The Northern Regional Health Appeal – An Opportunity to Clarify the “Essential Character” Test of Disputes involving Human Rights in Unionized Workplaces

The Northern Regional Health Authority has applied for leave to appeal the decision of the Manitoba Court of Appeal in Northern Regional Health Authority v. Manitoba Human Rights Commission et. al., 2017 MBCA 98 to the Supreme Court of Canada[1]. The Manitoba Human Rights Commission is not opposing the application, instead favouring that the appeal be heard and clarification be sought in the matter of the jurisdiction of human rights tribunals vis-à-vis exclusive arbitral jurisdiction[2]. The Commission is appearing as an intervener in the case[3].

The fact that there is no presumption of exclusive arbitral jurisdiction has been settled law in Ontario since the Naraine decision, and has been affirmed by the Supreme Court of Canada in the Weber and Morin decisions[4]. However, should leave to appeal be granted, the Northern Regional Health appeal will be interesting in terms of the specific issue of how to determine the “essential character” of a human rights dispute in a unionized workplace.

Ms. Linda Horrocks initially made a complaint to the Manitoba Human Rights Commission in the fall of 2012[5]. She had a history of struggling with alcohol and had been suspended from her position as a health aide by her employer, the Northern Regional Health Authority (“NRHA”), for being under the influence of alcohol while on the job[6]. The NRHA asked Ms. Horrocks to sign an agreement requiring, among other things, absolute abstinence from alcohol, both during work and outside work, as a condition of her return to work[7]. Breach of the agreement, if signed, would constitute just cause for termination[8].

Ms. Horrocks was concerned by the absolute abstinence requirement[9]. Her union likewise considered it discriminatory and advised her not to sign the agreement[10]. She was terminated by NRHA as a result of her refusal to sign it[11]. Her union grieved the termination, however, they did not proceed to arbitration as Ms. Horrocks, the union, and NRHA reached a settlement agreement containing the exact same abstinence clause[12]. Ms. Horrocks signed it against the advice of her union representative because she needed income[13]. The NRHA terminated her again shortly thereafter, based on two reports that Ms. Horrocks had been under the influence of alcohol while at the grocery store and at home[14]. Ms. Horrocks denied the allegations at all times and the union did not grieve the second termination[15].

At the adjudication of the human rights complaint, adjudicator Walsh rejected NRHA’s argument that an arbitrator has exclusive jurisdiction to determine issues between the parties including discrimination against Ms. Horrocks[16]. Rather, adjudicator Walsh interpreted the essential character of the dispute, pursuant to the Weber decision, to be “a human rights contravention and not the ‘interpretation, application, administration or violation of the collective agreement’”[17]. Curiously, she did not first examine legislation relevant to the jurisdiction of each decision-maker before analyzing the nature of the dispute in light of the legislation as well as the facts[18].

The NRHA sought a judicial review of the decision. Edmond J., in writing for the Manitoba Court of the Queen’s Bench, held that the standard of review for the decision regarding jurisdiction was correctness[19]. Further, adjudicator Walsh erred in her analysis by not first considering relevant legislation, and in concluding that the essential character of the dispute was whether or not there was discrimination[20]. Edmond J. found that the essential character of the dispute was whether there was just cause for termination of Ms. Horrocks’s employment, which fell squarely within an arbitrator’s exclusive jurisdiction[21].

The NRHA appealed to the Manitoba Court of Appeal. The standard of review was again correctness[22]. In writing for the Court, Mainella J. held that both Edmond J. and adjudicator Walsh did not adequately address certain facts in deciding the essential character of the dispute, particularly the absence of a grievance of the second termination[23]. Because the dispute leading to the human rights complaint therefore did not arise out of the collective agreement, the Court found that Edmond J. erred in concluding that the essential nature of the dispute was Ms. Horrocks’s termination by NRHA[24]. The Court found that despite her error in analyzing the factual matrix of the dispute, adjudicator Walsh was correct in her conclusion that its essential character was reasonable accommodation of Ms. Horrocks, which falls within the scope of adjudicators to decide under the Code[25].

It will be interesting to see whether the Supreme Court will offer any insight regarding which facts should be considered and how they should be weighed when assessing the essential character of disputes to come.