S.C.C. File No. 37878 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF MANITOBA) BETWEEN: NORTHERN REGIONAL HEALTH AUTHORITY Appellant (Respondent) - AND - MANITOBA HUMAN RIGHTS COMMISSION and LINDA HORROCKS Respondents (Appellants) - AND - ATTORNEY GENERAL OF BRITISH COLUMBIA, DON VALLEY COMMUNITY LEGAL SERVICES, CANADIAN ASSOCIATION OF COUNSEL TO EMPLOYERS (CACE), CANADIAN HUMAN RIGHTS COMMISSION, BRITISH COLUMBIA COUNCIL OF ADMINISTRATIVE TRIBUNALS, EMPOWERMENT COUNCIL Interveners FACTUM OF THE RESPONDENT, MANITOBA HUMAN RIGHTS COMMISSION (Pursuant to Rules 38 and 42 of Rules of the Supreme Court of Canada) MLT AIKINS LLP 30th Floor, 360 Main Street Winnipeg, MB R3C 4G1 Thor J. Hansell Shea T. Garber Tel: (204) 957-4694 Fax: (204) 957-4270 GOWLING WLG (CANADA) LLP Barristers & Solicitors 2600 – 160 Elgin Street Ottawa, ON K1P 1C3 D. Lynne Watt Tel: (613) 786-8695 Fax: (613) 788-3509
Transcript
S.C.C. File No. 37878
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF MANITOBA)
BETWEEN:
NORTHERN REGIONAL HEALTH AUTHORITY
Appellant (Respondent) - AND -
MANITOBA HUMAN RIGHTS COMMISSION and LINDA HORROCKS
Respondents (Appellants)
- AND -
ATTORNEY GENERAL OF BRITISH COLUMBIA, DON VALLEY COMMUNITY LEGAL SERVICES, CANADIAN ASSOCIATION OF COUNSEL TO EMPLOYERS (CACE), CANADIAN HUMAN RIGHTS COMMISSION, BRITISH COLUMBIA COUNCIL OF ADMINISTRATIVE TRIBUNALS, EMPOWERMENT COUNCIL
Interveners
FACTUM OF THE RESPONDENT,
MANITOBA HUMAN RIGHTS COMMISSION (Pursuant to Rules 38 and 42 of Rules of the Supreme Court of Canada)
MLT AIKINS LLP 30th Floor, 360 Main Street Winnipeg, MB R3C 4G1 Thor J. Hansell Shea T. Garber Tel: (204) 957-4694 Fax: (204) 957-4270
GOWLING WLG (CANADA) LLP Barristers & Solicitors 2600 – 160 Elgin Street Ottawa, ON K1P 1C3 D. Lynne Watt Tel: (613) 786-8695 Fax: (613) 788-3509
Counsel for the Respondent, Manitoba Human Rights Commission
Email: [email protected] Ottawa Agent for Counsel for the Respondent, Manitoba Human Rights Commission
PITBLADO LLP 2500-360 Main Street Winnipeg, MB R3C 4H6 William S. Gardner Q.C. Robert A. Watchman Todd C. Andres Tel: (204) 956-0560 Fax: (204) 957-0227 Email: [email protected]
Counsel for the Appellant, Northern Health Regional Authority
SUPREME ADVOCACY LLP 100- 340 Gilmour Street Ottawa, ON K2P 0R3 Marie-France Major Tel: (613) 695-8855 Ext: 102 Fax: (613) 695-8580 Email: [email protected] Ottawa Agent for Counsel for the Appellant, Northern Regional Health Authority
CHAMP & ASSOCIATES 43 Florence Street Ottawa, ON K2P 0W6 Paul Champ Bijon Roy Tel: (613) 237-4740 Fax: (613) 232-2680 Email: [email protected][email protected] Counsel for the Respondent, Linda Horrocks
ATTORNEY GENERAL OF BRITISH COLUMBIA Ministry of Attorney General Legal Services Branch 1301-865 Hornby Street
GIB VAN ERT LAW 148 Third Avenue Ottawa, Ontario K1S 2K1
Vancouver BC V6Z 2G3 Robert Danay Tel: (604) 775-7499 Fax: (604) 666-6258 Counsel for the Intervener, Attorney General of British Columbia
Gib Van Ert Tel: (613) 408-4297 Fax: (613) 651-0304 Email: [email protected] Ottawa Agent for Counsel for the Intervener, Attorney General of British Columbia
MONKHOUSE LAW 220 Bay St. Suite 900 Toronto, Ontario M5J 2W4 Andrew Monkhouse Alexandra Monkhouse Busayo A. Faderin Tel: (416) 907-9249 Fax: 1- 888-501-7235 Email: [email protected][email protected][email protected] Counsel for the Intervener, Don Valley Community Legal Services
SUPREME LAW GROUP 900 - 275 Slater Street Ottawa, Ontario K1P 5H9 Moria S. Dillon Tel: (613) 691-1224 Fax: (613) 691-1338 Email: [email protected] Ottawa Agent for Counsel for the Intervener, Don Valley Community Legal Services
[email protected] Counsel for the Intervener, Canadian Association of Counsel to Employers
NORTON ROSE FULBRIGHT CANADA Suite 1500 45 O’Connor Street Ottawa, Ontario K1P 1A4 Matthew J. Halpin Tel: (613) 780-8654 Fax (613) 230-5459 Email: [email protected]
Ottawa Agent for the Intervener, Canadian Association of Counsel to Employers
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CANADIAN HUMAN RIGHTS COMMISSION Legal Services Division 344 Slater Street, 8th Floor Ottawa, ON K1A 1E1 Brian Smith Tel: (613) 943-9205 Fax: (613) 993-3089 Email: [email protected] Counsel for the Intervener, Canadian Human Rights Commission
CANADIAN HUMAN RIGHTS COMMISSION 344 Slater Street, 8th Floor Ottawa, ON K1A 1E1 Valerie Phillips Director and General Counsel Tel: (613) 943-9357 Fax: (613) 993-3089 Email: [email protected] Ottawa Agent for Counsel for the Intervener, Canadian Human Rights Commission
JFK LAW CORPORATION 340 – 1122 Mainland Street Vancouver, BC V6B 5LI Tim Dickson Oliver Pulleyblank Tel: (604) 687-0549 Fax: (604) 687-2696 Email: [email protected] Counsel for the Intervener, British Columbia Council of Administrative Tribunals
GOWLING WLG (CANADA) LLP 2600 – 160 Elgin Street Ottawa, ON K1P 1C3 Guy Régimbald Tel: (613) 786-0197 Fax: (613) 563-9869 Email: [email protected] Ottawa Agent for Counsel for the Intervener, British Columbia Council of Administrative Tribunals
KAREN R. SPECTOR Barrister & Solicitor 250 Yonge Street, Suite 2201 Toronto ON M5B 2L7 Karen R. Spector Tel: (416) 995-3477 Fax: (416) 855-9745 Email: [email protected] Counsel for the Intervener, Empowerment Council
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TABLE OF CONTENTS
Page
PART I: OVERVIEW AND STATEMENT OF FACTS 1
Overview 1
Statement of Facts 3
PART II: THE COMMISSION’S POSITION WITH RESPECT TO THE ISSUES IDENTIFIED BY THE APPELLANT
4
PART III: ARGUMENT 5
The test for drawing jurisdictional lines between administrative tribunals
5
The Chief Adjudicator had jurisdiction to determine the Complaint and did not overstep
8
What standard of review applies to the drawing of jurisdictional lines between two administrative tribunals?
25
Standard of review to be applied by an appellate court 27
Can an agreement between an employer, a union and an employee circumscribe the jurisdiction of an adjudicator appointed under the Code?
28
PART IV: SUBMISSIONS ON COSTS 32
PART V: ORDERS SOUGHT 32
PART VI: SUBMISSIONS ON CASE SENSITIVITY 32
PART VII: LIST OF AUTHORITIES 33
1
PART I – OVERVIEW AND FACTS
Overview
1. This appeal presents an opportunity for this Court to:
a) affirm or clarify the test for drawing jurisdictional lines between two statutory
tribunals/decision makers;
b) determine and/or clarify whether the human rights adjudicator in this case (the
“Chief Adjudicator”) had jurisdiction to hear and decide the complaint filed by the
Respondent Linda Horrocks (“Ms. Horrocks”) with The Manitoba Human Rights
Commission (the “Commission”);
c) clarify the standard of review to be applied by a reviewing judge to a decision of a
human rights adjudicator on the issue of drawing lines of jurisdiction as between
the Commission and another tribunal;
d) clarify the standard of review to be applied by an appellate court to a decision of a
lower court that reviewed a decision of an administrative tribunal on the question
of drawing lines of jurisdiction between that tribunal and another; and
e) clarify or determine whether an agreement between an employer, a union and an
employee can circumscribe the jurisdiction of and the remedies available to a
human rights adjudicator under the Manitoba Human Rights Code (the “Code”).
2. The position of the Commission in respect of these issues is as follows:
a) The two-step test for determining jurisdiction as between potentially competing
administrative tribunals as set out by this Court in Morin1, and applied in
subsequent decisions, is appropriate;
1Quebec (Commission des Droits de la Personne et des Droits de la Jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R 185; 2004 SCC 39 [“Morin”] at para. 15.
2
b) Applying the test articulated in Morin leads to the conclusion that the Chief
Adjudicator had jurisdiction to hear and determine Ms. Horrocks’ complaint. The
Manitoba Court of Appeal (the “MBCA”) erred in concluding the Chief
Adjudicator overstepped her jurisdiction;
c) This Court has said on several occasions, including recently in Vavilov2, that the
standard of review applicable to drawing jurisdictional lines between competing
administrative tribunals is correctness. However, given that the test articulated in
Morin requires a consideration of the dispute in its full factual context, the
Commission respectfully invites this Court to consider whether a standard of
reasonableness should apply;
d) The Appellant argues that the standard of review for a court of appeal on an appeal
from a reviewing judge’s decision on the issue of drawing jurisdictional lines
between administrative tribunals should be reasonableness, not correctness.
However, in this case, the Honourable Queen’s Bench judge (the “QB Judge”) was
in no better position than the MBCA to consider the evidence and apply the Morin
test. It was the Chief Adjudicator who heard all of the evidence, so if one accepts
that this provides an advantage to make the factual determinations necessary to
decide the issue of jurisdiction, then the Appellant’s arguments would support the
application of a standard of reasonableness by the QB Judge;
e) The Commission respectfully submits that the Code “establishes a floor beneath
which an employer and a union cannot contract”3. A settlement agreement between
an employer, a union and an employee made in an environment of discrimination
and a failure to accommodate cannot circumscribe the Commission’s jurisdiction,
nor can it circumscribe the remedies an adjudicator may order under the Code when
2 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [“Vavilov”]. 3 Parry Sound (District) Social Services Administration Board v. O.P.S.E.U, Local 324, [2003] 2 S.C.R. 157; 2003 SCC 42 [“Parry Sound”] at para. 28.
3
an employer is found to have violated an employee’s human rights. The MBCA
erred in its conclusions on these issues.
3. The MBCA decided the appeal in a manner that neither the Appellant nor the
Commission had argued. The decision has and will continue to cause uncertainty about
when or to what extent the Commission will have jurisdiction over complaints alleging
violations of human rights of unionized employees. It also creates uncertainty about
whether or to what extent the remedial provisions of the Code can be used by adjudicators
to remedy human rights violations of unionized employees. It results in a significant and
unwarranted intrusion upon and limitation of the Commission’s jurisdiction and powers.
4. The Commission respectfully submits that the Manitoba Legislature never intended the
paramount status it has afforded the Code to be limited as it has by the MBCA’s decision.
This appeal provides an opportunity for this Court to provide clarity on these issues.
Facts
5. The Commission accepts the facts set out in the Appellant’s factum as accurate. Some
additional facts relevant to the issues are set out below.
6. The complaint filed by Ms. Horrocks with the Commission (the “Complaint”) stated that
she had an addiction to alcohol. It outlined the various actions the Appellant had taken
against her as a result of her addiction to alcohol. Ms. Horrocks expressed her belief that
the Appellant had discriminated against her in her employment on the basis of her
disability (addiction to alcohol), and/or failed to reasonably accommodate her special
needs, and that such discrimination was not based on bona fide occupational
requirements, contrary to section 14 of the Code4. The Complaint was not confined to
the Appellant’s termination of Ms. Horrocks’ employment on May 1, 2012.
4 Complaint of Discrimination under The Human Rights Code (Manitoba) filed November 14, 2012, AR Vol 1, Tab 7 [“Complaint”] at pp 133-134.
4
7. The Appellant did not raise any issue of the Commission’s jurisdiction in its response to
the Complaint, or suggest that only a labour arbitrator had jurisdiction over the
Complaint5.
8. At the hearing before the Chief Adjudicator, Ms. Horrocks testified that she signed the
Memorandum of Agreement because her financial situation was getting desperate, even
though her union representative advised her not to sign it6.
9. Ms. Horrocks also testified that she understood her union could no longer help her, so
she filed the Complaint with the Commission7.
10. There is no evidence as to whether or not the union was willing to assist Ms. Horrocks to
challenge her dismissal from employment.
PART II – THE COMMISSION’S POSITION WITH RESPECT TO THE ISSUES IDENTIFIED BY THE APPELLANT
11. With respect to the issue set out at paragraph 28 a) of the Appellant’s factum, it is the
Commission’s position that the QB Judge was in no better position to assess the evidence
and determine the issue of jurisdiction than the MBCA. There is therefore no principled
basis to afford the decision of the QB Judge more deference than the decision of the Chief
Adjudicator. If the standard of correctness applies to the drawing of jurisdictional lines
between administrative tribunals, it should be applied consistently. It would undermine
respect for the legal system if a lower court’s application of the correctness standard of
review was upheld by an appellate court applying a standard of reasonableness, if it
would have been overturned on a correctness review. Applying a different standard
would also create a risk of conflicting decisions arising from the same or substantially
5 Reply of the Appellant to Complaint of Discrimination dated November 25, 2012, AR Vol 1, Tab 8 [“Complaint Reply”] at pp. 135-136. 6 Horrocks v Northern Regional Health Authority, 2015 MBHR 3, AR Vol 1, Tab 1 [“Adjudication Decision”] at paras. 75 and 77. 7 Adjudication Decision AR Vol 1, Tab 1 at para. 87.
5
the same facts, and interfere with the role of appellate courts providing final and
determinate answers on questions that are important to the rule of law.
12. With respect to the issue set out at paragraph 28 b) of the Appellant’s factum, the
Commission submits that the two-step test as articulated in Morin for determining
jurisdictional lines between two or more administrative tribunals is appropriate.
However, the Commission does not agree that the application of that test leads to the
conclusion that a labour arbitrator has exclusive jurisdiction over the Complaint. It would
require clear and express language to oust the jurisdiction of the Commission and the
Chief Adjudicator, particularly given the paramount status given to the Code by the
Legislature. A careful review of the applicable statutory provisions and a proper
characterization of the essential character of the Complaint leads inescapably to the
conclusion that the Legislature intended the Commission to have at least concurrent
jurisdiction.
13. The Commission further submits that the MBCA’s finding of exclusive jurisdiction of a
labour arbitrator, but that some issues may “transcend” such exclusive jurisdiction, is
conceptually unclear, and gives rise to uncertainty about when or to what extent such
transcendent jurisdiction may exist. It also creates uncertainty about what remedial
provisions of the Code are available to an adjudicator when dealing with a unionized
employee.
PART III - ARGUMENT
The test for drawing jurisdictional lines between administrative tribunals
14. In Morin, Chief Justice McLachlin (as she then was) framed the issue for the Court to
decide as follows:
Should the Quebec Human Rights Tribunal be barred from hearing a complaint of discrimination referred to it on the ground that the labour
6
arbitrator has exclusive jurisdiction over the dispute? That is the question on this appeal8
15. This is the same question the Chief Adjudicator, the QB Judge and the MBCA had to
decide in this case.
16. Chief Justice McLachlin was careful to note that the Court’s earlier decision in Weber
does not stand for the proposition that labour arbitrators always have exclusive
jurisdiction9. There is no presumption of arbitral exclusivity10. Chief Justice McLachlin
stated:
Rather, the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.11
17. Morin established a two-step test to answer this question. The first step is to look at the
relevant legislation to see what it says about jurisdiction12. This requires an examination
of the relevant legislation applicable to each of the tribunals. In Morin, the Court had to
consider the Quebec Labour Code and the Quebec Charter13. The analysis does not begin
by focusing on or emphasizing one of the statutory regimes over the other, nor should it.
18. The second step is to look at the essential character of the dispute, in its full factual
context, and see whether the legislation indicates exclusive jurisdiction on the part of one
of the tribunals. The legal characterization of the dispute “is not determinative”14. Note,
8 Morin, supra note 1 at para. 1. 9 Ibid. at para. 11. 10 Ibid. at para. 14: see also Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2008 NSCA 21 (CanLII) [“Halifax v. Nova Scotia”] at para 21. 11 Morin, supra note 1 at para. 14. 12 Ibid. at para. 15-16. 13 Ibid. at paras. 16-19. 14 Ibid. at para. 20.
7
however, that the Chief Justice did not say the legal characterization of the issues is
irrelevant.
19. The Appellant proposes a two-step test, similar to Morin, but advocates for the order of
the steps to be reversed15. The Appellant suggests that the order of the steps as set out in
Morin has given rise to confusion, and is contrary to the approach taken by this Court in
Weber16.
20. However, Weber dealt with jurisdiction as between a labour arbitrator and the courts, not
the jurisdictional lines between two or more administrative tribunals17. The analysis is
not quite the same, and different considerations may apply. This has been recognized by
the Courts, for example the Alberta Court of Appeal in Amalgamated Transit Union,
Local 583 v. Calgary (City of)18 (“ATU”), where the Court reasoned as follows:
Cases such as Bisaillon raise legitimate and important concerns. The legislative intent in enacting labour relations regimes and creating arbitration procedures must be respected. In my view, however, it is unwise simply to import the principles developed in cases involving a contest between the courts and arbitration, including the inherent preference for the exclusive jurisdiction of arbitrators often apparent in those cases, into a situation where the court must consider two statutory regimes. In the latter situation there are two legislative intents to consider, not one. If we were to accept exclusive jurisdiction as a starting point, we would run the risk of giving the jurisdictional advantage to one statutory tribunal over another and thereby reducing the efficacy of the second statutory regime. That would be especially problematic where the competing regime involves human rights legislation and all that its quasi-constitutional nature implies.19
15 NRHA Factum at para. 84. 16 NHRA Factum at paras. 87-88; Weber v. Ontario Hydro, [1995] 2 SCR 929, 125 DLR (4th) 583 [“Weber”]. 17 Weber, supra note 16 at para. 4. 18 Amalgamated Transit Union, Local 583 v. Calgary (City of), 2007 ABCA 121 (CanLII) [“ATU”]. 19 Ibid. at para. 23.
8
21. The Commission submits that the order of the steps of the Morin test does not really
make a difference. Fundamentally, the objective is to determine how the legislation was
intended to apply to the particular dispute in question, and whether the Legislature
intended concurrent jurisdiction, overlapping jurisdiction, or that one decision maker
have jurisdiction to the exclusion of the other.
22. The Commission agrees with the test articulated in Morin, as long as it is understood not
to assume preferential treatment of labour arbitration over other administrative tribunals,
subject to any clarification that may be provided by this Court.
The Chief Adjudicator had jurisdiction to determine the Complaint and did not overstep
23. As noted in Morin20, depending on the specific legislation in question in any given case,
and the essential character of the dispute, tribunals may have concurrent jurisdiction,
overlapping jurisdiction or exclusive jurisdiction. Concurrent jurisdiction of two
administrative jurisdictions has been recognized in a number of cases, including as
between a human rights tribunal and another administrative body21.
24. The first step of the test in Morin is to consider the applicable legislation22. The
Commission submits an examination of the Code and the Labour Relations Act of
Manitoba (the “LRA”)23 does not support the conclusion that a labour arbitrator has
exclusive jurisdiction over the Complaint, even though Ms. Horrocks was a unionized
employee subject to a collective bargaining agreement.
25. The preamble of the Code includes the following statement:
20 Morin, supra note 1 at para. 11. 21 ATU, supra note 18 at paras. 68 and 81; Calgary Health Region v Alberta (Human Rights & Citizenship Commission), 2007 ABCA 120, 281 DLR (4th) 252 [“Calgary Health Region”] at paras. 34 and 37; Halifax v. Nova Scotia, supra note 10 at paras. 73 and 79. 22 Morin, supra note 1 at para. 15. 23 The Labour Relations Act, C.C.S.M. c. L10 [“LRA”].
9
These various protections for the human rights of Manitobans are of such fundamental importance that they merit paramount status over all other laws of the province.24
26. Section 58 of the Code contains similar language:
Unless expressly provided otherwise herein or in another Act of the Legislature, the substantive rights and obligations in this Code are paramount over the substantive rights and obligations in every other Act of the Legislature, whether enacted before or after this Code.25
27. The importance and effect of these kinds of provisions in human rights legislation has
previously been commented on by this Court. For example, in Tranchemontagne26, the
importance of human rights legislation was described as follows:
The most important characteristic of the Code for the purposes of this appeal is that it is fundamental, quasi-constitutional law: see Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566, at para. 18; Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, at p. 158. Accordingly, it is to be interpreted in a liberal and purposive manner, with a view towards broadly protecting the human rights of those to whom it applies: see B v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403, 2002 SCC 66, at para. 44. And not only must the content of the Code be understood in the context of its purpose, but like the Canadian Charter of Rights and Freedoms, it must be recognized as being the law of the people: see Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 70, aff’d in Martin, at para. 29, and Quebec (Attorney General) v. Quebec (Human Rights Tribunal), [2004] 2 S.C.R. 223, 2004 SCC 40 (“Charette”), at para. 28. Accordingly, it must not only be given expansive meaning, but also offered accessible application. The importance of the Code is not merely an assertion of this Court. The Ontario legislature has seen fit to bind itself and all its agents through the Code: s. 47(1). Further, it has given the Code primacy over all other legislative enactments: s. 47(2). As a result of this primacy clause, where
24 The Human Rights Code, CCSM c H175 [“Code”], preamble. 25 Code, s. 58 (underlining added). 26 Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 [“Tranchemontagne”].
provisions of the Code conflict with provisions in another provincial law, it is the provisions of the Code that are to apply.27
28. Subsection 22(1) of the Code allows “any person” to file a complaint28. Unlike the
Canadian Human Rights Act, the Code does not make any exception for, or express any
deference to, other grievance procedures or review processes that may be available to a
complainant29.
29. Section 34 of the Code identifies the parties to a complaint referred for adjudication30.
The Commission is one of the parties, and “shall have carriage of the complaint”31. This
is an important provision, that allows the Commission to assist individuals who may
otherwise lack the capacity, ability and/or resources to properly advance a complaint
before an adjudicator.
30. Section 14 of the Code prohibits discrimination with respect to “any aspect” of
employment32. Subsection 14(6) prohibits trade unions and other organizations or
associations from discriminating in respect of membership, or in negotiating on behalf of
an individual, absent a bona fide and reasonable cause33. There is no suggestion anywhere
in the Code that a unionized employee who is subject to a collective agreement is
deprived of the assistance the Commission provides, or the procedures and enforcement
provisions available under the Code, in favour of labour arbitration.
31. Subsection 7(2)(a) of the Code provides that the executive director “shall” ensure that
complaints are disposed of in accordance with the Code34. Section 26 requires the
27 Ibid. at paras. 33-34. 28 Code, ss. 22(1). 29 Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 41(1) and 44(1). 30 Code, s. 34. 31 Code, s. 34. 32 Code, s. 14. 33 Code, ss. 14(6). 34 Code, s. 7(2)(a).
11
executive director to “cause the complaint to be investigated to the extent the Commission
regards as sufficient...”35 to dispose of it pursuant to s. 24.1 (not relevant in this case) or
s. 29.
32. Subsection 29 (1) requires the Commission to dismiss a complaint if one of three criteria
exist: 1) it is frivolous or vexatious; 2) the acts or omissions alleged do not contravene
the Code; or, 3) the evidence is insufficient to substantiate a violation36. None of these
apply in this case.
33. Subsection 29(3) requires the Commission to request that an adjudicator be designated
to adjudicate a complaint if the Commission is satisfied that additional proceedings
would further the objectives of the Code, or assist the Commission in discharging its
responsibilities37. Following investigation of the Complaint, the Commission was
satisfied that additional proceedings would further the objectives of the Code38. The
Chief Adjudicator was designated to hear the Complaint. The Appellant did not challenge
the Commission’s decision to refer the Complaint to adjudication.
34. Section 42 of the Code states:
Subject to the other provisions of this Code, every adjudicator has exclusive jurisdiction and authority to determine any question of fact, law, or mixed fact and law that must be decided in completing the adjudication and in rendering a final decision respecting the complaint.39
35. These provisions reflect that the Legislature intended any person to have the right to
make a complaint to the Commission. Once a complaint is made to the Commission, it
35 Code, s. 26. 36 Code, ss. 29(1). 37 Code, ss. 29(3). 38 Three Letters from Legal Counsel for the Manitoba Human Rights Commission dated February 26, 2015 with Notice of Hearing, AR Vol 2, Tab 57 at pp. 95-96. 39 Code, s. 42.
12
must be dealt with in accordance with the Code40. There is no exception for a complaint
made by a unionized employee who may be subject to a collective agreement. There is
no provision, express or otherwise, removing the jurisdiction of the Commission in
favour of labour arbitration. The Commission submits that if the Legislature had intended
a labour arbitrator to have exclusive jurisdiction, it would have explicitly said so.
36. On its face, therefore, the Complaint falls squarely within the jurisdiction of the
Commission and the Chief Adjudicator. Given the paramount status of the Code41 as
recognized by the Courts, and the lack of any indication to confer exclusive jurisdiction
on a labour arbitrator, the Commission submits it would require unequivocal, express
language in the LRA to displace the Commission’s jurisdiction.
37. There is no provision in the LRA that states that an arbitrator has exclusive jurisdiction
to the exclusion of the Commission or an adjudicator appointed under the Code. In fact,
a review of the LRA supports the conclusion that a labour arbitrator does not have
exclusive jurisdiction over the Complaint.
38. Section 120 of the LRA sets out the powers of an arbitrator. The section reads as follows:
An arbitrator or arbitration board has, in respect of any matter submitted to arbitration, power
(a) to determine procedures to be followed in the arbitration, provided that the parties have opportunity to present evidence and make representations with respect to the matter;
(b) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath or affirmation and to produce such documents and things as are deemed requisite to the full investigation and consideration of the matter;
(c) to administer oaths and affirmations;
(d) to receive and accept such evidence and information on oath, by affidavit, or otherwise as the arbitrator or arbitration board deems fit, whether the evidence or information is admissible in a court of law or not;
40 Code, s. 26. 41 Code, at preamble and s. 58.
13
(e) to require any party, during or prior to any hearing held or to be held in respect of the matter, to produce documents which are or may be relevant to the matter and to furnish particulars of any allegation, statement or position made or taken by the party;
(f) to determine any question as to whether the matter is arbitrable;
(g) to grant an adjournment of any hearing into the matter on such terms as appear just and equitable to the arbitrator or arbitration board; and
(h) to set fixed dates for hearings, for which an adjournment may not be granted.42
39. The section merely says that an arbitrator has “power”. Such power applies to “any
matter submitted to arbitration”43. Nowhere in this section does it say an arbitrator has
“exclusive jurisdiction”, to the exclusion of the Commission, over any matter that may
be submitted to arbitration.
40. This stands in stark contrast to what the Legislature said in the LRA about the jurisdiction
of the Labour Relations Board, or a panel appointed by the Board. Section 143(1) of the
LRA states as follows:
Except as provided in subsections (5) and (6), the board or any panel of the board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law which arise in any matter before it, and the action or decision of the board or panel in any matter is final and binding on the parties thereto. 44
41. The Commission submits that if the Legislature had intended to confer exclusive
jurisdiction on a labour arbitrator appointed pursuant to a collective agreement, it would
have expressly said so, as it did when bestowing exclusive jurisdiction on the Board or
any panel of the Board.
42 LRA, s. 120 (underlining added). 43 LRA, s. 120. 44 LRA, s. 143(1)
14
42. Section 78(1) of the LRA requires every collective agreement to have a provision for final
settlement without stoppage of work, “by arbitration or otherwise”, of all differences
concerning the “meaning, application, or alleged violation” of a collective agreement45.
It does not say a labour arbitrator has exclusive jurisdiction over every dispute between
an employer and an employee. It also appears to contemplate that differences concerning
a collective agreement might be resolved other than by arbitration.
43. Section 78 (2) is a deeming provision. It prescribes provisions for settlement of disputes
without stoppage of work in circumstances where a collective agreement does not include
them. However, it does not say an arbitrator has exclusive jurisdiction, or that the
Commission does not have jurisdiction over a unionized employee who is subject to a
collective agreement. In fact, section 78 (2) is permissive, in that it provides that the
parties “may” submit a dispute to arbitration after exhausting any grievance procedures
under the collective agreement46.
44. The Commission respectfully submits that these provisions do not provide for exclusive
jurisdiction on the part of a labour arbitrator. It would be unreasonable to conclude that
they reflect clear Legislative intent to oust the jurisdiction the Commission would
otherwise have over the Complaint, particularly when viewed in the context of the
Legislature’s expressed paramount status of the Code, and the protections, processes,
substantive rights and obligations it is intended to provide to all Manitobans.
45. In its factum, the Appellant discusses the importance of examining the relevant
legislation47. However, the Appellant’s factum does not really set out a detailed analysis
of the provisions of the LRA or the Code. The Appellant simply suggests that the
provisions of the LRA are to the same effect as those looked at in other cases, without a
close examination of the precise language in those other cases, and how they compare to
the Manitoba provisions. The Appellant appears to want to focus on the collective
45 LRA, s. 78(1). 46 LRA, s. 78(2). 47 NRHA Factum at paras. 133-136.
15
agreement, and begin the analysis from a premise of arbitral exclusivity, without a careful
examination of what the LRA actually says about an arbitrator’s jurisdiction.
46. As this Court has been careful to note, there is no presumption of arbitral exclusivity48.
The legislative provisions in the various cases are not identical, and in many instances
are significantly different from the provisions in the Code and the LRA. The Commission
submits that caution is required to avoid conflating cases that deal with jurisdiction of
arbitrators as compared to courts, and cases involving jurisdiction between two or more
administrative tribunals. The legislation applicable to both tribunals must be considered
to see whether they reflect a clear intention to convey exclusive jurisdiction on one body
to the exclusion of the other.
47. In Vaid49 and Charette50, for example, the exclusionary clauses were clear and explicit.
In Charette, the provision in question stated “the object of the Commission is to hear, to
the exclusion of every other commission, tribunal, board or body…”51. In Vaid, the
provision under consideration stated “except as provided in this Act, nothing in any other
Act of Parliament that provides for matters similar to those provided for under this
Act…shall apply”52. These clauses cannot fairly be described as essentially the same as
the provisions found in the LRA.
48. As pointed out above, an examination of the Code and the LRA does not lead to the
conclusion that the Legislature intended arbitral exclusivity.
49. It is instructive to look at what the Legislature has said in other Acts that provide for
dispute resolution by administrative tribunals in Manitoba. For example:
48 Morin, supra note 1 at para. 11. 49 Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667; 2005 SCC 30 [“Vaid”]. 50 Quebec (Attorney General) v. Quebec (Human Rights Tribunal), [2004] 2 S.C.R. 223; 2004 SCC 40 [“Charette”]. 51 Ibid. at para. 9. 52 Vaid, supra note 49 at para. 89.
16
(a) The Manitoba Public Insurance Corporation Act:
Exclusive jurisdiction 65(13) The Rates Appeal Board has exclusive jurisdiction to hear and determine all appeals respecting additional driver premiums, and the decision of the Rates Appeal Board shall be final and there is no appeal from that decision.53
(b) The Workers Compensation Act:
General jurisdiction
60(1) The board has exclusive jurisdiction to examine into, hear, and determine, all matters and questions arising under this Part and as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the board; and the action or decision of the board thereon is final and conclusive and is not open to question or review in any court; and no proceedings by or before the board shall be restrained by injunction, prohibition, or other process or proceeding in any court, or are removable by certiorari or otherwise into any court. Jurisdiction of appeal commission 60.8(1) Subject to section 60.9, the appeal commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Part in respect of
(a) appeals under subsection 60.1(5);
(b) determinations under subsection 68(4);
(b.1) appeals of administrative penalties under section 109.7; (c) any matter referred to it by the Board of Directors.54
(c) The Residential Tenancies Act:
Director's authority: matters other than rent regulation and tenant services charges
53 The Manitoba Public Insurance Corporation Act, C.C.S.M. c. P215, s. 65(13). 54 The Workers Compensation Act, C.C.S.M. c. W200, s. 60(1) and ss. 60.8(1).
152(1) Except as provided in this Act or The Life Leases Act, the director has the exclusive authority, at first instance, to investigate, endeavour to mediate a settlement and determine
(a) a question arising under Parts 1 to 8 or The Life Leases Act;
(b) a matter arising from an alleged breach of a tenancy agreement or contravention of a provision of Parts 1 to 8 or The Life Leases Act; (c) a question or matter arising under this Act respecting a guarantee agreement; or (d) the length of time a tenant is entitled to continue to occupy a rental unit that is a unit under The Condominium Act after the declaration is registered under that Act.
Director's authority: rent regulation and tenant services charges 158(1) The director has the exclusive authority, at first instance, to investigate and determine all matters arising under Part 9 or 9.1.55
(d) The Manitoba Hydro Act:
Exclusive authority of corporation 22 Notwithstanding any provision to the contrary in any Act of the Legislature or in any regulation, rule, or by-law made under any such Act, the corporation has the sole and exclusive jurisdiction, right, and authority, over and with regard to all matters to which this Act applies in any place, locality, area, or territory in which the corporation supplies power to the actual user thereof or in which it is engaged or intends to be engaged in a program of construction with a view to supplying power therein.56
50. The conclusion to be drawn is that when the Legislature intends to confer exclusive
jurisdiction, it clearly says so. The fact it did not expressly confer exclusive jurisdiction
to labour arbitrators, or expressly remove from the Commission’s jurisdiction disputes
arising from complaints made by unionized employees regarding human rights
55 The Residential Tenancies Act, C.C.S.M. c. R119, s. 152(1) and 158(1). 56 The Manitoba Hydro Act, C.C.S.M. c. H190, s. 22.
violations, leads to the conclusion that a labour arbitrator was not intended to have
exclusive jurisdiction over every dispute that arises in a unionized workplace, or that may
relate to a collective agreement.
51. The Commission does not take issue with the goals of providing an avenue for prompt
resolution of disputes by arbitration in a unionized workplace, to avoid stoppage of work
and minimize disruption. They are important. However, the objectives of the Code and
the assistance the Commission can provide to individuals to ensure fundamental human
rights are respected are at least as important. Indeed, the Legislature has expressed them
to be of “paramount importance”57, and as noted above, Courts, including this Court,
have recognized the primacy that human rights legislation is to be afforded.
52. The Commission submits that the analysis in ATU is helpful. In concluding that both
tribunals had jurisdiction, the Alberta Court of Appeal reasoned as follows:
[44] Important societal goals underlie the statutory regimes governing both labour relations and human rights in Canada. One of the stated goals of the Alberta Labour Relations Code is the encouragement of “fair and equitable resolution of matters arising in respect of terms and conditions of employment”. The grievance arbitration process is the means chosen by the legislature to advance that goal. The process is intended to lead to the prompt, final and binding resolution of workplace disputes. Disputes can be addressed expeditiously before a single accessible and expert forum, hopefully leading to a just result with a minimum of workplace disruption: see Parry Sound at paras. 50-51. [45] The aims of the Human Rights Act are no less lofty. The Commission has a broad mandate to promote multi-cultural awareness and the principles of equality, and to promote compliance with the Act: s. 16. The legislation incorporates the principle of universal access to the Commission’s complaint procedures; “[a]ny person” may make a complaint to the Commission if he or she has reasonable grounds to believe that the Act has been contravened: s. 20. [46] In this case, there is no question that the Union’s grievance of the employee’s termination is the type of question the arbitration board is designed to address; it is clearly a difference arising “as to the interpretation,
57 Code, s. 58.
19
application or operation of the collective agreement”: Labour Relations Code, s. 135. It is also clear that the jurisdiction of the arbitration board extends to human rights issues arising out of the collective agreement: Parry Sound. It does not follow that the arbitration board’s jurisdiction over such issues is necessarily exclusive, however. The Supreme Court of Canada in Parry Sound expressly declined to decide whether the jurisdiction of the Human Rights Commission was ousted by that of the arbitration board: Parry Sound at para. 9. That is the question before us on this appeal. On its face, the employee’s human rights complaint falls squarely within the mandate of the Commission to determine complaints of discrimination in employment practices: Human Rights Act, s. 7. [47] The human rights issues raised by the employee in her complaint to the Commission could, therefore, fall under the jurisdiction of either tribunal. The employer argues that the arbitration board is the appropriate forum, and that we should be guided by the labour relations goal of workplace stability achieved through the expeditious resolution of disputes in a single forum. The employee and the Union espouse the goal of universal access to human rights legislation. Both goals cannot be achieved in this case, and it is up to the legislature to establish which is to prevail. We must look to the specific wording of Alberta’s legislation to assess whether either scheme indicates that the tribunal it creates is intended to have exclusive jurisdiction over the human rights issues raised by this dispute.58
53. The Commission respectfully submits that the analysis in this case leads to the same
conclusion. The Commission and the Chief Adjudicator had jurisdiction to deal with the
Complaint, and the Chief Adjudicator’s conclusion that she had jurisdiction was not only
reasonable, it was correct.
54. The Appellant argues that the duty of fair representation leaves “no gap in the
enforcement of human rights”59. It points out that the Memorandum of Agreement would
have permitted Ms. Horrocks or the union to file a grievance60. For reasons unknown,
the union did not do so in this case.
58 ATU, supra note 18 at paras. 44-47. 59 NRHA Factum at paras. 107-108. 60 NRHA Factum at para. 129.
55. Not every unionized employee has the capability and/or the resources to advance a
grievance on their own, or to make a claim against a union for breaching the duty of fair
representation. It is not difficult to envision circumstances where the interests of a
unionized employee and her or his union may diverge, such that the union decides it will
not assist the employee. This was recognized by the Alberta Court of Appeal in ATU,
where the Court provided a few examples as follows:
We are left to speculate as to why the Union determined not to include the alleged discrimination as part of its grievance. However, several reasons why a union might make such a choice were discussed at the hearing: for example, if it considered the human rights allegations to be without merit; if it found itself in a conflict vis-à-vis allegations made against another bargaining unit member; if it had limited resources to devote to such matters and did not perceive the grievance to further the interests of the bargaining unit as a whole.61
56. There are a myriad of other circumstances where a union and/or an employee may not
file a grievance. The Commission respectfully submits that it is unreasonable to expect
that labour arbitration will always be available to satisfactorily resolve every dispute or
complaint by a unionized employee, or that the duty of fair representation will always
ensure that fundamental human rights are respected.
57. The Appellant raises concerns about “forum shopping”, “lateral adjudicative poaching”,
the possibility of multiple proceedings, and uncertainty it argues would arise with
concurrent jurisdiction62. The Commission respectfully submits that these concerns are
overstated, and legal safeguards already exist to address them when necessary. Examples
include issue estoppel, abuse of process, res judicata or judicial review.
58. There are specific provisions in the Code that allow the Commission to deal with these
issues if or when required.
61 ATU, supra note 18 at para. 9. 62 NRHA Factum at paras. 138-139.
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59. Subsection 29 (1) requires the Commission to dismiss a complaint if it is satisfied that
the complaint is frivolous or vexatious63. If a complaint has not been settled, terminated
or dismissed, subsection 29 (3) confers a discretion on the Commission to decide whether
or not to refer it to adjudication. The Commission must be satisfied that “additional
proceedings….would further the objectives” of the Code, or assist the Commission in
discharging its responsibilities64.
60. It is respectfully submitted that if labour arbitration or another dispute resolution process
had already addressed, or was likely to satisfactorily address, a complaint, there would
be no need to refer it for adjudication. In the event the Commission unreasonably decided
to refer a matter to adjudication that had already been decided or adequately addressed
in another forum, or was in the process of being dealt with in another forum, the decision
to refer would be subject to review.
61. Furthermore, as noted above, section 42 of the Code gives an adjudicator broad
jurisdiction to decide any question of fact, law, or mixed fact and law65. This would
include the power to address concerns of the kind raised by the Appellant.
62. The Appellant argues that labour arbitration is more appropriate, because an arbitrator is
required to decide issues of just cause and discipline, as well as issues of human rights,
whereas a human rights adjudicator would only deal with human rights issues66. The
Commission respectfully submits that the flaws in this reasoning are easily demonstrated
in this case. Determining whether the Appellant discriminated against Ms. Horrocks, or
had just cause to terminate her employment, necessarily involves consideration of the job
requirements, the reasons for disciplinary measures, and whether termination met the
Appellant’s obligation to accommodate to a point of undue hardship. If the Appellant had
63 Code, ss. 29(1). 64 Code, ss. 29(3). 65 Code, s. 42. 66 NRHA Factum at paras. 103-105.
22
not discriminated against Ms. Horrocks and met its obligations, the termination and
disciplinary measures would be “just”, whether one applies the Code or the LRA.
63. Taking all of these factors into account, the Commission respectfully submits that the
first step of the Morin test supports the conclusion that the Legislature intended the
Commission and the Chief Adjudicator to have jurisdiction over the Complaint. The
Legislature did not intend a labour arbitrator to have exclusive jurisdiction.
64. The second step of the Morin test requires consideration of the essential character of the
dispute, viewed in its full factual context67.
65. The Chief Adjudicator formed a different view of the essential character of the dispute
than did the QB Judge, and to some extent, the MBCA. The QB Judge found that the
Chief Adjudicator erred in her determination of the essential character of the dispute, and
did so by focusing on its “legal characterization”68.
66. The MBCA found that the QB Judge erred in overturning the Chief Adjudicator’s
determination of the essential character of the dispute69. The MBCA stated that it agreed
with the Chief Adjudicator’s “ultimate conclusion that the essential character of the
dispute fell within the statutory scheme set out in the Code”, but despite that finding,
found that the Chief Adjudicator’s jurisdiction was limited to matters that “transcended”
the exclusive jurisdiction of a labour arbitrator70.
67. The QB Judge cited paragraphs 110 and 243 of the Chief Adjudicator’s reasons, where
she said the essential character of the dispute arises from an alleged violation of Ms.
67 Morin, supra note 1 at para. 20. 68 Northern Regional Health Authority v Manitoba Human Rights Commission et al., 2016 MBQB 89, AR Vol 1, Tab 2 [“MBQB Decision”] at para. 49. 69 Northern Regional Health Authority v Manitoba Human Rights Commission et al, 2017 MBCA 98, AR Vol 1, Tab 3 [“MBCA Decision”] at paras. 5 and 78. 70 MBCA Decision AR Vol 1, Tab 3 at para. 88.
23
Horrocks’ human rights71. However, this ignores the fact that the Chief Adjudicator
continued her analysis beyond paragraph 110, and ultimately concluded as follows:
116 The Commission submitted that I must still, therefore, determine whether the terms contained in the Memorandum of Agreement were discriminatory and more broadly whether the Respondent’s actions as a whole, including the approach it took in order to assess the question of accommodation, demonstrated that the Respondent had made reasonable efforts to accommodate the Complainant’s disability within the meaning of the Code. 117 I agree. I find that I have the jurisdiction to determine whether the Complainant experienced discrimination in the manner alleged in the Complaint and that in doing so I must examine not only the terms of the Memorandum of Agreement but also the totality of the interactions between the parties.72
68. The Commission submits that when one looks at the Adjudicator’s reasons as a whole,
and her analysis of the issue of jurisdiction, she was well aware of and considered the
entire factual context of the dispute in coming to her conclusions.
69. The QB Judge expressed his view of the essential character of the dispute as follows:
In my view, the essential character of the dispute in issue is whether there was just cause to terminate employment of a unionized employee with an alleged addiction problem. A secondary issue is whether an alleged breach of the MOA negotiated between the applicant, the Union, and the complainant constitutes just cause for termination of employment.73
70. The Commission submits that this description does not accurately reflect the essential
character of the dispute. It focusses on one narrow issue – whether the Appellant had
“just cause” to terminate Ms. Horrocks’ employment. Later in his reasons, the QB Judge
71 MBQB Decision AR Vol 1, Tab 2 at paras. 48-49; citing Adjudication Decision AR Vol 1, Tab 1 at paras. 110 and 243. 72 Adjudication Decision AR Vol 1, Tab 1 at paras.116-117. 73 MBQB Decision AR Vol 1, Tab 2 at para. 49.
24
referred to the dispute as a claim for “wrongful dismissal”74. These descriptions do not
squarely address the issues of discrimination or accommodation.
71. While the QB Judge was critical of the Chief Adjudicator for focusing on the legal
characterizations of the dispute, the Commission respectfully submits that the QB
Judge’s findings might well be more aptly described as legal characterizations of the
dispute, without due regard for the factual matrix.
72. The Commission respectfully submits that the essential character of the dispute is much
broader than what the QB Judge outlined. The Chief Adjudicator recognized this,
concluding that she needed to look at the totality of the dealings between the parties to
assess whether there had been discrimination, and if so, whether there had been efforts
to accommodate to the point of undue hardship75. This is an accurate and fair
characterization of the essential character of the Complaint.
73. The Appellant argues that the Chief Adjudicator failed to consider the competing
statutory regimes, and in particular the provisions of the LRA76. The Commission
respectfully submits that it is clear from the Chief Adjudicator’s reasons that she
considered the Appellant’s legal arguments, policy arguments, and the authorities the
Appellant relied on in support of its position77.
74. The Commission respectfully submits that the Chief Adjudicator correctly determined
the essential character of the dispute, and that she was correct in deciding that she had
jurisdiction to hear the Complaint.
74 MBQB Decision AR Vol 1, Tab 2 at para. 61. 75 Adjudication Decision AR Vol 1, Tab 1 at para. 218. 76 NRHA Factum at para. 63. 77 Adjudication Decision AR Vol 1, Tab 1 at paras. 88-199.
25
What standard of review applies to the drawing of jurisdictional lines between two administrative tribunals?
75. The Commission prefaces its submissions on this issue by submitting that the Chief
Adjudicator’s decision should not have been overturned, regardless of whether a standard
of correctness or a standard of reasonableness is applied to it.
76. An analysis of what standard of review applies to a decision of an administrative body
begins with a presumption that reasonableness is the applicable standard for all aspects
of the decision78. This Court identified limited exceptions where the correctness standard
still applies, one of which is for “questions related to the jurisdictional boundaries
between two or more administrative bodies”79.
77. Absent clarification or direction from this Court that a different standard should apply,
correctness appears to be the standard applicable to a review of the Chief Adjudicator’s
decision on the issue of jurisdiction between the Commission and labour arbitration in
this case.
78. In Vavilov, this Court stated that much of the Court’s previous jurisprudence, including
decisions relating to jurisdictional boundaries between two or more administrative
bodies, would continue to apply, essentially without modification80. The Commission
assumes this applies to the tests articulated in cases such as Weber, Regina Police
Association81, Morin, and others. The Commission’s position on the application of the
two part test in Morin is as outlined above82.
78 Vavilov, supra note 2 at paras. 10 and 17. 79 Ibid. at para. 64. 80 Ibid. at para. 143. 81 Regina Police Assn Inc v Regina (City) Board of Police Commissioners, 2000 SCC 14 [“Regina Police Association”]. 82 Ibid. at para. 25; Vavilov, supra note 2 at paras. 62-63 ; Weber, supra note 16 at para. 72.
26
79. This Court has stressed the importance of considering the full factual context in making
a determination of the essential character of a dispute83.
80. In Vavilov, this Court recognized the relatively advantageous position of the first decision
maker who has the benefit of hearing all the evidence, and that this advantage applies
equally in the context of a court reviewing a decision of an administrative body84.
81. The Chief Adjudicator was in the most advantageous position to assess all of the facts
and the evidence in order to determine the essential character of the dispute. As submitted
above, she thoroughly reviewed the evidence and considered the full factual context in
arriving at her conclusions. It would therefore seem illogical to apply a standard of
correctness to her determination of the essential character of the dispute.
82. Justification for a standard of correctness in determining lines of jurisdiction between
two or more administrative tribunals is, at least in part, that it safeguards predictability,
finality and certainty in the law of administrative decision making85.
83. However, the Commission notes this Court’s comments in Vavilov with respect to a
robust and proper application of the standard of reasonableness to ensure administrative
bodies act within the scope of their jurisdiction86. Reasonableness does not give an
administrative body free rein to exceed its jurisdictional boundaries87. If an
administrative body has exceeded its jurisdiction and encroached upon the jurisdiction of
another administrative body, this would be susceptible on judicial review, even if a
reasonableness standard were to be applied88.
83 For example Morin, supra note 1 at paras. 11, 20 and 24; Weber, supra note 16 at paras. 57 and 72; Vaid, supra note 49 at paras. 9 and 93; Charette, supra note 50 at para. 23; and Regina Police Association, supra note 81 at paras. 29 and 39. 84 Vavilov, supra note 2 at para. 125. 85 Ibid. at para. 64. 86 Ibid. at para. 67. 87 Ibid. at para. 68. 88 Ibid.
27
84. Given the relatively advantageous position of the Chief Adjudicator to assess the factual
context of the dispute in order to determine its essential character, and the practical reality
that it would be unreasonable for an administrative body to exceed its jurisdiction and
encroach upon the jurisdiction of another tribunal, the Commission respectfully invites
this Court to consider whether departure from the presumption of a reasonableness
standard is truly required for the purpose of drawing jurisdictional lines between two or
more administrative tribunals.
Standard of review to be applied by an appellate court
85. The Appellant argues that the standard of review that should be applied by an appellate
court on appeal from a decision of a lower court that reviewed a decision on a question
of the jurisdictional lines between competing administrative bodies should be one of
deference. The Commission respectfully submits that if the lower court is required to
apply a standard of correctness, then an appellate court should apply the same standard.
86. This Court has said that respect for the rule of law requires a standard of correctness for
certain kinds of legal questions. This includes the drawing of jurisdictional lines between
two or more administrative tribunals. This ensures that courts provide the last word on
questions for which the rule of law requires consistency, and in respect of which a final
and determinate answer is needed89.
87. Assuming this to be correct, an appellate court should not apply a less rigorous standard
than the lower court. It would not make sense for an appellate court to show deference to
a lower court’s decision if, for example, it felt the lower court’s decision was incorrect.
The possibility of a lower court decision being upheld on the application of a
reasonableness standard, that would otherwise have been overturned on a standard of
correctness, would not foster the objectives of consistency, predictability, certainty or
respect for the rule of law. It would also mean that appellate courts may not provide final
and determinate answers.
89 Ibid. at para. 53.
28
88. Application of the same standard by an appellate court is also important if the drawing
of lines between administrative tribunals has taken on heightened importance, as the
Appellant suggests90.
89. In this case, the QB Judge did not hear the evidence or observe the witnesses testify. The
MBCA was in as good a position as the QB Judge, such that there is no principled reason
for the MBCA (or this Court) to apply a different standard of review than the QB Judge.
90. The Commission respectfully submits that a lower court and an appellate court should
apply the same standard of review to a decision of an administrative tribunal in respect
of a question of jurisdictional lines between one or more administrative bodies.
Can an agreement between an employer, a union and an employee circumscribe the jurisdiction of an adjudicator appointed under the Code?
91. Subsection 43 (2) of the Code sets out a wide variety of remedial orders an adjudicator
is empowered to make when a party to the adjudication is found to have contravened the
Code. It includes ordering a party to do or refrain from doing anything in order to secure
compliance with the Code; to compensate for financial losses; to award damages for
injury to dignity, feelings or self-respect; to pay a penalty or exemplary damages; and to
adopt an affirmative action program91.
92. The Chief Adjudicator exercised the powers available to her, and ordered the Appellant
to develop and implement a reasonable accommodation policy; reinstate Ms. Horrocks
on specified terms; compensate Ms. Horrocks for lost wages; and pay Ms. Horrocks
$10,000 for injury to her feelings, dignity and self-respect92.
93. The MBCA held that the Complaint “transcended” the exclusive jurisdiction of a labour
arbitrator, but only in limited respects93. The MBCA found that by filing the Complaint
90 NRHA Factum at para. 72. 91 Code, ss. 43(2). 92 Adjudication Decision AR Vol 1 Tab 1 at paras. 246-277. 93 MBCA Decision AR Vol 1, Tab 4 at para. 85.
29
with the Commission, Ms. Horrocks made a choice by which she “abandoned her rights”,
and “gave up” any right to challenge whether there was just cause for her termination or
the disciplinary measures imposed on her, or to seek any related remedy94. The MBCA
held that by failing to recognize the limitations on her jurisdiction, the Chief Adjudicator
had engaged in “lateral adjudicative poaching” of matters reserved exclusively by the
LRA to a labour arbitrator95.
94. The MBCA said:
Accordingly, the Chief Adjudicator was required to acknowledge in her exercise of jurisdiction that the employment relationship between the NRHA and the complainant was permanently severed by virtue of the complainant’s choice to forego grievance arbitration in favour of the human rights process. That employment relationship could not be resurrected by operation of the Code without doing violence to the legislative intent of the Act.96
95. The MBCA also held that the Memorandum of Agreement dated April 5, 201297 gave
rise to issue estoppel, which also precluded or limited the relief Ms. Horrocks could
obtain on judicial review. The Court stated:
Second, the Chief Adjudicator’s ability to look at, as she put it, “the totality of the interactions between the parties” was limited in one important aspect. The first termination was settled on April 5, 2012, to the satisfaction of all parties, including the complainant, as to whether the NRHA reasonably accommodated her alcohol dependence disability to that point.98
96. The Commission respectfully submits that there are a number of flaws with the MBCA’s
reasoning.
94 MBCA Decision AR Vol 1, Tab 4 at para. 80. 95 MBCA Decision AR Vol 1, Tab 4 at para. 92. 96 MBCA Decision AR Vol 1, Tab 4 at para. 93. 97 Memorandum of Agreement signed April 5, 2012, AR Vol 2, Tab 48 ["Memorandum of Agreement”] at pp. 76-78. 98 MBCA Decision AR Vol 1, Tab 4 at para. 94.
30
97. This Court has previously stated that human rights legislation establishes a floor beneath
which parties cannot contract99.
98. The Appellant was found to have discriminated against Ms. Horrocks with respect to her
disability. The Appellant was also found to have failed to accommodate Ms. Horrocks’
special needs related to her disability100. Discriminatory behavior and the failure to
accommodate is the backdrop against which the Appellant disciplined Ms. Horrocks,
suspended her, terminated her, entered into the Memorandum of Agreement, and
ultimately terminated her a second time.
99. The Memorandum of Agreement101 may be described as a “Last Chance Agreement”.
However, Last Chance Agreements are not always lawful or enforceable. The Chief
Adjudicator recognized this, and quoted from Brown and Beatty as follows:
Last-chance agreements with disabled employees are, however, much more problematic and will not be enforced if they are found to derogate from an employer’s obligations under human rights legislation and in particular its duty to accommodate. For example, many arbitrators have ruled that last-chance agreements that purport to deny disabled employees the opportunity to challenge the reasonableness of the employer’s decision to terminate them before an arbitrator … or were developed without the involvement of the union, are inconsistent with human rights and labour legislation and so are unlawful.102
100. The Commission respectfully submits this reasoning applies squarely in this case, which
deals with an employee with an addiction to alcohol.
101. Ms. Horrocks testified that she signed the Memorandum of Agreement against the advice
of her union representative. She said she did so because her financial situation was getting
desperate. She also testified that she did not think her union could help her any further,
99 Parry Sound, supra note 3 at para. 28. 100 Adjudication Decision AR Vol 1, Tab 1 at paras. 149-162. 101 Memorandum of Agreement AR Vol 2 Tab 48 at pp. 76-78. 102 Adjudication Decision AR Vol 1, Tab 1 at para. 220; quoting D. J. M. Brown and D. M. Beatty, Canadian Labour Arbitration, 4th ed, (Toronto: Canada Law Book, 2006) (looseleaf) at pp. 7:6122.
31
so she filed the Complaint103. There is no evidence of whether the union was willing to
help Ms. Horrocks or not. Regardless, there was no other tribunal or decision maker in
this case who considered the matters raised by the Complaint.
102. To accept the reasoning of the MBCA would allow the Appellant to rely on an agreement
made with an employee with a disability, in a discriminatory environment where the
Appellant failed to accommodate the disability. The MBCA’s reasoning effectively does
allow the Appellant to contract out of the Code by the Memorandum of Agreement, and
avoid the consequences of its violations of the Code.
103. The limitations placed on the Chief Adjudicator’s jurisdiction by the MBCA deprive the
Chief Adjudicator, and future adjudicators, of the ability to make appropriate remedial
orders the Code prescribes104. The MBCA’s reasoning deprives the victim of the
discrimination of the remedial benefits the Code intends for someone whose human rights
have not been respected. The MBCA’s reasoning effectively eviscerates the Code insofar
as unionized employees are concerned, and deprives them of the assistance and processes
the Commission would otherwise be able to offer. The Commission respectfully submits
that this result is entirely inconsistent with the paramount status of the Code and human
rights legislation in general.
PART IV – SUBMISSIONS ON COSTS
104. The Commission respectfully requests that an order of costs be made in its favour,
payable by the Appellant.
105. In the alternative, should the Appellant be successful, the Commission submits that no
order of costs be made. The Appellant was found to have discriminated against Ms.
Horrocks, and failed to accommodate her special needs. The issues raised by this appeal
have significant implications for how the Commission is to deal with complaints by
unionized employees, not just Ms. Horrocks. The Commission submits that its
103 Adjudication Decision AR Vol 1, Tab 1 at paras. 75-77. 104 Code, s. 43(2).
32
participation was necessary, important and reasonable, and should not be the subject of
an award of costs in favour of the Appellant.
PART V - ORDERS SOUGHT
106. The Commission requests an Order reinstating the decision of the Chief Adjudicator.
PART VI – SUBMISSIONS ON CASE SENSITIVITY
107. This file has no sealing or confidentiality order, publication ban, classification of
information in the file that is confidential under legislation or restriction on public access
to information in the file that could have an impact on the Court’s reasons in this appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 18th day of September 2020.
for: ____________________________________ Thor J. Hansell/Shea T. Garber Counsel for the Respondent, The Manitoba Human Rights Commission
33
PART VII - LIST OF AUTHORITIES
Jurisprudence Paras Cited
Amalgamated Transit Union, Local 583 v Calgary (City), 2007 ABCA 121 20, 23, 52, 55
Calgary Health Region v Alberta (Human Rights & Citizenship Commission), 2007 ABCA 120 23
Canada (House of Commons) v. Vaid, 2005 SCC 30 47, 79
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
2, 74, 76, 78, 80, 82, 83, 86
Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2008 NSCA 21
16, 23
Parry Sound (District) Social Services Administration Board v OPSEU, Local 324, 2003 SCC 42 2, 97
Quebec (Attorney General) v Quebec (Human Rights Tribunal), 2004 SCC 40 47, 79
Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (Attorney General), 2004 SCC 39 2, 14, 16, 17, 18, 23,
24, 46, 64, 79
Regina Police Assn Inc v Regina (City) Board of Police Commissioners, 2000 SCC 14
78, 79
Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 27
