Legislative intent to allow concurrent jurisdiction with arbitrators: NS Court of Appeal
Human rights complaints from unionized workplaces are not the sole jurisdiction of labour arbitrators, the Nova Scotia Court of Appeal has ruled.
The worker was a police officer with the Halifax Regional Police Service. She was also a member of a collective bargaining unit represented by the Halifax Regional Police Association and her employment was government by a collective agreement between the union and the City of Halifax.
The worker developed post-traumatic stress disorder (PTSD) in the course of performing her police work. She soon came to believe that the city was treating her differently than other police officers who had sustained physical work injuries, so in 2017 she filed a human rights complaint with the Nova Scotia Human Rights Commission.
The commission appointed a Board of Inquiry to hear the complaint. In September 2021, while the board was calling evidence, the Supreme Court of Canada (SCC) released its decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, in which the top court ruled that labour legislation in Canada requires dispute resolutions that are outlined in collective agreements, such as arbitration, to be used exclusively to resolve such complaints. The SCC also found that, where jurisdiction over a dispute could be concurrent with another decision-maker such as a human rights tribunal, the other decision-maker’s statutory scheme had to show a “clear legislative intent” or a legislative history for concurrency of jurisdiction.
The SCC’s decision was in relation to Manitoba’s The Human Rights Code, which the top court found did not “clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes.”
Employer challenged jurisdiction for complaint
In the wake of the SCC’s decision in Horrocks, the City of Halifax brought a motion to have the worker’s human rights complaint dismissed as the “essential character of the complaint fell within the scope of the collective agreement” and therefore should be heard by a labour arbitrator.
In August 2022, the Board of Inquiry found that it lacked jurisdiction for the worker’s human rights complaint and dismissed it. It referred to the province’s Trade Union Act, which requires every collective agreement to “contain a provision for final and binding settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties…” The board determined that this was a mandatory dispute resolution clause granting an arbitrator “exclusive jurisdiction to hear complaints arising from unionized workplaces.”
The Board of Inquiry also found that there was no clear intent in the Nova Scotia Human Rights Act (HRA) statutory scheme to overrule a labour arbitrator’s jurisdiction in favour of a board of inquiry, pointing to the HRA’s s. 29(4), which states that “the commission or the director may dismiss a complaint at any time if… (d) the substance of the complaint has been appropriately dealt with pursuant to another act or proceeding.”
The commission appealed, arguing that the board erred in finding that the HRA did not provide for concurrent jurisdiction where human right allegations could also be addressed by a labour arbitrator. The commission also claimed that the board’s interpretation of the HRA was too restrictive.
Broad interpretation
The Court of Appeal noted that human rights legislation is “quasi-constitutional and remedial in nature,” so it should be interpreted liberally and broadly, as well as “purposive and contextual.”
The court found that the Board of Inquiry’s approach to s. 29(4) of the HRA was too restrictive. The section gives the commission the ability to dismiss a human rights complaint if it has been dealt with elsewhere, but that did not mean it had to defer to another forum, said the court. Instead, the section gave the commission the power to assess whether a complaint “ought to” be determined by a grievance or another statutory process, such as a human rights hearing – consistent with the legislative intention to have the commission maintain a concurrent jurisdiction to hear complaints, the court said.
The court also found that the use of the word “may” in s. 29(4) supported the commission’s ability to choose whether or not to dismiss a complaint and assess its appropriateness for a human rights action. In Horrocks, the wording of Manitoba’s Human Rights Code was a different than Nova Scotia’s, implying different legislative intent, the court added.
Additional wording in s. 29(4)(d), such as “at any time,” indicated that the legislature contemplated the commission waiting for the outcome of an arbitration to determine if a matter was dealt with appropriately, the court said.
Trade unions included in HRA
The court also pointed out that the definition of “employer” in the HRA included “a person who contracts with a person for services…” and “person” included “employees’ organization” – the latter definition encompassing trade unions.
“I am satisfied that in defining what type of employers are subject to the processes contained in the HRA, the legislature intended to include those that are parties to collective agreements,” said the court.
As for enforcement of the HRA, the court noted that labour arbitrators apply human rights legislation and arbitration “is the forum for the enforcement of human rights in unionized workplaces,” but the HRA specifically states that the commission “shall… administer and enforce the provisions of this act” - meaning that the commission has been legislatively mandated to enforce the HRA. As a result, the commission “shares concurrent jurisdiction with labour arbitrators for human rights matters,” the court said.
The court also found that the legislative history of Nova Scotia also supported concurrent jurisdiction for unionized workplaces between arbitrators and the commission. Previous legislation contemplated trade unions making discrimination complaints against employers and the case law supported the commission having jurisdiction over some unionized human rights complaints. Since the legislature had not sought to clarify jurisdiction in the wake of the case law, it “plainly demonstrates” the legislature’s intention to continue to exercise concurrent jurisdiction over complaints in a unionized workplace, said the court.
The court allowed the commission’s appeal and remitted the matter back to the Board of Inquiry to hear the worker’s complaint. See Nova Scotia (Human Rights Commission) v. Nova Scotia (Attorney General), 2023 NSCA 66.
