Northern Regional Health Authority Appellant v. Linda Horrocks, 2021 SCC 42

SUPREME COURT OF CANADA Citation: Northern Regional Health Authority v.

Horrocks, 2021 SCC 42 Appeal Heard: April 15, 2021 Judgment Rendered: October 22, 2021 Docket: 37878 Between: Northern Regional Health Authority Appellant and Linda Horrocks and Manitoba Human Rights Commission Respondents - and - Attorney General of British Columbia, Don Valley Community Legal Services, Canadian Association of Counsel to Employers, Canadian Human Rights Commission, British Columbia Council of Administrative Tribunals and Empowerment Council, Systemic Advocates in Addictions and Mental Health Interveners Coram: Wagner C.J. and Abella, Karakatsanis, Côté, Brown, Rowe and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 61) Brown J. (Wagner C.J. and Abella, Côté, Rowe and Kasirer JJ. concurring) Dissenting Reasons: (paras. 62 to 131) Karakatsanis J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Northern Regional Health Authority Appellant v. Linda Horrocks and Manitoba Human Rights Commission Respondents and Attorney General of British Columbia, Don Valley Community Legal Services, Canadian Association of Counsel to Employers, Canadian Human Rights Commission, British Columbia Council of Administrative Tribunals and Empowerment Council, Systemic Advocates in Addictions and Mental Health Interveners Indexed as: Northern Regional Health Authority v. Horrocks 2021 SCC 42 File No.: 37878. 2021: April 15; 2021: October 22.

Present: Wagner C.J. and Abella, Karakatsanis, Côté, Brown, Rowe and Kasirer JJ. on appeal from the court of appeal for manitoba Labour relations — Jurisdiction of arbitrator — Human rights dispute arising from collective agreement — Unionizedemployee suspended after attending work under influence of alcohol and later terminated for breaching abstinence agreement —Employee filing human rights complaint alleging that employer failed to adequately accommodate disability — Whether exclusivejurisdiction of labour arbitrator appointed under collective agreement and empowered by provincial labour legislation extends toadjudicating human rights disputes arising from collective agreement — The Labour Relations Act, C.C.S.M., c.

L10, s. 78 — TheHuman Rights Code, C.C.S.M., c. H175, ss. 22, 26, 29(3). H was suspended for attending work under the influence of alcohol. After H disclosed her alcohol addiction and refused toenter into an agreement requiring that she abstain from alcohol and engage in addiction treatment, her employment was terminated. H’sunion filed a grievance and her employment was reinstated on substantially the same terms as the agreement H had refused to sign.Shortly thereafter, H’s employment was terminated for an alleged breach of those terms.

H filed a discrimination complaint with theManitoba Human Rights Commission, which was heard by an adjudicator appointed under The Human Rights Code. The employercontested the adjudicator’s jurisdiction, arguing that Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, recognizesexclusive jurisdiction in an arbitrator appointed under a collective agreement, and that this extends to human rights complaints arisingfrom a unionized workplace. The adjudicator disagreed, finding that she had jurisdiction because the essential character of the disputewas an alleged human rights violation.

She went on to consider the merits of the complaint and found that the employer haddiscriminated against H. On judicial review, the reviewing judge found error in the adjudicator’s characterization of the essential character of thedispute, and set aside her decision on the issue of jurisdiction. The Court of Appeal allowed H’s appeal. It agreed that disputesconcerning the termination of a unionized worker lie within the exclusive jurisdiction of a labour arbitrator, including alleged humanrights violations.

Nevertheless, it held that the adjudicator had jurisdiction in this case and remitted the matter to the reviewing judge todetermine whether the adjudicator’s decision on the merits of the complaint was reasonable. Held (Karakatsanis J. dissenting): The appeal should be allowed and the reviewing judge’s order reinstated in part. Per Wagner C.J. and Abella, Côté, Brown, Rowe and Kasirer JJ.: The adjudicator did not have jurisdiction over H’scomplaint.

Where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction ofthe decision-maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals maycarve into that sphere of exclusivity, but only where such legislative intent is clearly expressed. In the instant case, the essential characterof H’s complaint falls squarely within the labour arbitrator’s mandate, and there is no clear express legislative intent to grant concurrentjurisdiction to the human rights adjudicator over such disputes.

The reviewing judge’s order setting aside the adjudicator’s decisionshould be reinstated.

Exclusive arbitral jurisdiction, as explained by the Court in Weber , captures disputes that are factually related to the rights and obligations under the collective agreement, even where those same facts give rise to other legal claims based in statute or the common law. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement.

However, not all actions in the courts between a unionized employer and employee are precluded, because an arbitrator’s exclusive jurisdiction extends only to disputes that expressly or inferentially arise out of the collective agreement, and not every workplace dispute will fall within this scope. In addition, the exclusive jurisdiction of a labour arbitrator is subject to the residual curial jurisdiction to grant remedies that lie outside the remedial authority of a labour arbitrator.

When it has considered the relationship between the respective spheres of jurisdiction held by labour arbitrators and statutory tribunals, the Court has affirmed that Weber ’s exclusive jurisdiction model applies — where matters arise from the

interpretation, application, administration or violation of the collective agreement, the claimant must proceed by arbitration and no other forum has the power to entertain an action in respect of that dispute. Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes; rather, depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction. However, exclusive arbitral jurisdiction is not a mere preference that should be disregarded whenever a competing statutory scheme is present, but an

interpretation of the mandate given to arbitrators by statute. The unavoidable conclusion to be drawn from the Court’s jurisprudence is that mandatory dispute resolution clauses signal a legislative intention to confer exclusive jurisdiction on the labour arbitrator or other dispute resolution forum provided for under the agreement. The text and purpose of a mandatory dispute resolution clause remains unchanged, irrespective of the existence or nature of competing regimes, and its

interpretation must therefore remain consistent. Conditioning the effect of a mandatory dispute resolution clause on the nature of the competing forum would result in persistent jurisdictional confusion, leaving members of the public unsure where to turn to resolve a dispute. It is therefore necessary to consider whether a competing statutory scheme demonstrates an intention to displace the arbitrator’s exclusive jurisdiction.

In some cases, it may enact a complete code that confers exclusive jurisdiction over certain kinds of disputes on a competing tribunal; in other cases, the legislation may endow a competing tribunal with concurrent jurisdiction over disputes that would otherwise fall solely to the labour arbitrator for decision. However, the mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising from a collective agreement; some positive expression of the legislature’s will is necessary.

Where a legislature intends concurrent jurisdiction, it will specifically so state in the competing tribunal’s enabling statute. But even absent specific language, the statutory scheme may disclose that intention: in some statutes, certain provisions necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process, or the legislative history will show that the legislature contemplated concurrency. In these circumstances, an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent.

Accordingly, resolving jurisdictional contests between labour arbitrators and competing statutory tribunals entails a two-step analysis. First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters. Where the legislation includes a mandatory dispute resolution clause, an arbitrator empowered under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary.

Secondly, if it is determined that the arbitrator has exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction. The scope will depend on the precise language of the statute but, in general, it will extend to all disputes that arise, in their essential character, from the

interpretation, application, or alleged violation of the collective agreement. This requires analysing the ambit of the collective agreement and accounting for the factual circumstances underpinning the dispute. The relevant inquiry is into the facts alleged, and not the legal characterization of the matter. In the present case, two statutes are relevant. First, The Labour Relations Act contains, in s. 78 , a mandatory dispute resolution clause that discloses a legislative intent to grant exclusive jurisdiction to the labour arbitrator over all disputes arising from the collective agreement.

Secondly, s. 22(1) of The Human Rights Code provides that any person may file a complaint alleging that another person has contravened the Code , and ss. 26 and 29(3) direct the Commission to investigate complaints and, where appropriate, to request the designation of an adjudicator to hear the complaint. While such provisions vest broad jurisdiction in the Commission over Code violations, they are — absent express displacement of the exclusive jurisdiction of a labour arbitrator — insufficient to support a finding that the Commission holds concurrent jurisdiction.

Thus, the arbitrator’s jurisdiction under The Labour Relations Act over disputes that arise, in their essential character, from the

interpretation, application, or alleged violation of the collective agreement is exclusive and, more particularly, exclusive of the Commission. The essential character of H’s complaint, which arises from the employer’s exercise of its rights under, and from its alleged violation of, the collective agreement, represents such a dispute. The claim therefore falls solely to an arbitrator to adjudicate. While H alleges a human rights violation, this is not sufficient to displace the exclusive jurisdiction of the labour arbitrator. Per Karakatsanis J. (dissenting): The appeal should be dismissed.

The statutory schemes under The Labour Relations Act and The Human Rights Code point to concurrent jurisdiction. Although labour arbitration may well have been the more appropriate forum, the adjudicator was not wrong to conclude that she had jurisdiction, nor was she wrong to rule on the merits. Deciding jurisdictional issues between two tribunals involves a two-step analysis. The first step is to consider both statutory schemes to determine whether the legislature intended for exclusive or concurrent jurisdiction. A liberal

interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature, or by ousting the jurisdiction of the intended forum. The second step is to consider the essential character of the dispute to determine whether it falls within one or both of the statutory schemes. This inquiry turns on the facts of the dispute rather than the legal characterization of the claim.

Apart from establishing this framework, the Court’s jurisprudence does not provide a rule that, absent express legislative intent to the contrary, arbitral jurisdiction is exclusive over disputes that fall within the scope of a collective agreement , nor a rebuttable rule that the exclusive jurisdiction model, followed in Weber , applies in every case involving two statutory tribunals.

Generally, when statutory tribunals are established, courts should give way to the special grant of jurisdiction given to such tribunals so as not to undermine the benefits intended by the legislature, including the provision of speedy and affordable dispute resolution . However, the

reasoning from Weber favouring exclusive labour arbitration over civil litigation in the courts does not readily apply to jurisdictionalissues between different statutory tribunals. When two tribunals are created with overlapping mandates and areas of expertise, thelegislative schemes must be viewed as a whole. The legislature may very well have assigned the same tasks to two forums and may haveintended for more than one adjudicative body to have jurisdiction over a dispute.

Turning to the first step of the analysis in the instant case, The Labour Relations Act confers broad jurisdiction to arbitratorsto deal with matters related to a collective agreement. However, the Act does not specifically oust the Commission’s jurisdiction underThe Human Rights Code. Nor does anything in the Code oust the Commission’s jurisdiction over a unionized employee, or oust thejurisdiction of the arbitrator under the Act. Nothing in either scheme suggests the legislature meant for one scheme to prevail over theother.

There is no doubt that the labour scheme is designed to rely heavily upon arbitration for matters within the scope of a collectiveagreement. But so too does the human rights scheme rely heavily upon the Commission to address discrimination. In the jurisprudence,the jurisdiction of human rights tribunals has only been ousted when the statutory text of the other tribunal has specifically excluded allother decision-making bodies, thereby indicating that jurisdiction was meant to be exclusive. No such express or strong language existsin The Labour Relations Act.

The Act does not clearly confer exclusive jurisdiction on labour arbitrators, and The Human Rights Codedoes not remove human rights complaints of unionized employees from the Commission’s jurisdiction. Under the second step of the analysis, the Court must consider the essential nature of H’s dispute to determine whether itfalls within the jurisdiction of a labour arbitrator, or that of the Commission, or both.

The claim is about whether H’s employerdiscriminated against her on the basis of mental or physical disability — and therefore violated the collective agreement and The HumanRights Code — when it terminated her employment for allegedly violating her undertaking to abstain from alcohol. This dispute fallswithin the scope of the collective agreement, which specifically prohibits the employer from discriminating on the basis of disability andprovides a grievance and arbitration procedure for any dispute arising out of the agreement’s

interpretation, application, or allegedviolation. Given this context, H’s discrimination claim can easily be characterized as arising out of an alleged violation of the collectiveagreement. A labour arbitrator accordingly has jurisdiction over it. However, the dispute also falls within the Commission’s jurisdictionand within the mandate of the Code, as does the processing of H’s complaint. There is no exception for a complaint made by a unionizedemployee who may be subject to a collective agreement.

H’s claim thus falls within both a labour arbitrator’s mandate under The LabourRelations Act and the Commission’s mandate under The Human Rights Code. There is agreement with the majority that where two tribunals have concurrent jurisdiction over a dispute, thedecision-maker must consider whether to exercise its jurisdiction in the circumstances of a particular case.

When the Commission sharesjurisdiction with a labour arbitrator over a human rights dispute, a number of factors may guide the Commission’s discretion to hear thecomplaint of a unionized employee, including: whether the claim is about the collective agreement itself rather than a violation of it;whether the union involved is opposed in interest to the complainant such that they could be left without legal recourse; whether a labourarbitrator would not have jurisdiction over every party possibly affected; and whether the Commission is a better fit.

These factors have different implications for the exercise of discretion. If the union is adverse in interest or is unwilling topursue a grievance, unionized employees should still have legal recourse to adjudicate their human rights complaints before theCommission. Conversely, if the claim is about the violation of the collective agreement, if the union is supportive, and if the arbitratorhas jurisdiction over the necessary parties, there will be a compelling case for a human rights forum to defer to the labour arbitrationregime.

Additionally, an inquiry into which forum is a better fit permits a broad consideration of the circumstances of the complaint. Theremedy sought by the complainant may be highly relevant. If a complainant seeks a declaration, damages, or systemic changes, a humanrights tribunal may be the better fit. On the other hand, if a complainant seeks reinstatement, there is a strong case for labour arbitrationto have primary responsibility. Finally, access to justice and efficiency favour deferring to labour arbitration.

As a general rule, theCommission should decline jurisdiction unless labour arbitration is not a realistic alternative. In the present case, there was no clear evidence before the human rights adjudicator that the union would not assist orsupport H. And there are good reasons why the Commission or the adjudicator could have exercised their discretion to defer to thelabour arbitration scheme: the dispute was about discrimination arising under the collective agreement, and the remedy sought —reinstatement — was squarely within the powers of a labour arbitrator.

However, because the human rights adjudicator in this caseclearly had jurisdiction, it cannot be said that she was wrong to proceed. In any event, it would not be appropriate, nearly a decade afterthe events giving rise to the dispute and over six years after the adjudicator’s decision on the merits, to set aside the adjudicator’sdecision on jurisdiction. The remedies available on judicial review are discretionary and reflect a public interest in the orderlyadministration of affairs, including the need for finality and certainty. Cases Cited By Brown J. Applied: Weber v.

Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R.559; considered: St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, (SCC), [1986] 1S.C.R. 704; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Quebec(Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185;Quebec (Attorney General) v.

Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; Canada (House of Commons) v.Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; referred to: Stene v. Telus Communications Company, 2019 BCCA 215, 24 B.C.L.R. (6th) 74;Bruce v. Cohon, 2017 BCCA 186, 97 B.C.L.R. (5th) 296; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA38, 253 N.S.R. (2d) 144; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Syncrude Canada Ltd. v. Canada (AttorneyGeneral), 2016 FCA 160, 398 D.L.R. (4th) 91; New Brunswick v.

O’Leary, (SCC), [1995] 2 S.C.R. 967; Allen v.Alberta, 2003 SCC 13, [2003] 1 S.C.R. 128; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141; Bisaillon v. ConcordiaUniversity, 2006 SCC 19, [2006] 1 S.C.R. 666; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,2003 SCC 42, [2003] 2 S.C.R. 157; Wainwright v. Vancouver Shipyards Co. (1987), (BC CA), 14 B.C.L.R. (2d) 247;Johnston v. Dresser Industries Canada Ltd. (1990), (ON CA), 75 O.R. (2d) 609; Côté v. Saiano, (QC CA), [1998] R.J.Q. 1965; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v.

Canadian Pacific

Ltd., (SCC), [1996] 2 S.C.R. 495; A.T.U., Local 583 v. Calgary (City), 2007 ABCA 121, 75 Alta. L.R. (4th) 75;Calgary Health Region v. Alberta (Human Rights & Citizenship Commission), 2007 ABCA 120, 74 Alta. L.R. (4th) 23; Human RightsCommission (N.S.) v. Halifax (Regional Municipality), 2008 NSCA 21, 264 N.S.R. (2d) 61; Canpar Industries v. I.U.O.E., Local 115,2003 BCCA 609, 20 B.C.L.R. (4th) 301; Insurance Corp. of British Columbia v. Heerspink, (SCC), [1982] 2 S.C.R.145; Cadillac Fairview Corp. v. Human Rights Commission (Sask.) (1999), (SK CA), 177 Sask. R. 126; Ford MotorCo. of Canada Ltd. v.

Ontario (Human Rights Commission) (2001), (ON CA), 209 D.L.R. (4th) 465; CentralOkanagan School District No. 23 v. Renaud, (SCC), [1992] 2 S.C.R. 970; Noël v. Société d’énergie de la Baie James,2001 SCC 39, [2001] 2 S.C.R. 207; McLeod v. Egan, (SCC), [1975] 1 S.C.R. 517. By Karakatsanis J. (dissenting) Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; Quebec (Commission des droits de la personne etdes droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185; Regina Police Assn. Inc. v.

Regina (City)Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Parry Sound (District) Social Services Administration Board v.O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC40, [2004] 2 S.C.R. 223; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; St. Anne Nackawic Pulp & Paper Co. v.Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704; Ford Motor Co. of Canada Ltd. v.

Ontario(Human Rights Commission) (2001), (ON CA), 209 D.L.R. (4th) 465; Greater Essex District School Board andOSSTF (OMERS Pension Plan), Re (2015), 256 L.A.C. (4th) 1; Human Rights Commission (N.S.) v. Halifax (Regional Municipality),2008 NSCA 21, 264 N.S.R. (2d) 61; Calgary Health Region v. Alberta (Human Rights & Citizenship Commission), 2007 ABCA 120, 74Alta. L.R. (4th) 23; Université de Sherbrooke v. Commission des droits de la personne et des droits de la jeunesse, 2015 QCCA 1397;Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, (SCC), [1990] 1 S.C.R.1298; Mason v.

Gen-Auto Shippers and Teamsters Local Union 938, [1999] OLRB Rep. 242; Creed v. International Brotherhood ofElectrical Workers, Local Union 339, [1999] O.L.R.D. No. 3422 (QL); Tranchemontagne v. Ontario (Director, Disability SupportProgram), 2006 SCC 14, [2006] 1 S.C.R. 513; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Haaretz.com v.Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10,[2012] 1 S.C.R. 364; Blatz v. 4L Communications Inc., ; Qumsieh v.

Brandon School Division, 2019 MBHR 3;British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422; Zulkoskey v. Canada (Minister ofEmployment and Social Development), 2016 FCA 268; Dick v. Pepsi Bottling Group (Canada), Co., ; A.T.U., Local583 v. Calgary (City), 2007 ABCA 121, 75 Alta. L.R. (4th) 75; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R.713; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Fingland v. Ontario (Ministry ofTransportation), 2008 ONCA 812, 93 O.R. (3d) 268; Chippewas of Sarnia Band v.

Canada (Attorney General) (2000), (ON CA), 51 O.R. (3d) 641. Statutes and Regulations Cited Canada Labour Code, R.S.C. 1985, c. L-2, ss. 16(l.1), 57(1), 98(3). Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 41, 42. Human Rights Code, C.C.S.M., c. H175,

preamble, ss. 4, 7(2)(a), 14, 22(1), 26, 29(3), 34, 42, 43(2), 58. Human Rights Code, R.S.B.C. 1996, c. 210, s. 25. Human Rights Code, R.S.O. 1990, c. H.19, s. 45.1. Industrial Relations Act, R.S.N.B. 1973, c. I-4, s. 55. Labour Act, R.S.P.E.I. 1988, c. L-1, s. 37. Labour Code, CQLR, c. C-27, s. 100. Labour Relations Act, C.C.S.M., c. L10, ss. 7, 20, 78, 121(2). Labour Relations Act, R.S.N.L. 1990, c. L-1, s. 86. Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1). Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 48. Labour Relations Code, R.S.A. 2000, c. L-1, ss. 135, 136.

Labour Relations Code, R.S.B.C. 1996, c. 244, s. 84(2), (3). Manitoba Hydro Act, C.C.S.M., c. H190, s. 22. Manitoba Public Insurance Corporation Act, C.C.S.M., c. P215, s. 65(13). Residential Tenancies Act, C.C.S.M., c. R119, ss. 152(1), 158(1). Trade Union Act, R.S.N.S. 1989, c. 475, s. 42. Trade Union Act, R.S.S. 1978, c. T-17, s. 26. Workers Compensation Act, C.C.S.M., c. W200, ss. 60(1), 60.8(1).

Authors Cited Adams, George W. Canadian Labour Law , 2nd ed. Toronto: Thomson Reuters, 2021 (loose-leaf updated June 2021, release 2 ). Brown, Donald J. M., with the assistance of David Fairlie. Civil Appeals . Toronto: Thomson Reuters, 2019 (loose-leaf updated July 2021, release 2). Brown , Donald J. M., and John M. Evans, with the assistance of David Fairlie . Judicial Review of Administrative Action in Canada . Toronto: Thomson Reuters, 2013 (loose-leaf updated July 2021, release 2).

Etherington, Brian. “ Weber , and Almost Everything After, Twenty Years Later: Its Impact on Individual Charter , Common Law, and Statutory Rights Claims”, in Elizabeth Shilton and Karen Schucher, eds., One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell . Toronto: Irwin Law, 2017, 25. Evans, John M. “The Role of Appellate Courts in Administrative Law” (2007), 20 C.J.A.L.P. 1. Gagnon, Jean Denis. “Les droits de la personne dans un contexte de rapports collectifs de travail. Compétence de l’arbitre et d’autres tribunaux.

Quand l’incertitude devient la règle” (2006), 66 R. du B. 1. Gall, Peter A., Andrea L. Zwack and Kate Bayne. “Determining Human Rights Issues in the Unionized Workplace: The Case for Exclusive Arbitral Jurisdiction” (2005), 12 C.L.E.L.J. 381. Lokan, Andrew K., and Maryth Yachnin. “From Weber to Parry Sound : The Expanded Scope of Arbitration” (2004), 11 C.L.E.L.J. 1. Manitoba Human Rights Commission. Board of Commissioners.

Policy # P-3: Jurisdiction — Concurrent Jurisdiction , December 18, 2002, revised October 8, 2014 (online: http://www.manitobahumanrights.ca/v1/education-resources/resources/pubs/board-of- commisioner-policies/p-3.pdf; archived version: https://www.scc-csc.ca/cso-dce/2021SCC-CSC42_1_eng.pdf ). Mummé, Claire. “Questions, Questions: Has Weber Had an Impact on Unions’ Representational Responsibilities in Workplace Human Rights Disputes?”, in Elizabeth Shilton and Karen Schucher, eds., One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell . Toronto: Irwin Law, 2017, 229.

Pickel, Jo-Anne. “Statutory Tribunals and the Challenges of Managing Parallel Claims”, in Elizabeth Shilton and Karen Schucher, eds., One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell . Toronto: Irwin Law, 2017, 175. Shilton, Elizabeth. “Choice, but No Choice: Adjudicating Human Rights Claims in Unionized Workplaces in Canada” (2013), 38 Queen’s L.J. 461. Shilton, Elizabeth. “‘Everybody’s Business’: Human Rights Enforcement and the Union’s Duty To Accommodate” (2014), 18 C.L.E.L.J. 209.

Shilton, Elizabeth. “Labour Arbitration and Public Rights Claims: Forcing Square Pegs into Round Holes” (2016), 41 Queen’s L.J. 275. APPEAL from a judgment of the Manitoba Court of Appeal (Monnin, Mainella and Pfuetzner JJ.A.), 2017 MBCA 98 , [2018] 1 W.W.R. 77, 27 Admin. L.R. (6th) 95, 416 D.L.R. (4th) 385, 43 C.C.E.L. (4th) 16, 88 C.H.R.R. D/1, 2018 CLLC 230-009, [2017] M.J. No. 274 (QL), 2017 CarswellMan 458 (WL Can.), setting aside a decision of Edmond J., 2016 MBQB 89 , 327 Man. R. (2d) 284, [2016] 11 W.W.R. 297, 33 C.C.E.L. (4th) 323, 84 C.H.R.R. D/67, [2016] CLLC 230-031, [2016] M.J.

No. 127 (QL), 2016 CarswellMan 155 (WL Can.). Appeal allowed, Karakatsanis J. dissenting. Robert Watchman and Todd C. Andres , for the appellant. Paul Champ and Bijon Roy , for the respondent Linda Horrocks. Thor J. Hansell and Shea Garber , for the respondent the Manitoba Human Rights Commission. Robert Danay , for the intervener the Attorney General of British Columbia. Busayo A. Faderin , for the intervener Don Valley Community Legal Services. Craig W. Neuman , Q.C. , for the intervener the Canadian Association of Counsel to Employers. Brian Smith , for the intervener the Canadian Human Rights Commission.

Oliver Pulleyblank , for the intervener the British Columbia Council of Administrative Tribunals. Karen R. Spector , for the intervener the Empowerment Council, Systemic Advocates in Addictions and Mental Health. The judgment of Wagner C.J. and Abella, Côté, Brown, Rowe and Kasirer JJ. was delivered by Brown J. —

I. Introduction [1] Labour relations legislation across Canada requires every collective agreement to include a clause providing for thefinal settlement of all differences concerning the

interpretation, application or alleged violation of the agreement, by arbitration orotherwise. The precedents of this Court have maintained that the jurisdiction conferred upon the decision-maker appointed thereunder isexclusive.

At issue in this case, principally, is whether that exclusive jurisdiction held by labour arbitrators in Manitoba extends toadjudicating claims of discrimination that, while falling within the scope of the collective agreement, might also support a human rightscomplaint. [2] The respondent Linda Horrocks says that her employer, the appellant, the Northern Regional Health Authority(“NRHA”), failed to adequately accommodate her disability. In 2011, she was suspended for attending work under the influence ofalcohol.

After she disclosed her alcohol addiction and refused to enter into a “last chance agreement” requiring that she abstain fromalcohol and engage in addiction treatment, the NRHA terminated her employment. Ms. Horrocks’ union filed a grievance, which wassettled by an agreement reinstating her employment on substantially the same terms as the last chance agreement. Shortly thereafter, theNRHA terminated her employment for an alleged breach of those terms. [3] Ms.

Horrocks filed a complaint with the respondent, the Manitoba Human Rights Commission, which was heard byan adjudicator appointed under The Human Rights Code, C.C.S.M., c. H175. The NRHA contested the adjudicator’s jurisdiction to hearthe complaint, arguing that this Court’s judgment in Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929 recognizesexclusive jurisdiction in an arbitrator appointed under a collective agreement, and that this jurisdiction extends to human rightscomplaints arising from a unionized workplace. Chief Adjudicator Walsh disagreed, finding that she had jurisdiction.

While Weber doesrecognize exclusive jurisdiction in labour arbitrators over disputes that arise from the

interpretation, application, administration, orviolation of a collective agreement, the essential character of this dispute, she held, was an alleged human rights violation (2015 MBHR3, 83 C.H.R.R. D/45). Chief Adjudicator Walsh went on to consider the merits of the complaint and found that the NRHA haddiscriminated against Ms. Horrocks. [4] On judicial review, Edmond J. found error in the adjudicator’s characterization of the essential character of thedispute, and set aside the adjudicator’s decision on the issue of jurisdiction.

As he saw it, the essential character of the dispute waswhether the NRHA had just cause to terminate Ms. Horrocks’ employment (2016 MBQB 89, 327 Man. R. (2d) 284). “[A]ny [such]dispute”, he held (at para. 57), “including any human rights violation associated with the termination, is within the exclusive jurisdictionof labour arbitration”. As such, Edmond J. found it unnecessary to decide whether the adjudicator’s decision on the merits of thecomplaint was reasonable.

The Court of Appeal agreed with Edmond J.’s conclusion that disputes concerning the termination of aunionized worker lie within the exclusive jurisdiction of a labour arbitrator, including where the dispute alleges human rights violations(2017 MBCA 98, 416 D.L.R. (4th) 385). Nevertheless, it held that the adjudicator had jurisdiction for several reasons: (

a) Ms. Horrocks “made a choice to sever” the employment and human rights aspects of her claim by not grieving her secondtermination (para. 80); (

b) The discrimination claim raised issues that “transcend[ed]” the specific employment context, because an employer’saccommodation of an employee’s alcohol dependency is “larger than the specifics of what occurred in the employment relationship”(para. 85); and (

c) The union was not interested in pursuing arbitration, thus precluding Ms. Horrocks from bringing her claim to any forum ifa labour arbitrator were to hold exclusive jurisdiction (para. 87).

In the result, the Court of Appeal allowed the appeal and remitted the matter to the Court of Queen’s Bench to determine whether theadjudicator’s decision on the merits of the discrimination complaint was reasonable. [5] For the reasons that follow, I find myself in respectful disagreement with the adjudicator and the Court of Appeal.Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlementof disputes arising from a collective agreement, the jurisdiction of the decision-maker empowered by that legislation — generally, alabour arbitrator — is exclusive.

Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislativeintent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is tomandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement (s. 78(1)).In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within thearbitrator’s mandate.

The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicatorover such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed. II. Issues [6] As noted, the principal issue arising is whether the exclusive jurisdiction of a labour arbitrator appointed under acollective agreement extends to human rights disputes that arise therefrom.

But two preliminary issues were also put to us by the parties:first, the standard of review applicable to an administrative decision concerning the jurisdictional lines between two tribunals; andsecondly, the standard of review applicable on appeal from a judicial review of an administrative decision. III. Analysis A. Standard of Review

(1) Administrative Standard of Review [7] Decisions concerning the jurisdictional lines between two or more administrative bodies must be correct (Canada(Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 53). This standard safeguards the rule of law, which“requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible

with the jurisdiction of another” (para. 64). It also fosters predictability, finality and certainty in the law (ibid.). [8] Here, the reviewing judge and the Court of Appeal applied the correctness standard to the adjudicator’s decision.The Commission acknowledges that this is faithful to Vavilov, but argues that the determination of jurisdictional lines involves afact-specific inquiry into the “essential character” of a dispute, which ought to attract deference (R.F., at paras. 75-84).

It thereforeinvites the Court to reconsider the established standard. [9] I am not persuaded that such reconsideration is necessary or desirable. As I will explain below, correctlydetermining the jurisdictional lines between two administrative bodies requires that a decision-maker correctly identify the essentialcharacter of the dispute. Applying a reasonableness standard to this component of the analysis would undermine the objective ofensuring that one adjudicative body does not trespass on the jurisdiction of the other.

I note as well that appellate authority concerningthe jurisdictional lines between courts and tribunals has generally held that the essential character determination is reviewed forcorrectness (Stene v. Telus Communications Company, 2019 BCCA 215, 24 B.C.L.R. (6th) 74, at para. 38; Bruce v. Cohon, 2017 BCCA186, 97 B.C.L.R. (5th) 296, at para. 80; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38, 253 N.S.R. (2d)144, at para. 12).

These authorities explain that this is so notwithstanding the fact-specific nature of the essential character inquiry,because it grounds a determination of jurisdiction.

(2) Appellate Standard of Review [10] A reviewing judge’s selection and application of the standard of review is reviewable for correctness. This standardtraces back to Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, where LeBel J.explained: The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v.

Canada Revenue Agency, 2009 FCA 23, 386N.R. 212, at para. 18: Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of anapplication for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriatestandard of review and applied it correctly. The appellate court is not restricted to asking whether the first-level court committed apalpable and overriding error in its application of the appropriate standard. In Merck Frosst Canada Ltd. v.

Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J. aptly described thisprocess as “‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrativedecision” (emphasis deleted). The issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of review andapply it properly? [Text in brackets in original; paras. 45-47.] This approach accords no deference to the reviewing judge’s application of the standard of review.

Rather, the appellate court performs ade novo review of the administrative decision (D. J. M. Brown, with the assistance of D. Fairlie, Civil Appeals (loose-leaf), at §14:45). [11] The approach to appellate review prescribed in Agraira is different than that set out in Housen v. Nikolaisen, 2002SCC 33, [2002] 2 S.C.R. 235. Where Housen applies, the degree of deference accorded to the original decision-maker depends on thetype of error at issue: errors of law are reviewed on the correctness standard, while errors of fact and mixed fact and law attract thepalpable and overriding error standard.

The NRHA invites the Court to reconsider Agraira, saying that a de novo review ofadministrative decisions renders the first level of review a “necessary but feckless step in the judicial review of an administrativedecision” (A.F., at para. 6).

In its submission, no principled reason precludes applying the standards of review stated in Housen to anappeal from a judicial review decision. [12] I would decline the invitation to reconsider Agraira, which is a recent decision of the Court and remains good law.Of course, there may be good reason to apply the Housen standard where a reviewing judge acts as a decision-maker of first instance(the Hon. J. M. Evans, “The Role of Appellate Courts in Administrative Law” (2007), 20 C.J.A.L.P. 1, at pp. 30-34; Brown, at §14:46;Syncrude Canada Ltd. v.

Canada (Attorney General), 2016 FCA 160, 398 D.L.R. (4th) 91, at para. 29), but this does not provide areason for applying Housen to the selection and application of the standard of review. In any event, however, this point makes nodifference to NRHA’s appeal. As indicated, the adjudicator’s finding that she had jurisdiction is reviewable for correctness. And if theadjudicator was bound to correctly determine her own jurisdiction, it follows that the reviewing judge was also bound to apply the samestandard in reviewing the adjudicator’s decision.

Concluding otherwise would allow an incorrect determination of jurisdictional lines tostand, which would undermine the values of certainty and predictability that justified the application of the correctness standard in thefirst instance. Even under Housen, no deference would have been owed to the reviewing judge’s analysis. B. The Adjudicator’s Jurisdiction [13] It is settled law that the scope of a labour arbitrator’s jurisdiction precludes curial recourse in disputes that arise from acollective agreement, even where such disputes also give rise to common law or statutory claims (St.

Anne Nackawic Pulp & Paper Co.v. Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704, at p. 721; Weber, at para. 54; NewBrunswick v. O’Leary, (SCC), [1995] 2 S.C.R. 967; Allen v. Alberta, 2003 SCC 13, [2003] 1 S.C.R. 128, atparas. 12-17; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at paras. 22-23; Bisaillon v. Concordia University, 2006 SCC19, [2006] 1 S.C.R. 666, at para. 30). It is similarly beyond dispute that labour arbitrators may apply human rights legislation to disputes

arising from the collective agreement ( Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 , 2003 SCC 42 , [2003] 2 S.C.R. 157, at paras. 1 and 28-29 ; Weber , at para. 56 ). Indeed, it has been observed that labour arbitration is the primary forum for the enforcement of human rights in unionized workplaces (E. Shilton, “‘Everybody’s Business’: Human Rights Enforcement and the Union’s Duty To Accommodate” (2014), 18 C.L.E.L.J. 209, at p. 235; P. A. Gall, A. L. Zwack and K.

Bayne, “Determining Human Rights Issues in the Unionized Workplace: The Case for Exclusive Arbitral Jurisdiction” (2005), 12 C.L.E.L.J. 381, at p. 397). [ 14 ] At stake, however — in this appeal and more generally — is whether that observation understates the case: Is labour arbitration merely the primary , as opposed to the exclusive forum for enforcing human rights issues arising from the collective agreement? Ms. Horrocks and the Commission contend that a labour arbitrator’s jurisdiction to apply human rights legislation to such disputes is not exclusive.

In their view, arbitral exclusivity applies only to decide jurisdictional contests between labour arbitrators and the courts . Where the competing forum is a statutory tribunal, they say the arbitrator’s jurisdiction is concurrent unless the legislation expressly mandates exclusivity. This applies with particular force to human rights adjudication schemes, given the quasi-constitutional nature of their enabling legislation. In their view, concluding otherwise would jeopardize access to justice in unionized workplaces. [ 15 ] This argument is unsustainable in light of this Court’s jurisprudence.

Properly understood, the decided cases indicate 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. This applies irrespective of the nature of the competing forum, but is always subject to clearly expressed legislative intent to the contrary.

(1) Exclusive Arbitral Jurisdiction [ 16 ] Labour relations statutes in Canada generally require that collective agreements include a method for the final settlement of differences concerning the

interpretation, application, and alleged violation of the agreement. Some statutes specifically require arbitration of such differences, while others permit the parties to select a different method of dispute resolution. Where a collective agreement does not include a dispute resolution procedure that complies with the statute, it is deemed to include an arbitration clause in prescribed terms. See G. W.

Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at pp. 12-51 to 12-55; The Labour Relations Act , s. 78 ; Labour Relations Code , R.S.B.C. 1996, c. 244, s. 84(2) and (3) ; Labour Relations Code , R.S.A. 2000, c. L-1, ss. 135 and 136 ; The Trade Union Act , R.S.S. 1978, c. T-17, s. 26 ; Labour Relations Act, 1995 , S.O. 1995, c. 1, Sch. A, s. 48 ; Labour Code , CQLR, c. C-27, s. 100 ; Trade Union Act , R.S.N.S. 1989, c. 475, s. 42 ; Industrial Relations Act , R.S.N.B. 1973, c. I-4, s. 55 ; Labour Relations Act , R.S.N.L. 1990, c. L-1, s. 86 ; Labour Act , R.S.P.E.I. 1988, c.

L-1, s. 37 ; Canada Labour Code , R.S.C. 1985, c. L-2, s. 57(1) . [ 17 ] This Court has interpreted such mandatory dispute resolution provisions as conferring exclusive jurisdiction on the decision-maker appointed thereunder — typically, a labour arbitrator. That understanding originates in St. Anne Nackawic , which concerned an employer’s civil action against a union for damages following an illegal strike.

The union raised a preliminary objection to the court’s jurisdiction, arguing that, under s. 55(1) of New Brunswick’s Industrial Relations Act , only a labour arbitrator could adjudicate disputes arising from the collective agreement. That

section read as follows: 55

(1) Every collective agreement shall provide for the final and binding settlement by arbitration or otherwise, without stoppage of work, of all differences between the parties to, or persons bound by, the agreement or on whose behalf it was entered into, concerning its

interpretation, application, administration or an alleged violation of the agreement, including any question as to whether a matter is arbitrable. [ 18 ] The Court found that this

section left no room for curial jurisdiction over the claim. Allowing the parties such recourse to enforce the collective agreement would, he explained, undermine the integrity of the labour arbitration scheme and the labour relations system as a whole: The collective agreement establishes the broad parameters of the relationship between the employer and his employees.

This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. . . .

The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks . . . . . . . if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting .

Arbitration, when adopted by the parties as was done here in the collective agreement, is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements.

From the foregoing authorities, it might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement . [Emphasis added; pp. 718-19 and 721.] [ 19 ] In Weber , the Court elaborated upon the scope of exclusive arbitral jurisdiction identified in St.

Anne Nackawic , holding that it also ousted curial jurisdiction over tort and Charter claims arising from a collective agreement. There, an employer had hired private investigators to determine whether an employee was abusing his sick leave benefits. The investigators gained entry to the employee’s home by assuming a false identity, and obtained information that led to the employee’s termination. The employee filed a grievance seeking damages for mental anguish caused by the surveillance, which was settled.

Further, he commenced a civil action alleging t respass, nuisance, deceit, invasion of privacy, a nd breach of his Charter rights. The employer objected, arguing that the dispute

related to the sick leave provisions in the collective agreement and thus fell to be decided exclusively by a labour arbitrator. [20] The Court agreed that the matter fell within exclusive arbitral jurisdiction.

That jurisdiction, it explained, capturesdisputes that are factually related to the rights and obligations under the collective agreement, even where those same facts give rise toother legal claims based in statute or the common law: The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one“arising under [the] collective agreement”.

Where the dispute, regardless of how it may be characterized legally, arises under thecollective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it. [Emphasis inoriginal; text in brackets in original; para. 43.] [21] This analysis reflected the language of the applicable labour relations statute at issue in Weber, which requiredarbitration of “all differences between the parties arising from the

interpretation, application, administration or alleged violation of theagreement” (Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1)). As the Court explained, the term “differences” revealed a legislativeconcern not for the form of legal actions that might be advanced, but for the dispute between the parties (para. 45).

Such concern madesense, being consistent with the objectives of the legislation, including the resolution of disputes “quickly and economically, with aminimum of disruption to the parties and the economy” — an objective that “lies at the heart of all Canadian labour statutes” (para. 46(emphasis added)). In short, and as the Court summarized (at para. 67 (emphasis added)), “[t]he question in each case is whether thedispute, viewed with an eye to its essential character, arises from the collective agreement.” [22] A word of caution is in order here.

The Court was careful to note that “[t]his approach does not preclude all actions inthe courts between [a unionized] employer and employee” (para. 54 (emphasis added)). This is because an arbitrator’s exclusivejurisdiction extends only to “disputes which expressly or inferentially arise out of the collective agreement” (ibid.; see also Bisaillon, atparas. 30-33). Not every workplace dispute will fall within this scope. For example, in Goudie, employees claimed damages under apre-employment contract.

The Court found that this claim arose from the pre-employment contract, and not from the collectiveagreement (at para. 4), and therefore fell outside the arbitrator’s exclusive jurisdiction. (See, similarly, Wainwright v. VancouverShipyards Co. (1987), (BC CA), 14 B.C.L.R. (2d) 247 (C.A.); Johnston v. Dresser Industries Canada Ltd. (1990), (ON CA), 75 O.R. (2d) 609 (C.A.); Côté v.

Saiano, (QC CA), [1998] R.J.Q. 1965 (C.A.).) [23] A further caveat: the exclusive jurisdiction of a labour arbitrator is subject to the residual curial jurisdiction to grantremedies that lie outside the remedial authority of a labour arbitrator, including interlocutory injunctions (Weber, at para. 67; see alsoBrotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., (SCC),[1996] 2 S.C.R. 495; Bisaillon, at para. 42). This ensures that there is no “deprivation of ultimate remedy” (Weber, at para. 57, quotingSt. Anne Nackawic, at p. 723). (

a) Exclusive Arbitral Jurisdiction and Statutory Tribunals [24] This Court has twice considered the relationship between the respective spheres of jurisdiction held by labourarbitrators and statutory tribunals. In each case, it affirmed the exclusivity of arbitral jurisdiction recognized in St. Anne Nackawic andWeber. [25] In Regina Police Assn. Inc. v.

Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, theissue was whether an arbitrator could hear the grievance of a police officer who resigned after he was informed that he would be chargedwith discreditable conduct by his employer police service and could be subject to dismissal under The Police Act, 1990, S.S. 1990-91,c. P-15.01. The Court found that The Police Act gave police boards exclusive responsibility to resolve disciplinary matters. Because theessential character of the dispute concerned police discipline, it fell exclusively to the board, and not to the arbitrator.

Of significance,however, the Court affirmed that, as to matters that do arise from “the

interpretation, application, administration or violation of [the]collective agreement”, Weber’s “exclusive jurisdiction model” applies — meaning, “the claimant must proceed by arbitration [and] [n]oother forum has the power to entertain an action in respect of that dispute” (para. 22 (emphasis added)). [26] This view was consistently maintained in Quebec (Commission des droits de la personne et des droits de la jeunesse)v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185 (“Morin”).

The case concerned a term in the collective agreementbetween teachers’ unions and the province stipulating that experience acquired during the 1996-1997 school year would not be creditedfor the purposes of calculating seniority and salary increments. This affected young teachers particularly, some of whom filed acomplaint with the provincial human rights commission, alleging discrimination on the basis of age contrary to the Quebec Charter ofHuman Rights and Freedoms, R.S.Q., c. C-12; the commission then brought the matter before the Quebec Human Rights Tribunal.

TheAttorney General of Quebec challenged the tribunal’s jurisdiction over the matter, asserting that it fell instead within the exclusivejurisdiction of a labour arbitrator. [27] The Court explained that it is necessary to examine the relevant legislation in order to determine whether it confersexclusive jurisdiction on the arbitrator and, if so, whether the essential character of the dispute falls within the scope of that jurisdiction.Weber, it explained (at para. 11), “does not stand for the proposition that labour arbitrators always have exclusive jurisdiction inemployer-union disputes.

Depending on the legislation and the nature of the dispute, other tribunals may possess overlappingjurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction”.

In the case before it, the Court accepted thatthe mandatory dispute resolution clause in Quebec’s Labour Code did grant an arbitrator exclusive jurisdiction over disputes arising fromthe operation of the collective agreement (at paras. 16 and 20-24), but also determined that the dispute in Morin did not fall within thatjurisdictional scope; rather than arising from the operation of the collective agreement, it arose out of its negotiation (paras. 24 and 26).McLachlin C.J. explained, for the majority: Everyone agrees on how the agreement, if valid, should be interpreted and applied.

The only question is whether the process leading tothe adoption of the alleged discriminatory clause and the inclusion of that clause in the agreement violates the Quebec Charter,rendering it unenforceable. [para. 24] While, therefore, an arbitrator might have had concurrent jurisdiction over the dispute if it arose “incidentally to a different dispute under

the collective agreement”, the dispute in Morin nevertheless fell outside the scope of the arbitrator’s exclusive jurisdiction (para. 27). Bycontrast, it fell squarely within the mandate of the human rights tribunal, which had generous (but not exclusive) jurisdiction over humanrights violations. [28] To be clear, Morin was decided by applying the analytical framework stated in Weber, which led to the conclusionthat the dispute in question fell outside of the ambit of the arbitrator’s exclusive jurisdiction.

Significantly, Morin was not decided on thebasis that the legislation conferred concurrent jurisdiction on the human rights tribunal over all human rights disputes in unionizedworkplaces. Such a conclusion would be at odds with the Court’s recognition that the Labour Code conferred exclusive jurisdiction onlabour arbitrators over disputes that arise from the operation of collective agreements. It would also be at odds with the Court’s directionthat the dispute’s essential character be identified in order to determine whether jurisdiction over its resolution falls exclusively to thearbitrator (E.

Shilton, “Choice, but No Choice: Adjudicating Human Rights Claims in Unionized Workplaces in Canada” (2013), 38Queen’s L.J. 461, at p. 480). [29] I am aware of several appellate courts having resisted recognizing a labour arbitrator’s jurisdiction in human rightsdisputes as exclusive, on the basis that the exclusivity model developed in Weber has no application where the competing tribunal is astatutory body. In A.T.U., Local 583 v. Calgary (City), 2007 ABCA 121, 75 Alta.

L.R. (4th) 75, for example, the Court of Appeal ofAlberta reasoned: The legislative intent in enacting labour relations regimes and creating arbitration procedures must be respected. In my view, however, itis unwise simply to import the principles developed in cases involving a contest between the courts and arbitration, including theinherent preference for the exclusive jurisdiction of arbitrators often apparent in those cases, into a situation where the court mustconsider two statutory regimes. In the latter situation there are two legislative intents to consider, not one.

If we were to accept exclusivejurisdiction as a starting point, we would run the risk of giving the jurisdictional advantage to one statutory tribunal over another andthereby reducing the efficacy of the second statutory regime. [para. 23] (See also Calgary Health Region v. Alberta (Human Rights & Citizenship Commission), 2007 ABCA 120, 74 Alta. L.R. (4th) 23, atparas. 25-30; Human Rights Commission (N.S.) v.

Halifax (Regional Municipality), 2008 NSCA 21, 264 N.S.R. (2d) 61, at paras. 45-46.) [30] To the extent this passage from A.T.U. suggests that exclusive arbitral jurisdiction is a mere “preference” that shouldbe disregarded wherever a competing statutory scheme is present, I see the matter differently. As I read this Court’s jurisprudence, theunavoidable conclusion to be drawn is that mandatory dispute resolution clauses like those considered in St.

Anne Nackawic, Weber andMorin signal a legislative intention to confer exclusive jurisdiction on the labour arbitrator (or other dispute resolution forum providedfor under the agreement). This is not a judicial preference, but an

interpretation of the mandate given to arbitrators by statute. The textand purpose of a mandatory dispute resolution clause remains unchanged, irrespective of the existence or nature of competing regimes,and its

interpretation must therefore also remain consistent. [31] This conclusion is consistent with the concern expressed in Vavilov for predictability, finality and certainty in respectof jurisdictional lines between competing tribunals. Conditioning the effect of a mandatory dispute resolution clause on the nature of thecompeting forum would result in persistent jurisdictional confusion, leaving members of the public unsure “where to turn in order toresolve a dispute” (para. 64).

Affirming that the same principles apply in every context avoids this state of affairs. [32] That said, it remains necessary to consider whether the competing statutory scheme demonstrates an intention todisplace the arbitrator’s exclusive jurisdiction. In some cases, it may enact a “complete code” that confers exclusive jurisdiction overcertain kinds of disputes on a competing tribunal, as it did in Regina Police (see also J.-A. Pickel, “Statutory Tribunals and theChallenges of Managing Parallel Claims”, in E. Shilton and K. Schucher, eds., One Law for All?

Weber v Ontario Hydro and CanadianLabour Law: Essays in Memory of Bernie Adell (2017), 175, at pp. 184-87). In other cases, the legislation may endow a competingtribunal with concurrent jurisdiction over disputes that would otherwise fall solely to the labour arbitrator for decision. And where thelegislature so provides, courts must respect that intention. [33] What Morin indicates, however, is that the mere existence of a competing tribunal is insufficient to displace labourarbitration as the sole forum for disputes arising from a collective agreement.

Consequently, some positive expression of the legislature’swill is necessary to achieve that effect. Ideally, where a legislature intends concurrent jurisdiction, it will specifically so state in thetribunal’s enabling statute. But even absent specific language, the statutory scheme may disclose that intention.

For example, somestatutes specifically empower a decision-maker to defer consideration of a complaint if it is capable of being dealt with through thegrievance process (see, e.g., Human Rights Code, R.S.B.C. 1996, c. 210, s. 25; Canada Labour Code, ss. 16(l.1) and 98(3); CanadianHuman Rights Act, R.S.C. 1985, c. H-6, ss. 41 and 42). Such provisions necessarily imply that the tribunal has concurrent jurisdictionover disputes that are also subject to the grievance process.

In other cases, the provisions of a statute may be more ambiguous, but thelegislative history will plainly show that the legislature contemplated concurrency (see, e.g., Canpar Industries v. I.U.O.E., Local 115,2003 BCCA 609, 20 B.C.L.R. (4th) 301). In these circumstances, applying an exclusive arbitral jurisdiction model would defeat, notachieve, the legislative intent. [34] In saying this, I acknowledge that, absent “express and unequivocal language” to the contrary, human rightslegislation prevails over all other enactments in the event of a conflict (Insurance Corp. of British Columbia v.

Heerspink, (SCC), [1982] 2 S.C.R. 145, at p. 158). In some cases, appellate courts have concluded that by virtue of this paramount status, expresslanguage is required to oust the jurisdiction of a human rights tribunal (Halifax, at paras. 63-73; Cadillac Fairview Corp. v. HumanRights Commission (Sask.) (1999), (SK CA), 177 Sask. R. 126 (C.A.); Ford Motor Co. of Canada Ltd. v. Ontario(Human Rights Commission) (2001), (ON CA), 209 D.L.R. (4th) 465 (Ont. C.A.) (“Naraine”), at para. 47). Whetherthat is so I need not decide here.

But in light of the jurisprudence of this Court which I have recounted, I am of the view that the inclusionof a mandatory dispute resolution clause in a labour relations statute must qualify as an explicit indication of legislative intent to oust theoperation of human rights legislation. [35] Even were it otherwise, the human rights legislation that applies in this case merely provides that “the substantiverights and obligations in this Code are paramount over the substantive rights and obligations in every other Act of the Legislature” (The

Human Rights Code, s. 58). This indicates that while the obligations are “paramount”, the procedures established by The Human RightsCode for enforcing them are not. This is entirely consistent with exclusive arbitral jurisdiction. (

b) Individual Rights, Collective Representation, and Access to Justice [36] The respondents argue that interpreting the arbitrator’s jurisdiction as exclusive with respect to human rights issuesraises access to justice concerns. This is because employees’ access to labour arbitration is controlled by their union. If a union declinesto advance a claim to arbitration, the employee is left without recourse (Naraine, at para. 62; A.T.U., at paras. 66-67).

This is said to beparticularly undesirable since human rights are “quintessentially individual rights, and their enforcement should lie within the control ofthe rights holder” (Shilton, “Choice, but No Choice”, at p. 502).

The answer to this concern is, however, governed by Weber, inasmuchas this Court placed control over unionized workers’ ability to advance workplace-related Charter claims — most of which relate no lessto “quintessentially individual rights” — in the hands of labour unions. [37] Furthermore, this concern is mitigated by the union’s duty of fair representation — codified in Manitoba in s. 20 ofThe Labour Relations Act — which “acts as a check on the principle of exclusivity” (C.

Mummé, “Questions, Questions: Has Weber Hadan Impact on Unions’ Representational Responsibilities in Workplace Human Rights Disputes?”, in Shilton and Schucher, One Law forAll?, 229, at p. 237). Unions themselves are also subject to human rights obligations and may be held directly liable under human rightslegislation for engaging in discriminatory conduct, including entering into a discriminatory agreement (The Human Rights Code, s. 14;Central Okanagan School District No. 23 v.

Renaud, (SCC), [1992] 2 S.C.R. 970, at pp. 989-94). [38] Of course, there will be instances of a union declining to advance a grievance to arbitration without breaching its dutyof fair representation or engaging in discrimination. And, in such cases, the employee will indeed be left without a forum for resolution.But this state of affairs — which, it bears restating, can be undone by clearly expressed legislative intent to the contrary — is a product ofthe union’s statutorily granted monopoly on representation (Bisaillon, at paras. 24-28; Noël v.

Société d’énergie de la Baie James, 2001SCC 39, [2001] 2 S.C.R. 207, at para. 41). In other words, it is a product of legislative choice, to which we are bound to give effect. (

c) Summary [39] To summarize, resolving jurisdictional contests between labour arbitrators and competing statutory tribunals entails atwo-step analysis. First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and,if so, over what matters (Morin, at para. 15).

Where the legislation includes a mandatory dispute resolution clause, an arbitratorempowered under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearlyexpressed legislative intent to the contrary. [40] If at the first step it is determined that the legislation grants the labour arbitrator exclusive jurisdiction, the next stepis to determine whether the dispute falls within the scope of that jurisdiction (Morin, at paras. 15 and 20; Regina Police, at para. 27).

Thescope of an arbitrator’s exclusive jurisdiction will depend on the precise language of the statute but, in general, it will extend to alldisputes that arise, in their essential character, from the

interpretation, application, or alleged violation of the collective agreement. Thisrequires analysing the ambit of the collective agreement and accounting for the factual circumstances underpinning the dispute (Weber,at para. 51). The relevant inquiry is into the facts alleged, not the legal characterization of the matter (Weber, at para. 43; Regina Police,at para. 25; Quebec (Attorney General) v.

Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223 (“Charette”), atpara. 23). [41] Where two tribunals have concurrent jurisdiction over a dispute, the decision-maker must consider whether toexercise its jurisdiction in the circumstances of a particular case. For the reasons given below, concurrency does not arise in this case. Iwould therefore decline to elaborate here on the factors that should guide the determination of the appropriate forum. [42] Bearing these general principles in mind, I turn to the facts of this case.

(2) Application (

a) The Statutory Scheme [43] Two statutes are relevant here. First, as already noted, The Labour Relations Act contains a mandatory disputeresolution clause, which states: 78(1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise,of all differences between the parties thereto, or persons bound by the agreement or on whose behalf it was entered into, concerning itsmeaning, application, or alleged violation.

In this case, the parties chose grievance arbitration as the sole dispute resolution mechanism (“Collective Agreement between: CanadianUnion of Public Employees, Local 8600 and Nor-Man Regional Health Authority Inc.”, April 1, 2008, to March 31, 2012, arts. 10 and11, reproduced in A.R., vol. II, at pp. 19-22). That method is binding on the parties (s. 78(4)). [44] Like the mandatory dispute resolution clauses at issue in St. Anne Nackawic, Weber, Regina Police, and Morin, thepurpose of s. 78 is to channel all disputes arising from the collective agreement into a single forum for resolution.

Like those clauses, itdiscloses a legislative intent to grant exclusive jurisdiction to the labour arbitrator (or other decision-maker chosen by the parties) over alldisputes arising from the collective agreement. [45] The second relevant statute here, The Human Rights Code, provides that “[a]ny person may file . . . a complaintalleging that another person has contravened this Code” (s. 22(1)), and directs the Commission to investigate such complaints (s. 26).Where such investigation leads the Commission to conclude that “additional proceedings in respect of the complaint would further theobjectives of this Code or assist the Commission in discharging its responsibilities under this Code”, it must either request thedesignation of an adjudicator to hear the complaint or recommend that the minister commence a prosecution for an alleged contravention

of the Code (s. 29(3)). While such provisions vest broad jurisdiction in the Commission over Code violations, they are — absent expressdisplacement of the exclusive jurisdiction of a labour arbitrator established by the mandatory arbitration clause — insufficient to supporta finding that the Commission holds concurrent jurisdiction here. [46] I would therefore conclude that the arbitrator’s jurisdiction under The Labour Relations Act over claims that arise, intheir essential character, from the

interpretation, application, or alleged violation of the collective agreement is exclusive and, moreparticularly, exclusive of the Commission. (

b) The Essential Character of the Dispute [47] Having recognized the arbitrator’s exclusive jurisdiction over disputes whose essential character arises from theinterpretation, application or alleged violation of the collective agreement between the NRHA and Ms. Horrocks’ union, it remains forme to consider whether the essential character of Ms. Horrocks’ complaint filed with the Commission represents such a dispute. In myview, it does. [48] This dispute concerns the NRHA’s response to Ms.

Horrocks’ attendance at work under the influence of alcohol,which response included requiring that she sign an abstinence agreement and, after she breached that agreement, terminating heremployment. The NRHA says that these steps were necessary to protect its patients. Ms.

Horrocks says that other options were availableto accomplish the NRHA’s objective. [49] The collective agreement includes a management rights clause, which entitles the employer to maintain quality patientcare; to discipline, suspend, or discharge employees for just cause; and to make, alter, and enforce rules and regulations in a manner thatis fair and consistent with the terms of the agreement (art. 301). These rights are expressly limited by a prohibition on discriminationunder art. 6 of the collective agreement.

They are also implicitly limited by the terms of employment-related statutes (Parry Sound, atpara. 26; McLeod v. Egan, (SCC), [1975] 1 S.C.R. 517, at p. 523), including the prohibition on discrimination under s. 7of The Labour Relations Act. [50] In its essential character, then, Ms. Horrocks’ complaint is that her employer exercised its management rights in a waythat was inconsistent with their express and implicit limits. This complaint arises foursquare from the NRHA’s exercise of its rightsunder, and from its alleged violation of, the collective agreement. While the claim invokes Ms.

Horrocks’ statutory rights, those rightsare “too closely intertwined with collectively bargained rights to be sensibly separated” and cannot be “meaningfully adjudicated . . .except as part of a public/private package that only a labour arbitrator can deal with” (E. Shilton, “Labour Arbitration and Public RightsClaims: Forcing Square Pegs into Round Holes” (2016), 41 Queen’s L.J. 275, at p. 309). On the authority of this Court’s precedents, theinescapable conclusion is that Ms.

Horrock’s claim therefore falls solely to the arbitrator to adjudicate. [51] The adjudicator, I observe, sought to escape the inescapable by describing the essential character of the dispute as“aris[ing] from an alleged violation of the complainant’s human rights and not out of the ‘interpretation, application, administration orviolation of the collective agreement”’ (MBHR reasons, at para. 110; see also Weber, at para. 52). Respectfully, the adjudicator’s errorhere was to do what Weber directs not to do, by focussing on the legal characterization of Ms.

Horrocks’ claim instead of on “whetherthe facts of the dispute fall within the ambit of the collective agreement” (para. 44). It is of course true that Ms. Horrocks alleges ahuman rights violation. But were that sufficient to displace the exclusive jurisdiction of the labour arbitrator, exclusive arbitraljurisdiction would be significantly undermined, because every human rights complaint would automatically fall within the jurisdiction ofthe human rights adjudication system.

Again, what matters are the facts of the complaint, not the legal form in which the complaint isadvanced. [52] Moreover, our jurisprudence makes clear that the mere allegation of a human rights violation does not bring a disputewithin the jurisdiction of a human rights tribunal. In Charette, for example, the complainant, having been denied social assistancebenefits while on maternity leave, alleged that the benefits scheme discriminated against her on the basis of pregnancy.

Under therelevant legislation, the Commission des affaires sociales (“CAS”) held exclusive jurisdiction to apply and interpret the benefits scheme.This Court found that, notwithstanding the allegation of discrimination, the essential character of the dispute was Ms. Charette’sentitlement to benefits, which fell within the CAS’s exclusive jurisdiction. In concurring reasons, Binnie J. cited to Weber, cautioningthat “one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute” (para. 37, quoting Weber, atpara. 49).

In the context of the case, he found that the “wrong” was legally characterizable as “the subject matter of a Chartercomplaint”, while the “facts giving rise to the dispute” were “the Minister’s discontinuance of an income security benefit, andMs. Charette’s claim to get it back under an administrative scheme that the legislature in plain words has channelled directly to the CAS”(para. 37). [53] Similarly, in Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, a House of Commonsemployee argued that he was constructively dismissed as a result of workplace harassment and discrimination.

The Court held that theallegation of a human rights violation “does not automatically steer the case to the Canadian Human Rights Commission” (para. 93).Looking at the facts underpinning the complaint, the Court found nothing “to lift these complaints out of their specific employmentcontext” (para. 94). It confirmed: “A grievance that raises a human rights issue is nevertheless a grievance for purposes of employmentor labour relations . . .” (para. 95). [54] In my respectful view, the Court of Appeal similarly fell into error in describing the essential character of the dispute.Ms.

Horrocks, it said, “sever[ed]” her claim relating to discipline and discharge from her claim relating to discrimination: The essential character of the dispute raised in the complaint to the Commission must be examined in light of the factual context,particularly the absence of a grievance of the second termination. This was not a case of forum shopping. Rather than hedging her bets,by not grieving her second termination, the complainant made a choice to sever her claims relating to discipline and discharge from herclaim relating to discrimination on the basis of alcohol dependency.

By doing so, she abandoned her rights under the collectiveagreement to just cause protection, the grievance procedure and union representation (see Paterno v. Salvation Army, Centre of Hope,2011 HRTO 2298 (Ont. Human Rights Trib.), at para. 33). She also gave up any right to challenge the second termination in terms of her

discipline and dismissal, given that in Manitoba only a labour arbitrator can decide issues of whether there was just cause to dismiss an employee who was subject to a collective agreement. [para. 80] This reveals a misunderstanding of what constitutes the “factual context” of a claim. The relevant facts are only those leading to the dispute. The procedures chosen by a claimant to resolve the dispute have no relevance.

Much like the analysis of the adjudicator, the Court of Appeal’s understanding would allow a claimant to circumvent the arbitrator’s exclusive jurisdiction by opting to proceed in a different forum. [ 55 ] The Court of Appeal also found that Ms. Horrocks’ complaint “transcends” the collective agreement and is, therefore, “not in the exclusive jurisdiction of a labour arbitrator to decide” (para. 85).

It explained: . . . the expected standards of accommodating workers with an alcohol or drug dependence should not depend on the nature of a particular collective agreement or the prudence of a particular employer where a workplace is not subject to a collecti

[…]