An employee of Canpar Industries suffered an off-work injury and received long-term disability benefits paid by a plan provided by the employer in accordance with a collective agreement. The employer ultimately dismissed the employee, and the employee grieved his dismissal, saying that it was a violation of the collective agreement and essentially a matter of discrimination based on disability under the Human Rights Code. The employer objected to the jurisdiction of a labour arbitrator to hear that grievance, and the arbitrator ultimately dismissed the employer’s objection that he did not have jurisdiction to address the issue of accommodation with respect to disability and the Human Rights Code. Canpar Industries appealed to the British Columbia Court of Appeal. The British Columbia Court of Appeal held that 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, an arbitrator acting under the Labour Relations Code, R.S.B.C. 1996 c. 244 may take jurisdiction over the grievance.

Administrative law – Labour law – Arbitration – Collective agreements – Jurisdiction of labour arbitrator to hear human rights complaints – Human rights complaints – Discrimination – Judicial review – Jurisdiction – Standard of review – Correctness

Canpar Industries v. International Union of Operating Engineers, Local 115, [2003] B.C.J. No. 2577, British Columbia Court of Appeal, November 13, 2003, Southin, Prowse, Newbury, Mackenzie and Thackray JJ.A.

The majority of the Court of Appeal held that this appeal was provided for by statute, and concerned a question about the competing jurisdictions of labour arbitrators under the Labour Relations Code and the Human Rights Tribunal under the Human Rights Code, which was clearly a question of general law involving not only principles of labour relations and human rights, but also statutory construction generally. As a result, this matter was well within the court’s jurisdiction to consider.

The court applied the pragmatic and functional approach to judicial review of administrative decisions in determining that the standard of review in this case should be correctness. The court noted that there was no privative clause, that the question was one of law and required a determination of the jurisdiction of two statutory tribunals, and that the expertise and experience of the arbitrator, while considerable with respect to the Labour Relations Code was not a factor militating in favour of more deference in this matter where the question was ultimately one of statutory interpretation on which the Court of Appeal had the primary expertise relative to the expertise of the two tribunals being considered.

The court reviewed the statutory recognition of the overlap between human rights complaints and labour grievances and the case law authority relevant to the issue of jurisdictional overlap between labour relations arbitration and human rights issues. The court determined that it was 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 was said to be quasi-constitutional in status and could not be ousted by contract.

The majority determined that the arbitrator was correct in ruling that he had jurisdiction to embark on the hearing of the grievance in this case.

Madam Justice Southin dissented and would have applied her own decision in Health Employers’ Assn. of British Columbia v. British Columbia Nurses’ Union, Vancouver Registry No. CA026791 to reach the conclusion that an appeal would not lie to the British Columbia Court of Appeal from a “decision or award” of an arbitrator in a case of discharge or suspension. In Madam Justice Southin’s view, the arbitrator’s jurisdiction derived from the Labour Relations Code was plenary. Madam Justice Southin would have quashed the appeal for lack of jurisdiction in the British Columbia Court of Appeal.

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