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Horrocks (SCC) Case: Alberta Human Rights Game Changer?
Northern Regional Health Authority v Horrocks, 2021 SCC 42 is a new Supreme Court of Canada decision that has the potential to shake up human rights jurisdictional issues across Canada.
In Horrocks, the SCC considered whether the Manitoba Human Rights Commission has concurrent jurisdiction to hear a human rights matter, in circumstances when a Manitoba labour arbitrator also clearly has jurisdiction to hear it. The SCC concluded that in Manitoba, if a labour arbitrator has jurisdiction to hear a human rights matter, the Human Rights Commission does not. It is exclusive.
Although the case was about Manitoba law specifically, there are many comments signaling an intention by the SCC for Horrocks to be used as a guide for each other province to determine whether their statutory schemes confer concurrent or exclusive jurisdiction in human rights matters falling within the unionized context.
Given the potential importance of the case in Alberta, I spent some time analyzing the case to see what impact it might have here.
My conclusion is that although Horrocks certainly has the potential of changing well-established practice and case law in Alberta, it appears unlikely (to me) that it will.
Analysis / Conclusion
I have distilled the analysis of the SCC down to what I see as its main points:
- Where labour relations statutes have deemed arbitration clauses for resolution of disputes (as most, including Manitoba and Alberta do), those statutes are presumed to confer exclusive jurisdiction on labour arbitrators to resolve matters arising from the collective agreement, including human rights;
- Although provincial human rights legislation applies to everyone, and human rights legislation does not explicitly state that labour arbitrators have exclusive jurisdiction over human rights in the unionized context, these facts are not sufficient to confer concurrent jurisdiction on human rights commissions in the unionized context;
- However, if the legislative scheme otherwise signals a positive expression of the legislature’s will that there be concurrent jurisdiction for labour arbitrators and human rights commissions to resolve human rights matters in the unionized context, there is concurrent jurisdiction.
The SCC found that in Manitoba, the labour regime had exclusive jurisdiction where a human rights matter arose in a unionized context.
The SCC was critical of certain important historical Alberta decisions on the subject, which had found that there was concurrent jurisdiction in human rights matters in the labour context in Alberta:
 I am aware of several appellate courts having resisted recognizing a labour arbitrator’s jurisdiction in human rights disputes as exclusive, on the basis that the exclusivity model developed in Weber has no application where the competing tribunal is a statutory body. In A.T.U., Local 583 v. Calgary (City), 2007 ABCA 121, 75 Alta. L.R. (4th) 75, for example, the Court of Appeal of Alberta reasoned:
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. [para. 23]
(See also Calgary Health Region v. Alberta (Human Rights & Citizenship Commission), 2007 ABCA 120, 74 Alta. L.R. (4th) 23, at paras. 25-30; Human Rights Commission (N.S.) v. Halifax (Regional Municipality), 2008 NSCA 21, 264 N.S.R. (2d) 61, at paras. 45-46)
 To the extent this passage from A.T.U. suggests that exclusive arbitral jurisdiction is a mere “preference” that should be disregarded wherever a competing statutory scheme is present, I see the matter differently. […] 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 also remain consistent.
However, the SCC did not actually analyze the Alberta legislative regime to determine whether there was concurrent jurisdiction over human rights in the labour context in Alberta right now. The SCC did provide a sort of road map for provinces to determine if there was concurrent jurisdiction in each case:
 What Morin indicates, however, is that the mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising from a collective agreement. Consequently, some positive expression of the legislature’s will is necessary to achieve that effect. Ideally, where a legislature intends concurrent jurisdiction, it will specifically so state in the tribunal’s enabling statute. But even absent specific language, the statutory scheme may disclose that intention. For example, some statutes specifically empower a decision-maker to defer consideration of a complaint if it is capable of being dealt with through the grievance process (see, e.g., Human Rights Code, R.S.B.C. 1996, c. 210, s. 25; Canada Labour Code, ss. 16(l.1) and 98(3); Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 41 and 42). Such provisions necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process. In other cases, the provisions of a statute may be more ambiguous, but the legislative history will plainly show that the legislature contemplated concurrency (see, e.g., Canpar Industries v. I.U.O.E., Local 115, 2003 BCCA 609, 20 B.C.L.R. (4th) 301). In these circumstances, applying an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent. [underline added]
With that roadmap in hand, we can move away from Horrocks for a moment to analyze the relevant statutory scheme in Alberta.
The Alberta Labour Relations Code, RSA 2000, c L-1 contains a section called “Marshalling of Proceedings”, which I think clearly contemplates concurrent human rights jurisdiction in the Alberta labour context:
Marshalling of proceedings
(1.1) This section applies with respect to the following:
(c) the following persons or bodies when dealing with employment matters:
(i) the Alberta Human Rights Commission and any human rights tribunal appointed under the Alberta Human Rights Act;
(9) The Chair or vice‑chair shall on notice to the affected parties or persons hold a hearing for the purpose of determining the following:
(d) whether an employee’s right to fair representation with respect to any human rights issue, including any duty to accommodate, has been, or will be, appropriately investigated and protected if the matter is to proceed by arbitration rather than through a complaint under the Alberta Human Rights Act.
Significantly in my view, this section on Marshalling was not even part of the Alberta legislative scheme when A.T.U., Local 583 v. Calgary (City), 2007 ABCA 121 and the other Alberta cases cited by the SCC were decided. The SCC in Horrocks did not actually say Alberta did not have concurrent jurisdiction in 2007 when those cases were decided, but even if that were the case, the recent amendments to the Labour Relations Code in Alberta appear to me to fit within the requirements of a legislative will in Alberta that jurisdiction be concurrent.
Horrocks has not yet been interpreted in Alberta, so no one can say for certain whether or not we have concurrent human rights jurisdiction here or not. However, I believe there is a very strong argument that there is concurrent jurisdiction here.
If Alberta courts do interpret Horrocks as conferring exclusive jurisdiction over unionized human rights matters in labour arbitrators, in my opinion this would result in a very severe injustice for existing human rights complainants that launched their complaints prior to Horrocks and on the basis of well-established Alberta law that there is concurrent jurisdiction. In my opinion it would also serve as an injustice for future complainants whose unions choose not to protect their human rights, leaving them with limited options.
Bow River Law is an Alberta employment law firm, specializing in Alberta employment law, Alberta human rights (discrimination) and Alberta labour law.
A published copy of Northern Regional Health Authority v Horrocks, 2021 SCC 42 is available at the following link: https://www.canlii.org/en/ca/scc/doc/2021/2021scc42/2021scc42.html?autocompleteStr=2021%20SCC%2042%20&autocompletePos=1