Labor & Employment Law

Concurrent Jurisdiction in Human Rights Matters

By Michael Fitzgibbon

The Supreme Court of Canada dismissed a leave application with costs in the Calgary Health Region v. Alberta (Human Rights and Citizenship Commission) a case in which the Alberta Court of Appeal considered whether a labour arbitration board had exclusive jurisdiction to hear and determine allegations of discrimination and human rights violations as part of a grievance under a collective agreement, and whether the jurisdiction of the Alberta Human Rights and Citizenship Commission (?Commission?) over the same matters has been ousted.

The Court of Appeal considered that:

• Where the choice of forum is between arbitration and the courts, the court should guard against undermining the purpose of the legislature in enacting labour relations legislation; and
• When the choice of forum is between two competing statutory regimes, the intent of the legislature remains the paramount consideration. However, in such situations there are two, not one, legislative mandates that must be respected.

The question in each case is whether the relevant legislation applied to the factual context of the dispute at issue establishes that either tribunal has exclusive jurisdiction over that dispute.  A two-step process is used to decide this:

First, the court must examine the relevant statutes and what they say about the jurisdiction of the tribunals. Second, the court must look at the nature of the dispute, to see whether the legislation suggests it falls exclusively to either tribunal.  ....

The application of the two part test will lead to one of three possible jurisdictional outcomes:  (i) concurrent jurisdiction (any labour dispute could be brought before either the arbitrator or other tribunals); (ii) overlapping jurisdiction (labour tribunals consider traditional labour law issues, but nothing ousts the jurisdiction of other tribunals over other matters that arise in the employment context); or (iii) exclusive jurisdiction (jurisdiction lies exclusively in either the labour arbitrator or in the alternative tribunal, but not in both).

The Court concluded that the arbitration board and the Commission had concurrent jurisdiction over the dispute.  Given the Supreme Court's dismissal of the leave application, this stands as the law in Alberta.

Any discussion of jurisdiction must, necessarily, consider the seminal Supreme Court of Canada case of Weber v. Ontario Hydro which considered the three models mentioned above in the context of a competition between a court and arbitration and Quebec (Commission des droits de la pesonne et des droits de la jeunesse) v. Quebec (Attorney General) ("Morin") which considered a competition between two statutory tribunals.  Concurrent jurisdiction was also found in Nova Scotia Human Rights Commission v. Halifax (Regional Municipality) (March 19, 2007, N.S.S.C.) and Ontario (Human Rights Commission) v. Naraine (December 14, 2001, Ont. C.A.) and in a number of other analogous cases.

Full post as published by Thoughts from a Management Lawyer on November 08, 2007 (boomark / email).