Administrative law – Decisions of administrative tribunals – Arbitration Board – Human Rights Commission – Jurisdiction – Municipalities – Human rights complaints – Discrimination – Race – Judicial review – Compliance with legislation – Labour law – Collective agreements – Arbitration – Jurisdiction of labour arbitrator to hear human rights complaints
Halifax Regional Municipality v. Nova Scotia Human Rights Commission,  N.S.J. No. 92, Nova Scotia Court of Appeal, March 18, 2008, T.A. Cromwell, J.E. Saunders and L.L. Oland JJ.A.
A unionized city employee filed a complaint with the Nova Scotia Human Rights Commission claiming that he had been subjected to racial slurs and offensive jokes, as well as being denied promotions and compassionate leave, and that such discriminatory treatment was racially motivated because he was African-Canadian. As part of its investigation, the Commission asked the Municipality to produce certain information relevant to the complaint. The Municipality refused, taking the position that the complaint should be processed as part of the grievance procedure, falling within the exclusive jurisdiction of a labour arbitrator appointed pursuant to the collective agreement.
The Commission applied to the Nova Scotia Supreme Court for an Order for production of documents, pursuant to Section 31 of the Human Rights Act, R.S.N.S., c. 214. The chambers judge held that the Commission had concurrent jurisdiction, and ordered that the requested documents and information sought by the Commission in its initial application be produced by the Municipality. The Municipality appealed.
Following the required two-step inquiry from the Supreme Court of Canada’s decisions in Weber v. Ontario Hydro,  2 S.C.R. 929 and Quebec (Commission des Droits de la Personne et des Droits de la Jeunesse) v. Quebec (Attorney General),  2 S.C.R. 185, one is first obliged to look at the relevant legislation to see what it says about the arbitrator’s jurisdiction, and then identify the nature of the dispute and ask whether the legislation suggests that it falls exclusively to the arbitrator.
As to the first inquiry, the Chambers Judge had been correct in holding that this language did not amount to a grant of exclusive jurisdiction to a labour arbitrator. While there were several aspects to the present complaint, racial discrimination lay at the heart of the conduct and practices alleged against the City. As to the second inquiry, the Chambers Judge was correct to conclude that an allegation of race-based discriminatory treatment was the essential character of this dispute. As such, it did not arise explicitly or implicitly from the interpretation, application or administration of the collective agreement.
The jurisdiction over this complaint was concurrent, and not exclusive to the labour arbitrator. To hold otherwise would effectively deny access for the municipality’s unionized employees to the processes, resources and remedies offered by the Commission, for matters the essential character of which falls squarely within the statutory jurisdiction of the Commission. Had the Nova Scotia Legislature intended such a broad exclusion it undoubtedly would have employed plain and unequivocal language in the relevant statutes, particularly given the fundamental and quasi-constitutional nature of human rights legislation.
In the result, the appeal was dismissed.
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