Choice, But No Choice: Adjudicating Human Rights Claims in Unionized Workplaces in Canada

Abstract

This paper explores the question of the proper forum for adjudicating workplace human rights claims for unionized employees in Canada. The author argues that the Supreme Court of Canada has directed a hybrid jurisdictional model, in which arbitrators have exclusive jurisdiction over some but not all such claims. Lower courts and tribunals have largely disobeyed this direction, rejecting the hybrid model in favour of unrestricted concurrency between statutory human rights tribunals and arbitration. A concurrency model theoretically permits unionized employees to choose where to take their claims. The author argues that this choice is more apparent than real, however. Recent developments in statute and case law force employees who chose to take their human rights claims before statutory tribunals to abandon any the additional rights which may flow from their collective agreements, making grievance arbitration the only practical option in almost all cases where it is available. To remove confusion and ambiguity, Canadian legislatures should provide clear direction on available forums. The author argues that arbitration should be confirmed as the exclusive forum for human rights claims linked to collective agreements; recourse to statutory human rights tribunals should be available only in the infrequent case where arbitration is not appropriate because the employee's union has played an active role in the alleged discrimination.

Keywords: labour law, arbitration, human rights, discrimination