Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General)

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
2004-06-11
Neutral citation
2004 SCC 39
Report
[2004] 2 SCR 185
Case number
29188
Judges
McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; Fish, Morris J.
On appeal from
Quebec
Subjects
Constitutional law
Labour law
Notes
SCC Case Information: 29188
Decision Content
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39
Commission des droits de la personne et des
droits de la jeunesse, acting on behalf of
Normand Morin, Jocelyne Fortin, Chantal Douesnard,
Josée Thomassin, Claude Dufour et al. Appellant
v.
Attorney General of Quebec, Centrale
de l’enseignement du Québec, now
Centrale des syndicats du Québec, and
Fédération des syndicats de l’enseignement Respondents
and
Canadian Human Rights Commission,
Ontario Human Rights Commission,
Quebec Human Rights Tribunal, Confédération
des syndicats nationaux, Fédération des travailleurs
et travailleuses du Québec and Canadian Union of
Public Employees Interveners
Indexed as: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General)
Neutral citation: 2004 SCC 39.
File No.: 29188.
2003: October 14; 2004: June 11.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and Fish JJ.
on appeal from the court of appeal for quebec
Labour law — Grievance arbitrator — Jurisdiction — Labour dispute raising human rights issue — Discriminatory clause included in collective agreement — Whether Human Rights Tribunal barred from hearing complaint — Whether labour arbitrator has exclusive jurisdiction over dispute.
Civil rights — Human rights tribunal — Jurisdiction — Labour dispute raising human rights issue — Discriminatory clause in collective agreement — Whether Human Rights Tribunal barred from hearing complaint — Whether labour arbitrator has exclusive jurisdiction over dispute.
The teachers’ unions entered into a modification of a collective agreement with the Province, which affected a minority group composed primarily of younger and less experienced teachers. The younger teachers complained to the Quebec Human Rights Commission that the agreement discriminated against them, treating them less favourably than older teachers and violating the equality guarantee of the Quebec Charter of Human Rights and Freedoms. The Commission brought the matter before the Human Rights Tribunal. The respondents filed a motion asking the Tribunal to decline jurisdiction on the ground that the labour arbitrator possessed exclusive jurisdiction over the dispute. The Tribunal rejected the motion but the Quebec Court of Appeal reversed the decision.
Held (Bastarache and Arbour JJ. dissenting): The appeal should be allowed. The Human Rights Tribunal has jurisdiction over the dispute.
Per McLachlin C.J. and Iacobucci, Major, Binnie and Fish JJ.: Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction. The question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute. The first step is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction. The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the arbitrator.
Here, this is not a matter over which the arbitrator had exclusive jurisdiction. While s. 100 of the Quebec Labour Code gave jurisdiction over matters arising out of the collective agreement’s operation to the arbitrator, the main fact that animates the dispute between the parties is that those responsible for negotiations agreed to a term in the collective agreement that treats the complainants and members of their group less favourably than more senior teachers. The dispute, viewed not formalistically but in its essential nature, thus engages matters which pertain more to alleged discrimination in the formation and validity of the agreement, than to its “interpretation and application”, which is the source of the arbitrator’s jurisdiction under the Labour Code. The Human Rights Tribunal was entitled to exercise its jurisdiction over the matter under the governing legislation since it was satisfied that the complainants had not, on the basis of the same facts, personally pursued one of the remedies provided for in ss. 49 and 80 of the Charter, avoiding duplication.
Further, the complainants cannot be faulted for not asking the unions to file a grievance on their behalf. First, the nature of the question does not lend itself to characterization as a grievance under the collective agreement, since the claim is not that the agreement has been violated, but that it is itself discriminatory. Second, the unions were, on the face of it, opposed in interest to the complainants, being affiliated with one of the negotiating groups that made the allegedly discriminatory agreement. If the unions chose not to file a grievance before the arbitrator, the teachers could be left with no legal recourse. Third, even if the unions had filed a grievance on behalf of the complainants, the arbitrator would not have jurisdiction over all of the parties to the dispute. Finally, 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 within the statutory framework of the Labour Code.
Per Bastarache and Arbour JJ. (dissenting): Arbitrators have exclusive jurisdiction over issues arising from the interpretation, application, administration or violation of a collective agreement. This exclusive jurisdiction is consistent with the legislature’s intention that is apparent from s. 100 of the Labour Code, with the principle of exclusive arbitral jurisdiction that characterizes Canadian labour relations schemes and with the recent case law. According to this model, two factors must be considered when making the determination of the appropriate forum: the essential character of the dispute in its factual context and the ambit of the collective agreement.
Here, the Human Rights Tribunal did not have jurisdiction ratione materiae to hear the dispute. A legal characterization of the cause of action in this dispute, which would cast the dispute as being over the unlawful interference with the right to equality, ignores the factual context and the provisions of the collective agreement. An examination of this context shows that the dispute, in its essential character, concerns pay and the taking into account of experience gained during the 1996‑1997 school year for the purpose of setting pay. Such issues form the very foundation of the contract and working conditions and are clearly within the scope of the collective agreement and the exclusive jurisdiction of the arbitrator. The negotiation of clauses in a collective agreement and the resulting agreements are closely linked to the application of the collective agreement of which they are a part. The negotiation of an accord at the provincial level, subsequently accepted by the teachers’ unions, does not constitute an independent ground for a grievance outside the collective agreement, and we cannot separate them for the purpose of determining the essential character of the dispute. Moreover, since the accord constitutes in law a collective agreement, conflicts over its interpretation or application will give rise to grievances that may, if necessary, be put to arbitration.
The fact that the Tribunal has greater expertise than arbitrators with respect to human rights violations is an insufficient basis on which to conclude that arbitrators should not have the power to uphold fundamental rights. The human rights issue is not incidental to a collective agreement. The substantive rights and obligations provided for under human rights legislation are not only implicitly incorporated into every collective agreement, but also, in this case, expressly incorporated into the agreement. Moreover, even if the problem in this case could be characterized exclusively as a human rights violation, it would still be subject to the arbitrator’s exclusive jurisdiction, as the arbitrator has jurisdiction over any issue that is expressly or inferentially linked or related to the collective agreement. Arbitrators have the authority to remedy Charter violations because their enabling legislation authorizes them to render decisions in this regard. Arbitrators have been delegated this authority in order to advance the fundamental objective of this delegation, namely the prompt, final and binding resolution of workplace disputes. This is also consistent with the legislative intent, because the Quebec legislature has given its Human Rights Tribunal non‑exclusive jurisdiction and stipulated that administrative bodies that do not specialize in human rights would nevertheless have a duty to ensure that their decisions protect human rights. Finally, referring such disputes to an arbitrator is the logical choice. Reaching a collective agreement, with the intention of amending it through negotiations, raises a multitude of issues that an arbitrator is by far in the best position to handle on an informed basis.
Cases Cited
By McLachlin C.J.
Applied: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; referred to: Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760; Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465, leave to appeal refused, [2002] 3 S.C.R. x.
By Bastarache J. (dissenting)
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Allen v. Alberta, [2003] 1 S.C.R. 128, 2003 SCC 13; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Latulippe v. Commission scolaire de la Jeune-Lorette, [2001] R.J.D.T. 26; Mayville v. Union canadienne des travailleurs en communication (unité 4), [2001] Q.J. No. 366 (QL); Corporation municipale de la Ville de Gaspé v. Côté, [1996] R.D.J. 142; Leroux v. Centre hospitalier Ste-Jeanne d’Arc, [1998] R.J.D.T. 554; Collège Dawson v. Muzaula, [1999] R.J.D.T. 1041; Furlong v. Résidence Christophe‑Colomb, [1995] R.D.J. 162; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760; Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; Université du Québec à Trois-Rivières v. St-Pierre, J.E. 97-1309; Hydro-Québec v. Tremblay, J.E. 2001-200; Section locale 2995 du Syndicat canadien des communications, de l’énergie et du papier v. Spreitzer, [2002] R.J.Q. 111; Centre d’hébergement et de soins de longue durée Champlain-Manoir de Verdun v. Québec (Commission des droits de la personne et des droits de la jeunesse), [1998] Q.J. No. 3250 (QL), motion to dismiss appeal allowed, C.A. Mtl., No. 500-09-007442-981, September 20, 1999, and leave to appeal refused, [2000] 1 S.C.R. ix; Syndicat des postiers du Canada v. Société canadienne des postes, [1995] R.J.Q. 2404; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345.
Statutes and Regulations Cited
Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors, R.S.Q., c. R‑8.2, ss. 1, 25, 26, 30, 31, 33.
Act respecting the reduction of labour costs in the public sector and implementing the agreements reached for that purpose, S.Q. 1997, c. 7.
Canadian Charter of Rights and Freedoms .
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, preamble, ss. 10, 13, 16, 49, 49.1, 52, 77, 80, 101, 111.
Labour Code, R.S.Q., c. C-27, ss. 1(f), 100, 100.12, 139.
Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1).
Pay Equity Act, R.S.Q., c. E-12.001.
Authors Cited
Brun, Henri, et Guy Tremblay. Droit constitutionnel, 4e éd. Cowansville, Qué.: Yvon Blais, 2002.
Nadeau, Denis. “Le Tribunal des droits de la personne du Québec et le principe de l’exclusivité de l’arbitrage de grief ou l’histoire d’une usurpation progressive de compétence” (2000), 60 R. du B. 387.
APPEAL from a judgment of the Quebec Court of Appeal (2002), 1 Admin. L.R. (4th) 187, [2002] Q.J. No. 365 (QL), reversing a judgment of the Quebec Human Rights Tribunal, [2000] R.J.Q. 3097, [2000] J.T.D.P.Q. No. 24 (QL). Appeal allowed, Bastarache and Arbour JJ. dissenting.
Pierre-Yves Bourdeau and Christian Baillargeon, for the appellant.
Patrice Claude and Mario Normandin, for the respondent the Attorney General of Quebec.
Robert P. Gagnon and Pierre Brun, for the respondents Centrale de l’enseignement du Québec, now Centrale des syndicats du Québec, and Fédération des syndicats de l’enseignement.
Andrea Wright, for the intervener the Canadian Human Rights Commission.
Anthony D. Griffin, for the intervener the Ontario Human Rights Commission.
Written submissions only by Louise Cadieux and Dominique Pilon, for the intervener the Quebec Human Rights Tribunal.
Written submissions only by Lise Lanno and Gérard Notebaert, for the intervener Confédération des syndicats nationaux.
Written submissions only by Gaston Nadeau and Jean-Pierre Néron, for the intervener Fédération des travailleurs et travailleuses du Québec.
Written submissions only by Ronald Cloutier and Louise Valiquette, for the intervener the Canadian Union of Public Employees.
The judgment of McLachlin C.J. and Iacobucci, Major, Binnie and Fish JJ. was delivered by
The Chief Justice —
A. Introduction
1 Should the Quebec Human Rights Tribunal be barred from hearing a complaint of discrimination referred to it on the ground that the labour arbitrator has exclusive jurisdiction over the dispute? That is the issue on this appeal.
2 In 1997 the teachers’ unions entered into a modification of a collective agreement with the province of Quebec, which provided that experience acquired by teachers during the 1996-1997 school year would not be recognized or credited toward their salary increments or seniority. This term only affected teachers who had not yet obtained the highest level of the pay scale — a minority group composed primarily of younger and less experienced teachers. The younger teachers complained that this 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.
3 The complainants took their complaint to the Human Rights Commission established to resolve Charter discrimination claims and the Commission brought the matter before the Quebec Human Rights Tribunal.
4 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 Tribunal rejected this motion ([2000] R.J.Q. 3097). The Quebec Court of Appeal reversed the Tribunal’s decision holding that the dispute should be resolved by arbitration under the collective agreement ((2002), 1 Admin. L.R. (4th) 187).
5 I conclude that the Human Rights Tribunal has jurisdiction over this dispute and that the claim that the arbitrator has exclusive jurisdiction must be rejected. Accordingly, I would allow the appeal.
B. Analysis
6 The nature of Canadian labour-management relations changed dramatically following the Second World War. Federal and provincial legislation, seeking to create a better climate for the resolution of labour-management disputes, introduced grievance arbitration to provide for the quick and efficient resolution of disputes arising under collective agreements. Not surprisingly, this conferral of authority on grievance arbitrators sometimes leads to disputes about the proper scope of their jurisdiction.
7 There is no easy answer to the question of which of two possible tribunals should decide disputes that arise in the labour context where legislation appears to permit both to do so. As explained in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, three outcomes are possible.
8 The first possibility is to find jurisdiction over the dispute in both tribunals. This is called the “concurrent” jurisdiction model. On this model, any labour dispute could be brought before either the labour arbitrator or the courts or other tribunals.
9 The second possibility is the “overlapping” jurisdiction model. On this model, while labour tribunals consider traditional labour law issues, nothing ousts the jurisdiction of courts or other tribunals over matters that arise in the employment context, but fall outside traditional labour law issues.
10 The third possibility is the “exclusive” jurisdiction model. On this model, jurisdiction lies exclusively in either the labour arbitrator or in the alternate tribunal, but not in both.
11 Weber holds that the model that applies in a given situation depends on the governing legislation, as applied to the dispute viewed in its factual matrix. In Weber, the concurrent and overlapping jurisdiction approaches were ruled out because the provisions of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, when applied to the facts of the dispute, dictated that the labour arbitrator had exclusive jurisdiction over the dispute. However, Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction; see, for example, Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495. As stated in Weber, supra, at para. 53, “[b]ecause 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 case that will fall within the exclusive jurisdiction of the arbitrator.”
12 In the present case the complainants filed a complaint with the Quebec Human Rights Commission, which then decided to proceed with a claim before the Human Rights Tribunal. The Commission, on behalf of the complainants, asked for a declaration that the terms of the collective agreement violated the equality provisions of the Quebec Charter. That, on its face, is precisely the type of question, read in light of the legislation and in its factual matrix, that the Human Rights Tribunal is mandated to answer.
13 However, the unions, school boards and the Attorney General object to the Human Rights Tribunal resolving this issue. The basis of their objection is that s. 100 of the Quebec Labour Code, R.S.Q., c. C-27, gives arbitrators exclusive jurisdiction over grievances arising under collective agreements. The complaint, they suggest, is such a grievance, and therefore, the Human Rights Tribunal has no jurisdiction.
14 The case thus turns on whether the legislation confers exclusive jurisdiction on the arbitrator over this dispute. At this point, I diverge, with respect, from my colleague Bastarache J. who starts from the assumption that there is an “established principle” of arbitral exclusivity in Quebec. He formulates the principal question as whether “the principle of exclusive arbitral jurisdiction, a well‑established principle in Quebec law, [should] be abandoned in favour of the jurisdiction of the Human Rights Tribunal in cases where a dispute between unionized workers and their employer raises a human rights issue” (para. 32). Thus framed, the question presupposes exclusivity. But, as we have seen, there is no legal presumption of exclusivity in abstracto. Rather, the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.
15 This question suggests two related steps. The first step is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction. The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the arbitrator. The second step is logically necessary since the question is whether the legislative mandate applies to the particular dispute at issue. It facilitates a better fit between the tribunal and the dispute and helps “to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties”, according to the underlying rationale of Weber, supra; see Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at para. 39.
16 Turning to the first step, s. 100 of the Quebec Labour Code requires that “[e]very grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it.” This tells us that the arbitrator is competent to resolve all grievances under the collective agreement. The Labour Code s. 1(f), defines “grievance” as “any disagreement respecting the interpretation or application of a collective agreement”. In other words, the arbitrator has jurisdiction over matters arising out of the collective agreement’s operation. In Weber, this jurisdiction was found to be exclusive.
17 The Quebec Charter sets out a mechanism for the investigation and enforcement of human rights. It creates the Commission, which has the responsibility for investigating alleged violations of the Charter and which may, in turn, submit the allegations to the Human Rights Tribunal for remedy.
18 Section 111 of the Quebec Charter grants the Human Rights Tribunal a large jurisdiction over human rights matters in Quebec; see H. Brun and G. Tremblay, Droit constitutionnel (4th ed. 2002), at p. 991. The Tribunal is responsible for interpreting and applying the Charter in a wide range of circumstances. The importance of the Tribunal’s mandate is underlined by the fact that the legislation provides that the president of the Human Rights Tribunal be chosen from judges on the Court of Québec having “notable experience and expertise in, sensitivity to and interest for matters of human rights and freedoms”; see s. 101 of the Charter.
19 While the Tribunal enjoys generous jurisdiction over human rights violations, it is not exclusive. First, the Quebec Charter expressly exempts certain matters from the Commission’s purview. Section 77 does so where a complainant or victim has personally pursued a remedy under s. 49 or s. 80 of the Charter. Similarly, s. 49.1 of the Charter removes the Human Rights Tribunal’s jurisdiction over issues covered by the Pay Equity Act, R.S.Q., c. E-12.001. Second, the Charter permits, but does not oblige, the Commission to refuse to act or stop acting on behalf of a complainant in certain situations, including where “the victim or the complainant has, on the basis of the same facts, personally pursued a remedy other than those provided for in sections 49 and 80” (s. 77(4)). It follows that the Commission’s and the Human Rights Tribunal’s jurisdiction may be concurrent with that of other adjudicative bodies; see Brun and Tremblay, supra, at p. 992.
20 The second step is to look at the dispute in issue to determine whether it falls within the ambit of the arbitrator’s exclusive jurisdiction. We must look at the dispute in its full factual context. Its legal characterization — whether it is a tort claim, a human rights claim, or a claim under the labour contract — is not determinative. The question is whether the dispute, viewed in its essential character and not formalistically, is one over which the legislature intended the arbitrator to have exclusive jurisdiction; see Weber, supra.
21 In Weber, this Court concluded that the dispute — a claim for tort arising from the employer’s alleged trespass on the employee’s land in the course of a dispute about sick-leave regulated by the collective agreement — fell under the collective agreement and hence within the scope of s. 45 of the Ontario Labour Relations Act, which provided:
45. — (1) 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 a matter is arbitrable.
This clause is arguably stronger than the clause conferring jurisdiction on the arbitrator in the case at bar. However, the critical difference between Weber and this case lies in the factual context that gave rise to the dispute.
22 In Weber, the dispute clearly arose out of the operation of the collective agreement. It was basically a dispute about sick-leave, which became encumbered with an incidental claim for trespass. In these circumstances, the majority of the Court concluded that it fell squarely within s. 45 and should be determined exclusively by the labour arbitrator.
23 Here, the same cannot be said. Taking the dispute in its factual context, as Weber instructs, the main fact that animates the dispute between the parties is that the collective agreement contains a term that treats the complainants and members of their group — those teachers who had not yet attained the highest level of the pay scale who were typically younger and less experienced — less favourably than more senior teachers. This, in turn, emerges from the fact that in the course of negotiating the collective agreement, disputes arose over how to meet the government’s budgetary demands and how cutbacks in the budget should be allocated among union members. In its factual matrix, this is essentially a dispute as to how the collective agreement should allocate decreased resources among union members. Ultimately, the decision was to impose the costs of the budget cutbacks primarily on one group of union members — those with less seniority. This gave rise to the issue in the dispute: was it discriminatory to negotiate and agree to a term that adversely affected only younger and less experienced teachers? The essence of the dispute is the process of the negotiation and the inclusion of this term in the collective agreement.
24 Viewed in its factual matrix, this is not a dispute over which the arbitrator has exclusive jurisdiction. It does not arise out of the operation of the collective agreement, so much as out of the pre-contractual negotiation of that agreement. This Court has recognized that disputes that arise out of prior contracts or the formation of the collective agreement itself may raise issues that do not fall within the scope of arbitration; see, for example, Goudie, supra; Weber, supra, at para. 52; see also Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760 (B.C.C.A.); Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609 (C.A.). Everyone agrees on how the agreement, if valid, should be interpreted and applied. The only question is whether the process leading to the adoption of the alleged discriminatory clause and the inclusion of that clause in the agreement violates the Quebec Charter, rendering it unenforceable.
25 That is not to say that the arbitrator lacks the power to deal with all issues which involve a Charter claim. This Court has recognized that arbitrators may resolve legal issues incidental to their function of interpreting and applying the collective agreement: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42. Moreover, s. 100.12 of the Labour Code specifically confers on the arbitrator the authority to interpret and apply any Act necessary to settle a grievance. But, at the same time, the dispute, viewed not formalistically but in its essential nature, engages matters which pertain more to alleged discrimination in the formation and validity of the agreement, than to its “interpretation or application”, which is the source of the arbitrator’s jurisdiction under the Labour Code, s. 1(f). The Human Rights Commission and the Human Rights Tribunal were created by the legislature to resolve precisely these sorts of issues.
26 Here the complaint was brought by the teachers to the Commission, which ultimately brought the matter before the Human Rights Tribunal. The Tribunal was entitled to exercise its jurisdiction over it. It was satisfied that the complainants had not “on the basis of the same facts, personally pursued one of the remedies provided for in sections 49 and 80” (s. 77 of the Quebec Charter), avoiding duplication. As noted, the Commission could have refused to proceed as a matter of discretion if the complainants had, on the basis of the same facts, “personally pursued a remedy other than those provided for in sections 49 and 80” (also s. 77 of the Charter (emphasis added)). But the complainants had not done so and thus the Commission was entitled to file the complaint before the Human Rights Tribunal. Moreover, for these same reasons, the Tribunal was entitled to exercise its jurisdiction over the claim under the governing legislation.
27 It is argued that the Tribunal should not have taken jurisdiction because the complainants could have asked their unions to “grieve” the alleged violation under the collective agreement. I cannot accept this argument. First, the nature of the question does not lend itself to characterization as a grievance under the collective agreement, since the claim is not that the agreement has been violated, but that it is itself discriminatory. Without suggesting that the arbitrator could not have considered these matters incidentally to a different dispute under the collective agreement, the complainant cannot be faulted for taking this particular dispute to the Human Rights Commission, which then filed a claim before the Human Rights Tribunal.
28 Second, the unions were, on the face of it, opposed in interest to the complainants, being affiliated with one of the negotiating groups that made the allegedly discriminatory agreement. If the unions chose not to file a grievance before the arbitrator, the teachers would be left with no legal recourse (other than possibly filing a claim against their unions for breaching the duty of fair representation). This concern was summarized well by Abella J.A. in Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465 (Ont. C.A.) (leave to appeal refused, [2002] 3 S.C.R. x), at paras. 61-62 as follows:
[T]here may be circumstances where an individual unionized employee finds the arbitral process foreclosed, since the decision whether to proceed with a grievance is the union’s and not the employee’s. Moreover, the alleged human rights violation may be against the union, as stipulated in the [Human Rights] Code in ss. 6 and 45(1). . . .
In an arbitration under a collective agreement, only the employer and union have party status. The unionized employee’s interests are advanced by and through the union, which necessarily decides how the allegations should be represented or defended. Applying Weber so as to assign exclusive jurisdiction to labour arbitrators could therefore render chimerical the rights of individual unionized employees.
29 Third, even if the unions had filed a grievance on behalf of the complainants, the arbitrator would not have jurisdiction over all of the parties to the dispute. Although the local unions and school boards were not involved in negotiating and agreeing to the clause impugned as discriminatory, the grievance and arbitration process set out in the collective agreement is directed at the resolution of disputes between the local unions and the school boards and not at those arising between the unions and the respondents that did actually agree to this provision. Although the Centrale des syndicats du Québec, the Fédération des syndicats de l’enseignement and the Minister are authorized to intervene in arbitration proceedings, there is no formal mechanism to bring these parties before the arbitrator.
30 Finally, 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 this dispute than the appointment of a single arbitrator to deal with a single grievance within the statutory framework of the Labour Code. In these circumstances the complainants cannot be faulted for taking their claim to the Human Rights Commission rather than to the union with the hope (but no guarantee) of having it filed as a grievance before a labour arbitrator.
C. Conclusion
31 I would allow the appeal and remit the matter to the Human Rights Tribunal.
English version of the reasons of Bastarache and Arbour JJ. delivered by
Bastarache J. (dissenting) —
I. Introduction
32 The main issue in this case is the following: should the principle of exclusive arbitral jurisdiction, a well-established principle in Quebec law, be abandoned in favour of the jurisdiction of the Human Rights Tribunal in cases where a dispute between unionized workers and their employer raises a human rights issue? I am of the opinion that this question must be answered in the negative.
33 It is a firmly established principle in Quebec that labour arbitrators have exclusive authority to deal with all aspects of labour relations between employers and employees. With respect, rejecting the exclusive jurisdiction model, as proposed by the Chief Justice in her reasons, seems to me to be incompatible with the recent decisions of this Court, contrary to the wording of s. 100 of the Labour Code, R.S.Q., c. C-27, and irreconcilable with the public interest considerations on which the existing case law is based. In my opinion, we must recognize all the responsibilities that have been assigned to arbitrators so that they can rule on virtually all aspects of a case, insofar as those aspects are expressly or inferentially related to the collective agreement. To this end, applying the exclusive jurisdiction model, we must identify the essential character of the dispute in its factual context and ignore the possible legal characterization of that dispute.
34 In this case, I see nothing in the scheme established by the legislation, whether in the Labour Code or another statute, to prove that the Quebec legislature had the obvious intention of removing questions involving human rights, rights that are protected by the Charter of Human Rights and Freedoms, R.S.Q., c. C-12, from the jurisdiction of arbitrators. Accordingly, I am of the opinion that if the test developed by this Court in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, is applied we find that the Human Rights Tribunal does not have jurisdiction to hear the application brought by the Commission des droits de la personne et des droits de la jeunesse, and that the Attorney General of Quebec’s motion to dismiss should be allowed.
II. Facts
35 The dispute at issue arose from a provision negotiated and agreed to at the provincial level by the parties in the spring of 1997. At that time, the Centrale des syndicats du Québec (CSQ) comprised 11 federations, including the Fédération des enseignantes et enseignants de commissions scolaires (FECS), now known as the Fédération des syndicats de l’enseignement (FSE), which comprised a large number of unions, all of them certified associations within the meaning of the Labour Code. The FSE is therefore a group of associations of employees within the meaning of s. 26 of the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors, R.S.Q., c. R‑8.2 (the Act).
36 In this particular case, the FSE acted as bargaining agent, while the CSQ coordinated negotiations with management in that sector. To this end, ss. 30 and 31 of the Act provide for the creation of a management negotiating committee composed of persons appointed by the Minister of Education and others named by the group of school boards contemplated in the Act. Pursuant to s. 33 of the Act, the management committee, under the authority delegated by the Quebec government to the Minister of Education, is responsible for negotiating and concluding agreements on behalf of the employer, i.e., the school boards.
37 Upon reading s. 1 of the Act, it becomes apparent that the agreement between the parties constitutes a collective agreement within the meaning of the Labour Code. The clauses negotiated and agreed to by the committee are binding on all school boards covered by the Act (s. 25). All clauses negotiated at the provincial, regional or local level constitute the applicable collective agreement between a given school board and its employees.
38 In March 1997, the CSQ was coordinating sectoral negotiations with the Quebec government. The purpose of these negotiations was to come to an agreement on cost-saving measures sought by the government and thereby avoid the enactment of special legislation imposing new working conditions. A proposal submitted by the Quebec government on March 5 was rejected by FSE-affiliated unions because it likely would have resulted in the elimination of 3,000 teaching positions. After postponing the enactment of the special legislation, the Minister of Education made a new proposal, which was also rejected by the Federal Council of the FSE. The FSE was then instructed by its affiliated unions to explore other possible solutions that would bring $50 million in recurrent savings.
39 On March 21, 1997, the Federal Council of the FSE recommended accepting an accord that had been negotiated. At their respective general meetings, a majority of the 69 unions representing teachers employed by the school boards decided to accept the agreement in principle of March 21, 1997. Agreements in principle were then reached between the Quebec government and each of the CSQ-affiliated federations contemplated in the Act respecting the reduction of labour