Northern Regional Health Authority v. Horrocks, 2021 SCC 42

SUPREME COURT OF CANADA

Appeal Heard: April 15, 2021 Judgment Rendered: October 22, 2021 Docket: 37878

Between: Northern Regional Health Authority Appellant and Linda Horrocks and Manitoba Human Rights Commission Respondents - and - Attorney General of British Columbia, Don Valley Community Legal Services, Canadian Association of Counsel to Employers, Canadian Human Rights Commission, British Columbia Council of Administrative Tribunals and Empowerment Council, Systemic Advocates in Addictions and Mental Health Interveners Coram: Wagner C.J. and Abella, Karakatsanis, Côté, Brown, Rowe and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 61)

Brown J. (Wagner C.J. and Abella, Côté, Rowe and Kasirer JJ. concurring)

Dissenting Reasons: (paras. 62 to 131)

Karakatsanis J.

Northern Regional Health Authority Appellant

v.

Linda Horrocks and

Manitoba Human Rights Commission Respondents

and

Attorney General of British Columbia,

Don Valley Community Legal Services,

Canadian Association of Counsel to Employers,

Canadian Human Rights Commission,

British Columbia Council of Administrative Tribunals and

Empowerment Council, Systemic Advocates in

Addictions and Mental Health Interveners

Indexed as: Northern Regional Health Authority v. Horrocks

2021 SCC 42

File No.: 37878.

2021: April 15; 2021: October 22.

Present: Wagner C.J. and Abella, Karakatsanis, Côté, Brown, Rowe and Kasirer JJ.

on appeal from the court of appeal for manitoba

Labour relations — Jurisdiction of arbitrator — Human rights dispute arising from collective agreement — Unionized employee suspended after attending work under influence of alcohol and later terminated for breaching abstinence agreement — Employee filing human rights complaint alleging that employer failed to adequately accommodate disability — Whether exclusive jurisdiction of labour arbitrator appointed under collective agreement and empowered by provincial labour legislation extends to adjudicating human rights disputes arising from collective agreement — The Labour Relations Act, C.C.S.M., c. L10, s. 78 — The Human Rights Code, C.C.S.M., c. H175, ss. 22 , 26 , 29(3) .

H was suspended for attending work under the influence of alcohol. After H disclosed her alcohol addiction and refused to enter into an agreement requiring that she abstain from alcohol and engage in addiction treatment, her employment was terminated. H's union filed a grievance and her employment was reinstated on substantially the same terms as the agreement H had refused to sign. Shortly thereafter, H's employment was terminated for an alleged breach of those terms. H filed a discrimination complaint with the Manitoba Human Rights Commission, which was heard by an adjudicator appointed under The Human Rights Code . The employer contested the adjudicator's jurisdiction, arguing that Weber v. Ontario Hydro , [1995] 2 S.C.R. 929, recognizes exclusive jurisdiction in an arbitrator appointed under a collective agreement, and that this extends to human rights complaints arising from a unionized workplace. The adjudicator disagreed, finding that she had jurisdiction because the essential character of the dispute was an alleged human rights violation. She went on to consider the merits of the complaint and found that the employer had discriminated against H.

On judicial review, the reviewing judge found error in the adjudicator's characterization of the essential character of the dispute, and set aside her decision on the issue of jurisdiction. The Court of Appeal allowed H's appeal. It agreed that disputes concerning the termination of a unionized worker lie within the exclusive jurisdiction of a labour arbitrator, including alleged human rights violations. Nevertheless, it held that the adjudicator had jurisdiction in this case and remitted the matter to the reviewing judge to determine whether the adjudicator's decision on the merits of the complaint was reasonable.

Held (Karakatsanis J. dissenting): The appeal should be allowed and the reviewing judge's order reinstated in part.

Per Wagner C.J. and Abella, Côté, Brown , Rowe and Kasirer JJ.: The adjudicator did not have jurisdiction over H's complaint. Where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where such legislative intent is clearly expressed. In the instant case, the essential character of H's complaint falls squarely within the labour arbitrator's mandate, and there is no clear express legislative intent to grant concurrent jurisdiction to the human rights adjudicator over such disputes. The reviewing judge's order setting aside the adjudicator's decision should be reinstated.

Exclusive arbitral jurisdiction, as explained by the Court in Weber , captures disputes that are factually related to the rights and obligations under the collective agreement, even where those same facts give rise to other legal claims based in statute or the common law. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. However, not all actions in the courts between a unionized employer and employee are precluded, because an arbitrator's exclusive jurisdiction extends only to disputes that expressly or inferentially arise out of the collective agreement, and not every workplace dispute will fall within this scope. In addition, the exclusive jurisdiction of a labour arbitrator is subject to the residual curial jurisdiction to grant remedies that lie outside the remedial authority of a labour arbitrator.

When it has considered the relationship between the respective spheres of jurisdiction held by labour arbitrators and statutory tribunals, the Court has affirmed that Weber 's exclusive jurisdiction model applies — where matters arise from the interpretation, application, administration or violation of the collective agreement, the claimant must proceed by arbitration and no other forum has the power to entertain an action in respect of that dispute. Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes; rather, depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction.

However, exclusive arbitral jurisdiction is not a mere preference that should be disregarded whenever a competing statutory scheme is present, but an interpretation of the mandate given to arbitrators by statute. The unavoidable conclusion to be drawn from the Court's jurisprudence is that mandatory dispute resolution clauses signal a legislative intention to confer exclusive jurisdiction on the labour arbitrator or other dispute resolution forum provided for under the agreement. The text and purpose of a mandatory dispute resolution clause remains unchanged, irrespective of the existence or nature of competing regimes, and its interpretation must therefore remain consistent. Conditioning the effect of a mandatory dispute resolution clause on the nature of the competing forum would result in persistent jurisdictional confusion, leaving members of the public unsure where to turn to resolve a dispute.

It is therefore necessary to consider whether a competing statutory scheme demonstrates an intention to displace the arbitrator's exclusive jurisdiction. In some cases, it may enact a complete code that confers exclusive jurisdiction over certain kinds of disputes on a competing tribunal; in other cases, the legislation may endow a competing tribunal with concurrent jurisdiction over disputes that would otherwise fall solely to the labour arbitrator for decision. However, the mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising from a collective agreement; some positive expression of the legislature's will is necessary. Where a legislature intends concurrent jurisdiction, it will specifically so state in the competing tribunal's enabling statute. But even absent specific language, the statutory scheme may disclose that intention: in some statutes, certain provisions necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process, or the legislative history will show that the legislature contemplated concurrency. In these circumstances, an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent.

Accordingly, resolving jurisdictional contests between labour arbitrators and competing statutory tribunals entails a two-step analysis. First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters. 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. Secondly, if it is determined that the arbitrator has exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction. The scope 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. The relevant inquiry is into the facts alleged, and not the legal characterization of the matter.

In the present case, two statutes are relevant. First, The Labour Relations Act contains, in s. 78 , a mandatory dispute resolution clause that discloses a legislative intent to grant exclusive jurisdiction to the labour arbitrator over all disputes arising from the collective agreement. Secondly, s. 22(1) of The Human Rights Code provides that any person may file a complaint alleging that another person has contravened the Code , and ss. 26 and 29(3) direct the Commission to investigate complaints and, where appropriate, to request the designation of an adjudicator to hear the complaint. 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 — insufficient to support a finding that the Commission holds concurrent jurisdiction. Thus, the arbitrator's jurisdiction under The Labour Relations Act over disputes that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement is exclusive and, more particularly, exclusive of the Commission. The essential character of H's complaint, which arises from the employer's exercise of its rights under, and from its alleged violation of, the collective agreement, represents such a dispute. The claim therefore falls solely to an arbitrator to adjudicate. While H alleges a human rights violation, this is not sufficient to displace the exclusive jurisdiction of the labour arbitrator.

Per Karakatsanis J. (dissenting): The appeal should be dismissed. The statutory schemes under The Labour Relations Act and The Human Rights Code point to concurrent jurisdiction. Although labour arbitration may well have been the more appropriate forum, the adjudicator was not wrong to conclude that she had jurisdiction, nor was she wrong to rule on the merits.

Deciding jurisdictional issues between two tribunals involves a two-step analysis. The first step is to consider both statutory schemes to determine whether the legislature intended for exclusive or concurrent jurisdiction. A liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature, or by ousting the jurisdiction of the intended forum. The second step is to consider the essential character of the dispute to determine whether it falls within one or both of the statutory schemes. This inquiry turns on the facts of the dispute rather than the legal characterization of the claim.

Apart from establishing this framework, the Court's jurisprudence does not provide a rule that, absent express legislative intent to the contrary, arbitral jurisdiction is exclusive over disputes that fall within the scope of a collective agreement , nor a rebuttable rule that the exclusive jurisdiction model, followed in Weber , applies in every case involving two statutory tribunals. Generally, when statutory tribunals are established, courts should give way to the special grant of jurisdiction given to such tribunals so as not to undermine the benefits intended by the legislature, including the provision of speedy and affordable dispute resolution . However, the reasoning from Weber favouring exclusive labour arbitration over civil litigation in the courts does not readily apply to jurisdictional issues between different statutory tribunals. When two tribunals are created with overlapping mandates and areas of expertise, the legislative schemes must be viewed as a whole. The legislature may very well have assigned the same tasks to two forums and may have intended for more than one adjudicative body to have jurisdiction over a dispute.

Turning to the first step of the analysis in the instant case, The Labour Relations Act confers broad jurisdiction to arbitrators to deal with matters related to a collective agreement. However, the Act does not specifically oust the Commission's jurisdiction under The Human Rights Code . Nor does anything in the Code oust the Commission's jurisdiction over a unionized employee, or oust the jurisdiction of the arbitrator under the Act. Nothing in either scheme suggests the legislature meant for one scheme to prevail over the other. There is no doubt that the labour scheme is designed to rely heavily upon arbitration for matters within the scope of a collective agreement. But so too does the human rights scheme rely heavily upon the Commission to address discrimination. In the jurisprudence, the jurisdiction of human rights tribunals has only been ousted when the statutory text of the other tribunal has specifically excluded all other decision‑making bodies, thereby indicating that jurisdiction was meant to be exclusive. No such express or strong language exists in The Labour Relations Act . The Act does not clearly confer exclusive jurisdiction on labour arbitrators, and The Human Rights Code does not remove human rights complaints of unionized employees from the Commission's jurisdiction.

Under the second step of the analysis, the Court must consider the essential nature of H's dispute to determine whether it falls within the jurisdiction of a labour arbitrator, or that of the Commission, or both. The claim is about whether H's employer discriminated against her on the basis of mental or physical disability — and therefore violated the collective agreement and The Human Rights Code — when it terminated her employment for allegedly violating her undertaking to abstain from alcohol. This dispute falls within the scope of the collective agreement, which specifically prohibits the employer from discriminating on the basis of disability and provides a grievance and arbitration procedure for any dispute arising out of the agreement's interpretation, application, or alleged violation. Given this context, H's discrimination claim can easily be characterized as arising out of an alleged violation of the collective agreement. A labour arbitrator accordingly has jurisdiction over it. However, the dispute also falls within the Commission's jurisdiction and within the mandate of the Code , as does the processing of H's complaint. There is no exception for a complaint made by a unionized employee who may be subject to a collective agreement. H's claim thus falls within both a labour arbitrator's mandate under The Labour Relations Act and the Commission's mandate under The Human Rights Code .

There is agreement with the majority that where two tribunals have concurrent jurisdiction over a dispute, the decision‑maker must consider whether to exercise its jurisdiction in the circumstances of a particular case. When the Commission shares jurisdiction with a labour arbitrator over a human rights dispute, a number of factors may guide the Commission's discretion to hear the complaint of a unionized employee, including: whether the claim is about the collective agreement itself rather than a violation of it; whether the union involved is opposed in interest to the complainant such that they could be left without legal recourse; whether a labour arbitrator would not have jurisdiction over every party possibly affected; and whether the Commission is a better fit.

These factors have different implications for the exercise of discretion. If the union is adverse in interest or is unwilling to pursue a grievance, unionized employees should still have legal recourse to adjudicate their human rights complaints before the Commission. Conversely, if the claim is about the violation of the collective agreement, if the union is supportive, and if the arbitrator has jurisdiction over the necessary parties, there will be a compelling case for a human rights forum to defer to the labour arbitration regime. Additionally, an inquiry into which forum is a better fit permits a broad consideration of the circumstances of the complaint. The remedy sought by the complainant may be highly relevant. If a complainant seeks a declaration, damages, or systemic changes, a human rights tribunal may be the better fit. On the other hand, if a complainant seeks reinstatement, there is a strong case for labour arbitration to have primary responsibility. Finally, access to justice and efficiency favour deferring to labour arbitration. As a general rule, the Commission should decline jurisdiction unless labour arbitration is not a realistic alternative.

In the present case, there was no clear evidence before the human rights adjudicator that the union would not assist or support H. And there are good reasons why the Commission or the adjudicator could have exercised their discretion to defer to the labour arbitration scheme: the dispute was about discrimination arising under the collective agreement, and the remedy sought — reinstatement — was squarely within the powers of a labour arbitrator. However, because the human rights adjudicator in this case clearly had jurisdiction, it cannot be said that she was wrong to proceed. In any event, it would not be appropriate, nearly a decade after the events giving rise to the dispute and over six years after the adjudicator's decision on the merits, to set aside the adjudicator's decision on jurisdiction. The remedies available on judicial review are discretionary and reflect a public interest in the orderly administration of affairs, including the need for finality and certainty.

Cases Cited

By Brown J.

Applied: Weber v. Ontario Hydro , [1995] 2 S.C.R. 929; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559; considered : St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219 , [1986] 1 S.C.R. 704; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners , 2000 SCC 14 , [2000] 1 S.C.R. 360; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) , 2004 SCC 39 , [2004] 2 S.C.R. 185; Quebec (Attorney General) v. Quebec (Human Rights Tribunal) , 2004 SCC 40 , [2004] 2 S.C.R. 223; Canada (House of Commons) v. Vaid , 2005 SCC 30 , [2005] 1 S.C.R. 667; referred to: Stene v. Telus Communications Company , 2019 BCCA 215 , 24 B.C.L.R. (6th) 74; Bruce v. Cohon , 2017 BCCA 186 , 97 B.C.L.R. (5th) 296; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) , 2007 NSCA 38 , 253 N.S.R. (2d) 144; Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Syncrude Canada Ltd. v. Canada (Attorney General) , 2016 FCA 160 , 398 D.L.R. (4th) 91; New Brunswick v. O'Leary , [1995] 2 S.C.R. 967; Allen v. Alberta , 2003 SCC 13 , [2003] 1 S.C.R. 128; Goudie v. Ottawa (City) , 2003 SCC 14 , [2003] 1 S.C.R. 141; Bisaillon v. Concordia University , 2006 SCC 19 , [2006] 1 S.C.R. 666; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 , 2003 SCC 42 , [2003] 2 S.C.R. 157; Wainwright v. Vancouver Shipyards Co. (1987) , 14 B.C.L.R. (2d) 247; Johnston v. Dresser Industries Canada Ltd . (1990) , 75 O.R. (2d) 609; Côté v. Saiano , [1998] R.J.Q. 1965; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd. , [1996] 2 S.C.R. 495; A.T.U., Local 583 v. Calgary (City) , 2007 ABCA 121 , 75 Alta. L.R. (4th) 75; Calgary Health Region v. Alberta (Human Rights & Citizenship Commission) , 2007 ABCA 120 , 74 Alta. L.R. (4th) 23; Human Rights Commission (N.S.) v. Halifax (Regional Municipality) , 2008 NSCA 21 , 264 N.S.R. (2d) 61; Canpar Industries v. I.U.O.E., Local 115 , 2003 BCCA 609 , 20 B.C.L.R. (4th) 301; Insurance Corp. of British Columbia v. Heerspink , [1982] 2 S.C.R. 145; Cadillac Fairview Corp. v. Human Rights Commission (Sask.) (1999) , 177 Sask. R. 126; Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001) , 209 D.L.R. (4th) 465; Central Okanagan School District No. 23 v. Renaud , [1992] 2 S.C.R. 970; Noël v. Société d'énergie de la Baie James , 2001 SCC 39 , [2001] 2 S.C.R. 207; McLeod v. Egan , [1975] 1 S.C.R. 517.

By Karakatsanis J. (dissenting)

Weber v. Ontario Hydro , [1995] 2 S.C.R. 929; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) , 2004 SCC 39 , [2004] 2 S.C.R. 185; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners , 2000 SCC 14 , [2000] 1 S.C.R. 360 ; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 , 2003 SCC 42 , [2003] 2 S.C.R. 157; Quebec (Attorney General) v. Quebec (Human Rights Tribunal) , 2004 SCC 40 , [2004] 2 S.C.R. 223; Bisaillon v. Concordia University , 2006 SCC 19 , [2006] 1 S.C.R. 666 ; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219 , [1986] 1 S.C.R. 704; Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001) , 209 D.L.R. (4th) 465; Greater Essex District School Board and OSSTF (OMERS Pension Plan), Re (2015), 256 L.A.C. (4th) 1 ; Human Rights Commission (N.S.) v. Halifax (Regional Municipality) , 2008 NSCA 21 , 264 N.S.R. (2d) 61; Calgary Health Region v. Alberta (Human Rights & Citizenship Commission) , 2007 ABCA 120 , 74 Alta. L.R. (4th) 23; Université de Sherbrooke v. Commission des droits de la personne et des droits de la jeunesse , 2015 QCCA 1397 ; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 , [1990] 1 S.C.R. 1298 ; Mason v. Gen‑Auto Shippers and Teamsters Local Union 938 , [1999] OLRB Rep. 242; Creed v. International Brotherhood of Electrical Workers, Local Union 339 , [1999] O.L.R.D. No. 3422 (QL); Tranchemontagne v. Ontario (Director, Disability Support Program) , 2006 SCC 14 , [2006] 1 S.C.R. 513; Canada (House of Commons) v. Vaid , 2005 SCC 30 , [2005] 1 S.C.R. 667; Haaretz.com v. Goldhar , 2018 SCC 28 , [2018] 2 S.C.R. 3; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 SCC 10 , [2012] 1 S.C.R. 364 ; Blatz v. 4L Communications Inc. ; Qumsieh v. Brandon School Division , 2019 MBHR 3 ; British Columbia (Workers' Compensation Board) v. Figliola , 2011 SCC 52 , [2011] 3 S.C.R. 422; Zulkoskey v. Canada (Minister of Employment and Social Development) , 2016 FCA 268 ; Dick v. Pepsi Bottling Group (Canada), Co. ; A.T.U., Local 583 v. Calgary (City) , 2007 ABCA 121 , 75 Alta. L.R. (4th) 75; Strickland v. Canada (Attorney General) , 2015 SCC 37 , [2015] 2 S.C.R. 713; Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339; Fingland v. Ontario (Ministry of Transportation) , 2008 ONCA 812 , 93 O.R. (3d) 268; Chippewas of Sarnia Band v. Canada (Attorney General) (2000) , 51 O.R. (3d) 641.

Statutes and Regulations Cited

Canada Labour Code , R.S.C. 1985, c. L‑2, ss. 16(l.1), 57(1) , 98(3) .

Canadian Human Rights Act , R.S.C. 1985, c. H‑6, ss. 41, 42 .

Human Rights Code , C.C.S.M., c. H175, preamble, ss. 4 , 7(2) (a), 14 , 22(1) , 26 , 29(3) , 34 , 42 , 43(2) , 58 .

Human Rights Code , R.S.B.C. 1996, c. 210, s. 25.

Human Rights Code , R.S.O. 1990, c. H.19, s. 45.1.

Industrial Relations Act , R.S.N.B. 1973, c. I‑4, s. 55.

Labour Act , R.S.P.E.I. 1988, c. L‑1, s. 37.

Labour Code , CQLR, c. C‑27, s. 100.

Labour Relations Act , C.C.S.M., c. L10, ss. 7, 20 , 78 , 121(2) .

Labour Relations Act , R.S.N.L. 1990, c. L‑1, s. 86.

Labour Relations Act , R.S.O. 1990, c. L.2, s. 45(1).

Labour Relations Act, 1995 , S.O. 1995, c. 1, Sch. A, s. 48.

Labour Relations Code , R.S.A. 2000, c. L‑1, ss. 135, 136 .

Labour Relations Code , R.S.B.C. 1996, c. 244, s. 84(2), (3) .

Manitoba Hydro Act , C.C.S.M., c. H190, s. 22.

Manitoba Public Insurance Corporation Act , C.C.S.M., c. P215, s. 65(13).

Residential Tenancies Act , C.C.S.M., c. R119, ss. 152(1), 158(1) .

Trade Union Act , R.S.N.S. 1989, c. 475, s. 42.

Trade Union Act , R.S.S. 1978, c. T‑17, s. 26.

Workers Compensation Act , C.C.S.M., c. W200, ss. 60(1), 60.8(1) .

Authors Cited

Adams, George W. Canadian Labour Law , 2nd ed. Toronto: Thomson Reuters, 2021 (loose‑leaf updated June 2021, release 2 ).

Brown, Donald J. M., with the assistance of David Fairlie. Civil Appeals . Toronto: Thomson Reuters, 2019 (loose‑leaf updated July 2021, release 2).

Brown , Donald J. M., and John M. Evans, with the assistance of David Fairlie . Judicial Review of Administrative Action in Canada . Toronto: Thomson Reuters, 2013 (loose‑leaf updated July 2021, release 2).

Etherington, Brian. " Weber , and Almost Everything After, Twenty Years Later: Its Impact on Individual Charter , Common Law, and Statutory Rights Claims", in Elizabeth Shilton and Karen Schucher, eds., One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell . Toronto: Irwin Law, 2017, 25.

Evans, John M. "The Role of Appellate Courts in Administrative Law" (2007), 20 C.J.A.L.P. 1.

Gagnon, Jean Denis. "Les droits de la personne dans un contexte de rapports collectifs de travail. Compétence de l'arbitre et d'autres tribunaux. Quand l'incertitude devient la règle" (2006), 66 R. du B. 1.

Gall, Peter A., Andrea L. Zwack and Kate Bayne. "Determining Human Rights Issues in the Unionized Workplace: The Case for Exclusive Arbitral Jurisdiction" (2005), 12 C.L.E.L.J. 381.

Lokan, Andrew K., and Maryth Yachnin. "From Weber to Parry Sound : The Expanded Scope of Arbitration" (2004), 11 C.L.E.L.J. 1.

Manitoba Human Rights Commission. Board of Commissioners. Policy # P-3: Jurisdiction — Concurrent Jurisdiction , December 18, 2002, revised October 8, 2014 (online: http://www.manitobahumanrights.ca/v1/education-resources/resources/pubs/board-of-commisioner-policies/p-3.pdf; archived version: https://www.scc-csc.ca/cso-dce/2021SCC-CSC42_1_eng.pdf ).

Mummé, Claire. "Questions, Questions: Has Weber Had an Impact on Unions' Representational Responsibilities in Workplace Human Rights Disputes?", in Elizabeth Shilton and Karen Schucher, eds., One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell . Toronto: Irwin Law, 2017, 229.

Pickel, Jo‑Anne. "Statutory Tribunals and the Challenges of Managing Parallel Claims", in Elizabeth Shilton and Karen Schucher, eds., One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell . Toronto: Irwin Law, 2017, 175.

Shilton, Elizabeth. "Choice, but No Choice: Adjudicating Human Rights Claims in Unionized Workplaces in Canada" (2013), 38 Queen's L.J. 461.

Shilton, Elizabeth. "'Everybody's Business': Human Rights Enforcement and the Union's Duty To Accommodate" (2014), 18 C.L.E.L.J. 209.

Shilton, Elizabeth. "Labour Arbitration and Public Rights Claims: Forcing Square Pegs into Round Holes" (2016), 41 Queen's L.J. 275.

APPEAL from a judgment of the Manitoba Court of Appeal (Monnin, Mainella and Pfuetzner JJ.A.), 2017 MBCA 98 , [2018] 1 W.W.R. 77, 27 Admin. L.R. (6th) 95, 416 D.L.R. (4th) 385, 43 C.C.E.L. (4th) 16, 88 C.H.R.R. D/1, 2018 CLLC 230‑009, [2017] M.J. No. 274 (QL), 2017 CarswellMan 458 (WL Can.), setting aside a decision of Edmond J., 2016 MBQB 89 , 327 Man. R. (2d) 284, [2016] 11 W.W.R. 297, 33 C.C.E.L. (4th) 323, 84 C.H.R.R. D/67, [2016] CLLC 230‑031, [2016] M.J. No. 127 (QL), 2016 CarswellMan 155 (WL Can.). Appeal allowed, Karakatsanis J. dissenting.

Robert Watchman and Todd C. Andres , for the appellant.

Paul Champ and Bijon Roy , for the respondent Linda Horrocks.

Thor J. Hansell and Shea Garber , for the respondent the Manitoba Human Rights Commission.

Robert Danay , for the intervener the Attorney General of British Columbia.

Busayo A. Faderin , for the intervener Don Valley Community Legal Services.

Craig W. Neuman , Q.C. , for the intervener the Canadian Association of Counsel to Employers.

Brian Smith , for the intervener the Canadian Human Rights Commission.

Oliver Pulleyblank , for the intervener the British Columbia Council of Administrative Tribunals.

Karen R. Spector , for the intervener the Empowerment Council, Systemic Advocates in Addictions and Mental Health.

The judgment of Wagner C.J. and Abella, Côté, Brown, Rowe and Kasirer JJ. was delivered by

Brown J. —

I. Introduction

[ 1 ] Labour relations legislation across Canada requires every collective agreement to include a clause providing for the final settlement of all differences concerning the interpretation, application or alleged violation of the agreement, by arbitration or otherwise. The precedents of this Court have maintained that the jurisdiction conferred upon the decision‑maker appointed thereunder is exclusive . At issue in this case, principally, is whether that exclusive jurisdiction held by labour arbitrators in Manitoba extends to adjudicating claims of discrimination that, while falling within the scope of the collective agreement, might also support a human rights complaint.

[ 2 ] The respondent Linda Horrocks says that her employer, the appellant, the Northern Regional Health Authority ("NRHA"), failed to adequately accommodate her disability. In 2011, she was suspended for attending work under the influence of alcohol. After she disclosed her alcohol addiction and refused to enter into a "last chance agreement" requiring that she abstain from alcohol and engage in addiction treatment, the NRHA terminated her employment. Ms. Horrocks' union filed a grievance, which was settled by an agreement reinstating her employment on substantially the same terms as the last chance agreement. Shortly thereafter, the NRHA terminated her employment for an alleged breach of those terms.

[ 3 ] Ms. Horrocks filed a complaint with the respondent, the Manitoba Human Rights Commission, which was heard by an adjudicator appointed under The Human Rights Code , C.C.S.M., c. H175. The NRHA contested the adjudicator's jurisdiction to hear the complaint, arguing that this Court's judgment in Weber v. Ontario Hydro , [1995] 2 S.C.R. 929, recognizes exclusive jurisdiction in an arbitrator appointed under a collective agreement, and that this jurisdiction extends to human rights complaints arising from a unionized workplace. Chief Adjudicator Walsh disagreed, finding that she had jurisdiction. While Weber does recognize exclusive jurisdiction in labour arbitrators over disputes that arise from the interpretation, application, administration, or violation of a collective agreement, the essential character of this dispute, she held, was an alleged human rights violation ( 2015 MBHR 3 , 83 C.H.R.R. D/45). Chief Adjudicator Walsh went on to consider the merits of the complaint and found that the NRHA had discriminated against Ms. Horrocks.

[ 4 ] On judicial review, Edmond J. found error in the adjudicator's characterization of the essential character of the dispute, and set aside the adjudicator's decision on the issue of jurisdiction. As he saw it, the essential character of the dispute was whether the NRHA had just cause to terminate Ms. Horrocks' employment ( 2016 MBQB 89 , 327 Man. R. (2d) 284). "[A]ny [such] dispute", he held (at para. 57), "including any human rights violation associated with the termination, is within the exclusive jurisdiction of labour arbitration". As such, Edmond J. found it unnecessary to decide whether the adjudicator's decision on the merits of the complaint was reasonable. The Court of Appeal agreed with Edmond J.'s conclusion that disputes concerning the termination of a unionized worker lie within the exclusive jurisdiction of a labour arbitrator, including where the dispute alleges human rights violations ( 2017 MBCA 98 , 416 D.L.R. (4th) 385). Nevertheless, it held that the adjudicator had jurisdiction for several reasons:

(a) Ms. Horrocks "made a choice to sever" the employment and human rights aspects of her claim by not grieving her second termination (para. 80);

(b) 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

(c) The union was not interested in pursuing arbitration, thus precluding Ms. Horrocks from bringing her claim to any forum if a labour arbitrator were to hold exclusive jurisdiction (para. 87).

In the result, the Court of Appeal allowed the appeal and remitted the matter to the Court of Queen's Bench to determine whether the adjudicator's decision on the merits of the discrimination complaint was reasonable.

[ 5 ] For the reasons that follow, I find myself in respectful disagreement with the adjudicator and the Court of Appeal. Properly understood, this Court's jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act , C.C.S.M., c. L10, is to mandate arbitration of "all differences" concerning the "meaning, application, or alleged violation" of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks' complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator's mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed.

II. Issues

[ 6 ] As noted, the principal issue arising is whether the exclusive jurisdiction of a labour arbitrator appointed under a collective agreement extends to human rights disputes that arise therefrom. But two preliminary issues were also put to us by the parties: first, the standard of review applicable to an administrative decision concerning the jurisdictional lines between two tribunals; and secondly, the standard of review applicable on appeal from a judicial review of an administrative decision.

III. Analysis

A. Standard of Review

(1) Administrative Standard of Review

[ 7 ] Decisions concerning the jurisdictional lines between two or more administrative bodies must be correct ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , at para. 53 ). This standard safeguards the rule of law, which "requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another" (para. 64). It also fosters predictability, finality and certainty in the law ( ibid. ).

[ 8 ] Here, the reviewing judge and the Court of Appeal applied the correctness standard to the adjudicator's decision. The Commission acknowledges that this is faithful to Vavilov , but argues that the determination of jurisdictional lines involves a fact‑specific inquiry into the "essential character" of a dispute, which ought to attract deference (R.F., at paras. 75-84). It therefore invites the Court to reconsider the established standard.

[ 9 ] I am not persuaded that such reconsideration is necessary or desirable. As I will explain below, correctly determining the jurisdictional lines between two administrative bodies requires that a decision‑maker correctly identify the essential character of the dispute. Applying a reasonableness standard to this component of the analysis would undermine the objective of ensuring that one adjudicative body does not trespass on the jurisdiction of the other. I note as well that appellate authority concerning the jurisdictional lines between courts and tribunals has generally held that the essential character determination is reviewed for correctness ( Stene v. Telus Communications Company , 2019 BCCA 215 , 24 B.C.L.R. (6th) 74, at para. 38 ; Bruce v. Cohon , 2017 BCCA 186 , 97 B.C.L.R. (5th) 296, at para. 80 ; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) , 2007 NSCA 38 , 253 N.S.R. (2d) 144, at para. 12 ). These authorities explain that this is so notwithstanding the fact‑specific nature of the essential character inquiry, because it grounds a determination of jurisdiction.

(2) Appellate Standard of Review

[ 10 ] A reviewing judge's selection and application of the standard of review is reviewable for correctness. This standard traces back to Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, where LeBel J. explained:

The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v. Canada Revenue Agency , 2009 FCA 23 , 386 N.R. 212, at para. 18 :

Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. The appellate court is not restricted to asking whether the first‑level court committed a palpable and overriding error in its application of the appropriate standard.

In Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3 , [2012] 1 S.C.R. 23, at para. 247 , Deschamps J. aptly described this process as "'step[ping] into the shoes' of the lower court" such that the "appellate court's focus is, in effect, on the administrative decision" (emphasis deleted).

The issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of review and apply it properly? [Text in brackets in original; paras. 45-47.]

This approach accords no deference to the reviewing judge's application of the standard of review. Rather, the appellate court performs a de novo review of the administrative decision (D. J. M. Brown, with the assistance of D. Fairlie, Civil Appeals (loose-leaf), at §14:45).

[ 11 ] The approach to appellate review prescribed in Agraira is different than that set out in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235. Where Housen applies, the degree of deference accorded to the original decision‑maker depends on the type of error at issue: errors of law are reviewed on the correctness standard, while errors of fact and mixed fact and law attract the palpable and overriding error standard. The NRHA invites the Court to reconsider Agraira , saying that a de novo review of administrative decisions renders the first level of review a "necessary but feckless step in the judicial review of an administrative decision" (A.F., at para. 6). In its submission, no principled reason precludes applying the standards of review stated in Housen to an appeal from a judicial review decision.

[ 12 ] I would decline the invitation to reconsider Agraira , which is a recent decision of the Court and remains good law. Of course, there may be good reason to apply the Housen standard where a reviewing judge acts as a decision-maker of first instance (the Hon. J. M. Evans, "The Role of Appellate Courts in Administrative Law" (2007), 20 C.J.A.L.P. 1, at pp. 30-34; Brown, at §14:46; Syncrude Canada Ltd. v. Canada (Attorney General) , 2016 FCA 160 , 398 D.L.R. (4th) 91, at para. 29 ), but this does not provide a reason for applying Housen to the selection and application of the standard of review. In any event, however, this point makes no difference to NRHA's appeal. As indicated, the adjudicator's finding that she had jurisdiction is reviewable for correctness. And if the adjudicator was bound to correctly determine her own jurisdiction, it follows that the reviewing judge was also bound to apply the same standard in reviewing the adjudicator's decision. Concluding otherwise would allow an incorrect determination of jurisdictional lines to stand, which would undermine the values of certainty and predictability that justified the application of the correctness standard in the first instance. Even under Housen , no deference would have been owed to the reviewing judge's analysis.

B. The Adjudicator's Jurisdiction

[ 13 ] It is settled law that the scope of a labour arbitrator's jurisdiction precludes curial recourse in disputes that arise from a collective agreement, even where such disputes also give rise to common law or statutory claims ( St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219 , [1986] 1 S.C.R. 704, at p. 721; Weber , at para. 54 ; New Brunswick v. O'Leary , [1995] 2 S.C.R. 967; Allen v. Alberta , 2003 SCC 13 , [2003] 1 S.C.R. 128, at paras. 12‑17 ; Goudie v. Ottawa (City) , 2003 SCC 14 , [2003] 1 S.C.R. 141, at paras. 22‑23 ; Bisaillon v. Concordia University , 2006 SCC 19 , [2006] 1 S.C.R. 666, at para. 30 ). It is similarly beyond dispute that labour arbitrators may apply human rights legislation to disputes arising from the collective agreement ( Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 , 2003 SCC 42 , [2003] 2 S.C.R. 157, at paras. 1 and 28‑29 ; Weber , at para. 56 ). Indeed, it has been observed that labour arbitration is the primary forum for the enforcement of human rights in unionized workplaces (E. Shilton, "'Everybody's Business': Human Rights Enforcement and the Union's Duty To Accommodate" (2014), 18 C.L.E.L.J. 209, at p. 235; P. A. Gall, A. L. Zwack and K. Bayne, "Determining Human Rights Issues in the Unionized Workplace: The Case for Exclusive Arbitral Jurisdiction" (2005), 12 C.L.E.L.J. 381, at p. 397).

[ 14 ] At stake, however — in this appeal and more generally — is whether that observation understates the case: Is labour arbitration merely the primary , as opposed to the exclusive forum for enforcing human rights issues arising from the collective agreement? Ms. Horrocks and the Commission contend that a labour arbitrator's jurisdiction to apply human rights legislation to such disputes is not exclusive. In their view, arbitral exclusivity applies only to decide jurisdictional contests between labour arbitrators and the courts . Where the competing forum is a statutory tribunal, they say the arbitrator's jurisdiction is concurrent unless the legislation expressly mandates exclusivity. This applies with particular force to human rights adjudication schemes, given the quasi‑constitutional nature of their enabling legislation. In their view, concluding otherwise would jeopardize access to justice in unionized workplaces.

[ 15 ] This argument is unsustainable in light of this Court's jurisprudence. Properly understood, the decided cases indicate that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the arbitrator or other decision-maker empowered by this legislation is exclusive. This applies irrespective of the nature of the competing forum, but is always subject to clearly expressed legislative intent to the contrary.

(1) Exclusive Arbitral Jurisdiction

[ 16 ] Labour relations statutes in Canada generally require that collective agreements include a method for the final settlement of differences concerning the interpretation, application, and alleged violation of the agreement. Some statutes specifically require arbitration of such differences, while others permit the parties to select a different method of dispute resolution. Where a collective agreement does not include a dispute resolution procedure that complies with the statute, it is deemed to include an arbitration clause in prescribed terms. See G. W. Adams, Canadian Labour Law (2nd ed. (loose‑leaf)), at pp. 12-51 to 12-55; The Labour Relations Act , s. 78; Labour Relations Code , R.S.B.C. 1996, c. 244, s. 84(2) and (3) ; Labour Relations Code , R.S.A. 2000, c. L‑1, ss. 135 and 136 ; The Trade Union Act , R.S.S. 1978, c. T‑17, s. 26; Labour Relations Act, 1995 , S.O. 1995, c. 1, Sch. A, s. 48; Labour Code , CQLR, c. C‑27, s. 100; Trade Union Act , R.S.N.S. 1989, c. 475, s. 42; Industrial Relations Act , R.S.N.B. 1973, c. I‑4, s. 55; Labour Relations Act , R.S.N.L. 1990, c. L‑1, s. 86; Labour Act , R.S.P.E.I. 1988, c. L‑1, s. 37; Canada Labour Code , R.S.C. 1985, c. L‑2, s. 57(1).

[ 17 ] This Court has interpreted such mandatory dispute resolution provisions as conferring exclusive jurisdiction on the decision‑maker appointed thereunder — typically, a labour arbitrator. That understanding originates in St. Anne Nackawic , which concerned an employer's civil action against a union for damages following an illegal strike. The union raised a preliminary objection to the court's jurisdiction, arguing that, under s. 55(1) of New Brunswick's Industrial Relations Act , only a labour arbitrator could adjudicate disputes arising from the collective agreement. That section read as follows:

55 (1) Every collective agreement shall provide for the final and binding settlement by arbitration or otherwise, without stoppage of work, of all differences between the parties to, or persons bound by, the agreement or on whose behalf it was entered into, concerning its interpretation, application, administration or an alleged violation of the agreement, including any question as to whether a matter is arbitrable.

[ 18 ] The Court found that this section left no room for curial jurisdiction over the claim. Allowing the parties such recourse to enforce the collective agreement would, he explained, undermine the integrity of the labour arbitration scheme and the labour relations system as a whole:

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. . . . The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks .

. . . if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting . Arbitration, when adopted by the parties as was done here in the collective agreement, is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements. From the foregoing authorities, it might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement . [Emphasis added; pp. 718‑19 and 721.]

[ 19 ] In Weber , the Court elaborated upon the scope of exclusive arbitral jurisdiction identified in St. Anne Nackawic , holding that it also ousted curial jurisdiction over tort and Charter claims arising from a collective agreement. There, an employer had hired private investigators to determine whether an employee was abusing his sick leave benefits. The investigators gained entry to the employee's home by assuming a false identity, and obtained information that led to the employee's termination. The employee filed a grievance seeking damages for mental anguish caused by the surveillance, which was settled. Further, he commenced a civil action alleging t respass, nuisance, deceit, invasion of privacy, a nd breach of his Charter rights. The employer objected, arguing that the dispute related to the sick leave provisions in the collective agreement and thus fell to be decided exclusively by a labour arbitrator.

[ 20 ] The Court agreed that the matter fell within exclusive arbitral jurisdiction. That jurisdiction, it explained, captures disputes that are factually related to the rights and obligations under the collective agreement, even where those same facts give rise to other legal claims based in statute or the common law:

The issue is not whether the action , defined legally, is independent of the collective agreement, but rather whether the dispute is one "arising under [the] collective agreement". Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it. [Emphasis in original; text in brackets in original; para. 43.]

[ 21 ] This analysis reflected the language of the applicable labour relations statute at issue in Weber , which required arbitration of " all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement" ( Labour Relations Act , R.S.O. 1990, c. L.2, s. 45(1)). As the Court explained, the term "differences" revealed a legislative concern not for the form of legal actions that might be advanced, but for the dispute between the parties (para. 45). Such concern made sense, being consistent with the objectives of the legislation, including the resolution of disputes "quickly and economically, with a minimum of disruption to the parties and the economy" — an objective that "lies at the heart of all Canadian labour statutes" (para. 46 (emphasis added)). In short, and as the Court summarized (at para. 67 (emphasis added)), "[t]he question in each case is whether the dispute, viewed with an eye to its essential character , arises from the collective agreement."

[ 22 ] A word of caution is in order here. The Court was careful to note that "[t]his approach does not preclude all actions in the courts between [a unionized] employer and employee" (para. 54 (emphasis added)). This is because an arbitrator's exclusive jurisdiction extends only to "disputes which expressly or inferentially arise out of the collective agreement" ( ibid. ; see also Bisaillon , at paras. 30‑33 ). Not every workplace dispute will fall within this scope. For example, in Goudie , employees claimed damages under a pre‑employment contract. The Court found that this claim arose from the pre‑employment contract, and not from the collective agreement (at para. 4), and therefore fell outside the arbitrator's exclusive jurisdiction. (See, similarly, Wainwright v. Vancouver Shipyards Co. (1987) , 14 B.C.L.R. (2d) 247 (C.A.); Johnston v. Dresser Industries Canada Ltd . (1990) , 75 O.R. (2d) 609 (C.A.); Côté v. Saiano , [1998] R.J.Q. 1965 (C.A.).)

[ 23 ] A further caveat: the exclusive jurisdiction of a labour arbitrator is subject to the residual curial jurisdiction to grant remedies that lie outside the remedial authority of a labour arbitrator, including interlocutory injunctions ( Weber , at para. 67 ; see also Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd. , [1996] 2 S.C.R. 495; Bisaillon , at para. 42 ). This ensures that there is no "deprivation of ultimate remedy" ( Weber , at para. 57 , quoting St. Anne Nackawic , at p. 723).

(a) Exclusive Arbitral Jurisdiction and Statutory Tribunals

[ 24 ] This Court has twice considered the relationship between the respective spheres of jurisdiction held by labour arbitrators and statutory tribunals. In each case, it affirmed the exclusivity of arbitral jurisdiction recognized in St. Anne Nackawic and Weber .

[ 25 ] In Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners , 2000 SCC 14 , [2000] 1 S.C.R. 360, the issue was whether an arbitrator could hear the grievance of a police officer who resigned after he was informed that he would be charged with discreditable conduct by his employer police service and could be subject to dismissal under The Police Act, 1990 , S.S. 1990‑91, c. P‑15.01. The Court found that The Police Act gave police boards exclusive responsibility to resolve disciplinary matters. Because the essential character of the dispute concerned police discipline, it fell exclusively to the board, and not to the arbitrator. Of significance, however, the Court affirmed that, as to matters that do arise from "the interpretation, application, administration or violation of [the] collective agreement", Weber 's "exclusive jurisdiction model" applies — meaning, "the claimant must proceed by arbitration [and] [ n]o other forum has the power to entertain an action in respect of that dispute " (para. 22 (emphasis added)).

[ 26 ] This view was consistently maintained in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) , 2004 SCC 39 , [2004] 2 S.C.R. 185 (" Morin "). The case concerned a term in the collective agreement between teachers' unions and the province stipulating that experience acquired during the 1996‑1997 school year would not be credited for the purposes of calculating seniority and salary increments. This affected young teachers particularly, some of whom filed a complaint with the provincial human rights commission, alleging discrimination on the basis of age contrary to the Quebec Charter of Human Rights and Freedoms , R.S.Q., c. C‑12; the commission then brought the matter before the Quebec Human Rights Tribunal. The Attorney General of Quebec challenged the tribunal's jurisdiction over the matter, asserting that it fell instead within the exclusive jurisdiction of a labour arbitrator.

[ 27 ] The Court explained that it is necessary to examine the relevant legislation in order to determine whether it confers exclusive jurisdiction on the arbitrator and, if so, whether the essential character of the dispute falls within the scope of that jurisdiction. Weber , it explained (at para. 11 ), "does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer‑union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction". In the case before it, the Court accepted that the mandatory dispute resolution clause in Quebec's Labour Code did grant an arbitrator exclusive jurisdiction over disputes arising from the operation of the collective agreement (at paras. 16 and 20‑24), but also determined that the dispute in Morin did not fall within that jurisdictional scope; rather than arising from the operation of the collective agreement, it arose out of its negotiation (paras. 24 and 26). McLachlin C.J. explained, for the majority:

Everyone agrees on how the agreement, if valid, should be interpreted and applied. The only question is whether the process leading to the adoption of the alleged discriminatory clause and the inclusion of that clause in the agreement violates the Quebec Charter , rendering it unenforceable. [para. 24]

Appeal allowed, Karakatsanis J. dissenting.

Solicitors for the appellant: Pitblado, Winnipeg.

Solicitors for the respondent Linda Horrocks: Champ & Associates, Ottawa.

Solicitors for the respondent the Manitoba Human Rights Commission: MLT Aikins, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.

Solicitors for the intervener Don Valley Community Legal Services: Monkhouse Law, Toronto.

Solicitors for the intervener the Canadian Association of Counsel to Employers: Neuman Thompson, Edmonton.

Solicitor for the intervener the Canadian Human Rights Commission: Canadian Human Rights Commission, Ottawa.

Solicitors for the intervener the British Columbia Council of Administrative Tribunals: Pulleyblank Law Corporation, Vancouver.

Solicitor for the intervener the Empowerment Council, Systemic Advocates in Addictions and Mental Health: Karen R. Spector, Toronto.