks, clarified that labour arbitrators have exclusive jurisdiction to decide issues arising out of collective agreements – including human rights complaints – subject to an expression of contrary legislative intent. The impact of the decision will vary depending on the wording of the human rights legislation in each jurisdiction. Here’s a look at the case, and five practical implications for those unionized employers in the jurisdictions it will affect.
The Case
Northern Regional Health Authority (NRHA) suspended Ms. Horrocks from her job at its Manitoba personal care home for attending work under the influence of alcohol. Ms. Horrocks ultimately returned to work, with her union’s intervention, on the condition that she abstain from alcohol completely. NRHA ultimately dismissed her alleging she breached the terms of her reinstatement. Ms. Horrocks filed a complaint with the Manitoba Human Rights Commission alleging discrimination on the basis of disability (alcohol dependency). NHRA contested the adjudicator’s jurisdiction to hear the complaint, arguing the exclusive jurisdiction of an arbitrator appointed under a collective agreement extended to human rights complaints. The Commission adjudicator disagreed, deciding NHRA discriminated against Ms. Horrocks on the basis of her alcohol dependency. On judicial review, the court set the decision aside, finding the Commission adjudicator erred in classifying the essential character of the dispute. The Manitoba Court of Appeal agreed that disputes concerning a unionized worker’s termination are within a labour arbitrator’s exclusive jurisdiction, but still decided the Commission adjudicator had jurisdiction to hear Ms. Horrocks’s complaint. NHRA appealed to the Supreme Court of Canada. The main issue was whether labour arbitrators’ exclusive jurisdiction to decide all matters arising out of the interpretation, application, administration, or violation, of the collective agreement precluded the Commission adjudicator’s jurisdiction over Ms. Horrocks’s human rights complaint. The Supreme Court of Canada decided it did:
Exclusive Jurisdiction. The Court considered a long line of jurisprudence confirming exclusive arbitral jurisdiction ousts the court’s jurisdiction over tort (civil) and Charter claims arising out of collective agreements, but leaving it open to courts to decide whether labour arbitrators had exclusive jurisdiction over other types of disputes. The Court clarified that the exclusive jurisdiction of labour arbitrators is as absolute as the name implies, holding that, “where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the arbitrator or other decision maker empowered by this legislation is exclusive.”
Legislative Exceptions. The Court decided a competing legislative scheme could nevertheless carve out exceptions to exclusive arbitral jurisdiction, but only if the scheme’s language reflects legislative intent to create an exception. For example, the competing legislative scheme might be a “complete code” governing all matters relating to a specific type of dispute. Similarly, it might show an express intent to endow a competing tribunal with concurrent jurisdiction over certain matters. However, the mere existence of a competing tribunal isn’t sufficient to displace exclusive arbitral jurisdiction; some positive expression of the legislature’s intent to do so is still necessary.
Two-Part Jurisdictional Test. The Court also confirmed the two-step test for resolving jurisdictional contests between labour arbitrators and competing tribunals, as set out in its 2004 decision in Morin (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), still applies. To resolve a jurisdictional contest under this test, a court must:
- First determine whether the relevant labour relations legislation grants the arbitrator exclusive jurisdiction and, if so, over what matters. If the relevant labour relations legislation includes a mandatory dispute resolution clause, the arbitrator will have exclusive jurisdiction to decide all disputes that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement, subject to clearly expressed legislative intent to the contrary. This includes human rights issues. The Court found Manitoba’s The Labour Relations Act contains a mandatory arbitration clause granting labour arbitrators exclusive jurisdiction over all disputes arising from the collective agreement. While Manitoba’s The Human Rights Code vests the Human Rights Commission with jurisdiction over Code violations, it doesn’t clearly displace labour arbitrators’ exclusive jurisdiction.
- Second, determine whether the dispute in question falls within the scope of that jurisdiction. Since the essential character of Ms. Horrocks’ complaint related to an alleged violation of the collective agreement, the dispute fell squarely within the labour arbitrator’s exclusive jurisdiction to adjudicate.
5 Key Implications for Unionized Employers
The decision’s impact will vary in each jurisdiction, depending on how similar its human rights legislation is to that of Manitoba. In those jurisdictions in which it is (such as, for example, New Brunswick), labour arbitrators will have exclusive jurisdiction over human rights complaints alleging employment discrimination in unionized workplaces. Here are five key practical implications for those employers:
More Grievances. Unions must convert current human rights complaints filed by unionized employees alleging employment discrimination into grievances. This will likely result in a number of new grievances being filed alleging discrimination in employment over the coming weeks and months, though presumably unions will still need to consider whether to proceed with a grievance in each such case. Employers should carefully review their collective agreements to determine how to proceed if the time to file a human rights grievance has expired.
Less Multiplicity. At the same time, the risk that employers will face multiple proceedings or competing decisions will be drastically reduced because human rights complaints in unionized workplaces will be dealt with exclusively through the grievance and arbitration process.
Faster Resolution. Depending on the province, human rights complaints can take a significant length of time to resolve compared to the grievance process. This means that the resolution of human rights disputes for unionized employers in New Brunswick will be drastically reduced, given the fact that the NB Human Rights Tribunal’s processes can take a number of years to resolve.
Other Legislative Schemes. Additional litigation might still be required to determine the applicability of this decision beyond the human rights context, such as certain Occupational Health and Safety claims. As the Court noted, legislation might implicitly or explicitly carve out exceptions to exclusive arbitral jurisdiction. While in most cases, the existence of exceptions will be clear on the face of the legislation, it will be up to the courts to decide the existence or scope of exceptions where the legislative intent is merely implied.
Human Rights Complaints. Additional litigation might also be required to determine the precise scope of arbitral jurisdiction over human rights complaints in other provinces and some specific types of human rights claims in New Brunswick. For example, while the Court clearly decided that labour arbitrators have jurisdiction over the discriminatory application of collective agreements, it’s unclear whether they have exclusive jurisdiction over disputes over allegedly discriminatory collective agreement provisions.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss whether arbitrators have exclusive jurisdiction over human rights complaints in your workplace.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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