Concurrent Jurisdiction Upheld in Human Rights Case

Written by Daniel Standing, LL.B., Editor, First Reference Inc.

“I can’t hear you!”

When a litigant hears this from a court, tribunal or other decision maker, it either means that someone needs to speak up, or there is a problem with jurisdiction. Difficulties of the first variety are easy to fix, while those in the second category can be insurmountable. In the labour world, complainants sometimes appear to have more than one forum at their disposal, and while sometimes this is the case, it isn’t always, and the consequences of choosing the wrong one can be costly. In a recent decision (2022 CanLII 40804) on the subject, a New Brunswick human rights board of inquiry distilled the Supreme Court’s jurisprudence and concluded that it had jurisdiction to hear the complaint, loud and clear.

Background

The case concerned a challenge to the age-based retirement policy at a university. The employee was an administrative assistant who, when she turned 65 in June 2017, was told that she had to retire that year because of a provision in the collective agreement requiring it. Convinced that she was the victim of age-based discrimination, she filed a human rights complaint, naming both the university and her union as respondents for having jointly negotiated the mandatory retirement rule. The Commission appointed an investigator, leading to the determination that there was an arguable case. As a final step, it appointed a Board of Inquiry to hear the matter and grant a remedy, if necessary.

The path forward hit a snag, however, when the university made a preliminary objection based on jurisdiction, arguing that a grievance under a collective agreement was the proper avenue for airing the complaint because of labour arbitrators’ exclusive jurisdiction over such matters.

The Board’s decision

The outcome of the objection turned on the Board’s application of the principle of “exclusive jurisdiction” set out by the Supreme Court in the Weber, Morin and Horrocks cases. Very briefly, the exclusive jurisdiction model of labour relations is one where disputes arising out of the application, violation, enforcement or interpretation of collective agreements are heard only by labour arbitrators. Practically, this means that courts and other tribunals cannot hear these matters. They lack jurisdiction over them.

As the Board noted, the exclusive jurisdiction model (like any rule), has exceptions. We know from the 2021 Horrocks decision that exclusive jurisdiction only applies when the dispute either “expressly or inferentially” arises out of the collective agreement. Making that determination requires the decision maker to dig below the surface and, instead of accepting a litigant’s characterization of an issue at face value, base their decision on their assessment of the nature of the facts in dispute. A judge stated that the relief a party claims can sometimes be a clue as to the dispute’s “essential character.”

The Board also relied on Morin (affirmed in Horrocks), a decision in which the Supreme Court held that overlapping or concurrent jurisdiction is possible, but again, it depends on the legislation and the nature of the dispute. As a matter of interpretation, given that the exclusive jurisdiction model is said to be a “foundational pillar” of modern labour relations, legislation must provide for an express intent that more than one forum applies for it to be relied on to that effect. Importantly, Morin also provided an exception to the general rule: concurrent jurisdiction could arise when the dispute arises from the negotiation or inclusion of an allegedly discriminatory clause in an agreement.

First, looking closely at the legislation in play, the Board noted that the New Brunswick Human Rights Act gives the Commission discretion to dismiss a complaint if it determines that it “has already been dealt with in another proceeding.” This wording, said the Board, implicitly recognizes a concurrent jurisdiction with arbitrators where a human rights issue is also subject to a grievance.

On the chance it was wrong on this point, the Board also examined the essential nature of the dispute to see if the complaint fell within the scope of the Morin human rights exception. While UNB attempted to distinguish Morin based on multiple factors, the Board could not ignore what it said was the most compelling similarity to the present case: the complainants in both matters challenged the negotiation and inclusion of an alleged discriminatory provision in the collective agreement.

According to the Board, the essential nature of the dispute fell outside the scope of the collective because it arose from the negotiation of the contract. (Recall the list of things that “exclusive jurisdiction” applied to in relation to a collective agreement? Negotiation wasn’t among them.) The Board determined the case fell outside the exclusive jurisdiction of an arbitrator, who would have no legal ability to determine if the negotiation process itself was discriminatory. Additionally, the Board reasoned, the complainant sought a remedy against the union, something an arbitrator would be powerless to award if a grievance was filed by the union on the employee’s behalf. All of this led to the Board’s conclusion that it was the best forum to decide the matter, and, if necessary, to grant appropriate remedies.

Takeaways

The Supreme Court said it best in Horrocks when it wrote that exclusive jurisdiction was a matter of public policy necessity: If people could choose where to turn for dispute resolution, we would be left with “persistent jurisdictional confusion.” This Board decision perfectly illustrates the exception to the rule: when someone alleges a human rights violation resulted from the negotiation of an agreement, there can be concurrent jurisdiction.

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