Reasons for Judgment of the Honourable Madam Justice Newbury:

[1]         Like the appeal (Health Employers' Association of British Columbia on behalf of Castlegar & District Health Council v. British Columbia Nurses' Union, CA026791) heard with it, this appeal raises an interesting question of jurisdiction in the context of a labour dispute involving the anti-discrimination provisions of the Human Rights Code, R.S.B.C. 1996, c. 210.  (Later amendments to the Code which came into effect on March 31, 2003 by virtue of S.B.C. 2002, c. 62, do not affect these Reasons in principle.)  The question in this case is this: where a collective agreement is silent regarding the application of human rights principles, and the essence of the grievor's case is that he has been discriminated against by reason of disability, can an arbitrator acting under the Labour Relations Code, R.S.B.C. 1996, c. 244, take jurisdiction over the grievance, or does the matter lie primarily, or firstly, within the jurisdiction of the Human Rights Tribunal?

[2]         The appellant employer contends that the Tribunal has primary jurisdiction and that the Supreme Court of Canada's decision in Weber v. Ontario Hydro [1995] 2 S.C.R. 929, which approved an "exclusive jurisdiction model" for labour arbitrators, does not apply since this dispute cannot be said to arise from the "interpretation, application, administration, or violation of a collective agreement". (Per McLachlin J. (now C.J.C.) in Weber, at para. 52.)  In the employer's submission, both the nature of human rights legislation generally and the functions and powers given to the Human Rights Tribunal in British Columbia evince a legislative intention to create a specialized tribunal having primary jurisdiction to resolve all disputes arising under the Human Rights Code, whether in the unionized workplace or not.  Thus, says the employer, "a labour arbitration board should only obtain concurrent jurisdiction over a human rights complaint where the Commissioner of Investigation and Mediation after exercising his/her discretion under Section 25 of the [Human Rights] Code, decides to defer the complaint to arbitration."

[3]         The Union responds that this court does not even have jurisdiction to hear this appeal, as it does not qualify as a matter of "general law" for purposes of s. 100 of the Labour Relations Code.  Alternatively, the Union says labour arbitrators have express statutory authority under s. 89(g) of that statute to interpret and apply "any Act intended to regulate the employment relationship of the persons bound by a collective agreement" ─ a phrase it says includes the Human Rights Code.  In its analysis, the Labour Relations Code and Human Rights Code (particularly ss. 25 and 27 thereof) create a "limited concurrent jurisdiction" shared by labour arbitrators and the Human Rights Tribunal.

[4]         As will be seen below, I am of the view that this court may properly hear this appeal since the basis of the arbitrator's ruling is a question of "general law" not "included in" s. 99 of the Labour Relations Code.  In this regard, I rely mainly on my reasons in the Castlegar Hospital appeal concerning the correctness of United Steelworkers of America, Local 7884 v. Fording Coal Limited (1999) 179 D.L.R. (4th) 284, 70 B.C.L.R. (3d) 74 (B.C.C.A.).  I am also of the view that labour arbitrators do have jurisdiction to determine disputes in the unionized workplace which involve the consideration and application of the Human Rights Code, and that an arbitrator's exercise of that "overlapping" jurisdiction is not dependant upon the prior deferral of the dispute or complaint by the Commissioner of Investigation and Mediation (or now, by a member of the Tribunal, or a panel) under that statute.

Factual Background

[5]         The decision appealed from was a ruling on a preliminary objection taken by the employer to the jurisdiction of a labour arbitrator, Mr. Hope, to hear the grievance before him.  Although making no findings of fact, he proceeded on the basis that the grievor, Mr. Hines, had been a regular employee of the appellant employer since 1994.  Sometime in 1997, Mr. Hines suffered an off-work injury.  He returned to work in August 1997 and worked regularly until October 1998, when he was unable to continue.  Since then, he has not returned to work, but has received long-term disability benefits paid by a plan provided by the employer in accordance with the collective agreement.  At the time of an evaluation in April 2000, it was determined he was not capable of full-time work at any strength level and could work only in very restricted conditions.  In July 2001, the employer wrote to inform him that it had no positions in his classification that could accommodate the restrictions to which he was subject, and that "in any event, your contract of employment has been frustrated by your excessive and continued absence."

[6]         Mr. Hines grieved his dismissal, which he said was "a violation of Article 9.05(c) [of the collective agreement] where seniority is maintained past two years for non-occupational illness or accident.  The remedy for this grievance is reinstatement on the seniority list and reinstatement of benefits."  Ultimately the matter advanced to arbitration before Mr. Hope, who in a decision dated May 6, 2002 dealt with two preliminary objections made by the employer.

[7]         It is (in part) the second objection with which we are concerned in this appeal.  It was that the duty to accommodate (which the grievor asserted had not been fully complied with by the employer) is "based upon rights conferred under the [Human Rights Code] and that arbitrators have no jurisdiction to enforce those rights, particularly in the absence of enabling language in which the principles of the [Human Rights Code] are incorporated in the collective agreement under which they are appointed."  Or, as counsel for the employer put it in this court, without a proper "nexus" or "hook" connecting human rights principles to the "private law" constituted by the collective agreement, there was no basis on which the arbitrator could properly enter into the hearing of this grievance.

[8]         The arbitrator did not accede to this argument.  At p. 19 of his decision, he wrote:

     I conclude that the second objection to jurisdiction fails on the basis that, while I lack the jurisdiction of a tribunal appointed under the [Human Rights Code], I have the jurisdiction of an arbitrator to determine whether the Employer was under a duty under the collective agreement to accommodate the Grievor's disability and whether it met that duty.  In particular, the Employer is under a statutory and contractual duty to establish just cause for the dismissal of the Grievor and I have the jurisdiction to determine whether the Employer was in breach of that obligation.

     In seeking to establish just cause in a dismissal based on non-culpable absenteeism, it is the obligation of an employer to establish facts which, on a balance of probabilities, prove that the employee, at the point of dismissal, was unlikely to be able to attend and perform available work on a regular basis.  Included in that obligation is the requirement to establish that it has acted reasonably in accommodating the employee with respect to any disability affecting the employee's capacity to perform available work.

     On the basis of that reasoning, I conclude that I have jurisdiction to consider the issue raised by the Union, being a question with respect to whether the Employer has discharged that obligation and, in doing so, to measure the extent of that obligation in the context of the applicable law.

[9]         In so ruling, the arbitrator relied in part on Fording Coal, supra, in which the Court (per Huddart, J.A.) stated that a labour arbitrator "has the power (from s. 89 of the Labour Relations Code) not only to interpret and apply the Human Rights Code, but also to fashion an appropriate remedy for its violation as part of the resolution of the labour dispute, as all parties agreed."  (para. 86.)  The Court also noted at para. 2 that all parties to the Fording Coal appeals had agreed that an arbitrator chosen by the parties to a collective agreement to resolve a labour dispute "has the authority and the obligation to interpret and apply the Human Rights Code in reaching a decision or making an award, whether or not adherence to the Human Rights Code or its principles is included as a term of the collective agreement."  (Emphasis added.)  The arbitrator in the instant case found no suggestion in Fording Coal that a distinction must be made in the application of the Court's reasoning as between collective agreements that do and do not incorporate human rights principles.  Accordingly, he concluded he had jurisdiction to address the issue of accommodation.  He dismissed the employer's objection.

[10]    At the same time, the arbitrator noted the time limitations applicable to complaints under the Human Rights Code and expressed the opinion that the grievor was free to file a claim under the Human Rights Code at any time without awaiting the outcome of the arbitration proceedings.  He encouraged the parties to agree on an evaluation of the grievor's ability to perform work at the employer's plant prior to the resumption of the hearing of the grievance. 

[11]    The employer sought and obtained leave to appeal Mr. Hope's (interlocutory) decision in this court, on condition that it continue with the "process of evaluation" he had suggested.

Jurisdiction to Hear the Appeal

[12]    I will deal first with the Union's preliminary objection regarding this court's jurisdiction to hear the appeal.  Initially, both parties made their arguments on the assumption that Fording Coal was correctly decided ─ a question on which this panel requested the parties to provide written submissions following the hearing.  I do not intend to deal in these reasons with the arguments concerning the correctness of Fording Coal, since a majority of this panel has declined to overrule that decision in the Castlegar Hospital appeal.

[13]    Proceeding on the assumption that Fording Coal was correctly decided, the Union originally submitted that the jurisdictional issue decided by the arbitrator in the case at bar was not an issue of "general law" within the meaning of s.100 of the Labour Relations Code, since the arbitrator's finding would affect only unionized employees.  Further, the Union contended, disputes regarding the jurisdiction of labour arbitration boards are generally decided by the Supreme Court in proceedings under the Judicial Review Procedure Act.

[14]    This is, however, an appeal (or in the terminology of the Code, a "review") provided by statute, and in my view, a question about the competing jurisdictions of labour arbitrators under the Labour Relations Code and the Human Rights Tribunal under the Human Rights Code is clearly a question of general law, involving not only principles of labour relations and of human rights, but statutory construction generally.  I would therefore not accede to the respondent's objection that this court lacks jurisdiction to consider this appeal.

Standard of Review

[15]    Although counsel did not address the point in their arguments, it is my view that on an application of the so-called "pragmatic and functional" approach to judicial review of administrative decisions, the standard of review applicable to the issues raised by this case is one of correctness.  There is no privative clause (indeed as already noted, the Labour Relations Code provides a right of appeal); the question is not only one of law but one that requires a determination of the jurisdiction of two statutory tribunals, both with expertise of their own; and the case involves the interpretation of two statutes, one of which is the "home statute" of the decision-maker appealed from, and the other the "home statute" of the competing tribunal.  As for the most important factor, the expertise and the experience of the decision-maker, the arbitrator obviously has expertise in the interpretation of the Labour Relations Code and is entitled to some considerable deference in connection with any determination that a matter is arbitrable.  (See Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554, at 584-5.)  However, the question of whether the Human Rights Code requires that the Commissioner of Investigation and Mediation (or under the latest amendments, a member of the Tribunal, or a panel) make a prior determination that the grievance, or part of it, is not within the Tribunal's jurisdiction or would be more appropriately dealt with by a labour arbitrator, is a matter of statutory interpretation on which this court has the primary expertise.

[16]    This conclusion is consistent with the recent decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (discussed in greater detail below), in which the majority concluded that the question of "whether the substantive rights and obligations of the Human Rights Code [of Ontario] are incorporated into each collective agreement" was not a question intended to be left to the arbitration board in that case, but was one that must be answered correctly.  Thus Iacobucci J. for the majority stated:

     The question of whether the substantive rights and obligations of the Human Rights Code are incorporated into each collective agreement over which the Board has jurisdiction is not, in my view, a question that the legislature intended to leave to the Board. . . .  Determining whether the substantive rights and obligations of an external statute are incorporated into a collective agreement is a legal question of broad applicability that does not fall within an arbitrator's core area of expertise. Although the Board has the power to determine whether the substantive rights and obligations of the Human Rights Code are incorporated into the collective agreement, the Court has the power to interfere if the Board resolved the issue incorrectly.  [para. 22]

Relevant Legislation

[17]    The Labour Relations Code and the Human Rights Code create very different schemes for the resolution of differences.  The overall operation of the two schemes was usefully summarized by MacKenzie J. in British Columbia v. Tozer (1998) 60 B.C.L.R. (3d) 160 (B.C.S.C.), a case to which I will return below.  She stated:

     The arbitrator's source of jurisdiction is the collective agreement itself.  The statutory jurisdiction conferred on a properly constituted arbitration board under ss. 89 and 92 of the Code are very broad.  Section 89 gives an arbitration board the "authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement", including the power to, "interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, despite that the Act's provisions conflict with the terms of the collective agreement... ".

     The Human Rights Code and the Labour Relations Code have different purposes, so the dispute resolution mechanisms under each have different purposes.  This distinction was accurately described in Dennis v. Family & Children's Services of London & Middlesex (1990), 12 C.H.R.R. D/285 (Ont. Bd. of Inquiry) at p. D/288:

The two systems of dispute resolution were designed for different purposes.  The labour relations grievance process is designed for private parties, employers, and unions to enable them to resolve differences over interpretation of their privately bargained labour agreements.  The problems of individual employees are filtered through the medium of a trade union elected by the membership.  The goal is to enable the parties to develop long-term, harmonious, ongoing relationships, and labour law expertise is bent to that task.

Human rights proceedings are designed to promote the broad public interest in the elimination of discrimination.  The document to be interpreted is a public statute.  The complaints of individuals who have been harmed by discriminatory acts are investigated, screened, and then advocated by a publicly appointed and publicly financed Commission.  As a mater of practice, human rights disputes rarely involve ongoing relationships.  The goal is to compensate individuals or groups which have been treated unfairly, and the focus of human rights jurisprudence is upon developing sensitivities to the forms and manifestations of discrimination. [paras. 57-8]

[18]    I will set out, for convenience, some of the relevant provisions of the Labour Relations Code and the Human Rights Code as they stood at the material time.  (As noted earlier, amendments made to the latter statute in 2003 do not affect these Reasons in principle, in my view.)  Section 2 of the Labour Relations Code states that the Board and other persons exercising powers under the statute must do so in a manner that:

(a)  recognizes the rights and obligations of employees, employers and trade unions under this Code,

(b)  fosters the employment of workers in economically viable businesses,

(c)  encourages the practice and procedures of collective bargaining between employers and trade unions as the freely chosen representatives of employees,

(d)  encourages cooperative participation between employers and trade unions in resolving workplace issues, adapting to changes in the economy, developing workforce skills and developing a workforce and a workplace that promotes productivity,

(e)  promotes conditions favourable to the orderly, constructive and expeditious settlement of disputes,

(f)  minimizes the effects of labour disputes on persons who are not involved in those disputes,

(g)  ensures that the public interest is protected during labour disputes, and

(h)  encourages the use of mediation as a dispute resolution mechanism.

[19]    Part 8 of the Labour Relations Code is intended to provide "methods and procedures for determining grievances and resolving disputes under the provisions of a collective agreement without resort to stoppages of work."  To that end, arbitration boards are required to "have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement" and are not bound by a strict legal interpretation of the matter in dispute.  (s. 82.)  Section 89 of the Code states that for the purposes set out in s. 82, an arbitration board has the authority "necessary to provide a final and conclusive settlement" of disputes arising under collective agreements, and that a board may:

(a)  make an order setting the monetary value of an injury or loss suffered by an employer, trade union or other person as a result of a contravention of a collective agreement, and directing a person to pay a person all or part of the amount of that monetary value,

(b)  order an employer to reinstate an employee dismissed in contravention of a collective agreement,

(c)  order an employer or trade union to rescind and rectify a disciplinary action that was taken in respect of an employee and that was imposed in contravention of a collective agreement,

(d)  determine that a dismissal or discipline is excessive in all circumstances of the case and substitute other measures that appear just and equitable,

(e)  relieve, on just and reasonable terms, against breaches of time limits or other procedural requirements set out in the collective agreement,

(f)  dismiss or reject an application or grievance or refuse to settle a difference, if in the arbitration board's opinion, there has been unreasonable delay by the person bringing the application or grievance or requesting the settlement, and the delay has operated to the prejudice or detriment of the other party to the difference,

(g)  interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement, and

(h)  encourage settlement of the dispute and, with the agreement of the parties, the arbitration board may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.  [Emphasis added.]

[20]    Sections 99 and 100 provide for the circumstances in which parties affected by a decision or award of an arbitration board may appeal the award.  (These sections are extensively discussed in Castlegar Hospital.)  Unless the matter comes within s. 99 or s. 100, an arbitration board's decision is "final and conclusive" and not open to question or review in a court "on any grounds whatsoever".

[21]    The purposes of the Human Rights Code prior to the 2003 amendments are set out in s. 3 as follows:

(a)  to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;

(b)  to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(c)  to prevent discrimination prohibited by this Code;

(d)  to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;

(e)  to provide a means of redress for those persons who are discriminated against contrary to this Code;

(f)  to monitor progress in achieving equality in British Columbia;

(g)  to create mechanisms for providing the information, education and advice necessary to achieve the purposes set out in paragraphs (a) to (f).

(Subparagraphs (f) and (g) were repealed by S.B.C. 2002, c. 62.)  Section 4 provides that if there is a conflict between the Human Rights Code and any other enactment, the former prevails.

[22]    Section 13, headed "Discrimination in employment", provides:

13   (1)  A person must not

(a)  refuse to employ or refuse to continue to employ a person, or

(b)  discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(2)  An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3)  Subsection (1) does not apply

(a)  as it relates to age, to a bona fide scheme based on seniority, or

(b)  as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan.

(4)  Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

[23]    Part III of the Code as it stood in 2002 dealt with the filing and processing of complaints regarding contraventions of the Code and the investigation of complaints by the Commissioner of Investigation and Mediation.  Section 25(1) (formerly s.20(1)) defines "proceedings" to include a grievance under a collective agreement.  Subsections 2 and 3 then stated:

(2)  If the commissioner of investigation and mediation determines that another proceeding is capable of appropriately dealing with the substance of a complaint, the commissioner may, at any time before the complaint is referred to the tribunal for a hearing, defer further consideration of the complaint until the outcome of the other proceeding.

(3)  In making a determination under subsection (2), the commissioner of investigation and mediation must consider all relevant factors including

(a)  the subject matter and nature of the other proceeding, and

(b)  the adequacy of the remedies available in the other proceeding in the circumstances.  [Emphasis added.]

(In 2003, s-ss. 25(2) and (3) were repealed, and replaced with a new s. 25(2), which provides:

(2)  If at any time after a complaint is filed a member or panel determines that another proceeding is capable of appropriately dealing with the substance of a complaint, the member or panel may defer further consideration of the complaint until the outcome of the other proceeding.)

[24]    In the same vein, s. 27(1)(f) permitted the Commissioner (now, a member of the Tribunal, or a panel) to dismiss all or part of a complaint if he or she determined that "the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding".  Thus the statute expressly contemplates that complaints would overlap with grievances under collective agreements, and that the substance of a complaint could be dealt with in an arbitration proceeding before the Commissioner dealt with it or determined that it had been appropriately dealt with in the other proceeding, making the Commissioner's involvement unnecessary.

[25]    This statutory recognition of the "overlap" between human rights complaints and labour grievances originated in 1995 with the enactment of the Human Rights Amendment Act, 1995, S.B.C. 1995, c.42, following the filing of a "Report on Human Rights in British Columbia" to the government of British Columbia by Professor Bill Black in December 1994.  In that report, following a general discussion of the interaction of labour grievances and human rights claims, Professor Black noted four possible ways in which the "overlap" could be dealt with, namely:

(1)  Allow both a grievance and a human rights claim to proceed simultaneously, as at present.

(2)  Require an election of one remedy or the other at the beginning of the process.

(3)  Allow a person to file both a grievance and a human rights claim, but deal with one process before the other, and continue with the second proceeding only if the first has not properly dealt with the issue.

(4)  Combine the two processes into one. [at 145]

[26]    The first alternative, which was essentially the "status quo", was found to have serious disadvantages, and the fourth alternative lay at least partly outside the mandate of the report.  The second alternative, which "in its pure form" would require that a claimant elect at the outset either to file a grievance or a human rights claim, was found to place too heavy an onus on the complainant, who might not be fully informed as to the consequences of his or her decision, and could end up with a process that "might go in directions that the employee neither desired nor anticipated".  (at 148) 

[27]    This left the third option ─ deferring one process until the other has been completed.  Professor Black observed:

The third option . . . has greater potential to provide an acceptable solution.  In general terms, a claimant would be allowed to file both a grievance and a human rights claim.  However, one process would be suspended until the other had been completed.  If the first process resulted in a solution satisfactory to the claimant, the second process would be terminated.  If the claimant wished to proceed with the second process, it would be reopened, but it would be limited to matters not adequately dealt with in the first proceeding.

One aspect of this proposal was discussed earlier in this Report.  If a human rights claim were filed while a labour grievance was pending, the Director of Investigation and Mediation would have the obligation to consider whether the grievance appeared capable of fully and adequately dealing with the substance of the human rights claim.  If it did, the Director would suspend the human rights claim pending the outcome of the grievance process.  At the conclusion of the grievance process, the Director would consider whether the grievance had fully and adequately dealt with the human rights claim.  If it had, the claim would be dismissed or would be restricted to those aspects not fully and adequately considered during the grievance process.

. . .

[T]he Human Rights Tribunal should have the power to dismiss a claim, to defer a hearing or to limit the scope of a claim to matters not fully and expertly dealt with in the grievance.  The Tribunal should use the same criteria that applied to the decision of the Director.  It would assess whether the process used to deal with the grievance was suitable for dealing with the human right issues.  If it was, the Tribunal would not reassess the ultimate result.

Normally, this decision would be made at the pre-hearing conference.  The Tribunal would only dismiss a claim if the grievance process had been completed.  As a result, the Tribunal could examine the entire grievance process in determining whether it had dealt with all matters raised in the human rights claim in a manner reflecting expertise about human rights.

. . .

Instead of deferring the human rights claim, it would, of course, be possible to solve the duplication by deferring the grievance.  If the union and the employer decide to defer the grievance, the human rights claim would proceed, since it would be obvious that the grievance would not adequately deal with the human rights aspects of the dispute within the specified time limits.  [at 148-9]

[28]    Accordingly, Professor Black recommended that the Human Rights Code be amended to authorize the Human Rights Tribunal to dismiss a claim which had been adequately dealt with in other "proceedings" or to defer a complaint pending the outcome of such other proceeding.  It appears from Hansard and from the legislation that this recommendation was generally intended to be implemented by the 1995 amending statute.  (Ontario had enacted a somewhat similar provision, which now appears at s.34(1)(a) of the Human Rights Code, R.S.O. 1990, c. H-19.)

Case Authority

[29]    I turn next to the case authority relevant to the jurisdictional and "overlap" issues.  It must be read keeping in mind that most of the other Canadian provinces do not have statutory equivalents to ss. 25 and 27 of the Human Rights Code, and that many of the cases were concerned with the overlap between the jurisdiction of labour arbitrators, who are deferred to as having specialized expertise, and the jurisdiction of courts of law.  The case authority is well-known in the labour community and has been commented on by various authors, whose comments have also been noted and considered by the courts.  In particular, I refer to Bernard Adell, "Jurisdictional Overlap Between Arbitration and Other Forums: An Update", in (2000) 8 C.L.E.L.J. 179, and Donald D. Carter, "Looking at Weber Five years Later: Is it Time for a New Approach? (2000) 8 C.L.E.L.J. 231. 

[30]    As both articles suggest, the starting point in the case-law is the Supreme Court's decision in Weber, supra.  (At least, this was the case prior to the release of Parry Sound by the Supreme Court of Canada.)  Weber arose in Ontario when an employee suspected of malingering brought a grievance against his employer, as well as a court action based on tort and the alleged breach of his Charter rights.  The grievance was eventually settled, and the employer applied to have the court action struck.  It succeeded in the first instance, on the grounds that the dispute arose "out of the collective agreement", depriving the court of jurisdiction.  The Court of Appeal agreed, except with respect to the Charter claims; and the employee's appeal to the Supreme Court of Canada was dismissed.  At all times material to the appeal, s. 45(1) of the Ontario Labour Relations Act provided that:

Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether the matter is arbitrable.

This wording, of course, is very similar to what is now s. 84(2) of the British Columbia Code, the only material difference being that the latter contains the phrase "by arbitration or another method agreed to by the parties" (emphasis added) in the place of "by arbitration" in the Ontario provision.

[31]    Speaking for the majority in Weber, McLachlin, J. (now C.J.C.) considered three different "models" or views of the effect of "final and binding" clauses such as that quoted above.  On the first view, court proceedings are considered independent of the labour grievance, although based on the same facts as the grievance, and "no collective agreement can deprive a Court of its jurisdiction in tort". (Quoted at para. 39 of Weber from Franck v. Kenebuc (Galt) Ltd. (1985) 7 C.C.E.L. 85 (Ont. H.C.), at 90.)  McLachlin, J. discounted this view for three reasons ─ the philosophy underlying the Court's decision in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; the inclusive wording of s. 45(1) of the Ontario statute; and the fact that the first approach would undercut "the purpose of the regime of exclusive arbitration which lies at the heart of all Canadian labour statutes".  The second model, that of "overlapping spheres", although seen as more attractive than the full concurrency model, still left open the possibility of undermining the purpose of provisions like s. 45(1) and was therefore rejected as failing to meet "the test of the statute, the jurisprudence and policy." (Weber, para. 49.)

[32]    The remaining "exclusive jurisdiction model" accepted that "if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute."  (para. 50.)  This involved finding the "essential character" of the dispute, since no particular fact ─ e.g., the fact that the parties are employer and employee, or the fact that the dispute arose at the workplace ─ is conclusive.  McLachlin, J. stated:

In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not.  Some cases, however, may be less than obvious.  The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

     Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of cases that will fall within the exclusive jurisdiction of the arbitrator.  [paras. 52-3; emphasis added.]

[33]    As for the questions of the expertise of labour arbitrators to address legal questions such as tort liability and Charter claims, McLachlin, J. suggested that the answer to that concern lay in the fact that "arbitrators are subject to judicial review.  Within the parameters of that review, their errors may be corrected by the courts.  The procedural inconvenience of an occasional application for judicial review is outweighed by the advantages of having a single tribunal deciding all issues arising from the dispute in the first instance." (para. 55.)  In the context of Charter claims, she also saw policy advantages in permitting labour arbitrators to deal with Charter claims, as amplified in Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570.  In her words:

After a thorough review of the advantages and disadvantages of having such issues decided before labour tribunals, La Forest J. concluded that while the informal processes of such tribunals might not be entirely suited to dealing with constitutional issues, clear advantages to the practice exist.  Citizens are permitted to assert their Charter rights in a prompt, inexpensive, informal way.  The parties are not required to duplicate submissions on the case in two different fora, for determination of two different legal issues.  A specialized tribunal can quickly sift the facts and compile a record for the reviewing court.  And the specialized competence of the tribunal may provide assistance to the reviewing court....  While the Charter issue may raise broad policy concerns, it is nonetheless a component of the labour dispute, and hence within the jurisdiction of the labour arbitrator.  The existence of broad policy concerns with respect to a given issue cannot preclude the labour arbitrator from deciding all facts of the labour dispute. [para. 60; emphasis added.]

[34]    Applying these comments, the majority in Weber concluded that the essential character of the dispute between the parties placed it "firmly within the scope of the collective agreement" even though the alleged conduct of the employer (which included hiring private investigators who gained entry to the employee's home through trickery) arguably fell outside "the normal scope" of employer-employee relations.  In particular, the Court noted that the agreement extended the grievance procedure to "any allegation that an employee has been subjected to unfair treatment. . ." and that the benefits of the sick leave plan were to be "considered as part of [the collective agreement]".  The labour arbitrator was found to have exclusive jurisdiction over all aspects of the dispute.

[35]    Despite the broad language employed by the Court, subsequent decisions recognized some limitations on the jurisdiction of labour arbitrators and as Professor Adell notes, apparently formed the view that arbitral authority extends only to disputes which have "some sort of 'anchor' in a collective agreement."  (at 196).  In Director of Labour Standards Branch of Saskatchewan v. Dominion Bridge Inc. (1999) 173 D.L.R. (4th) 624, for example, the Saskatchewan Court of Appeal ruled that complaints made by unionized employees concerning an alleged violation of labour standards legislation had been properly made to the Labour Standards Branch rather than taken as a grievance to arbitration.  The "essential character" of the dispute was found to be a violation of minimum labour standards rather than a disagreement arising from the collective agreement.  Vancise, J.A. for the Court referred to Weber as follows:

     Weber, in my opinion, did not go so far as to state that any rights created by statute that affect employment rights must of necessity arise out of the collective agreement and can only be dealt with by arbitration.  Indeed Gendron v. Supply and Services Union, P.S.A.C., Local 50057 makes it clear there are exceptions as to when exclusive jurisdiction arises under the Canada Labour Code, R.S.C. 1985, c. L-2, when dealing with an issue arising out of a breach of an obligation under the Canadian Human Rights Code, R.S.C. 1985, c. H-6, where there is also a common law duty.  In deciding that common law jurisdiction was ousted the Court stated:

     A different conclusion may also be warranted where it is not clear that the statute exclusively covers the breach.  In other instances, such as in the context of human rights violations, while the statute might apply, the breach may not be properly characterized exclusively as a labour relations matter.  In these circumstances jurisdiction may be grounded elsewhere.

Section 72(3) of the Labour Standards Act, emphasizing the importance of minimum labour standards, provides that any provisions which are less favourable than those under the Act itself, are superseded by the Act.  When one employs the modern theory of interpretation described by Driedger and considers the statute as a whole, the legislature in my opinion intended that workplace disputes involving minimum labour standards, even in the collective bargaining context, are primarily disputes about legislatively enshrined standards and negotiated employment terms.

     Fundamentally, the essential nature of this complaint is a labour standards violation and not a dispute arising out of the collective agreement dealing with the interpretation, application or violation of the collective agreement as contemplated by s. 25.  While it arose in the context of the workplace and in a unionized setting governed by a collective bargaining agreement, the issue fundamentally involves the interpretation of The Labour Standards Act.  [paras. 26-7; emphasis added.]

[36]    Similarly, in Saskatchewan Human Rights Commission v. Cadillac Fairview Corporation Ltd. (1999) 173 D.L.R. (4th) 609 (Sask. C.A.), the Court ruled that a complaint of sexual harassment taken by a unionized employee to the Human Rights Commissioner of Saskatchewan was again essentially a human rights violation, jurisdiction over which fell to the Human Rights Commission.  (The Supreme Court of Canada refused leave to appeal both decisions.)

[37]    As noted by Professor Adell, supra, at 195, arbitral jurisprudence appears also to have firmly rejected the proposition that labour arbitrators have a "freestanding" power to interpret and apply human rights legislation to any employment-related dispute.  Thus a labour arbitration board in Re Durham School District and Ontario Secondary School Teachers' Federation, District 13 (2000) 87 L.A.C. (4th) 249 emphasized that the starting point of any jurisdictional analysis must be the provisions of the collective agreement, and that:

. . . it is our view that we do not have inherent jurisdiction to interpret and apply the [Human Rights] Code.  Our jurisdiction is derived from the collective agreement, and the applicable statutory provision of the Act which require that differences arising between the parties to a collective agreement relating to the interpretation, application or administration of the collective agreement, or an allegation that a collective agreement has been violated, be determined through final and binding arbitration.

. . .

     In the context of this arbitration, interpretation and application of the Code to the matters raised by the grievance arises only if we are first satisfied that we have jurisdiction to hear the grievance.  Simply put, before we can apply the Code, there must be a dispute under the collective agreement which requires the interpretation or application of the Code.  Reference to the Code may then be necessary to dispose of the dispute under the collective agreement.  In our view, section 48(12)(j) of the Act codified an established practice amongst arbitrators, reflected in numerous awards, to refer to or rely upon external statutes, where (a) the statute is incorporated into the collective agreement, and/or the statute aids in the interpretation or application of the language of the collective agreement, or (b) where the statute is in conflict with collective agreement language such that it would be unlawful to enforce the collective agreement language.  In this regard we agree with, and adopt the statement of arbitrator Solomatenko in Re Fort Frances (Town) [and C.U.P.E., Loc. 65 (Lindberg) (1996) 56 L.A.C. (4th) 424], at p.428:

     Thus, a board of arbitration has the authority both to interpret and apply human rights legislation, regardless whether the collective agreement refers to or incorporates the provisions of the legislation.  On the other hand, before a board of arbitration can assume such jurisdiction under that legislation, it must first acquire jurisdiction under the collective agreement.  By definition, a board of arbitration cannot just constitute itself exclusively as a board of inquiry under the human rights legislation.  First and foremost, a board of arbitration must find its jurisdiction under the collective agreement before one even considers its powers to interpret and apply human rights legislation.

* * *

     The question thus becomes one which focuses on the language of the collective agreement, and the jurisdiction which we derive from that language, for there must be a nexus between the dispute under the collective agreement, and the interpretation and application of the Code.  [at 261-3; emphasis added.]

[38]    In Durham, the majority of the board held that it was precluded from taking jurisdiction simply "because members of the bargaining unit claim that they have been injured by the Employer's alleged discriminatory conduct.  In the absence of a nexus to the collective agreement, that type of claim does not constitute a grievance under the collective agreement, and is not arbitrable." (at 270.)

[39]    The issue arose more recently in Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324, supra, on which we requested and obtained supplementary submissions some months after the hearing of this appeal.  In Parry Sound, a probationary employee sought to grieve her dismissal on the ground that she had been discriminated against because of her "family status", contrary to s. 5(1) of the Ontario Human Rights Code.  The collective agreement between her union and the employer permitted an employer to discharge a probationary employee at the employer's "sole discretion", while another clause of the agreement stated that "Pregnancy and parental leave will be granted in accordance with the provisions of the Employment Standards Act."  It appears the agreement was silent as to the applicability of human rights principles or legislation; certainly none of the reports of the judgments rendered in the matter refers to any such term.  Section 48(12)(j) of the Ontario Labour Relations Act empowered labour arbitrators to "interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement."  (The British Columbia counterpart, s. 89(g) quoted supra, at para. 19, does not refer specifically to human rights statutes.)

[40]    The arbitration panel at first instance concluded that substantive rights under the Human Rights Code had been imported into the collective agreement and that it had the jurisdiction to determine the "narrow question of whether discrimination was a factor in the discharge" of the grievor.  The motions judge in the Divisional Court adopted the reasoning of the dissenting board member, however, and ruled:

Both the Labour Relations Act, s. 48(1) and the collective agreement stipulate [that] what is to be arbitrated is "differences between the parties arising from the interpretation, application, administration or an alleged violation of the agreement."

     The agreement here states clearly that the discharge of a probationary employee does not constitute a difference between the parties.  The grievor has chosen the wrong forum to litigate her claim.  It should be before the Ontario Human Rights Commission if she feels her rights under the Code have been violated.

[41]    The Ontario Court of Appeal disagreed.  (See (2001) 54 O.R. (3d) 321.)  After reviewing the legislative history of s. 48(12)(j) of the Ontario Labour Relations Act (which it noted was similar to s. 89(g) of the British Columbia Labour Relations Code) Morden J.A. said for the Court:

     Professor Adell has expressed what currently appears to be the generally held view:

Even where the labour relations statute explicitly allows arbitrators to apply human rights legislation in resolving grievances, as in British Columbia and Ontario, the assumption now seems to prevail that this authority only extends to disputes that have some sort of anchor in the collective agreement.

("Jurisdictional Overlap Between Arbitration and Other Forums: An Update", (2000) 8 C.L.E.L.J. 179 at 195-96).  Professor Adell notes on p. 196 that "anchor" is his term and that "[i]t is variously referred to in the awards as a 'nexus', a 'hook' or, with a contemporary ring, a 'landing pad'."

     Accepting that the interpretation and application of the relevant statutory provisions is dependent on disputes that have some sort of anchor in, or nexus with, the collective agreement, the real difficulty is to determine just when such a case exists.  In the present case, the Divisional Court held that, looking at the terms of the collective agreement alone, there was no foundation for considering human rights legislation.  The implication of this appears to be that the statute may only be interpreted and applied to modify the terms of a collective agreement under which there is a dispute.  With respect, I think that this may give too narrow an effect to the wording of s. 48(12)(j).

     I do not think that s. 48(12)(j) contemplates a two-step approach to interpreting the collective agreement:  (1) a reading of the collective agreement by itself; and then, only if this reading shows that there is a dispute, (2) an interpretation of the agreement in the context of the relevant statutory provision.  I think that a more simple and straightforward approach is contemplated.  The provisions in the collective agreement should be read, initially, in the context of the relevant statutory provision or provisions.  The resulting interpretation should then be applied to the facts of the case.  This one-level approach is consistent with the conferral of a power in s. 48(12)(j) to "interpret and apply" certain legislation "despite any conflict between those statutes and the terms of the collective agreement."

     It may be that the terms of the collective agreement alone, isolated from the statutory context, indicate that there is no dispute.  However, if they are in conflict with a statutory provision, the statutory provision will prevail.  This was the case in McLeod v. Egan [infra] and in Queen's University v. Fraser (1985) 51 O.R. (2d) 140 (Ont. Div. Ct.) . . . and it has been held that conflict between the collective agreement and a statutory provision is the "anchor" or "nexus" which gives the arbitrator jurisdiction to interpret and apply the statute. [paras. 20-3; emphasis added.]

In the result, the Court of Appeal concluded that a conflict existed between the Human Rights Code and the term of the collective agreement permitting the employer to dismiss at will.  The Court therefore "read down" the agreement "not to include the power to discharge an employee on the ground of family status."

[42]    At the same time, the Court of Appeal expressed some ambivalence about the finding of a "nexus" in the form of a "conflict" between the collective agreement and Human Rights Code.  Again in the words of Morden J.A.:

     Although the foregoing reflects what I think is the better view of the meaning of s. 48(12)(j), I think that I should indicate that the foundation on which it is based may not be as solid as it should be.  The nexus between the statute and the collective agreement which is based on conflict, when considered in a broader context, could involve some incongruity.  Professor Adell has observed at p. 197 of the article to which I have earlier referred:

The requirement of an explicit anchor or "landing pad" in the collective agreement has the incongruous result that an arbitrator will find the dispute arbitrable, and will resolve it on the basis of the external statute, where the parties have said something inconsistent with what that statute requires on a particular matter, but not where they have said nothing at all on the matter.  If they explicitly reject or contradict what the statutes says, an arbitrator will apply it anyway.  If they simply ignore the matter entirely in their agreement, an arbitrator will shunt the dispute off to another forum.

     Section 48(12)(j), at least by its wording, stops short of making the statutory provisions referred to in it part of the collective agreements.  This feature of the provision results in some uncertainty on the scope of its application.  [paras. 26-7; emphasis added.]

(See also Re Strathmere Lodge and Canadian Autoworkers, Local 302 (2002) 105 L.A.C. (4th) 289, at 302-3.)

[43]    On appeal, however, the Supreme Court of Canada in Parry Sound took a more robust view of the applicability of human rights principles to collective agreements and conversely, downplayed the significance of the express terms of collective agreements.  Relying in part on McLeod v. Egan [1975] 1 S.C.R. 517, the Court found an "implicit" term in the collective agreement, based on s. 48(1) of the Ontario Labour Relations Act (the British Columbia counterpart of which is s. 84(2) of the Code), that probationary employees were entitled to equal treatment without discrimination.  This implied term was found to render void any "allegation that the discriminatory discharge of a probationary employee is non-arbitrable" (para. 35), whether or not the parties to the agreement had intended that result.  In the analysis of Iacobucci J.:

... even if Article 8.06(a) does, in fact, reflect a common intention that the discriminatory discharge of a probationary employee is not an arbitrable dispute, I remain of the view that Ms. O'Brien's grievance is arbitrable. One reason I say this is that s. 48(1) of the LRA states that every collective agreement shall provide for the final and binding settlement by arbitration of all differences between the parties arising under the collective agreement. Section 48(1) prohibits the parties from enacting provisions stating that a violation of the collective agreement is non-arbitrable. By the operation of s. 5(1) of the Human Rights Code, the right of probationary employees to equal treatment without discrimination is implicit in the collective agreement, and thus the discriminatory discharge of a probationary employee constitutes a violation of that agreement. To the extent that Article 8.06(a) establishes that an allegation that the discriminatory discharge of a probationary employer is non-arbitrable, it is void as contrary to s. 48(1) of the LRA.

     More fundamentally, the interpretation of Article 8.06(a) that it reflects a common intention is inconsistent with the principle that under a collective agreement an employer's right to manage operations and direct the work force is subject not only to the express provisions of the collective agreement but also to the employees' statutory rights, irrespective of the parties' subjective intentions. In McLeod, the Court stated that any provision that purports to give to an employer the right to require working hours in excess of 48 hours a week is void. The same logic applies to a provision that purports to give to an employer the right to discharge a probationary employee for discriminatory reasons. Even if the parties to the agreement had enacted a substantive provision that clearly expressed that, insofar as the collective agreement is concerned, the employer possessed the right to discharge a probationary employee for discriminatory reasons, that provision would be void. Put simply, there are certain rights and obligation that arise irrespective of the parties' subjective intentions. These include the right of an employee to equal treatment without discrimination and the corresponding obligation of an employer not to discharge an employee for discriminatory reasons. To hold otherwise would lessen human rights protection in the unionized workplace by allowing employers and unions to treat such protections as optional, thereby leaving recourse only to the human rights procedure.  [paras. 35-36; emphasis added.]

[44]    Further, on the subject of the "responsibility" of labour arbitrators under the Ontario legislation, he observed:

     In my view, s. 48(12)(j) does not clearly indicate that it was the legislature's intention to alter the principles described above. Quite the opposite. I believe that the amendments to the legislation affirm that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. If the right of an employer to manage operations and direct the work force is subject to both the express provisions of the collective agreement and the employee's statutory rights, then it follows that a grievance arbitrator must have the power to implement and enforce those rights.

     This conclusion is consistent with the modern approach to statutory interpretation. As this Court has repeatedly stated, the proper approach to statutory interpretation is that endorsed by the noted author E. A. Driedger, in Construction of Statutes (2nd ed. 1983), at p. 87: "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament"....  A consideration of these factors supports the proposition that under s. 48(12)(j) of the LRA an arbitrator has the power to enforce the substantive rights and obligations of human rights and other employment-related statutes that are, under the legal principles established in McLeod, part of the collective agreement.  [paras. 40-41; emphasis added.]

This conclusion was found to be consistent with the plain and ordinary meaning of s. 48(12)(j) of the Ontario Labour Relations Act, the scheme of that Act, and with policy considerations, including the promotion of the "expeditious resolution of workplace disputes" by a means which offered the advantages of both accessibility and expertise.  The fact that the Ontario Human Rights Commission has greater expertise than labour arbitrators was said not to outweigh these benefits.  Again in Iacobucci J.'s words:

In my view, any concerns in respect of this matter are outweighed by the significant benefits associated with the availability of an accessible and informal forum for the prompt resolution of allegations of human rights violations in the workplace. It is of great importance that such disputes are resolved quickly and in a manner that allows for a continuing relationship between the parties. Moreover, expertise is not static, but, rather, is something that develops as a tribunal grapples with issues on a repeated basis. The fact that the Human Rights Commission currently has greater expertise than the Board in respect of human rights violations is an insufficient basis on which to conclude that a grievance arbitrator ought not to have the power to enforce the rights and obligations of the Human Rights Code.  [para. 53; emphasis added.]

[45]    In the result, the arbitration board was found not to have erred in concluding that "the substantive rights and obligations of the Human Rights Code are incorporated into each collective agreement over which an arbitrator has jurisdiction."  (para. 55.)  The Court left for another day the question of concurrency of jurisdiction, i.e., "whether the jurisdiction of the Human Rights Commission is ousted by that of the Board."  (para. 15.)

[46]    In my view, Parry Sound would apply equally in British Columbia, notwithstanding the fact that unlike s. 48(12)(j) of the Ontario Labour Relations Act, s. 89(g) does not refer specifically to human rights legislation.  As is evident from my reasons in Castlegar, I regard the phrase "any Act intended to regulate the employment relationship" as including the Human Rights Code of this province, and I see no principled basis for distinguishing Parry Sound.  In terms of policy, the majority's conclusions obviate the incongruity of requiring a provision in the collective agreement expressly adopting human rights principles as an "anchor" or "landing pad" for arbitral jurisdiction.  This incongruity was referred to by Professor Adell in a passage which I will again reproduce: 

The requirement of an explicit anchor or "landing pad" in the collective agreement has the incongruous result that an arbitrator will find the dispute arbitrable, and will resolve it on the basis of the external statute, when the parties have said something inconsistent with what that statute requires on a particular matter, but not where they have said nothing at all on the matter.  If they exclusively reject or contradict what the statute says, an arbitrator will apply it anyway.  If they simply ignore the matter entirely in their agreement, an arbitrator will shunt the dispute off to another forum.  [at 197; emphasis added.]

[47]    I agree such a result is incongruous, and I think it is incorrect as well.  It is trite law that human rights legislation applies to all collective agreements and to unionized workplaces just as it applies to non-unionized workplaces.  Such legislation enjoys quasi-constitutional status and cannot be ousted by contract.  In the words of Lamer, J. (as he then was) in Insurance Corp. of British Columbia v. Heerspink [1982] 2 S.C.R. 145:

     When the subject matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.  Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.

     As a result, the legal proposition generalia specialabis non derogant cannot be applied to such a code.  Indeed, the Human Rights Code, when in conflict with "particular and specific legislation", is not to be treated as another ordinary law of general application.  It should be recognized for what it is, a fundamental law.

     Furthermore, as it is a public and fundamental law, no one, unless clearly authorized to do so, may contractually agree to suspend its operations and thereby put oneself beyond the reach of its protection.  [at 157-8]

(See also Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001) 209 D.L.R. (4th) 465 (Ont. C.A.), at para. 47 and the cases cited therein.)

[48]    Consistent with this principle, the Supreme Court in Parry Sound dismissed the argument that a direct conflict between the collective agreement and the Human Rights Code was necessary for a labour arbitrator to have jurisdiction in Ontario.  The majority stated (at para. 45) that an arbitrator "must have the power to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes."  Implicit in this conclusion, in my view, is the principle that an express "nexus" is no longer necessary, if it ever was, before an arbitrator has the right and responsibility to apply human rights principles in a jurisdiction, such as British Columbia, in which the statutory scheme contemplates the application by arbitrators of other employment-related statutes.

Concurrency

[49]    This brings us to the question of concurrency.  As counsel for Canpar argued in his supplemental submissions, it is noteworthy that Weber was not mentioned in the analysis of either the majority or minority in Parry Sound.  As earlier mentioned, however, the Human Rights Code of this province was amended following Weber to provide for a "concurrent jurisdiction" model between labour arbitrators and the Human Rights Tribunal, a different model than that favoured by the Court in Weber.  The operation of the 1995 amendments was usefully summarized by MacKenzie J. in Tozer, supra, as follows:

     The Commission, through its Commissioner of Investigation and Mediation (the "Commissioner"), has responsibility for accepting, investigating and screening complaints of discrimination.  It is this Commissioner who determines whether a hearing will be held in relation to a particular complaint of discrimination.  If the Commissioner decides that a hearing should be held, then the complaint is referred to the Tribunal.  The Tribunal then conducts a quasi-judicial hearing to determine whether the complaint is justified and, if it is, grants an appropriate remedy: Code, ss. 21 through 37.

     The Commission has no authority to make binding determinations of any of the issues raised by the complaint or to grant relief to the parties.  It functions solely in a screening and investigative capacity, and may assist the parties to achieve a mediated resolution.

     Not all complaints are referred to hearing.  Rather, the Commissioner is granted extensive powers to dismiss complaints at any point in the investigation.  Among those powers is the one granted in s. 27(1)(f) of the Code:

27(1)  The commissioner of investigation and mediation may, at any time after a complaint is filed, dismiss all or part of the complaint if that commissioner determines that any of the following apply:

. . .

(f)  the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;

[emphasis in original.]

     This provision clearly confers a discretion upon the Commissioner and does not, as suggested by the petitioner, direct the Commissioner not to proceed with the complaint where the Union can bring a grievance under a collective agreement.  This discretion indicates there is, in this case, concurrent jurisdiction between the Tribunal and Labour Arbitration Boards.  There is no provision in the B.C. Labour Relations Code which overrides the jurisdiction of the Tribunal in cases arising under a collective agreement.

     Section 25 of the Code expressly recognizes that "another proceeding" under s. 27(1)(f), which could supersede human rights litigation, includes a grievance under the collective agreement.  [paras. 48-52; emphasis added.]

(As also noted earlier, ss. 25 and 27 were amended in 2003:  see infra, at paras. 23 and 24.)

[50]    The facts of Tozer were essentially the converse of the facts of this case.  A dispute arose concerning the alleged failure of an employer to accommodate an employee's medical disability.  She grieved the employer's denial of a "right of recall" and sought a ruling that in fulfilment of its duty to accommodate, the employer was obliged to give her the status of a regular employee.  A labour arbitrator ruled in favour of the employer on the "threshold issue" of whether "the duty to accommodate disabled auxiliary employees [includes] the obligation to convert the status of such employees from auxiliary to regular."  (para. 17.)  The arbitrator's ruling was upheld by the Board.  Ms. Tozer then filed a complaint of discrimination with the (then) B.C. Council of Human Rights.  The employer took the position before the Tribunal, to which the Commissioner referred the complaint, that issue estoppel precluded the holding of another hearing, this time in front of the Tribunal.  The Tribunal dismissed the employer's application, reasoning that since the issues before the arbitrator were not the same as those before the Tribunal, issue estoppel did not apply to preclude it from taking jurisdiction.

[51]    On judicial review, the first issue formulated by the Court was whether the Tribunal lacked jurisdiction because the alleged discrimination fell within the exclusive jurisdiction of a labour arbitrator appointed under the collective agreement.  After reviewing the purposes and the relevant provisions of the Human Rights Code, and the cases (most of which I have reviewed above) dealing with the jurisdiction of labour arbitrators, MacKenzie J. rejected the proposition that Weber was determinative of the issue, at least in favour of the employer's position.  She reasoned that one could argue that Weber instead supported the conclusion that as a specialized body, the Tribunal was in a better position to hear Ms. Tozer's discrimination complaints than was a labour arbitrator.  (para. 74.)  In her analysis:

     Applying the reasoning in Weber, it could be argued that the arbitrator's general power and jurisdiction over human rights issues is subordinate to the specific jurisdiction of the Human Rights Tribunal.  The tribunal is specialized in this area.  It was specifically created to deal with these important issues.  If one had to apply the curial deference decisions to this case (and I emphasize that I do not), the arbitrator would stand in the place of the courts, while the Human Rights Tribunal is more akin to the specialized legislative bodies. [para. 112]

[52]    The Court declined to accept the employer's argument that the Labour Relations Code conferred exclusive jurisdiction on labour arbitrators to "determine all workplace disputes with human rights implications".  (para. 116.)  The Court also declined to resolve the argument based on issue estoppel, not wishing to pre-empt the Tribunal's decision; and rejected the contention that referring the matter back to the Tribunal to hear Ms. Tozer's complaint would constitute an abuse of process or "forum shopping".  In this regard, MacKenzie J. emphasized that ss. 25 and 27(1)(f) of the Human Rights Code permitted the Tribunal to defer or dismiss all or part of a complaint where it had been, or could be, dealt with more appropriately elsewhere.

[53]    In the case at bar, the employer makes a converse argument: it says the Code contemplates that a labour arbitrator will acquire jurisdiction only if the Commissioner (now, a member of the Tribunal or a panel) determines that a complaint involving human rights should be "deferred" to another "proceeding" (including a labour grievance) under s. 25.  With respect, I cannot agree.  Although as was pointed out in Tozer and in Fording Coal, the Human Rights Code and the Labour Relations Code have different purposes, and the principles applied by human rights tribunals and labour arbitrators are different, it would not make sense, and it would fly in the face of the concurrency model, to insist that every employment dispute involving allegations of discrimination or failure to accommodate must first be referred to the Human Rights Tribunal.  Just as the jurisdiction of the Tribunal is not determined by the fact that a complaint arises from the workplace, a labour arbitrator's jurisdiction cannot be determined solely by the fact that in the course of deciding the grievance, he or she must consider human rights principles.  Sections 25 and 27 of the Human Rights Code specifically contemplate the possibility that a complaint made to the Tribunal will have already been dealt with, or may be dealt with, by a labour arbitrator.  These provisions are inconsistent with an intention on the Legislature's part to require that all such complaints be made first to the Tribunal and then referred to arbitration only if the Tribunal so directs.

[54]    How then is the matter of initial jurisdiction to be decided in individual cases?  Again, it seems to me that the arbitral jurisprudence has gone a long way towards answering that question: the essential nature of the dispute as it arises on the facts of each particular case must be determined.  To adapt the words of Bastarache J. for the Court in Regina Police Association Inc. v. Regina (City) Board of Police Commissioners [2000] 1 S.C.R. 360 at para. 39, "[t]he key question in each case is whether the essential character of the dispute, in its factual context, arises either expressly or inferentially, [from the human rights scheme or from the labour arbitration scheme]".  To this question, the remedy sought will obviously be important: certain remedies lie within the particular purview of a labour arbitrator, and others within that of the Tribunal.  Generally, the complainant or grievor will choose one route or the other based on his or her objective and the nature of the case, although a complainant cannot, simply by choosing to pursue his or her grievance in the labour arbitration field, give jurisdiction to an arbitrator that he or she would not otherwise have.

[55]    In my view, the essential nature of the dispute in this case was that of a labour relations dispute.  It arose because the grievor was dismissed from his employment, which he alleges contravened the requirement of "just and reasonable cause" under the Labour Relations Code.  He seeks reinstatement of his seniority rights ─ again, a subject which engages the particular expertise of a labour arbitrator as opposed to the Human Rights Tribunal.  Only the employer and the Union are involved in the dispute, and it is of the kind normally decided by labour arbitrators.  The purpose of the Labour Relations Code is to facilitate the efficient resolution of employment-related disputes by a specialized body with undoubted expertise.  The Tribunal also has specialized expertise, but in this case, the essential nature of which is an employment dispute, the goal of the Labour Relations Code to "enable the parties to develop long-term, harmonious, ongoing relationships" (Dennis v. Family & Children's Services, (1990) 12 C.H.R.R. D/285 (Ont. Bd. of Inquiry), at D/288) should be given primacy.  As stated by the majority of the Supreme Court in Parry Sound:

It is of great importance that such disputes are resolved quickly and in a manner that allows for a continuing relationship between the parties.  Moreover, expertise is not static, but, rather, is something that develops as a tribunal grapples with issues on a repeated basis.  [para. 53]

Having said this, I leave open the possibility that a party to this dispute might also wish to bring it to the attention of the Human Rights Tribunal at some point.  It would not be appropriate to comment on jurisdictional questions that might arise in such event.

[56]    In the result, I conclude that the arbitrator was correct in ruling that he had jurisdiction to embark on the hearing of the grievance in this case.  I would dismiss the appeal.

[57]    We are indebted to counsel for their helpful submissions.

“The Honourable Madam Justice Newbury”

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[58]    I accept that this Court has jurisdiction to hear this appeal as concluded by Madam Justice Newbury at paragraph 14 of her reasons.  I agree that this appeal has been determined by Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, as with Newbury J.A.’s conclusions, set forth at paragraphs 55 and 56 of those reasons.  Accordingly, I would dismiss this appeal.

“The Honourable Mr. Justice Mackenzie”

I Agree:

“The Honourable Madam Justice Prowse”

I Agree:

“The Honourable Mr. Justice Thackray”

Reasons for Judgment of the Honourable Madam Justice Southin:

[59]    This is an appeal purportedly pursuant to s. 100 of the Labour Relations Code, R.S.B.C. 1996, c. 244, from the "award" of H. Allan Hope, Q.C., of 6th May, 2002.  The root was the employer dismissing an employee, Bob Hines, for "excessive non-culpable absenteeism" arising apparently from a physical disability.

[60]    The Union grieved the dismissal:

Bob Hines was unjustly terminated and without cause.  This is a violation of Article 9.05(c) where seniority is maintained past two years for non occupational illness or accident.  The remedy for this grievance is reinstatement on the seniority list and reinstatement of benefits.

[61]    The arbitrator set out the employer's submission (pp. 12‑14):

... an arbitrator has no jurisdiction to address a duty to accommodate under the provisions of this agreement because that jurisdiction lies with adjudicators appointed under the HRC.  The Employer's position is conveniently summarized in its Reply submission on pp. 2-3 as follows:

Arbitrator Dalton Larson in December, 1997 assumed arbitrability in a union grievance alleging that a collective agreement provision for benefit plans allowed the adjudication by arbitration of a claim that the definition of "common law spouse" in the insurer's plan contravened the HRC.  The BCCA, in August, 2001, overturned the BCSC, two LRB decisions and Mr. Larson in granting, "... a declaration that the issue raised by the Union is not arbitrable, as being beyond the jurisdiction of the arbitrator".  Elkview Coal Corp. v. USWA, Local No. 9346 [2001] B.C.J. 1696, 2001 BCCA 488 [92 B.C.L.R. (3d) 62].  For obvious reasons, the Court looked under Weber at the ambit of the collective agreement, by studying the allegation of the Union:  "Nothing in the allegations advanced by the Union, nor in the remedy sought, relate to the Collective Agreement, or to a breach of its terms".  The above discussion is not only consistent with the earlier-discussed legislative intent, but corresponds with the early Paul Weiler distinction that, "There is a crucial difference between [the] law of the contract and the law of the statute", when emphasizing that the LRB will not interfere with cases based upon the "common law" of arbitral jurisprudence:  Andres Wines [1978] 1 CLRBR 251 at 261.  All of these considered comments, in Canpar's submission, make it plentifully plain that arbitrators must find their jurisdictional footing in the voluntarism encouraged by the LRC - the freely-bargained contractual terms.  By inference from the absence of a negotiated discrimination provision, it is open to you to determine that the parties purposely decided to leave HRC Complaints to the Human Rights Commission.  Which might be no great surprise - there is nothing they could do, in any event, to deprive that statutory body of its primary jurisdiction.  Given Mr. Bjarnason's testimony, perhaps (like the Russellsteel line of contracting out cases), they knew that the prevailing arbitral landscape and the jurisdiction of the Human Rights Commission precluded an arbitrator from every [sic] being able to provide Mr. Hines with the LRC-dictated, "final and conclusive result".  Even if they had bargained a conflicting jurisdictional provision, there is no legal means to by-pass Section 4 of the HRC.  Perhaps they knew, as Mr. Justice Estey said in St. Anne Nackowic, that grievors like Mr. Hines would not, through a determination of inarbitrability, suffer, "a real deprivation of ultimate remedy".  In summary, the Employer says that the Union reply is misconceived and fails to deal with the most important questions on this preliminary objection to arbitrability:  the intentions of the Legislature and the intentions of the parties under the law of contract.  Application of the exclusive model of dispute resolution under Weber must be barred in these circumstance[s] by the Fording decision from the BCCA because an allegation of lack of cause cannot trigger authority over a discrimination law grievance.  If the concurrent model is applied, the same circumstances must compel you to conclude that this matter is not arbitrable by means of assuming jurisdiction through a secondary or tertiary, implied, general, and discretionary arbitral power stated outside the negotiated collective agreement. 

     The Employer's position, as I understand it, is that the Union's submission on the duty to accommodate is based upon rights conferred under the HRC and that arbitrators have no jurisdiction to enforce those rights, particularly in the absence of enabling language in which the principles of the HRC are incorporated in the collective agreement under which they are appointed.

[62]    As to that submission, the arbitrator said, in part, at p. 19:

     I conclude that the second objection to jurisdiction fails on the basis that, while I lack the jurisdiction of a tribunal appointed under the HRC, I have the jurisdiction of an arbitrator to determine whether the Employer was under a duty under the collective agreement to accommodate the Grievor's disability and whether it met that duty.  In particular, the Employer is under a statutory and contractual duty to establish just cause for the dismissal of the Grievor and I have the jurisdiction to determine whether the Employer was in breach of that obligation.

     In seeking to establish just cause in a dismissal based on non-culpable absenteeism, it is the obligation of an employer to establish facts which, on a balance of probabilities, prove that the employee, at the point of dismissal, was unlikely to be able to attend and perform available work on a regular basis.  Included in that obligation is the requirement to establish that it has acted reasonably in accommodating the employee with respect to any disability affecting the employee's capacity to perform available work.

     On the basis of that reasoning, I conclude that I have jurisdiction to consider the issue raised by the Union, being a question with respect to whether the Employer has discharged that obligation and, in doing so, to measure the extent of that obligation in the context of the applicable law.

[63]    He therefore ruled, at p. 24, after addressing the judgment of this Court in Fording Coal (1999), 70 B.C.L.R. (3d) 74, 1999 BCCA 534:

Hence, the decision with respect to the Employer's objection is that it is dismissed and the Union is free to challenge the dismissal on the basis that the Employer had a duty to accommodate the Grievor's disability that it failed to accommodate.  However, it is appropriate in the circumstances that the parties, as a prelude to resuming the hearing, seek to agree on an on-site evaluation of the Grievor's ability to perform work at the plant and the extent of that ability in terms of existing jobs and jobs that might reasonably be established.

[64]    The employer now comes here seeking a ruling that, in holding he had jurisdiction, the arbitrator erred.

[65]    By ss. 99(1) and 100 of the Labour Relations Code, supra:

99   (1)  On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that

(a)  a party to the arbitration has been or is likely to be denied a fair hearing, or

(b)  the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.

* * *

100  On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99(1).

[66]    I shall assume, without deciding, that this "ruling" of the arbitrator is a "decision or award" under s. 100, for if it is not, the Court has no jurisdiction, whatever the substance of the matter.

[67]    For the reasons which I gave in Health Employers' Assn. of British Columbia v. British Columbia Nurses' Union, Vancouver Registry No. CA026791, I am of the opinion that an appeal does not lie to this Court from a "decision or award" of an arbitrator in a case of discharge or suspension.  The arbitrator's jurisdiction derived from the Labour Relations Code is plenary.

[68]    It follows that this appeal should be quashed for lack of jurisdiction in this Court.

[69]    That being so, whether the learned arbitrator correctly interpreted the decision of this Court in Fording Coal, supra, is of no moment.

“The Honourable Madam Justice Southin”