Legal News

BC Court of Appeal: Labour Arbitrators Have Jurisdiction to Apply The Human Rights Code Even If Collective Agreement is Silent on Human Rights
November 21, 2003

On November 13, 2003, the BC Court of Appeal issued a decision involving the jurisdiction of labour arbitrators to apply the Human Rights Code when a collective agreement is silent on human rights. In this case, the employer challenged an arbitrator’s jurisdiction to hear a dismissal grievance involving allegations of failure to accommodate a disability. Since an arbitrator’s jurisdiction arises from the collective agreement, and the collective agreement in question did not contain any human rights provisions, the employer argued that the Human Rights Tribunal held primary jurisdiction over the substance of the grievance. The arbitrator concluded he had jurisdiction and the employer appealed this decision as a matter of general law to the BC Court of Appeal.

The Court of Appeal determined that it has the jurisdiction to decide any disputes regarding the competing jurisdictions of labour arbitrators as opposed to the Human Rights Tribunal.

On the merits, the majority of the Court of Appeal held that the recent decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, had determined this issue. In Parry Sound, the Supreme Court of Canada held that an employee’s right to be free from discrimination on prohibited grounds is an implied term of a collective agreement.

The Court of Appeal concluded that a dismissal involving human rights allegations falls within the jurisdiction of a labour arbitrator, even if there are no human rights provisions in the collective agreement itself. However, the Court left open the issue of competing jurisdictions in cases where both a grievance and a human rights complaint have been filed.

Canpar Industries v. International Union of Operating Engineers, Local 115, 2003 BCCA 609, November 13, 2003.

(click here for full text of decision)