Court File Number: 37878 in the SUPREME COURT of CANADA (ON APPEAL from the COURT of APPEAL of MANITOBA) B E T W E E N: NORTHERN

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Court File Number: 37878

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF MANITOBA)

B E T W E E N:

NORTHERN REGIONAL HEALTH AUTHORITY Appellant (Respondent)

- and -

LINDA HORROCKS and MANITOBA HUMAN RIGHTS COMMISSION Respondents (Appellants)

- and -

ATTORNEY GENERAL OF BRITISH COLUMBIA, BRITISH COLUMBIA COUNCIL OF ADMINISTRATIVE TRIBUNALS, CANADIAN ASSOCIATION OF COUNSEL TO EMPLOYERS, CANADIAN HUMAN RIGHTS COMMISSION, DON VALLEY COMMUNITY LEGAL SERVICES, and THE EMPOWERMENT COUNCIL Interveners

FACTUM OF THE RESPONDENT, LINDA HORROCKS (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

Paul Champ / Bijon Roy Champ & Associates Equity Chambers 43 Florence Street Ottawa, ON K2P 0W6 T: 613-237-4740 F: 613-232-2680 E: [email protected] [email protected]

Solicitors for the Respondent TO: The Registrar Supreme Court of Canada 301 Wellington Street Ottawa, ON K1A 0J1

AND TO: Pitblado LLP Supreme Advocacy LLP 2500-360 Main Street 100-340 Gilmour Street Winnipeg, MB R3C 4H6 Ottawa, ON K2P 0R3

Per: William S. Gardner, QC Per: Marie-France Major Robert A. Watchman Todd C. Andres

T: 204-956-0560 T: 613-695-8855 F: 204-957-0227 F: 613-695-8580 E: [email protected] E: [email protected] [email protected] [email protected]

Solicitors for the Appellant Agent for the Appellant

Manitoba Human Rights Commission Gowling WLG 700-175 Hargrave Street 2600-160 Elgin Street Winnipeg, MB R3C 3R8 Ottawa, ON K1P 1C3

Per: Sandra Gaballa Per: D. Lynne Watt Heather Unger

T: 204-945-6814 T: 613-786-8695 F: 204-945-1292 F: 613-788-3509 E: [email protected] E: [email protected] [email protected]

MLT Aikins LLP 30-360 Main Street Winnipeg, MB R3C 4G1

Per: Thor J. Hansell

T: 204-957-4694 F: 204-957-4270 E: [email protected]

Solicitors for the Respondent, Agent for the Respondent, MB Human Rights Commission MB Human Rights Commission

Ministry of Attorney General (BC) Gib van Ert Law Legal Services Branch 148 Third Avenue 1301-865 Hornby Street Ottawa, ON K1S 2K1 Vancouver, BC V6Z 2G3

Per: Robert Danay Per: Gib van Ert Jonathan Penner

T: 604-660-0679 / 250-952-0122 T: 613-408-4297 F: 604-660-3365 / 250-356-9154 F: 613 651 0304

Solicitors for the Intervener, AGBC Agent for the Intervener, AGBC

JFK Law Corporation Gowling WLG 340-1122 Mainland Street 2600-160 Elgin Street Vancouver, BC V6B 5L1 Ottawa, ON K1P 1C3

Per: Tim Dickson Per: Guy Régimbald

T: 604-687-0549 T: 613-786-0197 F: 607-687-2696 F: 613-563-9869 E: [email protected] E: [email protected]

Solicitors for the Intervener, BCCAT Agent for the Intervener, BCCAT

Neuman Thompson Norton Rose Fulbright Canada LLP 200-12220 Stony Plain Road 1500-45 O’Connor Street Edmonton, AB T5N 3Y4 Ottawa, ON K1P 1A4

Per: Craig Neuman, QC Per: Matthew J. Halpin

T: 780-482-7645 T: 613-780-8654 F: 780-488-0026 F: 613-230-5459 E: [email protected] E: [email protected]

Solicitors for the Intervener, CACE Agent for the Intervener, CACE

Canadian Human Rights Commission Canadian Human Rights Commission Legal Services Division 344 Slater Street, 8th Floor 344 Slater Street, 8th Floor Ottawa, ON K1A 1E1 Ottawa, ON K1A 1E1

Per: Brian Smith Per: Valerie Phillips

T: 613-943-9205 T: 613-943-9357 F: 613-993-3089 F: 613-993-3089 E: [email protected] E: [email protected]

Solicitors for the Intervener, CHRC Agent for the Intervener, CHRC

Monkhouse Law Supreme Law Group 900-220 Bay Street 200-275 Slater Street Toronto, ON M5J 2W4 Ottawa, ON K1P 5H9

Per: Andrew Monkhouse Per: Moira Dillon

T: 416-907-9249 T: 613-691-1224 F: 888-501-7235 F: 613-691-1338 E: [email protected] E: [email protected]

Solicitors for the Intervener, DVCLS Agent for the Intervener, DVCLS

Karen R. Spector 2201-250 Yonge Street Toronto, ON M5B 2L7

Per: Karen R. Spector

T: 416-995-3477 F: 416-855-9745 E: [email protected]

Solicitors for the Intervener, Empowerment Council

TABLE OF CONTENTS

PART I – OVERVIEW & STATEMENT OF FACT ...... 1 A. Overview ...... 1

B. Statement of Facts ...... 2 (i) Employment and First Termination ...... 2 (ii) Second Termination ...... 4 (iii) No Grievance and Respondent Files Human Rights Complaint ...... 4 (iv) Decision by the Human Rights Adjudicator ...... 6 (v) Decisions of the Court Below ...... 8 (a) Court of Queen’s Bench ...... 8 (b) Manitoba Court of Appeal ...... 8

PART II – POINTS IN ISSUE ...... 11

PART III – ARGUMENT ...... 12 A. The Standard of Appellate Review ...... 12 (i) The Appropriate Appellate Standard was Confirmed by This Court in Agraira ...... 12 (ii) The Agraira Standard has Been Widely Accepted and Adopted ...... 14 (iii) The Court Should Not Overturn or Depart from Agraira ...... 16 (iv) Original Findings of Reviewing Judge ...... 17

B. Standard of Review ...... 18

C. Proper Test for Jurisdiction of Human Rights Tribunal Over Unionized Employee ...... 20 (i) The Myth of Exclusive Jurisdiction in Labour Arbitration ...... 21 (ii) Jurisprudence on Labour Arbitration and Human Rights Tribunals ...... 24 (iii) Access to Justice ...... 26 (iv) A Revised Test for Concurrent Jurisdiction ...... 29

D. Adjudicator’s Decision to Assume Jurisdiction Was Reasonable ...... 32 Step One: Relevant Legislation ...... 33 Step Two: Should the Adjudicator Decline Jurisdiction? ...... 34

E. Adjudicator’s Remedial Jurisdiction ...... 35

PART IV – COSTS ...... 39

PART V – ORDER SOUGHT ...... 39

PART VII – LIST OF AUTHORITIES ...... 40

PART I – OVERVIEW & STATEMENT OF FACT

A. Overview

1. This appeal concerns access to justice and whether a unionized employee can be denied access to any legal forum to resolve her fundamental human rights, as protected by the Manitoba Human Rights Code, CCSM, c H175.

2. An adjudicator under the Human Rights Code found that the Respondent, Linda Horrocks, was a victim of discrimination and that her employment was terminated by the Appellant because she had a disability - alcohol addiction. The Manitoba Court of Queen’s Bench quashed that decision, holding that only a labour arbitrator could deal with a dispute involving the discharge of a unionized employee, even when the dismissal may contravene the Code. The Manitoba Court of Appeal allowed the appeal and found that the adjudicator enjoyed jurisdiction over allegations that the Appellant failed to accommodate her disability.

3. The Appellant contends that, although no grievance was filed under the collective agreement, labour arbitration is the only forum that can consider the Respondent’s allegations of discrimination.

4. The Respondent submits that, absent express statutory language, labour arbitrators and human rights tribunals have concurrent jurisdiction over alleged violations of the Code in a unionized workplace. Human rights legislation is fundamental, quasi-constitutional law, and should be as accessible as possible to the disadvantaged and vulnerable groups that seek its protection.

5. Access to justice is an emerging legal principle that requires claimants not be prevented from enforcing their rights by procedural detours or unreasonable jurisdictional obstacles. The two-step Morin test for resolving jurisdictional contests between competing specialized tribunals does not adequately account for matters of concurrent jurisdiction and remains unduly influenced by the myth of exclusive jurisdiction. A more robust framework is required to ensure sufficient weight is attached to important access to justice concerns. Other factors or criteria should also be considered to provide greater certainty and predictability for jurisdictional questions than the “better fit” approach in Morin. 2

B. Statement of Facts

(i) Employment and First Termination

6. The Respondent worked as a health care aide at a personal care home operated by the Appellant in Flin Flon, Manitoba. She was represented by the Canadian Union of Public Employees, Local 8600 (“CUPE”), and as such her employment was subject to a collective agreement between the Appellant and the union.1

7. In early 2011, the Appellant met with the Respondent and her union to discuss concerns about her absenteeism. During the meeting, the Appellant learned that the Respondent had been convicted in the past year for driving under the influence and was attending regular meetings with the Addictions Foundation of Manitoba (“Addictions Foundation”). In May 2011, the Respondent enrolled in a program with the Addictions Foundation and started attending counselling with an addictions counsellor.2

8. The Respondent was suspended from work on June 3, 2011 because she appeared to be under the influence of alcohol. In a meeting with the Appellant, the Respondent and her union on June 7, 2011, the Respondent signed a document admitting that she had an alcohol addiction.3

9. The Respondent attended another meeting with her employer on June 21, 2011, where she was presented with an agreement. She was told that if she signed it, she would be allowed to return to work. The agreement set out several strict conditions, including: abstain from alcohol at all times; attend weekly counselling sessions; participate in group AA meetings; participate in an Alcohol Rehabilitation Treatment Program; and submit to random alcohol and drug testing at the discretion of the employer at any time. The final provision of the agreement provided that breach of any of the listed conditions “shall conclusively be deemed to constitute just cause” for termination. There was no end date to the conditions.4

1 Decision of the Human Rights Adjudicator, dated September 9, 2015 (“Adjudicator’s Decision”) at paras 10 and 12 [Appellant’s Record (“AR”), Vol. I, Tab 1 at 3] 2 Adjudicator’s Decision at paras 22-26 [AR, Vol. I, Tab 1 at 4-5] 3 Adjudicator’s Decision at paras 30-35 [AR, Vol. I, Tab 1 at 5] 4 Adjudicator’s Decision at paras 37-38 [AR, Vol. I, Tab 1 at 6-7]; Memorandum of Agreement dated June 27, 2011, unsigned [AR, Vol. II, Tab 25, at 43-45] 3

10. The Respondent and CUPE had a number of concerns with the proposed agreement. Among other things, the Respondent was concerned about the breadth of the abstinence provision. On the advice of her union, the Respondent declined to sign the agreement. As set out in minutes of a meeting with the employer, the CUPE representative said, “If Linda signs it then she would be setting herself up to fail.” The Appellant interpreted this as the Respondent not being “ready to commit to an alcohol-free lifestyle”. The Appellant proceeded to terminate her employment for cause.5

11. CUPE grieved the Respondent’s termination. As part of the grievance procedure, the parties continued discussions about the situation. In the fall of 2011, the Appellant reached out to obtain information from the Addictions Foundation about the Respondent’s treatment program. The Respondent’s addictions counsellor provided a letter to the Appellant in October 2011, confirming that the Respondent had consistently attended her appointments with the Reducing the Risk program. That treatment program would end soon, but the Respondent had committed to continue with counselling. The counsellor did not recommend a residential rehabilitation treatment program. The Appellant’s management team discussed the letter from the addictions counsellor and concluded that the program was more about counselling than treatment. The managers’ views were “based on what they knew about the program and from knowing people that had gone through the program.”6

12. A labour arbitrator was appointed to hear the grievance, but the matter was resolved by an agreement signed on April 5, 2012, by the Appellant, the Respondent and her union. The agreement was largely identical to the one proposed by the Appellant in July 2011. The Respondent was reinstated to her position, although with no back pay and her time off work was deemed part suspension and part unpaid leave for medical reasons. The agreement was modified to limit its duration to two years, but it continued to include a term that any breach of its terms by the Respondent would be deemed just cause for termination.7

5 Adjudicator’s Decision at paras 39-51, paras 48 and 50 for quotes [AR, Vol. I, Tab 1 at 7-9] 6 Adjudicator’s Decision at paras 52-55, 58, and 66-67, quote at para 67 [AR, Vol. I, Tab 1 at 9- 11]; Letter from Addictions Foundation to Nor-Man Regional Health Authority dated October 19, 2011 [AR, Vol. II, Tab 38, at 62] 7 Adjudicator’s Decision at paras 69-74 [AR, Vol. I, Tab 1 at 11-12]; Memorandum of Agreement dated April 5, 2012 [AR, Vol. II, Tab 48 at 76-78]

(ii) Second Termination

13. The Respondent signed the agreement on April 5, 2012 and waited to be reintegrated into the workplace. However, she never did return to the job as the Appellant terminated her employment for a second time on May 1, 2012.8

14. The Appellant called the Respondent and CUPE to a meeting on April 30, 2012. The Respondent was informed that the employer received two reports that she had been intoxicated over the previous month. She was told that someone smelled alcohol on her in line at a grocery store and that a manager suspected she was intoxicated at home during a telephone call. The Respondent denied the two reports that she had been drinking. The following day, the Appellant terminated her employment for a second time.9

15. The termination letter acknowledged that the Respondent had denied drinking since the agreement was signed on April 5, 2012, but concluded,

Your denials are not believed and the Employer has concluded that you are in breach of a number of your commitments under the Memorandum of Agreement, most importantly, your commitment to abstain from consumption of alcohol.10

16. The Appellant’s management team believed that the Respondent was resistant to treatment options and concluded there was no potential for rehabilitation. However, the managers later admitted that they did not consider speaking to the Respondent’s addictions counsellor or physician prior to terminating her employment.11

(iii) No Grievance and Respondent Files Human Rights Complaint

17. CUPE did not file a grievance regarding the Respondent’s second termination. The Adjudicator’s decision does not deal extensively with this issue, noting that the Respondent

8 Adjudicator’s Decision at paras 77 and 81 [AR, Vol. I, Tab 1 at 12-13] 9 Adjudicator’s Decision at paras 78-81 [AR, Vol. I, Tab 1 at 12-13] 10 Adjudicator’s Decision at para 81 [AR, Vol. I, Tab 1 at 13-14]; Letter from Nor-Man Regional Health Authority to Linda Horrocks, dated May 1, 2012 [AR, Vol. II, Tab 51 at 84-85] 11 Adjudicator’s Decision at paras 83-85 [AR, Vol. I, Tab 1 at 14]

5 testified that she filed a complaint with the Human Rights Commission because “she understood that her Union could no longer help her”.12

18. The Court of Queen’s Bench on judicial review also dealt with this factual issue briefly. The Court stated that no evidence was tendered as to why the complainant or the union did not file a grievance. The Court stated there was no evidence that the union refused to file a grievance, but did not deal with the Respondent’s testimony on the issue.13

19. The Manitoba Court of Appeal’s understanding of the evidentiary record was, like the Adjudicator’s, that the Respondent filed the complaint because the union “could no longer help her.” The Court of Appeal summarized this as: “the union was not interested in grievance arbitration”.14

20. In the transcripts of the hearing before the Adjudicator, the Respondent Horrocks was examined by the Commission and the Appellant regarding why there was no grievance. In examination by the Commission, the Respondent testified that her union representatives told her that if she signed the agreement “and anything happened”, the union “would be unable to help me with anything, that I would be completely on my own.” She testified that the union representatives told her that she would have to prove she had not been drinking. The Respondent testified that she was told this by her union rep, “Lyla”.15

21. Under cross examination by the Appellant’s counsel, the Respondent confirmed this evidence, saying, “The union said they couldn’t help me.” When pressed by counsel about who from the union told her this, the Respondent testified it was one of her union reps, Lyla Yaremchuk or Sue Woods.16 The Appellant’s counsel also asked the Respondent directly, “Did you ask the union to file a grievance on your behalf?” And she answered,

12 Adjudicator’s Decision at para 87 [AR, Vol. I, Tab 1 at 14] 13 Reasons for Judgment of Manitoba Court of Queen’s Bench dated May 6, 2016 (“Queen’s Bench Judgment”) at paras 24 and 62 [AR, Vol. I, Tab 2 at 52 and 68-69] 14 Reasons for Judgment of the Manitoba Court of Appeal dated October 5, 2017 (“Court of Appeal Judgment”) at paras 25 and 87 [AR, Vol. I, Tab 4 at 85 and 112] 15 Transcripts March 23, 2015, at 188-189 and 193, 188 for quote (emphasis added) [Respondent’s Record (“RR”), Tab 1 at 5-6, 10] 16 Transcripts March 24, 2015, at 295-296 and 318 [RR, Tab 2 at 14-15, 17]

I'm not quite too sure how that conversation went after the meeting. Sue just said that I would have to be able to prove that these facts were wrong before they could file anything or do anything. And obviously those are next to impossible to prove.17

22. When the Adjudicator asked the Appellant’s counsel about the relevance of this evidence, he offered his own views during the following exchange:

THE ADJUDICATOR: What’s the underlying relevance of that whole area to her complaint?

MR. GARDNER: Well, you know, I mean I frankly think that the union believed that she was drinking in breach of the memorandum of agreement, as well as the employer, and I frankly think that’s why they didn’t grieve.

THE ADJUDICATOR: And are you calling evidence to establish that?

MR. GARDNER: Well, I don't have to call evidence to establish they didn’t grieve.18

(iv) Decision by the Human Rights Adjudicator

23. The hearing before the Human Rights Adjudicator took place over seven days in March and May 2015. The Appellant raised a jurisdictional argument, asking the Adjudicator to dismiss the complaint on the grounds that the matter fell under the exclusive jurisdiction of a labour arbitrator. The Respondent was not represented by legal counsel, but the Commission was a party to the hearing and called evidence in support of the complaint.19

24. The Adjudicator ruled that the “essential character of the dispute” arose from an alleged violation of the Respondent’s human rights, and not out of the interpretation, application or violation of the collective agreement. Accordingly, the Adjudicator found that the matter fell within her jurisdiction as an adjudicator designated under the Code.20 The Adjudicator held that the “Memorandum of Agreement” was not determinative of the issue, and she needed to consider “the totality of the interactions between the parties”. The Adjudicator was also not persuaded that the Respondent was obligated to pursue a grievance of her second termination because she had

17 Transcripts March 24, 2015, at 319 [RR, Tab 2 at 18] 18 Transcripts March 24, 2015, at 320 (emphasis added) [RR, Tab 2 at 19] 19 Adjudicator’s Decision at paras 3-6, 88-94 [AR, Vol. I, Tab 1 at 2 and 15-16] 20 Adjudicator’s Decision at paras 106 and 110 [AR, Vol. I, Tab 1 at 18]

7 grieved the first one: “I find that the Complainant’s second termination on May 1, 2012 provided her with a fresh opportunity to elect the forum for resolving her dispute with her employer”.21

25. With respect to the merits of the complaint, the Adjudicator had no difficulty in finding that the Respondent’s alcohol addiction was the reason for her termination and that she had established a prima facie case of discrimination on the ground of disability.22 The Adjudicator also concluded that the employer had imposed conditions on the Respondent based on her disability without conducting an individualized assessment or a consideration of her needs. The Adjudicator found that instead the Appellant relied on personal experiences, common place assumptions and stereotypes rather than objective assessments when developing an accommodation plan.23

26. The Adjudicator found that the Appellant had not led sufficient evidence to establish it would constitute undue hardship to continue employing the Respondent and using other measures to address her disability.24 The Adjudicator also noted that this was not a case of repeated workplace performance issues; there was only a single incident of the Respondent reporting to work under the influence. In the circumstances, the strict terms of the Memorandum of Agreement did not constitute bona fide occupational requirements.25

27. In the result, the Adjudicator allowed the complaint and ordered the Respondent reinstated into her position, with compensation for lost wages and $10,000 for injury to dignity, feelings and self-respect.26 Under paragraph 43(2)(a) of the Code, the Adjudicator also ordered the Appellant to develop and implement a reasonable accommodation policy in consultation with the Manitoba Human Rights Commission.27

21 Adjudicator’s Decision at paras 115-119, 117 and 119 for quotes [AR, Vol. I, Tab 1 at 19-20] 22 Adjudicator’s Decision at paras 140-142 [AR, Vol. I, Tab 1 at 23] 23 Adjudicator’s Decision at paras 160-165 and 179-181 [AR, Vol. I, Tab 1 at 26 and 28] 24 Adjudicator’s Decision at paras 183-184, 195-197, 199, 201, 205, 208 and 218 [AR, Vol. I, Tab 1 at 28 and 30-33] 25 Adjudicator’s Decision at paras 226-228, 230 and 234-236, 226 for quotes [AR, Vol. I, Tab 1 at 35-36] 26 Adjudicator’s Decision at paras 245, 265, 274 and 277 [AR, Vol. I, Tab 1 at 38 and 40-43] 27 Adjudicator’s Decision at paras 246-247 [AR, Vol. I, Tab 1 at 38]

(v) Decisions of the Courts Below

(a) Court of Queen’s Bench

28. Justice Edmond of the Manitoba Court of Queen’s Bench heard the Appellant’s application for judicial review. The Respondent Horrocks did not participate, and the matter was argued by the Commission and the Appellant. The Court determined that the appropriate standard of review on the jurisdictional issue was correctness.28 The Court considered the parties’ arguments on jurisdiction and concluded that the essential character of the dispute was whether there was just cause to terminate the Respondent, and not the infringement of her human rights. Further, given that the matter involved the breach of a “last chance agreement” negotiated with the union, arbitration was a “better fit” for adjudicating the dispute and therefore it fell within the exclusive jurisdiction of a labour arbitrator.29

29. The Court allowed the application for judicial review, set aside the decision of the Adjudicator, and, based on a concession by the Appellant, ordered that the Respondent be permitted to file a grievance notwithstanding the time limits in the collective agreement, and that the grievance should go to arbitration if it was not resolved.30 Although the order implicated the union, CUPE did not participate in the application for judicial review.

(b) Manitoba Court of Appeal

30. The Manitoba Court of Appeal agreed with the Court of Queen’s Bench that the appropriate standard of review to be applied to the Adjudicator’s decision was correctness. However, the Court of Appeal did not believe that a “margin of appreciation” or deferential appellate standard of review should be applied to the judgment of the Court below. In the opinion of the Court of Appeal, it was entitled to consider whether the Court of Queen’s Bench judgment was correct.31

28 Queen’s Bench Judgment at para 35 [AR, Vol. I, Tab 2 at 56] 29 Queen’s Bench Judgment at paras 49, 57 and 64-65 [AR, Vol. I, Tab 2 at 64, 67 and 69-71] 30 Queen’s Bench Judgment at paras 62 and 69 [AR, Vol. I, Tab 2 at 69 and 72-73] 31 Court of Appeal Judgment at paras 40, 44, 46-49 [AR, Vol. I, Tab 4 at 90 and 92-94]

31. The Court of Appeal started its analysis of the jurisdictional issue by reviewing the principles arising from the Supreme Court of Canada’s jurisprudence in other cases dealing with jurisdictional contests between labour arbitrators and human rights tribunals. The Court accepted that there was no presumption of exclusive jurisdiction in favour of labour arbitrators and that the Weber analysis seeks to avoid multiple proceedings. The Court also identified the following principle:

A Weber analysis cannot produce the result that denies a claimant access to justice by providing them with no effective remedy to have their dispute heard and determined.32

32. In applying these principles, the Court of Appeal concluded that there were issues raised in the discrimination complaint that went beyond the employment context of that particular workplace. The Court of Appeal reasoned that the prohibition against differential treatment on a prohibited ground and the legal duty on employers to reasonably accommodate workers with a drug or alcohol dependence were issues that transcended the collective agreement. According to the Court of Appeal, this is because all employers are under these obligations, regardless of whether the workplace is subject to a collective agreement. The Court of Appeal observed that the expected standards of accommodating workers with an alcohol dependence should not depend on the nature of a particular collective agreement, and a degree of consistency in methodology in accommodating disabled workers is in the overall public interest.33

33. The most important factor in the Court of Appeal’s analysis was a serious concern about access to justice. The absence of a competing grievance arbitration weighed heavily in the Court’s decision. The Court of Appeal noted that unions have a monopoly over seeking grievance arbitration of a dispute and highlighted that a unionized worker has no independent standing or power to independently advance a grievance to arbitration for alleged breaches of the Code.34 For these reasons, the Court of Appeal concluded that the Adjudicator had jurisdiction over the complaint.

32 Court of Appeal Judgment at para 54 [AR, Vol. I, Tab 4 at 96-98] 33 Court of Appeal Judgment at paras 81-82, 85 and 88 [AR, Vol. I, Tab 4 at 108-109, 111 and 113] 34 Court of Appeal Judgment at paras 59, 78, 86-87 [AR, Vol. I, Tab 4 at 100, 107 and 112-113]

34. Rather than simply restoring the decision of the Adjudicator, the Court of Appeal went further and ruled that the Adjudicator’s jurisdiction was limited and did not extend to the actual termination of the Respondent’s employment. In the Court’s view, any issues related to the dismissal of a unionized employee were reserved to the exclusive jurisdiction of a labour arbitrator. Following this reasoning, it was the Court of Appeal’s view that the Adjudicator could consider the reasonableness of the Appellant’s accommodation of the Respondent, but not whether the termination itself was appropriate.35

35. The Court of Appeal also held that the Adjudicator could not question whether the Respondent was properly accommodated prior to signing the “last chance” agreement. As the settlement of a grievance, the Court of Appeal found that the agreement could not be questioned or attacked due to the doctrine of issue estoppel:

In short, the Chief Adjudicator had to accept for the purposes of her consideration of the discrimination complaint that, up until April 5, 2012, the NRHA had reasonably accommodated the disability of the complainant.36

36. In the result, the appeal was allowed and the matter remitted back to the reviewing judge to determine whether the Adjudicator’s decision on the merits of the complaint, and the remedies ordered, were reasonable.37

35 Court of Appeal Judgment at paras 80, 88-89 and 91-93 [AR, Vol. I, Tab 4 at 108 and 113-115] 36 Court of Appeal Judgment at paras 94-102, 102 for quote [AR, Vol. I, Tab 4 at 115-119] 37 Court of Appeal Judgment at paras 103-104 [AR, Vol. I, Tab 4 at 119-120]

PART II – POINTS IN ISSUE

37. The Respondent Horrocks agrees with the Appellant that appellate standard of review is an issue in this appeal. Further, the Respondent agrees that how jurisdiction between competing specialized tribunals should be determined is also an issue in this appeal.

38. The Respondent submits that further issues raised in this appeal concern the administrative law standard of review applicable in the circumstances, and also whether the Manitoba Court of Appeal erred in deciding that the remedies ordered by the Adjudicator were outside her jurisdiction.

39. To summarize, and to slightly re-frame the Appellant’s characterization of the issues, the Respondent submits that this appeal raises the following questions for determination by this Honourable Court:

(1) Is there any need to depart from the Agraira standard of appellate review?

(2) What is the appropriate standard of review?

(3) What is the proper approach to determine whether a human rights tribunal should exercise jurisdiction over a complaint by a unionized employee?

(4) Was the Human Rights Adjudicator’s decision on jurisdiction reasonable?

(5) Is the Adjudicator’s remedial jurisdiction constrained?

PART III – ARGUMENT

A. The Standard of Appellate Review

40. The Appellant asserts that the appellate standard of review for lower courts’ dispositions of applications for judicial review, as confirmed by this Court in Agraira, has been “highly criticized”.38 This is simply not the case. Although Justice Stratas of the Federal Court of Appeal has queried whether appellate courts should not simply apply the “normal” appellate standard of review that ordinarily governs the relationship between appellate courts and courts of first instance (i.e., the Housen standard),39 the law on this issue has developed consistently, and any uncertainty that may have existed at one time has since been clarified by this Court in Agraira.40 The Respondent submits there is neither reason nor need to revisit or overturn this recent and well-settled jurisprudence.

(i) The Appropriate Appellate Standard was Confirmed by This Court in Agraira

41. Since at least the time of Dr Q, this Court’s approach to the appellate standard in respect of lower courts’ dispositions on judicial review has been to consider whether the applications judge chose and applied the appropriate standard of review to the decision of the administrative tribunal.41 The question of whether an appellate court should apply Housen to the standard of review decided by a reviewing judge was then addressed by this Court in Zenner. As noted by Donald JM Brown in Civil Appeals:

14:7210 — No Deference on Appeal from Decision of Reviewing Court

When an appeal is taken from an initial judicial review of administrative action, a question arises as to whether the standards of review set out in Housen apply to the

38 Factum of the Appellant at para. 5, citing Sharif v Canada (Attorney General), 2018 FCA 205 at para. 5 (per Stratas JA) and Stratas, David, JA. “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42 Queen’s LJ 27 (available at: https://ssrn.com/abstract=2733751 or http://dx.doi.org/10.2139/ssrn.2733751) (“Stratas”) at 6 39 Housen v Nikolaisen, 2002 SCC 33; Stratas, supra 40 Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (“Agraira”) at paras 45-47 41 Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 (“Dr Q”) at para 43; Zenner v Prince Edward Island College of Optometrists, 2005 SCC 77 (“Zenner”) at paras 29-45

reviewing court’s conclusion. The Supreme Court of Canada addressed that question directly in Dr Q v College of Physicians and Surgeons of British Columbia, by indicating that while the Housen standards were to be applied, the question of “the right standard to select and apply is one of law and, therefore, must be answered correctly by a reviewing judge.” That response, however, led to some uncertainty, other than where the reviewing court had selected the wrong standard, which obviously required that the appellate court select and then apply the correct one. Specifically, the uncertainty was as to whether the application of a standard that had been correctly selected was to be reviewed for “palpable and overriding error.” The Court in Zenner answered that question by stating that, once having determined that the correct standard of review had been selected by the reviewing court, the question for an appellate court was “whether the standard of review was correctly applied.” In the result, today an appellate court will apply the standard of correctness both to the reviewing court’s selection of the standard of review of the administrative action, and to the reviewing court’s application of the correctly selected standard. This effectively calls upon the appellate court to conduct its own standard of review analysis and then apply it without deference.42

42. This jurisprudence has developed with clarity and consistency since Zenner. In his 2006 reasons in Prairie Acid Rain, Justice Rothstein (then of the Federal Court of Appeal) observed:

[13] In Dr Q at paragraph 43, the Supreme Court dealt with the role of a Court of Appeal reviewing a decision of a subordinate court which itself was conducting a judicial review of a decision of an administrative tribunal. The Supreme Court found that “the normal rules of appellate review of lower courts as articulated in Housen […] apply”. […]

[14] However, in more recent cases, the Supreme Court has adopted the view that the appellate court steps into the shoes of the subordinate court in reviewing a tribunal’s decision. See for example Zenner at paragraphs 29‑45, per Major J […] The appellate court determines the correct standard of review and then decides whether the standard of review was applied correctly.43

43. Justice Evans (also of the Federal Court of Appeal) acknowledged Justice Rothstein’s reasons in Prairie Acid Rain as a clear statement of the law in Telfer (2009), noting that:

Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. The appellate court is not restricted to asking

42 Brown, Donald JM with the assistance of David Fairlie, Civil Appeals (Toronto: Thomson Reuters, 2019) at 14:7210 43 Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans), 2006 FCA 31 (“Prairie Acid Rain”) at paras 13-14

whether the first-level court committed a palpable and overriding error in its application of the appropriate standard.44

44. In 2012, Justice Deschamps of this Honourable Court in Merck Frosst expressly adopted the language of appellate courts “stepping into the shoes” of lower courts and focusing on the administrative decision, albeit in dissenting reasons.45 One year later, this Court in Agraira comprehensively reviewed the jurisprudence and confirmed and clarified the approach previously articulated and refined in Dr Q, Zenner, Prairie Acid Rain, Telfer and Merck Frosst:

[45] [I]t will be helpful to consider once more the interplay between (1) the appellate standards of correctness and palpable and overriding error and (2) the administrative law standards of correctness and reasonableness. These standards should not be confused with one another in an appeal to a court of appeal from a judgment of a superior court on an application for judicial review of an administrative decision. The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v Canada Revenue Agency, 2009 FCA 23 at para. 18:

[46] In Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 at para. 247, Deschamps J. aptly described this process as “‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision” (emphasis deleted).

[47] The issue for our consideration can thus be summarized as follows: did the application judge choose the correct standard of review and apply it properly?46

(ii) The Agraira Standard has Been Widely Accepted and Adopted

45. Appellate courts across Canada have adopted and applied the standard articulated in Agraira consistently and with little controversy or difficulty since 2013.47 The appellate courts

44 Canada Revenue Agency v Telfer, 2009 FCA 23 (“Telfer”) at para. 18 45 Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 (“Merck Frosst”) at para. 247 46 Agraira, supra at paras 45-47 47 See, e.g.: Federal Court of Appeal: Sharif v Canada (Attorney General), 2018 FCA 205 at para. 4; Husky Oil Operations Limited v Canada-Newfoundland and Labrador Offshore

15 have closely followed Agraira and there is no jurisprudential debate with the following principles:

a. the role of an appellate court is to consider: whether the applications judge identified the appropriate standard of review of the administrative decision-maker and, if so, whether they applied that standard correctly;48 and that

Petroleum Board, 2018 FCA 10 at paras 10-17; Canada (Attorney General) v Public Service Alliance of Canada, 2015 FCA 273 at para. 14; Alberta Court of Appeal: Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388 at paras 16-19, 72-80; Alexis v Alberta (Environment and Parks), 2020 ABCA 188 at para. 130; Buterman v St Albert Roman Catholic Separate School District No 734, 2017 ABCA 196 at para. 23; Edmonton Police Association v Edmonton (City), 2017 ABCA 355 at para. 36; Telus Communications Inc v Telecommunications Workers Union, 2014 ABCA 199 at paras 16 and 24; British Columbia Court of Appeal: Murray Purcha & Son Ltd v Barriere (District), 2019 BCCA 4 at para. 16; Compagna v Nanaimo (City), 2018 BCCA 396 at para. 33; Manitoba Court of Appeal: Pimicikamak et al v Manitoba, 2018 MBCA 49 at para. 135; Larry Penner Enterprises Inc v The Deputy Minister of Finance (Manitoba), 2018 MBCA 78 at paras 9-10; New Brunswick Court of Appeal: Ayangma v Université de Moncton et al., 2019 NBCA 73 at para. 14; Canadian Union of Public Employees, Local 60 v City of Edmundston, 2016 NBCA 3 at para. 11; O’Connell v Maxwell, 2016 NBCA 37 at para. 21; Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the Minister of Education v Kennedy et al., 2015 NBCA 58 at para. 8; Newfoundland & Labrador Court of Appeal: Layman v Layman Estate, 2016 NLCA 13 at para. 18; Nova Scotia Court of Appeal: Halifax (Regional Municipality) v Rehberg, 2019 NSCA 65 at paras 29-32; Nova Scotia (Agriculture) v Rocky Top Farm, 2017 NSCA 2 at paras 36-41; Halifax (Regional Municipality) v Tarrant, 2019 NSCA 27 at para. 19; Jono Developments Ltd v North End Community Health Association, 2014 NSCA 92 at paras 40- 42; Nunavut Court of Appeal: Rankin Inlet Housing Association v Tatty, 2017 NUCA 3 at para. 19; Ontario Court of Appeal: Ottawa Police Services v Diafwila, 2016 ONCA 627 at para. 51; Taylor-Baptiste v Ontario Public Service Employees Union, 2015 ONCA 495 at para. 39; Law Society of Upper Canada v Abbott, 2017 ONCA 525 at paras 93-96; Prince Edward Island Court of Appeal: Mi’kmaq of PEI v Province of PEI et al., 2019 PECA 26 at para. 38; Ayangma v HRC and Canada Health Infoway, 2014 PECA 13 at para. 18; PEI Music and Amusement Operators et al. v Govt PEI & Ano, 2015 PECA 8 at para. 14; King v Govt of PEI et al., 2018 PECA 3 at paras 30-31; Quebec Court of Appeal: Belval c. Bureau de la sécurité privée, 2016 QCCA 1499 at para. 34; Procureure générale du Québec c. Bouchard, 2018 QCCA 661 at para. 9; Janssen inc. c. Ministre de la Santé et des Services sociaux, 2019 QCCA 39 at para. 33; Parmalat Canada inc. c. Bulhoes, 2018 QCCA 830 at para. 29; Syndicat des professionnelles et professionnels du gouvernement du Québec c. Procureure générale du Québec, 2018 QCCA 2161 at paras 36-37; Saskatchewan Court of Appeal: Robin v Saskatchewan (Police Commission), 2016 SKCA 159 at paras 61-67; Agrium Vanscoy Potash Operations v United Steel Workers Local 7552, 2018 SKCA 50 at para. 3; and Yukon Court of Appeal: Schaer v Yukon (Department of Economic Development), 2019 YKCA 11 at para. 13 48 Agraira, supra at para. 47; Dr Q, supra at para 43

b. appellate courts must “step into the shoes” of reviewing courts, such that the focus is on the administrative decision.49

46. In the present case, the Manitoba Court of Appeal cited Agraira and rejected the Appellant’s contention that the lower court’s decision ought to be subject to appellate review only on the deferential standard under Housen. The Court of Appeal correctly cited Justice Rothstein’s statement in Prairie Acid Rain that appellate courts must “step into the shoes” of the subordinate court in considering the decision of the administrative tribunal.50 As with other appellate courts in Canada, the Manitoba Court of Appeal identified and applied the Agraira standard with ease.

(iii) The Court Should Not Overturn or Depart from Agraira

47. Given the consistent and uncontroversial application of the Agraira standard by appellate courts across Canada – including by the Manitoba Court of Appeal in the case at bar – the Respondent submits this Court should neither overturn Agraira nor depart from the long and well-settled line of jurisprudence on which the standard it articulates is founded.

48. This Court has warned that overturning its own precedent is a step not to be lightly undertaken, especially where, as in the present circumstances, the precedent represents the considered views of firm majorities.51 In Vavilov, this Court emphasized that precedent should be reconsidered only in compelling circumstances, such as where there is significant and valid judicial, academic, and other criticism of the jurisprudence.52

49. The Respondent submits that is not the situation in the present case. This Court’s unanimous reasons in Agraira clarified and consolidated a body of jurisprudence that had developed with coherence and consistency over a lengthy period of time. The standard confirmed

49 Agraira, supra at paras 45-46. Also see: Merck Frosst, supra at para. 247; Zenner, supra at paras 29-45; Prairie Acid Rain, supra at para. 14; Telfer, supra at para. 18 50 Court of Appeal Judgment at paras 46-49 [AR, Vol. I, Tab 4 at 93-94] 51 Canada v Craig, 2012 SCC 43 at para. 24; Ontario (Attorney General) v Fraser, 2011 SCC 20 at paras 56-60 52 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”) at paras 18, 36-40. See also: McDiarmid Lumber Ltd v God’s Lake First Nation, 2006 SCC 58 at para. 26; Rv Henry, 2005 SCC 76 at para. 44; Brown, Donald JM with the assistance of David Fairlie, Civil Appeals (Toronto: Thomson Reuters, 2019) at 1:3230

17 in Agraira and the notion that appellate courts must “stand in the shoes” of the subordinate court has not been the subject of significant criticism, nor has it led to divisions in the jurisprudence. Moreover, there is no incoherence or departure from the conceptual basis underpinning the nature of judicial review or its important role in preserving the rule of law, as there is a clear and principled basis for distinguishing appellate standards for judicial review from other appeals.

(iv) Original Findings of Reviewing Judge

50. The Appellant cites reasons of Justice Stratas of the Federal Court of Appeal to argue that, notwithstanding Agraira, the Housen standard must still be applied to reviewing courts’ own findings of fact and mixed fact and law.53 However, the cases cited by the Appellant involve unusual situations where the reviewing judge both reviewed an administrative decision and made clear, separate, and original factual findings based on consideration of evidence at first instance.54 In those rare cases, distinct factual findings by an applications judge may be reviewable on the Housen standard of palpable and overriding error, but these are not the circumstances of the present case.

51. The findings to which the Appellant argues the Housen standard should apply – the reasons why CUPE did not pursue a grievance - were not original findings of the reviewing court based on evidence at first instance, but rather were determinations by the Adjudicator based on the record before her.55 The Court of Queen’s Bench and the Manitoba Court of Appeal both referred to the scope of the evidence concerning the union’s decision not to grieve the

53 Factum of the Appellant at paras 53-56, quoting Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 at paras 75-76 54 See Syncrude Canada Ltd v Canada (Attorney General), 2016 FCA 160 at para. 29; Prophet River First Nation v British Columbia (Environment), 2017 BCCA 58 at para. 48; Sturgeon Lake Cree Nation v Hamelin, 2018 FCA 131 at para. 37; Austria v Canada (Citizenship and Immigration), 2014 FCA 191 at para. 56; Canada (Attorney General) v Rapiscan Systems, Inc., 2015 FCA 96 at para. 21; Buterman v St Albert Roman Catholic Separate School District No 734, 2017 ABCA 196 at paras 23-24; Blank v Canada (Justice), 2016 FCA 189 at paras 24-25; Pollock et al v Human Rights Commission (Manitoba) et al, 2019 MBCA 110 at para. 42; Jhanji v The Law Society of Manitoba, 2020 MBCA 48 at para. 39. Also see: Brown, Donald JM with the assistance of David Fairlie, Civil Appeals (Toronto: Thomson Reuters, 2019) at 14:7220 55 Adjudicator’s Decision at para 87 [AR, Vol. I, Tab 1 at 14]

Respondent’s second termination.56 With respect, the Court of Appeal’s reasons more accurately reflect the Adjudicator’s findings.57

52. Somewhat ironically, the Appellant now asks this Court to engage in a granular, de novo assessment of what it characterizes as the factual determinations made by the appellate and reviewing courts – by making reference to counsel’s own oral arguments before the Queen’s Bench.58 However, the transcripts of the actual proceeding before the Adjudicator confirm the findings of the Adjudicator and the Court of Appeal that the union was not interested in pursuing the grievance.59 Indeed, counsel for the Appellant made his own submissions to the Adjudicator at first instance that the union likely did not want to pursue the grievance.60

53. In light of the foregoing, the Respondent submits that this argument by the Appellant has no foundation and there is no reason for the Court to consider the appellate standard of review for original findings by an applications judge, as there were none in this case.

B. Standard of Review

54. The Courts below agreed that the proper standard of review in the circumstances was correctness because the question related to “the issue of drawing jurisdictional lines between labour arbitration and human rights adjudication.” In Vavilov, this Honourable Court also held that the correctness standard should apply to “questions related to the jurisdictional boundaries between two or more administrative bodies.”61 The Respondent submits that this articulation of the standard of review in Vavilov was premised on separate and exclusive jurisdiction of competing tribunals, and not referring to situations where jurisdiction might be concurrent.

56 Queen’s Bench Judgment at paras 24 and 62 [AR, Vol. I, Tab 2 at 52 and 68-69]; Court of Appeal Judgment at paras 25 and 87 [AR, Vol. I, Tab 4 at 85 and 112] 57 Court of Appeal Judgment at paras 25 and 87 [AR, Vol. I, Tab 4 at 85 and 112]; and Adjudicator’s Decision at para 87 [AR, Vol. I, Tab 1 at 14] 58 Factum of the Appellant at paras 67-69, esp para. 67 and footnote 68 59 Transcripts March 23, 2015, at pp. 188-189 and 193 [RR, Tab 1 at 5-6 and 10]; and Transcripts March 24, 2015, at pp. 295-296, 319 and 322 [RR, Tab 2 at 14-15, 18 and 21] 60 Transcripts March 24, 2015, at p. 320: “I frankly think that the union believed that she was drinking in breach of the memorandum of agreement,…and I frankly think that’s why they didn’t grieve.” [RR, Tab 2 at 19] 61 Vavilov, supra at para 17

55. As this Honourable Court observed in Vavilov,

[T]he rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another since the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions: see British Columbia Telephone Co., at para 80, per McLachlin J. (as she then was), concurring. Members of the public must know where to turn in order to resolve a dispute. As with general questions of law of central importance to the legal system as a whole, the application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making.62

56. The Respondent submits that the concept of “true operational conflict” is not amenable to situations of concurrent jurisdiction, where the real question is whether a tribunal should exercise its discretion to assume jurisdiction over a dispute that could go to another body. As will be argued more fully below, there is no bright jurisdictional line between labour arbitrators and human rights tribunals for Code violations in the workplace. Therefore, the question of whether a human rights tribunal should assume jurisdiction over a particular dispute should be governed by many factors that the tribunal should weigh and decide upon as a matter of discretion. Such discretionary decisions should be subject to the presumption of reasonableness as the standard of review. By way of analogy, appellate courts afford deference to discretionary decisions by superior court judges on whether to exercise jurisdiction over a dispute based on forum non conveniens: Haaretz.com v Goldhar, 2018 SCC 28 at para 49.

57. The Respondent submits that this approach is consistent with the guidance of this Court in Vavilov, where it definitively abandoned the category of “true questions of jurisdiction” as a category for correctness review. Reasonableness, this Court said, could address such situations:

Reasonableness review is both robust and responsive to context. A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessment regarding whether a particular interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctness standard.63

62 Vavilov, supra at para 64 (emphasis added) 63 Vavilov, supra at para 67

58. Properly characterized, the question before the Adjudicator was whether to assume jurisdiction over a dispute involving an employee whose union had decided against pursuing a grievance on her behalf regarding allegations of discrimination. It did not deal with a hard jurisdictional boundary between two tribunals and, given the overlapping jurisdiction between them, did not present a “true operational conflict”. The Respondent submits that such decisions should be subject to a reasonableness review which can be fully responsive to the context.

C. Proper Test for Jurisdiction of Human Rights Tribunal Over Unionized Employee

59. The Supreme Court of Canada’s decision in Weber was often misconstrued as approving the exclusive jurisdiction model for grievance arbitration in literally “all differences” arising between a unionized employee and their employer.64 In Morin, this Honourable Court sought to clarify that issue, emphasizing that labour arbitrators do not always have exclusive jurisdiction over disputes in a unionized workplace. According to the Court, depending on the legislation, “other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction.”65

60. Morin established a two-step test for determining jurisdiction between labour arbitrators and other statutory tribunals. The first step looks at the relevant legislation, and the second step requires a review of the “essential character” of the dispute, in its full factual context, with a view to facilitating a “better fit” between the tribunal and the dispute.66 The Respondent submits that this Honourable Court should elaborate on and refine this approach, because it does not properly take into account matters where tribunals have overlapping or concurrent jurisdiction. In that regard, the Morin test may conclude in some cases that one tribunal or the other has exclusive jurisdiction, but there can be other cases where there is concurrent jurisdiction over the issue, and the question becomes whether the particular tribunal should assume jurisdiction in the circumstances. Indeed, this approach is somewhat inconsistent with the bright line of exclusive jurisdiction, because a “better fit” implies that another forum is possible - just not “better”.

64 Weber v Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929 (“Weber”) 65 Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (Attorney General), 2004 SCC 39 (“Morin”) at paras 11 and 14 66 Morin, supra at paras 15 and 20

61. Properly understood, weighing the “better fit” between tribunal and dispute on a case-by- case basis necessarily presumes there is concurrent or overlapping jurisdiction, with a discretion to be exercised by the tribunal about whether or not it is best suited to deal with the dispute. But that is a different question than whether a tribunal has prima facie jurisdiction in the first place. The analytical approach should be more nuanced in cases of concurrent jurisdiction, with more factors considered to determine the “better fit” or, to borrow from a similar legal context, the “clearly more appropriate forum”.67

62. As will be argued more fully below, in deciding whether to hear a dispute, competing tribunals with concurrent jurisdiction over the matter should consider a range of factors, including the nature of the rights at issue, the essential character of the dispute, fairness, access to justice concerns, institutional expertise or appropriateness, avoiding duplication or inconsistent results, the status of the proceeding in each forum, and adjudicative efficiency and finality.68 As one academic has observed, what has been missing from Weber and most of its offspring is a principled, yet pragmatic and functional, approach to deciding questions of appropriate forum in cases of concurrent and overlapping jurisdiction.69

(i) The Myth of Exclusive Jurisdiction in Labour Arbitration

63. The Appellant relies in large part on the false premise that labour arbitrators have historically enjoyed “uniform” jurisdiction, and that the Court of Appeal’s judgment amounts to an “erosion” of arbitrators’ “exclusive jurisdiction over all differences under a collective agreement”.70 But that is a pernicious myth that does not reflect reality. In fact, labour arbitrators have historically recognized concurrent jurisdiction with various administrative bodies and tribunals in a range of areas.

67 Haaretz.com v Goldhar, 2018 SCC 28 at paras 46-48 68 Etherington, Brian, “Weber, and Almost Everything After, Twenty Years Later: Its Impact on Individual Charter, Common Law, and Statutory Rights Claims” in Elizabeth Shilton and Karen Schucher, eds., One Law for All? Weber v Ontario Hydro and Canadian Labour Law (Toronto: Irwin Law, 2017) (“Etherington”) at 78 and 82-85 69 Etherington at 80 70 Appellant’s Factum at para 11

64. There is no dispute that, in general, labour relations policy favours channelling disputes between parties to a collective agreement into grievance arbitration.71 However, it has long been recognized that statutory enactments may cover the same subject-matters that can also be addressed in collective agreements, and that such regimes often include their own processes for enforcement, with the result that “while various remedies may be secured at arbitration, the parties to collective agreements and employees may also seek to vindicate their rights in other fora”.72

65. Citing in particular the example of women’s rights, Professor Paul Weiler noted decades ago that legislatures may well have good reasons for protecting the interests of employees generally and irrespective of a collective agreement, and for concluding that collective bargaining may not be a “preferable vehicle” for doing so.73 Accordingly, Professor Weiler saw no difficulty with accepting that, even where grievance arbitration provides a “primary source of relief”, administrative remedies under a statutory regime may also remain available as an alternative.74

66. Contrary to the Appellant’s assertion, concurrent or shared jurisdiction between labour arbitrators and statutory administrative regimes is commonplace.75 While grievance arbitration may provide a private mechanism for the resolution of disputes between contracting parties, it is clear that presumptions of exclusive jurisdiction give way in matters that possess a public dimension. Labour arbitrators thus acknowledge their jurisdiction is concurrent with other statutory regimes because the rights they enshrine may be distinct from or broader than those

71 Weber, supra, at para 46. As noted by Professor Weiler, parties tend to be both familiar with and comfortable in this procedure, and arguments of cost, speed, and informality which justify arbitration generally are equally applicable when comparing to other tribunals or the courts. Weiler, Paul C.. “The Arbitrator, the Collective Agreement and the Law.” Osgoode Hall Law Journal 10.1 (1972) (available at: http://digitalcommons.osgoode.yorku.ca/ohlj/vol10/iss1/5) (“Weiler”) at 147.

72 Beatty, David M, Donald J Brown & Adam Beatty, Canadian Labour Arbitration, 5th ed, (Toronto: Thomson Reuters Canada, 2006, loose-leaf) (“Brown & Beatty”) at 1:4010. Brown & Beatty cite, as an example, for Ontario the statutory regimes created under the Employment Standards Act, 2000, the Pay Equity Act, and the Human Rights Code.

73 Weiler, cited in Brown & Beatty at 1:4010 74 Weiler at 153 75 Brown & Beatty at 1:4120; and Etherington at 78-80

23 under the collective agreement. For example, statutory labour relations boards and grievance arbitrators share concurrent jurisdiction to determine who is an employee, whether a strike is illegal, or if a sale of a business has occurred.76 Grievance arbitrators also share concurrent jurisdiction with statutory boards and tribunals in matters relating to occupational health and safety,77 pay equity,78 pensions,79 privacy,80 and matters relating to fitness to work and reasonable accommodation.81

67. With respect to human rights matters, Professors Brown and Beatty state in their authoritative text Canadian Labour Arbitration, 5th Edition that there is no issue with concurrent jurisdiction between human rights tribunals and labour arbitrators:

It is now established that simply because the subject matter of a grievance might also be the subject matter of a complaint under human rights legislation, that fact does not preclude its determination by arbitration and vice versa.82

76 Brown & Beatty at 1:4131, and cases cited therein 77 Brown & Beatty at 1:4133 and 1:4135, and cases cited therein. In a case dealing with health and safety matters under Part III of the Canada Labour Code, the BC Court of Appeal has expressly held that public policy considerations support a shared jurisdiction for unionized employees. The Court in Viterra Inc. v Grain Workers’ Union, Local 333, 2018 BCCA 455 went on to observe at paras 74-77 that Parliament could have easily stated that Code inspectors have exclusive jurisdiction over the enforcement of statutory rights under Part III had it wished to do so. The Court went on to conclude that in the absence of such express language in the statute, jurisdiction with respect to these health and safety matters must be shared.

78 Brown & Beatty at 1:4132, and cases cited therein 79 Brown & Beatty at 1:4135, and cases cited therein 80 Ontario Public Service Employees Union v Ontario (Grievor Grievance) (2015), 253 LAC (4th) 60 (Briggs); Canadian Union of Public Employees, Local 133 v Niagara Falls (City) (Iaonnoni Grievance), [2005] OLAA No. 228 (MacDowell); Kawartha Pine Ridge District School Board, 2008 CanLII 27810 (ON LA), (2007), 169 LAC (4th) 353 (Luborsky) 81 Brown & Beatty at 1:4133, citing Textron Automotive Interiors (1999), 79 LAC (4th) 54 (Starkman) and Proboard Ltd (2002), 112 LAC (4th) 371 (Kaplan) 82 Brown & Beatty at 1:4134 (for quote – emphasis added) and 1:4135, and cases cited therein

(ii) Jurisprudence on Labour Arbitration and Human Rights Tribunals

68. Following Morin, appellate courts across the country have considered cases involving jurisdictional contests between labour arbitration and human rights tribunals. These courts have highlighted that the exclusive jurisdiction model in Weber is more appropriate for jurisdictional questions between labour arbitrators and superior courts, not competing specialized tribunals.83 Applying Morin, these appellate courts have held that, while certain analytical principles overlap, there are different considerations when dealing with competing tribunals, including the legislative intent and policy objectives concerning two different statutes. As explained by the Alberta Court of Appeal in ATU, the frameworks for analysis must be distinguished:

The legislative intent in enacting labour relations regimes and creating arbitration procedures must be respected. In my view, however, it is unwise to simply 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. That would be especially problematic where the competing regime involves human rights legislation and all that its quasi- constitutional nature implies.84

69. Professor Etherington has observed that a Morin analysis of labour relations and human rights statutes across the country leads to a conclusion of concurrency in nearly every case, subject to an express statutory provisions to the contrary. He suggests that the proof of this analysis is in the results of its application across the country. Appellate courts have certainly reached this conclusion in practically every case where the issue has been considered:

British Columbia: Sebastian v Vancouver Coastal Health Authority, 2019 BCCA 241 at para 37

83 Ontario (Human Rights Commission) v Naraine, 2001 CanLII 21234, (2001), 209 DLR (4th) 465 (ON CA) (“Naraine”) at para 58; Amalgamated Transit Union, Local 583 v Calgary (City of), 2007 ABCA 121 (“ATU”) at paras 21-23; and Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2008 NSCA 21 (“Halifax Regional Municipality”) at para 45 84 ATU, supra, at para 23 (emphasis added); and Halifax Regional Municipality, supra, at para 45

Alberta: Amalgamated Transit Union, Local 583 v Calgary (City of), 2007 ABCA 121 at paras 47, 61 and 68

Saskatchewan: Cadillac Fairview Corp. Ltd v Saskatchewan (Human Rights Commission), 1999 CanLII 12358, 173 DLR (4th) 609 (SK CA)

Ontario: Ontario (Human Rights Commission) v Naraine, 2001 CanLII 21234, (2001), 209 DLR (4th) 465 (ON CA) at paras 58-59

New Brunswick: Robson v Canadian Union of Public Employees, Local 3339, 2019 NBCA 55 at para 39

Nova Scotia: Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2008 NSCA 21 at paras 65 and 73

70. Appellate courts in British Columbia, Alberta, Ontario, and Nova Scotia have expressly held that their legislatures intended to create concurrent jurisdiction between labour arbitrators and human rights tribunals over workplace discrimination claims.85 The BC Court of Appeal explained in Canpar that amendments to the human rights legislation in that province were enacted in 1995 based on a report that explicitly recommended concurrent jurisdiction.86

71. The appellate courts have also emphasized that human rights legislation protects quasi- constitutional rights that embody fundamental values and public policy goals, and therefore should be interpreted in a manner that expands the protection of human rights. This includes accessible application of statutory human rights protections. Human rights legislation is paramount, and as a matter of principle can only be overridden or ousted by clear and unequivocal legislative language.87

72. Since Morin, the Supreme Court of Canada has only considered one other case dealing directly with a contest between labour arbitration and a human rights tribunal. In Vaid, this

85 Canpar v International Union of Operating Engineers, 2003 BCCA 609 at paras 25-28 and 49; Naraine, supra at para 59; ATU, supra at paras 61 and 68; and Halifax Regional Municipality, supra at paras 73 and 79 86 Canpar, supra at paras 25-28 and 49 87 Cadillac Fairview Corp. Ltd v Saskatchewan (Human Rights Commission), 1999 CanLII 12358, 173 DLR (4th) 609 (SK CA) (“Cadillac Fairview”) at paras 14-16; Naraine, supra at para 47; ATU, supra at paras 57 and 68; and Halifax Regional Municipality, supra at para 63.

Honourable Court ruled that the substantive provisions of the Canadian Human Rights Act applied to Parliamentary employees, but that the enforcement machinery of the Act, including both the Canadian Human Rights Commission and Tribunal, was ousted by explicit statutory provisions in the Parliamentary Employment and Staff Relations Act (“PESRA”). Under PESRA, employees can grieve the violation of any federal statute that may apply to them, followed by labour adjudication. And section 2 of PESRA provides that where other federal legislation deals with “matters similar to those provided for under” PESRA, the latter prevails. This Honourable Court held that “matters similar” in section 2 encompassed dispute resolution mechanisms, and therefore the grievance procedure under PESRA prevailed over the complaint process under the Canadian Human Rights Act.88

73. In ATU and Halifax Regional Municipality, provincial appellate courts distinguished Vaid on the basis that section 2 of PESRA was the type of clear and explicit language required to oust the jurisdiction of a human rights tribunal.89 As will be argued in more detail further below, there is no such express exclusionary language in the Manitoba legislation.

(iii) Access to Justice

74. A recurring theme in the jurisprudence is the concern that unionized employees do not have carriage or control over the grievance arbitration process, and if a union chooses not to pursue a grievance, it will leave the employee with no legal recourse at all. In Morin, the Supreme Court of Canada identified this as a significant factor weighing in favour of the jurisdiction of a human rights tribunal over a unionized employee:

If the unions chose not to file a grievance before the arbitrator, the teachers would be left with no legal recourse (other than possibly filing a claim against their unions for breaching the duty of fair representation). This concern was summarized well by Abella JA in Ford Motor Co. of Canada Ltd v Ontario (Human Rights Commission) (2001), 209 DLR (4th) 465 (Ont. CA) (leave to appeal refused, [2002] 3 SCR x), at paras 61-62 as follows:

88 Canada (House of Commons) v Vaid, 2005 SCC 30 (“Vaid”) at paras 86, 89 and 99; Parliamentary Employment and Staff Relations Act, RSC 1985, c 33 (2nd Supp), s. 2 and s. 62(1)(a)(i) (right to grieve breach of a statute) 89 ATU, supra at paras 49-50; and Halifax Regional Municipality, supra at para 58

[T]here may be circumstances where an individual unionized employee finds the arbitral process foreclosed, since the decision whether to proceed with a grievance is the union’s and not the employee’s. Moreover, the alleged human rights violation may be against the union, as stipulated in the [Human Rights] Code in ss. 6 and 45(1). . . .

In an arbitration under a collective agreement, only the employer and union have party status. The unionized employee’s interests are advanced by and through the union, which necessarily decides how the allegations should be represented or defended. Applying Weber so as to assign exclusive jurisdiction to labour arbitrators could therefore render chimerical the rights of individual unionized employees.90

75. The Alberta Court of Appeal in ATU observed that there were many good faith reasons why a union might choose not to pursue a particular grievance: the union might consider the allegations as being without merit; the union might be in a conflict of interest, or there might be a conflict with allegations made against another union member; or the union may have limited resources to devote to such matters and may not perceive the grievance as furthering the interests of the bargaining unit as a whole.91 The union may also decide to frame a grievance in a way that leaves out discrimination allegations that the employee views as profoundly important to their own personal dignity. Ultimately, it is the union’s right not to take on a particular grievance, but that should not remove an employee’s right to rely on statutory human rights protections and to access a forum where those rights can be vindicated.92

76. Academics have also identified this as a crucial factor supporting concurrent jurisdiction. Faraday writes that, given its representative nature, a union’s primary obligation is to serve the collective interests of the bargaining unit as a whole. With limited financial and other resources, unions can never process every grievance to arbitration. But the human rights of a unionized employee should not be dependent on the size and resources of a particular union.93 Etherington stresses the access to justice problems raised by imposing a system on individuals that renders unions the gatekeepers to enforcement of fundamental human rights.94

90 Morin, supra at para 28, quoting Naraine, supra at paras 61-62. Also see ATU, supra at para 66-68 91 ATU, supra at para 5 92 ATU, supra at para 68 93Faraday, Fay, “The Expanding Scope of Labour Arbitration: Mainstreaming Human Rights Values and Remedies” (2005) 12 CLELJ 355 (“Faraday”) at 439-440 94 Etherington at 81-82

77. More broadly, the Supreme Court of Canada has increasingly recognized the significance of access to justice in our legal system, and its importance to the rule of law. As Justice Karakatsanis asserted in Hryniak, “Without an effective and accessible means of enforcing rights, the rule of law is threatened”.95

78. In other cases, this Honourable Court has recognized access to justice as a fundamental value and interpretive principle in the legal system. This Honourable Court has stressed that procedural and jurisdictional rules should be interpreted flexibly to ensure they do not interfere with an individual’s access to a forum to hear their dispute. In Telezone, Justice Binnie commented that “[a]ccess to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours.”96 More recently in the context of Aboriginal rights, Chief Justice Wagner and Justices Abella and Karakatsanis stated in Uashaunnuat that “access to justice requires that jurisdictional rules be interpreted flexibly so as not to prevent Aboriginal peoples from asserting their constitutional rights”.97

79. The principle of access to justice must apply equally to human rights statutes. The goal of human rights legislation is to eradicate discrimination and promote equality for historically disadvantaged groups. As Justice Sopinka wrote in Zurich Insurance, human rights legislation is “often the final refuge of the disadvantaged and the disenfranchised.” Justice Sopinka added that, “[a]s the last protection of the most vulnerable members of our society”, exceptions to human rights legislation should be “narrowly construed”.98 In Tranchemontagne, this Honourable Court observed that this “refuge” can be rendered meaningless if human rights remedies are not accessible.99

95 Hryniak v Mauldin, 2014 SCC 7 at para 1 96 Canada (Attorney General) v TeleZone Inc., 2010 SCC 62 at para 19 97 Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4 at para 50 98 Zurich Insurance Co. v Ontario (Human Rights Commission), 1992 CanLII 67 (SCC), [1992] 2 SCR 321 at 339 99 Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 at para 49

80. The Respondent submits that these principles apply when dealing with an objection to the jurisdiction of a human rights tribunal. While grievance arbitration is understood as the “primary source of relief” for unionized employees, there are many reasons why an individual may choose instead to vindicate their rights before a human rights tribunal. Indeed, one of those reasons may be that there is no other forum because a union has declined to support a grievance. To properly safeguard the rule of law and human rights, access to justice requires that individuals be allowed to pursue their chosen remedy directly and that “jurisdictional rules be interpreted flexibly”.100

(iv) A Revised Test for Concurrent Jurisdiction

81. Labour relations and human rights statutes both create dispute resolution mechanisms that can deal with claims of discrimination. For the reasons set out above, labour arbitrators and human rights tribunals have concurrent jurisdiction over most if not all human rights issues arising from the unionized workplace, absent express statutory language to the contrary. While the two-step test in Morin can determine whether one body or the other has exclusive jurisdiction over a dispute, a more robust framework is required for concurrent or overlapping jurisdiction to guide the decision-maker’s discretion on whether or not to decline jurisdiction over the matter. Importantly, that framework needs to give proper weight to the access to justice principles discussed in the previous section.

82. For allegations of discrimination in the workplace, the prima facie jurisdiction of the respective tribunals can usually be conclusively determined under step one of the Morin test by a detailed review of the relevant statutes. But the second step of the Morin test needs to be expanded if it is ascertained that both tribunals have concurrent jurisdiction over the human rights dispute. Focusing solely on the “essential character” of the dispute to determine which tribunal is a “better fit” does not provide sufficiently clear criteria to guide the decision-maker when the legislation indicates both tribunals could take jurisdiction over the dispute. And while the “full

100 Other areas of the law have also developed greater sensitivity to concerns that access to justice may be frustrated by inflexible jurisdictional rules. In Garcia v Tahoe Resources Inc., a case involving allegations of serious human rights abuses in Guatemala by a Canadian mining company, the BC Court of Appeal found that the forum non conveniens test should be modified to consider if there is “a real risk that the alternate forum will not provide justice.” See Garcia v Tahoe Resources Inc., 2017 BCCA 39 at para 124.

30 factual context” part of the analysis may generally consider access to justice concerns in a given case, the Respondent submits that the current test does not attach sufficient value to its importance.

83. Under the first step of the Morin test, the labour relations and human rights statutes should both be reviewed for provisions that clearly indicate one or the other tribunal has exclusive jurisdiction. For example, in Vaid, PESRA has a provision directing that other statutes providing “for matters similar to those” under PESRA shall not apply. This evinced the intention of Parliament that the grievance adjudication provisions in PESRA for violations of a statute should prevail over the dispute resolution machinery under the Canadian Human Rights Act. By comparison, other labour relations statutes do not have a provision like section 2 of PESRA.

84. The second step of the Morin test requires an analysis of the essential character of the dispute in its full factual context. In Morin, this Honourable Court said the goal was to find the “better fit” between tribunal and dispute. The contextual factor that drove the jurisdictional result in Morin was the fact that the union would not bring a grievance. But there was no further guidance on what sort of factors or criteria should be considered at this stage of the test to choose which tribunal is a “better fit”.

85. The “essential character” element of the second step does not provide much analytical assistance when it is clear that both tribunals have concurrent prima facie jurisdiction over a dispute. In Weber, the “essential character” analysis was used to ascertain whether a dispute – however it was framed – arose from the interpretation, application, administration or violation of a collective agreement. The Court in Weber taught that the “essential character” could be discovered by looking at, for example, the parties to the dispute, the place of the conduct, or when the claim originated (e.g., did it pre-date the collective agreement).101 But in cases such as the one at bar, there is no serious question about whether the dispute can be viewed as arising under the anti-discrimination provisions of the collective agreement. Clearly, it does. Yet it also falls squarely under the jurisdiction of the prohibited discrimination in employment provisions of the Human Rights Code. With no express statutory language ousting the jurisdiction of either forum,

101 Weber, supra at para 52

31 lower courts and tribunals need better guidance than the Weber “essential character” test, which was not designed to apply to the context of competing specialized tribunals.102

86. For purposes of predictability and certainty in the law, the Respondent submits that, in cases of concurrent jurisdiction, the second step of the test should enumerate pragmatic and justice-oriented factors to guide the discretion of a tribunal on whether to exercise jurisdiction in a particular dispute. Those factors should also be sensitive to the purposes and policy goals of the relevant statutory regimes.

87. The Respondent would propose the following factors as arising from the jurisprudence and academic commentary:103

(a) Nature of the dispute: Respect for labour arbitration as the primary method for resolving disputes in a unionized workplace is a starting point. But human rights tribunals may be more inclined to consider disputes that do not arise from specific collective agreement terms (other than the general incorporation of human rights legislation). The decision- maker should also consider whether the human rights issue is merely incidental to a broader dispute, or whether it is the central issue.104 For example, the Manitoba Court of Appeal observed that the legal duty on employers to reasonably accommodate workers with a drug or alcohol dependence were issues that transcended the collective agreement.105

(b) Access to justice concerns: This is the most significant factor arising from the jurisprudence.106 Access to justice is an emerging legal principle that calls for decision- makers to apply jurisdictional rules flexibly.107 Where there is evidence that the union is unwilling to advance a grievance on the same issue, this factor should prevail, as it would risk the individual being denied any forum. Where it appears that the claimant had an

102 ATU, supra, at paras 21 and 23; Halifax Regional Municipality, supra at para 45 103 Etherington at 78-79 and 82-85 and cases cited therein. 104 Morin, supra at para 27; Vaid, supra at para 94 105 Court of Appeal Judgment at paras 82-85 106 Morin, supra at para 28; Naraine, supra at paras 60-61; ATU, supra, at paras 64-66 107 Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4 at para 50

option, the decision-maker should usually still respect that election,108 but other factors may carry more weight in the circumstances.

(c) Institutional expertise or appropriateness: In some cases, human rights issue may be only incidental, or a factor (e.g., in Vaid). In others, human rights lie at the core of the dispute, as in cases concerning accommodation of disability. Institutional expertise or appropriateness will also be a significant factor where there is a systemic dimension to the dispute. As Faraday has observed, while human rights tribunals are expressly granted powers to award systemic relief, arbitrators are reluctant to order systemic remedies.

(d) Status of the proceeding in other forum: Concerns about duplication of proceedings and inconsistent findings are paramount in the legal system.109 In most if not all cases, a human rights tribunal would defer or decline to exercise jurisdiction over a complaint where there is an outstanding grievance dealing substantially with the same factual matter as the complaint.110

88. The above multi-factor analysis is pragmatic and clear and will provide more predictable outcomes, while respecting the policy objectives of the competing statutory regimes. Labour policy and adjudicative efficiency are important, but those goals should not come at the expense of individual human rights and the fundamental societal objectives of achieving a more free and equal society and protecting historically disadvantaged groups. Ensuring that human rights claimants have access to justice must be a critical factor.

D. Adjudicator’s Decision to Assume Jurisdiction Was Reasonable

89. The Respondent submits that her complaint was fundamentally about the Appellant’s failure to accommodate her disability, and treating her in an adverse and differential manner by terminating her not for some workplace misconduct, but because the employer believed she had an alcohol addiction that was not being successfully treated. The expanded Morin analysis

108 Faraday at 440 109 British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 110 Etherington at 35, 77-79, citing as an example Aubin v Waterloo (Regional Municipality), 2008 HRTO 214 at para 4.

33 confirms that the Adjudicator had prima facie jurisdiction over her complaint, and that it was reasonable to exercise it in the circumstances where there was no competing grievance.

Step One – Relevant Legislation

90. The Manitoba Labour Relations Act contains a “final settlement” provision for “all differences” concerning the meaning, application or alleged violation of the collective agreement.111 The provision is similar to those in other provincial labour relations statutes, and the purpose is to secure adjudicative efficiency and the timely and inexpensive resolution of disputes without stoppages of work.

91. The Human Rights Code provides for adjudication of complaints that allege contraventions of the Code if the matter has not been settled, terminated or otherwise dismissed, and the Commission requests adjudication under subsection 29(3) of the Code because it is “satisfied that additional proceedings in respect of the complaint would further the objectives of the Code”. While there is a power for the Commission to dismiss a complaint outright on a preliminary basis if it is frivolous or vexatious, or for insufficient evidence, subsection 29(3) confers a great deal of discretion on the Commission to decide whether to refer complaints to adjudication. There is no provision that would suggest this discretion is limited, or that the jurisdiction of a Code adjudicator must be ousted in favour of labour arbitration.

92. Some human rights statutes explicitly provide for deferral or dismissal of a complaint where a grievance or other review procedure could deal with, or already has dealt with, the subject matter of the complaint.112 But even these dismissal and deferral powers are discretionary, and commissions are not required to yield jurisdiction where a matter could be “dealt with” by a grievance. Notably, there is no dismissal or deferral provision in the Manitoba Code, although it is reasonable to assume that the Manitoba Human Rights Commission may not be “satisfied” that adjudication is required where a complainant has or could pursue a grievance.

111 The Labour Relations Act, CCSM c L10, s. 78 112 Canadian Human Rights Act, RSC 1985, c H-6, s. 41(1)(a) and (b); Human Rights Code, RSBC 1996, c 210, ss. 25(2) and 27(1)(f); Alberta Human Rights Act, RSA 2000, c A-25.5, s. 22(1.1); and Human Rights Code, RSO 1990, c H.19, ss. 45 and 45.1; and Human Rights Act, RSNS 1989, c 214, s. 29(4)(d)

93. Significantly, however, there is no provision in the Code that clearly ousts the jurisdiction of an adjudicator in favour of labour arbitration. Manitoba legislators certainly know how to craft such a provision if that was their intent. For example, the provincial Employment Standards Code provides for investigation and enforcement by employment standards officers. But the Employment Standards Code also contains a clear exclusionary provision:

92(2) An employee who is covered by a collective agreement may not file a complaint under this Code.113

94. If it was the legislators’ intent to confer exclusive jurisdiction on labour arbitrators in respect of unionized employees for all alleged contraventions of the Human Rights Code, a provision similar to subsection 92(1) in the Employment Standards Code could have been added to the human rights statute. This demonstrates the legislators intended concurrent jurisdiction over human rights violations in the unionized workplace.

Step Two – Should the Adjudicator Decline Jurisdiction?

95. The Respondent submits that the most important factor in the jurisdictional analysis is that there is no competing grievance. This does not mean that a human rights tribunal should never decline jurisdiction over a human rights complaint by a unionized employee. Other factors may prevail in a particular case, such as a complaint that turns on the interpretation of a collective agreement term, or other issues that are specific to the particular workplace. A brief review of the other proposed factors also point to a finding upholding the adjudicator’s jurisdiction:

(a) Nature of the dispute: There were issues raised in the discrimination complaint that went beyond the employment context of the particular workplace. The legal duty on employers to reasonably accommodate workers with a drug or alcohol dependence are issues that transcend the collective agreement.114

(b) Institutional expertise or appropriateness: The Appellant argues that the accommodation of the Respondent was a matter that was already the subject of one grievance which was

113 The Employment Standards Code, CCSM c E110, s. 92(2) 114 Court of Appeal Judgment at paras 81-82, 85 and 88 [AR, Vol. I, Tab 4 at 108-109, 111 and 113]

resolved by an agreement signed by all parties, including the union. That would tend to point to labour arbitration. But there were also concerns that the Appellant’s managers had a poor understanding of accommodation, failing to conduct any sort of individualized assessment of the Respondent and relying on their own personal views and stereotypes about her prospects for rehabilitation. Indeed, the adjudicator was so concerned about the employer’s conduct that she ordered a public interest remedy, directing the Appellant to develop and implement a reasonable accommodation policy in consultation with the Manitoba Human Rights Commission. Human rights tribunals have institutional expertise in providing remedies that seek to prevent future discrimination.115

(c) Status of proceeding in another forum: There is no outstanding or competing grievance, so there is no concern of duplication or inconsistent findings.

96. Based on all the foregoing, the Respondent submits that the Adjudicator’s decision to assume jurisdiction over this complaint was correct.

E. Adjudicator’s Remedial Jurisdiction

97. The Court of Appeal ruled that the Adjudicator’s jurisdiction was limited and did not extend to the actual termination of the Respondent’s employment. In the Court’s view, issues relating to the dismissal of a unionized employee must be reserved to the exclusive jurisdiction of a labour arbitrator. Following this reasoning, it was the Court of Appeal’s view that the Adjudicator could consider the reasonableness of the Appellant’s accommodation of the Respondent, but not whether the termination was appropriate.116 The Court also held that the Adjudicator could not question whether the Respondent was properly accommodated prior to signing the “last chance” agreement. In this regard, the Court of Appeal found that as the settlement of a grievance, the agreement could not be questioned or attacked due to the doctrine of issue estoppel. “In short,” the Court stated, “the Chief Adjudicator had to accept for the

115 Faraday at 431: “Human rights remedies aim not only to make the complainant whole, but also to eliminate future discrimination.”

116 Court of Appeal Judgment at paras 80, 88-89 and 91-93 [AR, Vol. I, Tab 4 at 108 and 113- 115]

36 purposes of her consideration of the discrimination complaint that, up until April 5, 2012, the NRHA had reasonably accommodated the disability of the complainant.”117

98. The Respondent Horrocks submits that an adjudicator’s jurisdiction cannot – and should not – be truncated in this fashion. First, if termination results from an alleged breach of a last chance agreement, then a human rights adjudicator should not be precluded from determining whether or not either the agreement or the resultant termination was discriminatory. Second, while an adjudicator might be precluded from awarding a remedy in respect of events preceding or leading up to a last chance agreement, issue estoppel does not preclude her from considering and taking into account the circumstances that led to the last chance agreement, including whether or not the employer reasonably accommodated the complainant’s disability.

99. As this Court has held, parties cannot contract out of human rights legislation, the provisions of which are enacted for the general benefit of the community and its members.118 Courts and labour arbitrators have applied this principle specifically to last chance agreements, holding them to be unenforceable or of limited effect if they derogate from an employer’s duty to accommodate under human rights legislation.119 That being the case, the adjudicator must be free – and it is incumbent upon her – to determine both whether or not the duty to accommodate short of undue hardship was met, and also whether or not termination was appropriate given the circumstances, notwithstanding the provisions of a last chance agreement.120

100. There is also a contradiction in the Court of Appeal’s analysis of the reinstatement issue. On the one hand, the Court of Appeal agreed with the finding that “the union was not interested

117 Court of Appeal Judgment at paras 94-102, 102 for quote [AR, Vol. I, Tab 4 at 115-119] 118 Central Okanagan School District No. 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970; Ontario Human Rights Commission v Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 SCR 202 119 See: Brown & Beatty at 2:3232, 7:6122; Seaspan ULC v International Longshore & Warehouse Union, Local 400, 2014 CanLII 83893 (CA LA), (2014), 247 LAC (4th) 1 at paras 58-69; Mainland Sawmills v Industrial Wood and Allied Workers of Canada, Local 2171 (Kandola Grievance) (2002), 104 LAC (4th) 385 at paras 65-68; Fantom Technologies Inc. v United Steelworkers of America, Local 6444 (Comaniuk Grievance) (1998), 70 LAC (4th) 241 120 Haghir v University Appeal Board, 2019 SKCA 13 at para 109, citing Mosaic Potash Esterhazy Limited Partnership v Unifor Local 892, 2016 SKCA 68 at para 29

37 in grievance arbitration”.121 But then, in denying the Respondent’s right to seek reinstatement, the Court of Appeal says this,

Rather than hedging her bets, by not grieving her second termination, the complainant made a choice to sever her claims relating to discipline and discharge from her claim relating to discrimination on the basis of alcohol dependency. By doing so, she abandoned her rights under the collective agreement to just cause protection, the grievance procedure and union representation.122

101. The Court of Appeal’s findings are contradictory, in that it recognized the union was the party who declined to advance the grievance, but then describes this as the Respondent’s “choice”. There may be cases where a unionized employee does make such an election, but that was not the situation here and it should not have informed the Court’s analysis of the Adjudicator’s remedial power. Whether such a consideration should affect the analysis can be left for another day. In the present case, there is no question that the Respondent did not have the right to claim just cause protection before the Adjudicator, but she could certainly assert that the termination was discriminatory, and seek reinstatement under paragraph 43(2)(a) of the Code.

102. With respect to issue estoppel, the Respondent Horrocks acknowledges that the last chance agreement might preclude her from obtaining certain remedies (e.g., an award of back pay between June 2011 and April 5, 2012), but maintains that the Adjudicator should not be prevented from considering the events that led to the last chance agreement, including whether or not the Appellant reasonably accommodated her disability. To be clear, this is not a case where an arbitrator had already dealt with the human rights issue, nor can consideration of whether the last chance agreement afforded the Respondent Horrocks appropriate accommodation be considered a “fresh look” at the Appellant’s approach to her disability.123 Moreover, the precondition for issue estoppel that parties be the same in both proceedings cannot be met in this

121 Court of Appeal Judgment at paras 25 and 87; Transcripts March 23, 2015, at pp. 188-189 and 193 [RR, Tab 1 at 5-6 and 10]; and Transcripts March 24, 2015, at pp. 295-296, 319 and 322 [RR, Tab 2 at 14-15, 18 and 21] 122 Court of Appeal Judgment at para 80 (emphasis added) 123 Cf. British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 at para. 38, where the Court was very clear that it was dealing with the treatment of one adjudicative body’s decisions by other adjudicative bodies.

38 case, as the parties to a grievance are the union and the employer, while the parties in a human rights proceeding are the individual employee, the Commission, and the employer.124

103. Reinstatement as a remedy remains open to the Adjudicator in all circumstances. Human rights tribunals possess a full range of remedial powers, including discretion to order reinstatement in the employment context, on grounds other than those that may be engaged by just cause provisions in a collective agreement.125 There is no lawful basis on which to circumscribe the scope of an adjudicator’s remedial authority (i.e., reinstatement for discriminatory termination) simply because an arbitrator might possess similar remedial authority based on other grounds (i.e., reinstatement for termination without just cause).

124 The characterization of a union as an individual employee’s “agent” for purposes of issue estoppel is drawn from arbitral and tribunal caselaw that pre-dates - and was not adopted by - the Ontario Court of Appeal’s decision in Naraine, supra at para. 64. Moreover, the Federal Court of Appeal affirmed the finding of the Canadian Human Rights Tribunal in Desormeaux that because the role and responsibility of human rights commissions is separate and distinct from an individual complainant, the parties to a grievance and human rights proceeding are not the same for purposes of establishing issue estoppel. See: Desormeaux v Ottawa-Carleton Regional Transit Commission, 2002 CanLII 61853 (CHRT) at paras 29-33; Desormeaux v Ottawa (City), 2005 FCA 311 at para 9.

125 See, e.g., AUPE v Alberta, 2013 ABCA 212 at para 66; Ayangma v FLSB & ELSB, 2019 PECA 22 at para 117

PART IV - COSTS

104. The Respondent Horrocks only seeks costs of this appeal in the event the appeal is dismissed. In the event the appeal is allowed, the Respondent Horrocks submits that no costs should be awarded against her personally, as she did not participate in the judicial review or appeal proceedings in the Courts below, nor did she oppose the application for leave to appeal.

PARTV-ORDERSOUGHT

105. The Respondent Horrocks requests the following relief:

(a) The appeal be dismissed;

(b) Costs of the appeal before this Court; and

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Dated at Ottawa, Ontario, this 18th day of September, 2020.

P amp/ Bijon Roy CHAMP & ASSOCIATES Solicitors for the Respondent Horrocks 40

PART VII – LIST OF AUTHORITIES

Para(s) Cited

Statutes

Alberta Human Rights Act, RSA 2000, c A-25.5, s. 22(1.1) 92

Canadian Human Rights Act, RSC 1985, c H-6, s. 41(1)(a) and (b) 92

Loi canadienne sur les droits de la personne, LRC (1985), ch. H-6, s. 41(1)(a) and (b)

Employment Standards Code, CCSM c E110, s. 92(2) 93

Code des normes d'emploi, CPLM c E110, s. 92(2)

Human Rights Act, RSNS 1989, c 214, s. 29(4)(d) 92

Loi sur les droits de la personne, RSNS 1989, c 214, s. 29(4)(d)

Human Rights Code, CCSM, c H175

Code des droits de la personne, CPLM c H175

Human Rights Code, RSBC 1996, c 210, ss. 25(2) and 27(1)(f) 92

Human Rights Code, RSO 1990, c H.19, ss. 45 and 45.1 92

Code des droits de la personne, LRO 1990, c H.19, ss. 45 and 45.1

Labour Relations Act, CCSM c L10, s. 78 90

Loi sur les relations du travail, CPLM c L10, s. 78

Parliamentary Employment and Staff Relations Act, RSC 1985, c 33 (2nd 72 Supp), s. 2 and s. 62(1)(a)(i)

Loi sur les relations de travail au Parlement, LRC (1985), ch. 33 (2e suppl.), s. 2 and s. 62(1)(a)(i)

Para(s) Cited

Jurisprudence

Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 40, 45, 47 36

Agrium Vanscoy Potash Operations v United Steel Workers Local 7552, 2018 45 SKCA 50

Alexis v Alberta (Environment and Parks), 2020 ABCA 188 45

Amalgamated Transit Union, Local 583 v Calgary (City of), 2007 ABCA 121 68, 69, 70, 72, 74, 75, 85, 87

Aubin v Waterloo (Regional Municipality), 2008 HRTO 214 87

AUPE v Alberta, 2013 ABCA 212 103

Austria v Canada (Citizenship and Immigration), 2014 FCA 191 50

Ayangma v FLSB & ELSB, 2019 PECA 22 103

Ayangma v HRC and Canada Health Infoway, 2014 PECA 13 45

Ayangma v Université de Moncton et al., 2019 NBCA 73 45

Belval c. Bureau de la sécurité privée, 2016 QCCA 1499 45

Blank v Canada (Justice), 2016 FCA 189 50

British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 87, 102

Buterman v St Albert Roman Catholic Separate School District No 734, 2017 45, 50 ABCA 196

Cadillac Fairview Corp. Ltd v Saskatchewan (Human Rights Commission), 69, 71 1999 CanLII 12358, 173 DLR (4th) 609 (SK CA)

Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 45 388

Canada v Craig, 2012 SCC 43 48

Canada (Attorney General) v Public Service Alliance of Canada, 2015 FCA 45 273

Canada (Attorney General) v Rapiscan Systems, Inc., 2015 FCA 96 50

Canada (Attorney General) v TeleZone Inc., 2010 SCC 62 78

Canada (House of Commons) v Vaid, 2005 SCC 30 72, 87

Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 48, 55, 57

Canada Revenue Agency v Telfer, 2009 FCA 23 43, 45

Canadian Union of Public Employees, Local 60 v City of Edmundston, 2016 45 NBCA 3

Canadian Union of Public Employees, Local 133 v Niagara Falls (City) 66 (Iaonnoni Grievance), [2005] OLAA No. 228 (MacDowell)

Canpar v International Union of Operating Engineers, 2003 BCCA 609 70

Central Okanagan School District No. 23 v Renaud, 1992 CanLII 81 (SCC), 99 [1992] 2 SCR 970

Compagna v Nanaimo (City), 2018 BCCA 396 45

Desormeaux v Ottawa-Carleton Regional Transit Commission, 2002 CanLII 102 61853 (CHRT)

Desormeaux v Ottawa (City), 2005 FCA 311 102

Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 41, 45 19 Edmonton Police Association v Edmonton (City), 2017 ABCA 355 45

Fantom Technologies Inc. v United Steelworkers of America, Local 6444 99 (Comaniuk Grievance) (1998), 70 LAC (4th) 241

Garcia v Tahoe Resources Inc., 2017 BCCA 39 80

Haaretz.com v Goldhar, 2018 SCC 28 61, 99

Haghir v University Appeal Board, 2019 SKCA 13 99

Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 68, 69, 70, 71, 2008 NSCA 21 73, 85

Halifax (Regional Municipality) v Rehberg, 2019 NSCA 65 45

Halifax (Regional Municipality) v Tarrant, 2019 NSCA 27 45

Her Majesty the Queen in Right of the Province of New Brunswick, as 45 represented by the Minister of Education v Kennedy et al., 2015 NBCA 58

Housen v Nikolaisen, 2002 SCC 33 40

Hryniak v Mauldin, 2014 SCC 7 77

Hupacasath First Nation v Canada (Foreign Affairs and International Trade 50 Canada), 2015 FCA 4

Husky Oil Operations Limited v Canada-Newfoundland and Labrador 45 Offshore Petroleum Board, 2018 FCA 10

Janssen inc. c. Ministre de la Santé et des Services sociaux, 2019 QCCA 39 45

Jhanji v The Law Society of Manitoba, 2020 MBCA 48 50

Jono Developments Ltd v North End Community Health Association, 2014 45 NSCA 92

Kawartha Pine Ridge District School Board, 2008 CanLII 27810 (ON LA), 66 (2007), 169 LAC (4th) 353 (Luborsky)

King v Govt of PEI et al., 2018 PECA 3 45

Larry Penner Enterprises Inc v The Deputy Minister of Finance (Manitoba), 45 2018 MBCA 78

Law Society of Upper Canada v Abbott, 2017 ONCA 525 45

Layman v Layman Estate, 2016 NLCA 13 45

Mainland Sawmills v Industrial Wood and Allied Workers of Canada, Local 99 2171 (Kandola Grievance) (2002), 104 LAC (4th) 385

McDiarmid Lumber Ltd v God’s Lake First Nation, 2006 SCC 58 48

Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 44, 45

Mi’kmaq of PEI v Province of PEI et al., 2019 PECA 26 45

Mosaic Potash Esterhazy Limited Partnership v Unifor Local 892, 2016 99 SKCA 68

Murray Purcha & Son Ltd v Barriere (District), 2019 BCCA 4 45

Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of 78, 87 Uashat and of Mani-Utenam), 2020 SCC 4

Nova Scotia (Agriculture) v Rocky Top Farm, 2017 NSCA 2 45

O’Connell v Maxwell, 2016 NBCA 37 45

Ontario (Attorney General) v Fraser, 2011 SCC 20 48

Ontario (Human Rights Commission) v Naraine, 2001 CanLII 21234, (2001), 68, 69, 70, 71, 209 DLR (4th) 465 (ON CA) 87, 102

Ontario Human Rights Commission v Etobicoke, 1982 CanLII 15 (SCC), 99 [1982] 1 SCR 202

Ontario Public Service Employees Union v Ontario (Grievor Grievance) 66 (2015), 253 LAC (4th) 60 (Briggs)

Ottawa Police Services v Diafwila, 2016 ONCA 627 45

Parmalat Canada inc. c. Bulhoes, 2018 QCCA 830 45

PEI Music and Amusement Operators et al. v Govt PEI & Ano, 2015 PECA 8 45

Pimicikamak et al v Manitoba, 2018 MBCA 49 45

Pollock et al v Human Rights Commission (Manitoba) et al, 2019 MBCA 110 50

Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans), 42, 45 2006 FCA 31

Procureure générale du Québec c. Bouchard, 2018 QCCA 661 45

Prophet River First Nation v British Columbia (Environment), 50 2017 BCCA 58

Quebec (Commission des droits de la personne et des droits de la jeunesse) 59, 60, 74, 87 v Quebec (Attorney General), 2004 SCC 39 (“Morin”)

R v Henry, 2005 SCC 76 48

Rankin Inlet Housing Association v Tatty, 2017 NUCA 3 45

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Para(s) Cited

Other Authorities

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