The Grievance Process & Human Rights Remedies
The issue may arise as to whether a unionized worker is obliged to use the grievance process to submit a human rights complaint, and not permitted to access the human rights administrative process. There is no issue that a labour arbitrator has the jurisdiction to hear grievances asserting human rights violations in the workplace.
The issue is whether this jurisdiction is exclusive.
The Supreme Court of Canada considered this issue in a 2021 decision which originated in Manitoba. “Horrocks” 1
The employee had been suspended for attending work under the influence of alcohol. She then disclosed her addiction and further refused to enter into a “last chance agreement” by which she would agree to abstain and engage in treatment.
The employer terminated. She then grieved which resulted in a settlement agreement which allowed for reinstatement on similar terms to the last chance proposal.
Following this event, the employer again terminated, alleging a breach of this agreement. She then brought the human rights complaint.
The complaint succeeded.
One of the employer’s defences before the Human Rights Commission was that the Commission lacked jurisdiction and that the employee was mandated to use the grievance procedure.
The earlier Supreme Court of Canada decision in Weber v Ontario Hydro allowed for exclusive jurisdiction to the grievance process for any workplace dispute.
In addition, generally speaking, labour relations statutes across Canada mandate that every collective agreement contain a term which requires all issues regarding the interpretation and application of the collective agreement be determined exclusively by the grievance process.
In this instance, the human rights adjudicator disagreed with this submission, held the hearing and found in favour of the complainant.
On first review, the court concluded that the essential issue was whether the employer had just cause to terminate and hence, such an issue, including any related human rights violation, must proceed through the grievance process.
The Manitoba Court of Appeal agreed with this analysis, yet maintained that the human rights adjudicator still had jurisdiction for these reasons:
- The employee “made a choice to sever” the employment and human rights issues of her case by not grieving; and
- “The discrimination claim raised issues that “transcend[ed]” the specific employment context, because an employer’s accommodation of an employee’s alcohol dependency is “larger than the specifics of what occurred in the employment relationship” (para. 85); and
- The union was not supporting the grievance, which would hence deny her a remedy.
The Supreme Court of Canada concluded that the matter was indeed within the exclusive jurisdiction of the grievance process and denied the complainant the right to proceed by the human rights process.
What is more important is the reasoning used by the court.
The question, this Court concluded, was whether the relevant statutes, these being the Labour Relations Act and the Human Rights legislation expressed clearly “legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes”.
The analysis, the Supreme Court, stated was a two step process. The first issue is whether the relevant statutes allow the arbitrator exclusive jurisdiction:
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 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.
Should this be the case, then the second question is whether the dispute comes within the ambit of this legislation.
[40] If at the first step it is determined that the legislation grants the labour arbitrator exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction (Morin, at paras. 15 and 20; Regina Police, at para. 27). The scope of an arbitrator’s exclusive jurisdiction 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 (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”), at para. 23).
Should there be concurrent jurisdiction, the decider must assess whether to take jurisdiction in the context of the case.
The Court then examined the two Manitoba statutes, the Labour Relations Act and the Human Rights Code.
The first contained the typical mandatory grievance process for all workplace disputes.
The issue then became whether the human rights statute contemplated concurrent jurisdiction, which it concluded, did not:
The second relevant statute here, The Human Rights Code, provides that “[a]ny person may file . . . a complaint alleging 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 the objectives of this Code or assist the Commission in discharging its responsibilities under this Code”, it must either request the designation 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 express displacement of the exclusive jurisdiction of a labour arbitrator established by the mandatory arbitration clause — insufficient to support a finding that the Commission holds concurrent jurisdiction here.
For these reasons, the human rights forum lacked jurisdiction and was dismissed.
This decision has been applied to date in several jurisdictions, with varying results.
New Brunswick has determined that there is concurrent jurisdiction. 2
Nova Scotia has come to the same conclusion, 3 as has Newfoundland & Labrador. 4
Alberta is not a direct access system. The Director may decide to refuse the complaint, a decision which may be reviewed by the Chief, whose conclusion may be again subject to judicial review.
The statute allows a complaint to be dismissed, if the complaint, or any part of it:
“is being, has been, will be or should be more appropriately dealt with in another forum or under another Act.”
The substantive decisions have denied access to the human rights process, given access to the grievance process.
The leading case on this issue is Grewal v Sofina Foods in which the general principle is firmly stated:
Accordingly, where human rights issues arise out of a dispute under a collective agreement that permits adjudication of human rights issues and where the complainant filed a grievance, the screening decisions should seriously consider the dismissal discretion under sections 21(1)(a)(iv) or 21(2)(iii) of the Act because the complaint is being, has been, will be or should be more appropriately dealt with in another forum or under another Act. In short, where there is a collective agreement that addresses human rights issues, grievance arbitration will usually be the more appropriate forum.
Alberta will allow the complaint to the Human Rights Commission, however, in exceptional circumstances. Such exceptions have yet to be defined. Caselaw has stated that these will be rare, so rare that none have been allowed to date.
The Supreme Court of Canada in Horrocks did note that the British Columbia statute and the federal Human Rights Act were examples of statutory schemes which specifically contemplated concurrent jurisdiction. B.C. cases have yet to confirm this.
The Canadian Human Rights Tribunal has accepted concurrent jurisdiction. 5
Ontario has also accepted the principle that there is concurrent jurisdiction. In a Divisional Court decision in 2024, it also noted that typically the Human Rights adjudicator would defer a complaint brought before it where there is an ongoing arbitral process. 6
In exceptional circumstances, it may be possible for the Tribunal to take jurisdiction, even where there is a pending grievance. This was the conclusion in Diver v Simcoe Muskoka Family Connections, in which the union was unwilling to proceed to arbitration because the complainant was on sick leave and that the human rights complaint raised other issues not contained in the grievance. Diver was decided prior to the Supreme Court of Canada decision in Horrocks.