The Petition by the Ministry of Competition, Science and Enterprise (the “Ministry”) for an order quashing a decision of the British Columbia Human Rights Tribunal (the “Tribunal”) was allowed in part where the Court found that the Tribunal should not have heard a portion of a complaint regarding discrimination flowing from a clause in a collective agreement

Administrative law – Workers compensation – Benefits – Decisions of administrative tribunals – Human Rights Tribunal – Disability – Discrimination – Labour law – Collective agreements – Arbitration – Judicial review – Estoppel and res judicata – Mootness

British Columbia (Ministry of Competition, Science and Enterprise) (c.o.b. Liquor Distribution Branch) v. Matuszewski, [2008] B.C.J. No. 1324, British Columbia Supreme Court, July 14, 2008, I.H. Pitfield J.

The complainant injured his back while at work at the Liquor Distribution Board which was then operated by the Ministry. A grievance was filed on December 20, 2001 under the collective agreement claiming that the barring of accrual of seniority while on long term disability was discriminatory. A similar complaint was filed with the Tribunal on December 23, 2001. On June 21, 2002, the labour arbitrator released his decision on a similar grievance filed on behalf of another employee. The arbitrator ruled that the collective agreement did not discriminate by denying the accrual of seniority to employees receiving long term benefits, but did discriminate by denying the accrual of seniority to employees engaged in rehabilitative employment when receiving long term benefits. The complainant subsequently had his Workers’ Compensation benefits restored, resulting in suffering no loss of seniority from any work-related injuries or provision in the collective agreement. The complainant continued to pursue the human rights complaint. On January 17, 2007, the Tribunal released a decision ruling that the collective agreement discriminated on the ground of disability because it did not permit employees to accrue seniority when they were on long term disability. The Tribunal concluded that the doctrine of issue estoppel should be ignored, because the complainant was not party to the earlier grievance. The Ministry brought a petition for an order quashing the decision of the Tribunal as this decision was inconsistent with the earlier decision of the labour arbitrator.

The Court agreed that the Tribunal should not have heard the portion of the complaint regarding discrimination flowing from a clause in the collective agreement as that complaint was moot. The issue of whether the complainant was entitled to compensation under the Human Rights Code R.S.B.C. 1996 c. 210 was remitted for reconsideration. The Court held that the Tribunal incorrectly used the fact that as the complaint embraced an issue that had not been the subject of arbitration to allow it to consider the whole of the complaint. The Court held that the Tribunal was required to take the principles underlying the doctrine of issue estoppel into account and that the complainant, as a member of the bargaining unit was a privy to the arbitration parties. The Court noted that the fact that the complainant was not represented by counsel and not in attendance at the earlier grievance and the fact that he had not agreed to be bound by the outcome of that arbitration were not relevant factors in assessing whether or not he was privy to a party in the arbitration.

In the result, the Petition for judicial review was allowed in part and those portions of the Tribunal’s order relating to the discrimination flowing from a clause in the collective agreement were quashed.

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