It has been a few years now since the seminal Supreme Court of Canada case of Northern Regional Health Authority v Horrocks, 2021 SCC 42 was released. There have been several decisions in Alberta interpreting Horrocks in the context of human rights, including recently, and it is a good time to look at where we are now.
My apologies that this particular blog article is on the technical side, because these issues are complex jurisdictional matters that are mostly of interest to employment lawyers and extreme law nerds.
Horrocks
First, Horrocks itself. I summarized this decision and what I thought it meant in Alberta in November of 2021, here. My conclusion was that although Horrocks could potentially be interpreted to mean that there is no concurrent jurisdiction for the Alberta Human Rights Commission to hear complaints arising in unionized workplaces, I thought the exception described in Horrocks would apply: that the Alberta legislature had signaled a positive intention in both the Alberta Labour Relations Code and the Alberta Human Rights Act to allow concurrent jurisdiction.
Blackie and Grewal
Blackie v Chief of Police, Calgary Police Service, 2022 AHRC 52 (Oviatt)
This case is about whether the Alberta Human Rights Commission has “concurrent jurisdiction” to handle human rights disputes that arise in unionized workplaces.
In Blackie, the complainant police officer filed three human rights complaints against the Calgary Police Service, alleging discrimination in employment on the grounds of mental disability, physical disability and gender. The complaints were ultimately dismissed, but Chief of Commissions and Tribunals Kathrine Oviatt had to consider whether the Alberta Human Rights Commission had jurisdiction to hear the complaints in the first place, given that she worked in a unionized environment.
The AHRC found that it had concurrent jurisdiction to hear Ms. Blackie’s human rights complaints, interpreting Horrocks as follows:
[21] The Act demonstrates legislative intent for concurrent jurisdiction. Under the new sections 21(1)(a)(iv) and 21(2)(a)(iii), the Director may dismiss a complaint that “is being, has been, will be or should be more appropriately dealt with in another forum or under another Act”. If the Director can accept a complaint that may be addressed through a grievance process and then use her discretion to dismiss it, she must have concurrent jurisdiction. Similarly, in ss. 21(2)(b) the Director may accept a complaint pending the outcome of the matter in another forum. This is the deferral authority referenced in Horrocks. All three of these subsections suggest that there is concurrent jurisdiction. The deferral authority existed prior to the changes in the Act as well.
[22] Correspondingly, section 67.1 of the Labour Relations Code grants authority to the Labour Relations Board to marshal proceedings with concurrent jurisdiction, including “the Alberta Human Rights Commission and any human rights tribunal appointed under the Alberta Human Rights Act” The legislative intent in Alberta is that the Commission has concurrent jurisdiction with labour arbitrators over human rights proceedings.
[23] This does not mean that the Commission must always proceed with complaints where there is a parallel action in another forum. Under the new legislation, the Director may refuse to accept, defer, or dismiss a complaint that has been, will be or should be more appropriately dealt with in another forum. The Chief under section 26 may consider whether a complaint should have been dismissed for these reasons. It is a discretionary authority that should be exercised in the interests of justice.
Chief Oviatt went on to find that in the Blackie case, the Alberta Human Rights Commission had concurrent jurisdiction, as follows:
[24] Here, there was no grievance process directly addressing the substance of the human rights complaint. The complainant brought three grievances, the first two alleging failure to provide contractual rates of pay during WCB covered treatment for an occupational injury, and the third alleging non-payment of a plain-cloths allowance. These grievances did not address the substance of the Complaints here, which are focused primarily on an alleged breach of the respondent’s duty to accommodate. The complainant is now likely out of time for bringing such a grievance
[25] The respondent asked that I dismiss because the complainant should have chosen the grievance process over this forum. I disagree. In the absence of a grievance dealing with the substance of the Complaints, there is a real risk that the complainant would be denied the opportunity to have her human rights complaints addressed.
I agree with Oviatt’s analysis, because it is the same analysis I had of Horrocks.
Grewal v Sofina Foods Inc., 2023 AHRC 46 (Oviatt)
Like Blackie, this case is about whether the AHRC has concurrent jurisdiction to handle human rights complaints made by union workers.
In this case, the complainant Gurjit Grewal alleged that her employer Sofina Foods discriminated against her in its employment practices. Sofina Foods is a unionized workplace.
Ms. Grewal had been injured at work. Her employer said it could not accommodate her back to work. The union filed a grievance, but ultimately withdrew it 2 years later and decided not to take it to arbitration.
Ms. Grewal then filed an Alberta human rights complaint on her own, but it was well after the 1 year deadline for those complaints.
Chief of Commissions and Tribunals Kathryn Oviatt found that the complaint had to be dismissed because it was far out of time.
Chief Oviatt went on to consider whether Ms. Grewal had a right to file a human rights complaint with the AHRC in the first place. This time, she described the rules about whether the AHRC should assume jurisdiction as follows:
[22] In Horrocks, the Supreme Court cautioned that a human rights commission should not attempt to oversee the grievance process to ensure that it is adequate or fair:
Leaving room for the Commission to exercise jurisdiction where it subjectively views labour arbitration as not “realistic”… coupled with the Commission’s understanding that it may review the parallel process for “adequacy” or “fairness”, will inevitably come at the expense of finality and judicial economy.
[23] Accordingly, where human rights issues arise out of a dispute under a collective agreement that permits adjudication of human rights issues and where the complainant filed a grievance, the screening decisions should seriously consider the dismissal discretion under sections 21(1)(a)(iv) or 21(2)(iii) of the Act because the complaint is being, has been, will be or should be more appropriately dealt with in another forum or under another Act. In short, where there is a collective agreement that addresses human rights issues, grievance arbitration will usually be the more appropriate forum.
[24] Exceptions to that approach will be rare and only in the clearest of cases where the interests of justice demand it. This respects the judicial preference of labour arbitration as the primary dispute resolution mechanism for these issues, ensures efficient use of resources, supports the principles of finality, and avoids inconsistent results from duplicity of proceedings. The Supreme Court in Horrocks criticized past practices of human rights commissions for rarely declining to proceed, even when a grievance had been filed on identical issues.
Chief Oviatt concluded that Ms. Grewal did not have a right to bring her complaint before the AHRC in the circumstances of this case, noting as follows:
[26] Here, the complainant had union representation. The union filed a grievance relating to the identical facts and issues raised in the human rights Complaint: whether the respondent reasonably accommodated to the point of undue hardship. The grievance proceeded over approximately two years before the union withdrew it. Although the matter did not proceed to arbitration, it was clearly dealt with in the grievance process, which is the primary forum for dealing with human rights disputes arising out of a collective agreement.
Prodaniuk
Prodaniuk v Calgary (City), 2023 ABCA 165 is a little bit different than Blackie and Grewal. Prodaniuk is not about whether the AHRC has concurrent jurisdiction to handle discrimination in unionized settings. Prodaniuk is about whether the Civil Courts should exercise their general residual discretion to assume jurisdiction and decide matters that are within the exclusive jurisdiction of the Alberta Labour Relations Board.
Ms. Prodaniuk was a police officer. She had sued the Calgary Policy Service, the Chief, and the Police Service Association (their union) in the Court of King’s Bench for many things, including harassment, sexual harassment, being demoted, threatened, Charter violations, etc. Her claims were ones that could have been brought as grievances under the collective agreement and/or as duty of fair representation complaints.
The Alberta Court of Appeal was firm in its ruling that, where the essential character of the dispute arises from the collective agreement, the Alberta Labour Relations Board has exclusive jurisdiction and the Courts should not assume jurisdiction:
[6] There may be a risk of conflation of these zones of exclusive jurisdiction because the preliminary question for both is to determine the “essential character” of the dispute. Both are molded by express and unambiguous statutory language chosen by the Legislature, but it is important to recognize the differences between them. It is also important to recognize, as discussed below, that where there are multiple pieces of legislation that are arguably linked to the “essential character” of a specific dispute, those statutes must be viewed as part of an overall scheme and interpreted harmoniously to ensure the apparent intentions of the Legislature are achieved.
[7] […] the court has consistently held that where a complete statutory labour relations regime exists, one that provides a comprehensive code governing all aspects of labour relations including expert adjudication of disputes by third parties, it would offend the legislative scheme to permit the parties to circumvent that process and have recourse initially to the courts […]
The ABCA went on to dismiss the appeal and find that the Courts were right to not assume jurisdiction in the circumstances of this case:
[37] Ultimately, in our opinion, the appellant’s claims are more about a “fair representation” concern than arguments against the exclusive jurisdiction model in labour relations. Her pleadings do not seek relief against the individual members but rather against the union and workplace conditions that “allow harassment and its odious effects to fester” […]. This is a matter where the expertise of the Labour Relations Board also speaks in favor of its exclusive jurisdiction. One can envision various employment and workplace environments besides policing where toxic circumstances are not actively pursued by unions for various reasons.
My Take
Prodaniuk is really not about concurrent jurisdiction of the AHRC, but about whether Courts should exercise residual jurisdiction. I do not think Prodaniuk will necessarily have much of an impact on the human rights “concurrent jurisdiction” issue in Alberta, but its difficult to say because there are several quotations from that case which could assist with that an argument that any court or tribunal should normally decline jurisdiction in unionized cases.
I think it would be a shame if Prodaniuk were interpreted to support a denial of concurrent jurisdiction in human rights. The interplay of the Blackie decision and the Grewal decision are respectful of the Horrocks decision and the important role of the Alberta Labour Relations Board in unionized environments, but avoid the harsh consequences that can (and definitely will) flow from denying concurrent jurisdiction:
- Based on Blackie and Grewal, if a grievance is filed it will be very hard to get the AHRC to hear an independent complaint; if a grievance is not filed but there is a basis for a human rights complaint, the human rights commission can currently choose to accept it because of its concurrent jurisdiction.
- If concurrent jurisdiction is generally denied, then the only recourse for unionized workers whose unions choose not to pursue human rights grievances will be to file “duty of fair representation” complaints against the unions. The standard of representation required of a union under the duty of fair representation is so low that in almost all cases a unionized worker will not be able to compel their union to file a grievance, and will therefore not be able to insist that their human rights are protected.
In my opinion, that interpretation does not line up with the purposes of human rights legislation.
Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
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