Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Jurisdiction to hear a complaint – Labour law – Collective agreements – Mandatory arbitration – Jurisdiction of labour arbitrator to hear human rights complaint – Human rights complaints – Discrimination – Age – Charter of Rights – Judicial review – Jurisdiction of tribunal – Compliance with legislation – Statutory powers
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General),  S.C.J. No. 34, Supreme Court of Canada, June 11, 2004, McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and Fish JJ.
The teachers’ unions had entered into a modification of a collective agreement with the Province of Quebec which provided that experience acquired by the teachers during the 1996-1997 school year would not be recognized or credited toward their salary increments or seniority. The term only affected a minority group composed primarily of younger and less experienced teachers. The younger teachers brought a complaint to the Quebec Human Rights Commission alleging that the term discriminated against them, treating them less favourably than older teachers and violating the equality guarantee of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12. The Attorney General of Quebec, the school boards and the unions filed a motion asking the Human Rights Tribunal to decline jurisdiction on the ground that the labour arbitrator possessed exclusive jurisdiction over the dispute. The basis of their motion was that section 100 of the Quebec Labour Code, R.S.Q., c. C-27, gives arbitrators exclusive jurisdiction over grievances arising under collective agreements. The Tribunal rejected the motion. The Quebec Court of Appeal reversed the Tribunal’s decision and held that the dispute should be resolved by arbitration under the collective agreement.
A majority of the Supreme Court of Canada found that the Human Rights Tribunal had jurisdiction over the dispute and that the arbitrator did not have exclusive jurisdiction. Where the legislation appears to permit two possible tribunals to decide disputes arising in the labour context, depending on the legislation and the nature of the dispute, the tribunals may possess either overlapping jurisdiction, concurrent jurisdiction, or one may be endowed with exclusive jurisdiction. Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to characterize the classes of cases that will fall within the exclusive jurisdiction of the arbitrator.
There are two steps to deciding the issue. The first is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction. Here, a consideration of the legislation indicated that the arbitrator had jurisdiction over matters arising out of the collective agreement’s operation. The Quebec charter established the human rights commission which had the responsibility of investigating alleged violations of the Charter and, where appropriate, submitting the allegations to the Human Rights Tribunal for remedy. The Charter granted the Human Rights Tribunal responsibility for interpreting and applying the Charter in a wide range of circumstances.
The second step is to look at the nature of the dispute, viewed in its essential character and not formalistically, and to determine whether the legislation suggests it falls exclusively to the arbitrator. Here, the issue in the dispute was whether it was discriminatory to negotiate and agree to a term in a collective agreement that adversely affected only younger and less experienced teachers. The essence of the dispute was the process of the negotiation and the inclusion of the term in the collective agreement.
Viewed in its factual matrix, this was not a dispute over which the arbitrator had exclusive jurisdiction. It did not arise out of the operation of the collective agreement, so much as out of the pre-contractual negotiation of that agreement. While the arbitrator does not lack the power to deal with all issues which involve a Charter claim, this particular dispute engaged matters which pertained more to alleged discrimination in the formation and validity of the agreement, than to its “interpretation or application”, which was the source of the arbitrator’s jurisdiction under the Labour Code.
The court rejected the argument that the complainants ought to have asked their unions to grieve the alleged violation under the collective agreement. First, the nature of the question did not lend itself to characterization as a grievance under the collective agreement, since the claim was not that the agreement had been violated, but that it was itself discriminatory. Second, the unions were opposed in interest to the complainants. Third, even if the unions had filed a grievance on behalf of the complainants, the arbitrator would not have had jurisdiction over all of the parties to the dispute. Fourth, because the complainants’ general challenge to the validity of a provision in the collective agreement affected hundreds of teachers, the Human Rights Tribunal was a “better fit” for the dispute than the appointment of a single arbitrator to deal with a single grievance.
In a dissenting opinion, two members of the court held that it was a firmly established principle in Quebec that labour arbitrators have exclusive authority to deal with all aspects of labour relations between employers and employees. According to the exclusive jurisdiction model, the determination of the appropriate forum centres on the nature of the dispute between the parties and the ambit of the collective agreement. Since there was an exclusivity clause and a comprehensive and exclusive scheme for the settlement of disputes in this case, it was appropriate to adopt the exclusive jurisdiction model. Arbitrators have exclusive jurisdiction to hear disputes whose essential character relates to the application or interpretation of a collective agreement. Given that the claim brought by the Plaintiffs was, in its essential character, based on the application of a clause in a collective agreement, the dispute fell within the exclusive jurisdiction of the arbitrator. The determination of the dispute’s essential character is made on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues that can be raised.
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