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Court without Jurisdiction to Review Arbitrator’s Decision
March 19, 2009

The British Columbia Court of Appeal has confirmed the distinction between the interpretation of human rights principles and the application of those principles in the review of labour arbitration awards. The Court held that where the case involved only the application of those principles, as opposed to their interpretation it did not have jurisdiction to review the Award, and any review must be taken to the Labour Relations Board

The arbitration award under review resulted from a Union grievance over the denial of severance pay to eight employees who were receiving long term disability when the Employer permanently closed its paper mill. The Union claimed the denial was contrary to the terms of the collective agreement and constituted discrimination under the Human Rights Code.

The Arbitrator dismissed the grievance, finding that the denial of severance pay was not a breach of the collective agreement, nor did it amount to discrimination under the Human Rights Code.

The Union appealed to the B.C. Court of Appeal which has jurisdiction to review decisions of labour arbitrators only when they raise issues of general law. The Court found that the grievance required the Arbitrator to consider and apply the well established principles of human rights law to the facts before him to determine whether the denial of severance to those employees constituted discrimination. In the result, the Court found the matter did not raise any question of general law.

If the grievance had required the Arbitrator to interpret rather than simply apply human rights principles to the facts before him, the Court would have had jurisdiction. If, for instance, the Arbitrator had to consider the meaning and legal elements of discrimination, or the scope and nature of the duty to accommodate, then such a question would have raised an issue of general law which would have given the Court jurisdiction to review the decision.

(Click here for link to Decision)