Open Question of Jurisdictional Boundaries of Labour Arbitrators and Human Rights Tribunals Makes Its Way to the Supreme Court of Canada

Written by Lewis Waring, Paralegal, Student-at-law, Editor, First Reference Inc.

Effects of unionization on the employment relationship

Unions have a variety of significant effects on the employment relationship and greatly affect the rights and obligations of employers and employees. The repercussions of unionization are so significant that the law surrounding unionized workplaces is considered to be an entirely distinct area of law from law surrounding non-unionized workplaces.

One such difference related to unionization is the legal path workers are allowed to take when confronted with a human rights issue in the workplace. In such a case, a non-unionized worker could pursue a claim at a human rights tribunal or else at the civil court. Unionized workers, on the other hand, would only be permitted to resolve their human rights issue in arbitration. In other words, whereas non-unionized workers lack the ability to address issues with the backing of a worker-based institution, unionized workers may lack the ability to address issues without that institution.

Whether a unionized worker can or cannot pursue a legal claim outside of arbitration as negotiated in their collective agreement is a problem of jurisdiction. That is when a unionized employee wishes to pursue a legal claim against his or her employer, a question of who has jurisdiction to hear that claim arises. For example, if a unionized employee is discriminated against in the workplace, is he or she allowed to file an application for discrimination in a human rights tribunal or is she restricted to filing a grievance with her union and pursuing arbitration?

More times than not, the answer to that question is that labour arbitrators have jurisdiction whereas tribunals and civil courts do not. However, where the exact boundaries of jurisdiction between labour arbitrators and courts and tribunals lie is not always perfectly clear. On the contrary, recent case law has shown that this issue of the jurisdictional boundaries between labour arbitrators and tribunals or courts is very much still an open question of law throughout Canada.

Jurisdiction and the “essential character” of a dispute

The question of who has jurisdiction in any individual case is answered by determining the “essential character” of a dispute, which can be loosely understood as the hearing’s main issue. In some cases, determining a case’s essential character might be straightforward. For example, if a unionized employee is subjected to consistent racially motivated verbal harassment by a superior in the workplace, it is likely that a human rights tribunal or civil court would have jurisdiction. On the other hand, if a unionized employee is dismissed without notice, a resulting claim would likely be under the jurisdiction of a labour arbitrator.

Jurisdiction becomes more complicated when a case involves multiple aspects. For example, when a unionized employee is dismissed without sufficient notice and that dismissal is motivated by racism, elements of discrimination and of worker rights co-exist. It is cases which involve both worker rights as well as discrimination or harassment which commonly result in questions of jurisdiction for unionized employees.

Northern Regional Health Authority v Manitoba Human Rights Commission

On February 27, 2020, the Supreme Court of Canada (“SCC”) granted leave to appeal from a judgment of the Court of Appeal of Manitoba (“MBCA”), Northern Regional Health Authority v Manitoba Human Rights Commission, 2017 MBCA 98 (“Northern Regional”). The history of this case before it was granted leave to appeal by the SCC began at the Manitoba Human Rights Commission (“Commission”). At a general level, a unionized employee had filed a complaint of discrimination with the Commission after being dismissed by her employer. In the hearing, the Commission’s Chief Adjudicator found that the Commission had jurisdiction to hear the case based upon the “essential character” of the dispute, which it determined to be a violation of a provision of Manitoba’s The Human Rights Code, CCSM c H175 (“Code”).

The Northern Regional Health Authority (“NRHA”) appealed the Commission’s decision to the Manitoba Court of Queen’s Bench (“MBQB”) on the issue of jurisdiction. The MBQB overturned the Commission’s finding, deciding that the essential character of the dispute was “whether there was just cause to terminate the complainant’s employment (at para 4)”-an issue within the exclusive jurisdiction of labour arbitrators.

The MBQB’s decision was then appealed by the Commission and the employee to the Court of Appeal of Manitoba (“MBCA”). The MBCA overturned the MBQB’s finding and reinstated the Commission’s decision on the question of jurisdiction. That is, the MBCA found that the MBQB “erred in overturning the Chief Adjudicator’s determination as to the essential character of the dispute (at para 5).” However, the MBCA came to this decision after disagreeing with the Commission’s view of its jurisdiction. The Commission had argued that it had jurisdiction to hear a case involving a dismissal for cause motivated by discrimination. The MBCA disagreed, holding that cases involving dismissal for cause, even when motivated by Code discrimination, were under the exclusive jurisdiction of labour arbitrators.

However, the MBCA found that by filing a claim with the Commission instead of pursuing a claim in arbitration, the employee had decided to give up her opportunity to pursue a claim related to her dismissal. That is, the employee had unknowingly decided to file a claim merely related to discrimination under the Code-severed from any claim she might have had for wrongful dismissal.

Leave to appeal

The SCC has discretion as to whether it will hear any given case, with an exception in certain criminal cases and appeals from opinions pronounced by courts of appeal on matters referred to them by a provincial government. The SCC normally grants leave to appeal when it feels the issues in the case are a matter of national importance. Thus, the fact that the SCC has granted leave to appeal to Northern Regional tells us that the Court believes the issue of the jurisdictional boundaries between labour arbitrators and human rights tribunals is a matter of national importance.


As of this date, the MBCA’s decision in Northern Regional is yet to be heard by the SCC. As such, the question of whether any of the lower courts’ analyses are correct in full or in part is currently unknown. However, the back-and-forth quality of the decisions made as Northern Regional has made its way through Canada’s system of justice is a great example of the nature of Canada’s common law legal system. In a system where judges take an active role in interpreting the law, it is not uncommon for an issue to be decided in a number of ways by different courts. The final word on issues is always given by the SCC and so, in moments like this, employers, employment lawyers, labour arbitrators, human rights tribunals and adjudicators alike are unable to definitively know what the law in Canada will ultimately be once a decision is reached. For this reason, employers are advised to stay in touch with legal developments in the common law, as the rules of employment in Canada are dynamic and subject to change.


  1. I didn’t spot this article when it was posted but I am very pleased to have found it now as I am looking closely at the problem presented by a completely unregulated profession – labour arbitrators – having such extensive powers.

    There has been in my view for a very long time a high stakes game afoot. The consequences include litigation that goes on interminably and at great cost, borne both by the public and the individuals (e.g. the grievors) caught up in these games.

    I doubt very much that the record of the SCC is one of finding real solutions.

    One thing that needs to be done is put in place serious constraints on those who offer private adjudication services. That these issues have been the subject of considerable debate in the past is evidenced by something I’ve just found written by a still sitting judge of Alberta’s Court of Appeal, Sheila Greckol, when she was a lawyer with a labour law firm. “The Jurisdiction of Labour Arbitrators: The Debate Continues” is found here – . That was written over twenty years ago.

  2. Wow! How lovely! I have troubled by ‘unregulated’ labour arbitration with making/ruining a union member’s life such as Chris Budgell mentioned ‘a completely unregulated profession – labour arbitrators – having such extensive powers’! I went to my provincial Ministry of Labour to inquire about lack of regulation. I was told that Labour Arbitrators are ‘free lance’. And their powers are given by LRA. When the grievance is pure CA (wage, overtime, sick leave etc.) it won’t kill a member; whereas when Human Rights and discriminations are at question (a statutory rights), it can truly kill. The root of the problems is that Statutory Rights arbitration mandate Procedural Fairness, by Natural Justice (on “The principles of natural justice exist as a safeguard for individuals in their interactions with the state. These principles stipulate that whenever a person’s “rights, privileges or interests” are at stake, there is a duty to act in a procedurally fair manner”.
    It’s time to correct LRA, with specific rules for Statutory rights grievance for labour arbitration. Or move this types of grievance out of labour arbitration.

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