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Supreme Court of Canada Expands Arbitral Jurisdiction
September 29, 2003

In a September 18, 2003 decision, the Supreme Court of Canada has expanded arbitral jurisdiction beyond the express terms of a collective agreement to include the jurisdiction to hear grievances based solely on alleged breaches of employment related statutes.

The case concerned a probationary employee who was terminated from employment while she was on maternity leave. The union’s grievance alleged that the employee had been terminated for discriminatory reasons. The collective agreement contained no provisions restricting the right of the employer to discharge a probationary employee. In fact, it was accepted that the parties had not intended that the discharge of a probationary employee would be arbitrable.

The arbitration board held that it had jurisdiction to determine whether the probationer had been terminated for discriminatory reasons, notwithstanding the absence of an express provision in the collective agreement incorporating human rights legislation.

The Court agreed with the arbitration board. The Court confirmed that substantive employee rights and employer obligations under the Human Rights Code and other employment related statutes are incorporated into each collective agreement over which an arbitrator has jurisdiction, by virtue of the Ontario Labour Relations Act, which obligates and empowers an arbitrator to interpret a collective agreement in a manner consistent with such statutes. Thus, an alleged violation of the Human Rights Code constitutes a contravention of the collective agreement and is arbitrable. The Court’s rationale included a desire for labour relations matters to be resolved quickly, without the need for multiple proceedings, and the objective of allowing for a continuing relationship between the parties.

The judgment stands for the principle that arbitrators have jurisdiction not only to use external employment related statutes for the purposes of assisting in the interpretation of collective agreement language, but also to hear grievances based solely on alleged violations of those statutes. Section 89 of the British Columbia Labour Relations Code contains a parallel provision to the relevant section in the Ontario labour relations legislation.

Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324, 2003 SCC 42.