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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

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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 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 1 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
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