Thor J. Hansell

This decision addresses the costs of a "Hybrid Motion" brought by Iskatewizaagegan No. 39 Independent First Nation against the City of Winnipeg and His Majesty the King in Right of Ontario.

The First Nation sought leave to amend its statement of claim to increase damages and clarify the "Headlands Issue," a ruling on a legal issue, and a refusals motion.

The motion had mixed success for all parties.

The First Nation requested substantial indemnity costs of over $200,000, while the defendants sought no costs or partial indemnity of $15,000-$20,000.

The court awarded the First Nation partial indemnity costs of $90,000, payable in the cause, finding no basis for substantial indemnity due to the procedural nature of the motion and the absence of punitive conduct.

The court also noted that principles of reconciliation were not argued on the motion and did not warrant extraordinary costs in this interlocutory context.

A unionized health authority employee was suspended for attending work under the influence of alcohol.

After disclosing her alcohol addiction and refusing a last-chance abstinence agreement, the employer terminated her employment; her union grieved and she was reinstated on similar terms, then terminated again for allegedly breaching those terms.

The employee filed a human rights complaint alleging failure to accommodate her disability, and a human rights adjudicator assumed jurisdiction and found discrimination.

The majority held that Manitoba's mandatory dispute resolution clause in The Labour Relations Act confers exclusive jurisdiction on the labour arbitrator over all disputes arising from the collective agreement, and that The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the human rights adjudicator over such disputes.

The appeal was allowed and the reviewing judge's order setting aside the adjudicator's decision was reinstated.