The Standard of Review of Grievance
Arbitrators When Deciding on
Human Rights Issues: The “Magnificent
Goal” vs. Industrial Peace
Karl Tabbakh”
This article focuses on thejurisdiction of grievance arbitrators
over human rights issues and the standard of judicial review appli-
cable to arbitrators’ awards. The author analyses the courts’ special
approach towards arbitrations involving human rights in light of the
Ontario Labour RelationsAc4 1995 (‘OLRA”).
With a view to widening the jurisdiction of grievance arbi-
trators, section 48(12)j) of the OLRA confcrs upon arbitrators the
power to interpret and apply human rights-related statutes. However,
the author suggests that this amendment to the OLRA-which ech-
oes other jurisdictions* labour relations statutes-will not necessar-
ily entail greater judicial deference to grievance arbitrators.
The author first identities the different situations in which
grievance arbitrators may be elled upon to decide on human rights
issues. He then presents the Supreme Court of Canada’s current po-
sition on judicial review of grievance arbitrators awards on human
rights issues. The author subsequently reviews the new OLRA provi-
sion and considers general Canadian case law in order to determine
how this new legislation might be interpreted in light of the court’s
traditional attitude towards human rights questions. He identifies
possible solutions that may be advanced to ensure that the “magnifi-
cent goal” of a discrimination-free workplace is achieved, also sug-
gesting ways to mitigate the apparent defects in the operation of ju-
dicial review that frustrate the pursuit of such equally pressing ob-
jectives as “industrial peace” and expeditions dispute resolution.
The author notes that, on judicial review of human rights-
related decisions, the courts will use the standard of review as a ve-
hicle to control the merits of an arbitrator’s decision, rather than its
mere legality. Indeed, the courts consider human rights so funda-
mental that any legislative restriction on their surveillance powers
will be interpreted restrictively. The judicial review procedure is
thus used as a quasi-appeal of arbitrators’ awards. The author con-
eludes that it is doubtful that the recent amendments to the OLRA
will change the courts’ traditional absence of curial deference to-
wards arbitrators deciding human rights issues.
Cct article traite de la comp5tence des arbitres de griefs sur
les questions de droits de [a personae ct sur la norme d6 contrtc ju-
diciaire applicable aux dlcisions arbitrates en [a matiere. L’auteur
analyse ‘approche particulitre des tribunaux A [a lumiitre de [a Lol
de 1995 sur les relations de travail de l’Ontario (-LRTO ,).
Ain d’tctndre la compdtence des arbitres de griefs, I’article
48(12)j) de Ia LRTO conFere aux arbitres le pouvoir d’interprlter ct
d’appliquer les lois relatives ax droits de [a personne. L’auteur sug-
g&re ndanmoins que cot ajout i. la LRTO, aussi repris dans les lois
sur les relations de travail d’autres juridictions, ne donnera pas n-
cessairement lieu a, one norme moims strict de contr5lejudiciaire des
d6cisions arbitrales.
L’auteur idenlifie d’abord lea diffldrentes situations dans les-
quelles les arbitres de griefs peuvent etre appels h so prononcer sur
des questions touchant ax droits de la personne. II prsente la posi-
tion de la Cur suprEme du Canada sur la norme de conirdle judi-
claire applicable i c type de d6cisions arbitrates. I1 passe ensuite en
revue les nouvelles dispositions de Ia LRTO et analyse la jurispru-
dence canadienne afin de dterminer l’impact de ces dispositions sur
l’attitude traditionnelle des tribunaux face aux questions de droits de
Ia personne. Diverse solutions sent prdsentdes pouvant servir
N’
These situations of conflict of interest and lack of expertise are examples of clear
cases where the Human Rights Commission is in a better position to decide the issue.
Its investigators have developed great expertise in human rights issues, and the tribu-
nal has a large amount of leeway in awarding damages for intangible losses like pain,
suffering and humiliation. It also shows that grievance arbitration may not always be
the “forum preferred by the legislature”‘ for resolution of human rights-related dis-
putes. Consequently, these reasons provide an incentive for the courts to adopt a more
severe standard of review or to interpret an arbitrator’s jurisdiction restrictively as
stated in section 48(12)(j) of the OLRA.
The intractable problem of possible conflicting and limited remedies – when
combined with the inevitable lack of expertise of grievance arbitrators in the human
rights field and the possible conflicts of interest under the grievance arbitration system
–
can only lead to a more interventionist attitude from the courts. In order to main-
tain a certain uniformity in the area of human rights and freedoms, the courts may be
tempted to narrow the arbitrators’ jurisdiction over human rights issues or even limit
the application of a privative clause (in jurisdictions where such a clause is enacted)
and hence review arbitrators’ awards on a standard of correctness.
“Ateliers d’ingdnierie Dominion Limitie v. Qudbec (Commission des droits de la personne), [1980]
R.P. 209 at 215-16 (Que. C.A.). Author’s translation:
The mere fact that one has inserted in a collective agreement a provision which simply
mirrors an identical statutory provision does not prevent a person from a distinct statu-
tory claim provided for in the statute.
If we were to recognize the triggering of a grievance procedure by a union member as a
tacit waiver of Charter rights, it would amount to saying that the exercise of a contrac-
tual right implies a waiver of a statutory right of a different nature. Furthermore, the
collective agreement would amount to a tacit and preliminary waiver of the rights en-
acted in the Charter, and this would frustrate the legislature’s intent. I do not believe
that one may take away from a citizen a right said to be “intrinsic” (in the Charter’s
preamble) through the bargaining of a collective agreement, which is, per se, a series of
accommodations and economic compromises. The rights guaranteed by the Charter
are more than mere “working conditions”, they are “conditions of living in society”.
“Nackawic, supra note 15 at 721.
1998] K. TABBAKH- STANDARD OF REVIEW ON HUMAN RIGHTS ISSUES
275
B. Role of the Privative Clause
The absence of a privative clause in the new OLRA is the second reason suggest-
ing that the clause would not automatically result in greater curial deference towards
arbitrators deciding human rights issues. In contrast to other jurisdictions, the Ontario
Legislature did not protect arbitrators from judicial review.’ The absence of such
protection in the OLRA may expose arbitrators to judicial review on a standard of cor-
rectness when they err on human rights issues.
In Mossop,” however, the Supreme Court of Canada stated that, even in the ab-
sence of a privative clause, grievance arbitrators would nevertheless benefit from a
degree of deference in certain areas. Yet, in La Forest J.’s opinion, deference is only
justified by the expertise that arbitrators have in labour relations issues, which does
not necessarily extend to human rights legislation:
[Tihe position of a human rights tribunal is not analogous to a labour board
(and similar highly specialized bodies) to which, even absent a privative clause,
the courts will give a considerable measure of deference on questions of law
falling within the area of expertise of these bodies … A labour arbitrator oper-
ates, under legislation, in a narrowly restricted field 2
Did the majority intend to include human rights legislation in the “narrowly re-
stricted” expertise of a grievance arbitrator? Considering the Mossop decision, the an-
swer appears to be no. Given that the Supreme Court of Canada refused to defer to the
most specialised tribunal in human rights matters,’ 3 it would be surprising that in the
absence of a privative clause, greater deference would be given to grievance arbitra-
tors.
As stated in Bibeault, the expertise of an administrative tribunal is an essential
part of the “pragmatic and functional” approach used to delineate its jurisdiction.’
Problems arise when arbitrators apply laws other than the Labour Relations Act,
1995, as any lack of expertise may appear to remove them from their “narrowly re-
stricted” field of jurisdiction.
Katherine Swinton and Kenneth Swan have criticized the perception of grievance
arbitrators’ lack of expertise when interpreting human rights statutes:
There is no reason to believe that arbitrators have less “expertise” in interpret-
ing human rights legislation than persons appointed to adjudicate a human
rights inquiry. Indeed, many individuals perform both roles from time to time,
and the pool of qualified persons from which individuals to perform both func-
See for instance the Canada Labour Code supra note 14, s. 58(1), and the British Columbia La-
bour Relations Code, S.B.C. 1992, c. 82, s. 101. It is interesting to note that the Ontario Labour Rela-
tions Board benefits from a privative clause at section 116 of the OLRA, supra note 4.
“, Supra note 39.
5. fbid. at 584-85 [emphasis added].
” In this context, since the applicable statute was the Canadian Human Rights Act, R.S.C. 1985, c.
H-6, the Canadian Human Rights Commission is the adjudicative body responsible for the enforce-
ment of theAct.
‘4Supra note 29 at 1088-90.
276
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tions are usually selected is essentially the same –
persons with related training and skills.”
lawyers, law professors and
With respect, this would seem to be an unduly narrow approach because it personal-
izes the analysis that must be made in order to determine a tribunal’s expertise. Beetz
J.’s “pragmatic and functional” approach does not purport to look at the personal
characteristics and qualifications of the particular individuals. Rather, the expertise of
an adjudicative body should be determined at the organizational and statutory level.
Otherwise, such an individual assessment of qualifications may lead to great confu-
sion when two members of the same board have different backgrounds and different
expertise.
It follows that the absence of a privative clause, combined with the arbitrator’s
lack of expertise in human rights issues, could encourage judicial review on the stan-
dard of correctness. As such, the Ontario Law Reform Commission, when recom-
mending the “referral/deferral” system 7 recognized the problem of loss of expertise
of administrative bodies when applying external laws. That is why it recommended
that:
In the context of this report, the only way that a loss of expertise can be com-
pensated for, so as not to increase the availability of judicial review, is through
the use of privative clauses.
The Commission therefore recommends that each legislative enactment subject
to this report should be amended to expressly include a privative clause to ex-
press the legislature’s intention that a tribunal’s decision should be final and not
reviewable by the courts even where the tribunal has exercised its jurisdiction
to refer to external law.’
When proposing such an “airtight” or “full” privative clause, the Law Reform Com-
mission is well aware of the fact that the courts will require an express and clearly
stated intent from the legislature in order to refrain from exercising their surveillance
powers. As such, the Supreme Court of Canada, in Pasiechnyk v. Saskatchewan
(Workers’ Compensation Board),” recently reiterated that the mere presence of a pri-
vative clause is not enough protection; the clause must also be properly drafted. As
Sopinka J. phrased it:
To determine the standard of review, I must first decide whether the subject
matter of the decision of the administrative tribunal was subject to a privative
clause having full privative effect.
55 K.E. Swinton & K.P. Swan, “The Interaction Between Human Rights Legislation and Labour
Law” in K.E. Swinton & K. Swan, eds., Studies in Labour Law (Toronto: Butterworths, 1983) 111
at 123.
56 Bibeault, supra note 29 at 1088-90.
57See supra note 42 and accompanying text.
53Report, supra note 40 at 152 [emphasis added].
[19971 2 S.C.R. 890, 149 D.L.R. (4th) 577 [hereinafter Pasiednyk cited to S.C.R.].
1998] K TABBAKH – STANDARD OF REVIEW ON HUMAN RIGHTS ISSUES
277
A “full” or “true” privative clause is one that declares that decisions of the tri-
bunal are final and conclusive from which no appeal lies and all forms of judi-
cial review are excluded…. Where the legislation employs words that purport to
limit review but fall short of the traditional wording of a full privative clause, it
is necessary to determine whether the words were intended to have full priva-
tive effect or a lesser standard of deference.’
Even though Pasiechnyk did not concern human rights, the Supreme Court
adopted a restrictive approach in its interpretation of the privative clause at section
168 of the Saskatchewan Workers Compensation Act, 1979.” Considering the funda-
mental nature of human rights, this restrictive interpretation of privative clauses
should be adopted when an administrative tribunal, or a grievance arbitrator, decides
on human rights and freedoms.
C. The Fundamental Nature of Human Rights Legislation
The Mossop’ case is a good illustration of the courts’ perception of the special
nature of human rights legislation. In this case, Mr. Mossop, a homosexual federal
civil servant, was denied bereavement leave to attend the funeral of his partner’s fa-
ther. The collective agreement provided for such leave only if the spouse was of the
opposite sex. After an unsuccessful grievance procedure, Mr. Mossop challenged the
provision of the collective agreement before the Canadian Human Rights Commis-
sion, which stated that the agreement was discriminatory on the basis of “family
status”. It ordered that the day of the funeral be designated as a “day of bereavement
leave” and that the collective agreement be amended to include persons of the same
sex as spouses. On judicial review before the Federal Court of Appeal”‘ the decision of
the Canadian Human Rights Commission was set aside on the grounds that its deci-
sion needed to meet a standard of correctness and not merely one of reasonableness.
The Supreme Court of Canada dismissed the appeal and confirmed that the appli-
cable standard of review should be one of correctness. The highest Court justified its
overruling of the Canadian Human Rights tribunal’s decision on the ground that gen-
eral questions of law fall within the expertise of the courts:
The superior expertise of a human rights tribunal relates to fact-finding and
adjudication in a human rights context. It does not extend to general questions
of law such as the one at issue in this case. These are ultimately matters within
the province of the judiciary, and involve concepts of statutory interpretation
and general legal reasoning which the courts must be supposed competent to
perform. The courts cannot abdicate this duty to the tribunal. They must, there-
fore, review the tribunal’s decisions on questions of this kind on the basis of
correctness, not on a standard of reasonability.”
“‘Ibid. at 904-905 [emphasis added].
“S.S. 1979, c. W-17.1.
,.Supra note 39.
“‘Pursuant to the Federal CourtAct, R.S.C. 1985, c. F-7, s. 28, as am. by S.C. 1990, c. C-8, s. 8.
Mossop, supra note 39 at 585.
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The implication of Mossop is that courts are likely to require a clear legislative state-
ment before refraining from intervening in a field they consider theirs: human rights
and freedoms. Such an interpretation may seem to have been overruled by the Su-
preme Court in Pasiechnyk. Indeed, in that recent case, Canada’s highest court has re-
iterated that a “full” or “true” privative clause is a clear indication of the legislature’s
intent to avoid judicial review. However, Sopinka J. left the door open when he wrote:
“Although this expression of intention by the legislature appears to be clear, it must be
tested by reference to the other factors involved in the functional and pragmatic ap-
proach which this Court adopted in Bibeault.”‘ It is argued that if applied to human
rights issues,.
this “reserve” will necessarily require analysing, among other things,
the arbitrators’ expertise and the special or fundamental nature of human rights. Con-
sequently, in light of the courts’ perception of human rights, the latter will lead them
to adopt a restrictive interpretation of the legislature’s intent to limit their surveillance
powers.
The Supreme Court’s attitude toward the fundamental nature of human rights is
also clearly articulated in University of British Columbia v. Berg’ In this case, the
University denied the appellant, Berg, a key to the building although other students
were provided with one. The school’s director also refused to complete a rating sheet
required for the student to apply for an internship. Ms. Berg had previously experi-
enced depression, but nevertheless was capable of attending classes and responding to
the same demands as other students. The British Columbia Human Rights Commis-
sion found that there had been discrimination on the basis of disability. The decision
was overruled in first instance when the British Columbia Supreme Court held that
the provision of a key and a rating sheet did not constitute services customarily avail-
able to the public within the meaning of section 3 of the British Columbia Human
Rights Act.’ The Court of Appeal upheld the judgment. The question before the Su-
preme Court of Canada was clearly one of interpretation of the British Columbia Hu-
man Rights Act. On the standard of review, Lamer C.J.C., writing for the majority,’
cited La Forest J. in Mossop and added:
Turning to the issue before the Court, it is clear that the question of what con-
stitutes a service customarily available to the public is a general question of law
with wide social implications, in which the Council has no particular expertise.
There being no reason why deference should be given to the Council on this
question, the appropriate standard of review is one of correctness. 7″
The Supreme Court of Canada, therefore, considers a question such as the one in
Berg as being a “general question of law.” In Mossop, Canada’s highest court held that
the meaning of the expression “family status” is also a general question of law that
t”Supra note 58 at 907.
‘ As stated above, Pasiechnyk is a case on workers’ compensation, not on human rights or discrimi-
nation issues.
67 [1993] 2 S.C.R. 353, 102 D.L.R. (4th) 665 [hereinafter Berg cited to S.C.R.].
6.S.B.C. 1984, c. 22.
“Note that LHeureux-Dub6 J., who dissented in Mossop concurred with the majority in this case.
Supra note 66 at 369 [emphasis added].
1998] K. TABBAKH- STANDARD OF REVIEW ON HUMAN RIGHTS ISSUES
279
“involve[s] concepts of statutory interpretation and general legal reasoning.”7′ Since
the mere statutory interpretation of the Human Rights Commission’s constitutive stat-
ute is too general a question to benefit from curial deference, it is hard to imagine
what kind of questions would prevent the courts from intervening in the field of hu-
man rights and freedoms.
By analogy, a grievance arbitrator who is called upon to decide on discrimination
issues will necessarily have to construe words and expressions from the HRC (or
other jurisdictions’ human rights legislation) that are mirrored or referred to in the
collective agreement. This will necessarily involve “general questions of law” with
“wide social implications.” Giving the arbitrator, in the absence of a privative clause, a
different standard of review than the Human Rights Commission would amount to a
double standard, something the Supreme Court of Canada does not appear ready to
accept. As one author writes:
In the heyday of the Charter, courts see law and policy concerning human
rights to be at the core of their jurisdiction. Mossop and Berg are the culmina-
tion of a line of cases which play out the tragic flaw in the “quasi-
constitutional” characterization which was given to human rights legislation …
and which was welcomed by human rights lawyers who often thought that the
courts were according a considerable degree of deference to human rights
bodies.’
This fundamental nature of human rights legislation, then, is the third reason why
curial deference may not be greater under the new OLRA when arbitrators decide on
human rights and freedoms issues. These fundamental rights are of a special nature
and the Supreme Court has even stated on numerous occasions that they are almost
constitutional. As McIntyre J. stated in Winnipeg School Division No. I v. Craton:”
In any event, I am in agreement with Monnin CJ.M. [in the decision of the
Court of Appeal] where he said:
Human rights legislation is public and fundamental law of general appli-
cation. If there is a conflict between this fundamental law and other spe-
cific legislation, unless an exception is created, the human rights legisla-
tion must govern.
This is in accordance with the views expressed by Lamer J. in Insurance Cor-
poration of British Columbia v. Heerspink … Human rights legislation is of a
special nature and declares public policy regarding matters of general concern.
It is not constitutional in nature in the sense that it may not be altered,
amended, or repealed by the Legislature. It is, however, of such nature that it
may not be altered, amended, or repealed, nor may exceptions be created to its
7’Supra note 39 at 585.
‘- A. Harvison-Young, “Human Rights Tribunals and the Supreme Court of Canada: Reformulating
Deference” (1993) 13 Admin. L R. (2d) 206 at 215.
7’ [1985] 2 S.C.R. 150, 21 D.L.R. (4th) 1 [hereinafter Wimnipeg School cited to S.C.R.; emphasis
added]; see also Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, 40 D.L.R. (4th) 577;
Ontario Human Rights Commission v. Simpson-Sears, [1985] 2 S.C.R. 536,23 D.L.R. (4th) 321; Ca-
nadian National Railway Co. v. Canadian Human Rights Commission, [1987] 1 S.C.R. 1114, 40
D.L.R. (4th) 193.
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provisions, save by clear legislative pronouncement. To adopt and apply any
theory of implied repeal by later statutory enactment to legislation of this kind
would be to rob it of its special nature and give scant protection to the rights it
proclaims.7 ‘
This unequivocal consistency in the highest court’s majority opinion supports the
conclusion that the Supreme Court of Canada considers the courts of justice to have a
kind of monopoly over the interpretation of human rights issues and a duty to main-
tain a necessary control over their potentially wide social implications. As Professor
Alison Harvison-Young wrote in 1993:
the subject-matter of commission
[I]n the current Canadian context, one could argue that the Charter has added
respectability to the exercise of judicial power over human rights commissions
by elevating
to quasi-
constitutional status. Just as it seemed to Dicey to be “natural, right and matter
of constitutional principle” that the ordinary courts should be supreme, it seems
now natural and constitutionally required … by the Charter that the ordinary
courts be the guardians of human rights’
jurisdiction
Ken Norman, who supports the application of a standard of correctness to grievance
arbitrators deciding on human rights, finds a constitutional justification for curial in-
terventionism:
The courts are now institutionally involved in human rights law enforcement by
being given appellate authority over the decisions of human rights tribunals and
inquirers. And, given the anti-discrimination provisions of the equality rights
sections of the Charter, it will ultimately be up to the Supreme Court of Canada
to develop interpretations of equality comporting with the inherent dignity of
the human person which, in short, fit with human rights definitions under hu-
man rights legislation and jurisprudence. There is coherence to all of this. And
it is especially
in light of the “quasi-
constitutional” status of human rights legislation.7′
important that this be recognized
Therefore, it seems that the special nature of human rights legislation places it in a
specific category over which the courts’ interventions will be greater and their inter-
pretation of any legislative restriction of their surveillance powers will be more re-
strictive. Consequently, upon judicial review of decisions regarding human rights, the
courts seem to act more like an appellate tribunal by addressing the merits of an arbi-
trator’s award rather than simply controlling the legality of the decision.
This attitude toward fundamental rights may also be parallelled with another
situation where the courts subject administrative bodies to the standard of correctness.
Indeed, when rules of natural justice are violated by an administrative body, the courts
do not hesitate to intervene and apply a strict standard of correctness because of the
7 Winnipeg School, ibid at 156 [emphasis added].
‘-‘A. Harvison-Young, “Keeping the Courts at Bay: The Canadian Human Rights Commission and
its Counterparts in Britain and Northern Ireland: Some Comparative Lessons” (1993) 43 U.T.L.J. 65
at 73 [emphasis added].
” K. Norman, “Case Comment on St. Paul’s Roman Catholic Separate School District v. C. U.&
andHuber” (1988) 67 Can. Bar Rev. 364 at 372 [emphasis added].
1998] K. TABBAKH- STANDARD OF REVIEW ON HUMAN RIGHTS ISSUES
281
fundamental value attributed to the rules of natural justice. This principle is well es-
tablished in law:
A tribunal may, on the one hand, have jurisdiction in the narrow sense of
authority to enter upon an inquiry but, in the course of that inquiry, do some-
thing which takes the exercise of its powers outside the protection of the priva-
tive or preclusive clause. Examples of this type of error would include acting in
bad faith, basing the decision on extraneous matters, failing to take relevant
factors into account, breaching the provisions of natural justice.”
It then becomes understandable that the same courts would tend to intervene when
they felt that, for instance, discrimination has occurred and a fundamental human
rights rule has been violated. Even with a privative clause, the state of the law is clear
to the effect that a breach of natural justice provisions or an action in bad faith would
cause a loss of jurisdiction of the administrative tribunal.’ The same conclusion could
be drawn in the case of a simple error in the interpretation of fundamental human
rights provisions by a grievance arbitrator.
The aforementioned case law illustrates that when a court disagrees with an arbi-
trator’s interpretation of a human rights provision, it will tend to look for a way to in-
tervene and substitute its opinion for that of the arbitrator in order to correct a per-
ceived fundamental injustice. For example, in Mossop, the Supreme Court maintained
the decision of the Federal Court of Appeal since the majority agreed with the merits
of the decision. In that case, the highest court was simply not ready to bypass the leg-
islature –
and add a new ground of dis-
crimination by including homosexual couples in the expression “family status”. Nev-
ertheless, as Lamer C.J.C. suggests in obiter, had the Supreme Court not agreed with
the Federal Court of Appeal’s interpretation, it would have probably overruled it on
the standard of review’ and reinstated the Human Rights Commission’s decision:
and the political debate over the issue –
Indeed, in this case, if Parliament had decided to include sexual orientation in
the list of prohibited grounds of discrimination, my interpretation of the phrase
“family status” might have been entirely different and I might perhaps then
have concluded that Mr. Mossop’s situation included both his sexual orienta-
tion and his “family status”.”
In contrast, a recent decision of the Supreme Court of Canada states that griev-
ance arbitrators may, in some cases, benefit from curial deference even on human
rights issues. In NAPE,’ the respondent issued a job posting for the position of Per-
sonal Care Attendant. The health centre determined that a male would be better suited
“Service Employees’ International Union, Local 333 v. Nipawin District Staff Nurses Association
of Nipawin, [1975] 1 S.C.R. 382 at 389, 41 D.L.R. (3d) 6 [hereinafter Nipawin; emphasis added]; see
also Anisminic, Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, [1969] 1 All E.R. 208
(H.L.).
“See Nipawin, ibid.
“The only way Lamer C.J.C. could have substituted his interpretation for that of the Federal Court
of Appeal would have been for him to come to the conclusion that the applicable standard was “pat-
ently unreasonable”, since the appeal was on judicial review.
” Mossop, supra note 39 at 582.
81 Supra note 9.
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for the job since it required intimate personal care of elderly male patients. However,
this requirement was not specified on the job offer. A female employee of the health
centre applied for the job, but her application was rejected on the grounds that she was
a woman. She filed a grievance before a board of arbitration claiming for discrimina-
tion based on sex.
The collective agreement contained an anti-discrimination clause. In a sense, the
clause was more severe than the one in the Newfoundland Human Rights Code’ since
it did not provide for an exception of bona fide occupational qualification (“BFOQ”).
The health centre argued that, notwithstanding the collective agreement, it was enti-
tled to rely on the Newfoundland HRC and on the BFOQ to legally discriminate
against women.
The arbitration board rejected the grievance on the grounds that the parties to a
collective agreement cannot contract out of the Newfoundland HRC and that the col-
lective agreement must be read in conjunction with the HRC. On judicial review, the
Newfoundland Supreme Court overruled the decision of the arbitration board. The
Court found that the Board had erred in deciding that the parties could not contract
out of the Newfoundland HRC. A majority of the Newfoundland Court of Appeal re-
stored the board’s decision.
A unanimous Supreme Court of Canada reversed the Newfoundland Court of
Appeal’s decision. With regard to the standard of review, Major J. stated:
In the present appeal, both the “patently unreasonable” and the “correctness”
standards of review are involved. The [arbitration] Board interpreted the col-
lective agreement and the Code. If the Board was incorrect but not patently un-
reasonable in all of its findings, the Court can only interfere on the “correct-
ness” standard with those portions of the decision that as questions of law in-
terpret the Code.
The Board found that parties could not “contract out” of the BFOQ provision
of the Code. In doing so, the Board interpreted the Code and its interpretation
must be correct; with respect, I do not think that it is’
Major J. added that when determining whether the collective agreement was to be
read in harmony with the Newfoundland HRC, the standard of review is the decision’s
patent unreasonableness. The Supreme Court held that the Board was incorrect (on a
correctness standard) in its interpretation of the Newfoundland HRC by holding that
the parties cannot contract out of its BFOQ provision. Regarding the issue of the
Board’s interpretation of the collective agreement by reading it in harmony with the
Newfoundland HRC, Canada’s highest court held that it was not a patently unreason-
able interpretation and consequently deferred to the Board’s decision.
This case may be seen as establishing a clear deference to arbitrators even on hu-
man rights issues. However, since the relevant provision of the collective agreement
S.N. 1988, c. 62 [hereinafter Newfoundland HRC].
“” Supra note 9 at 12.
1998] K. TABBAKH- STANDARD OF REVIEW ON HUMAN RIGHTS ISSUES
283
had the effect of raising and further protecting human rights, a patently unreasonable
standard was plainly acceptable and compatible with the Supreme Court’s role as
guardian of human rights.’ Indeed, an interpretation of such a clause having the effect
of reducing the protection to a lower level than that provided by the Newfoundland
HRC would probably have been considered as patently unreasonable. Further, since
Major J. agreed on the merits of the Board’s decision, it was much easier for him to
defer to the arbitrators’ award. Although Major J. stated that while “the Board’s con-
clusion, that the parties intended to be bound by the BFOQ provision, could be incor-
rect, it cannot be said that it is patently unreasonable.”‘ It appears that Major J. did not
reluctantly defer to the Board’s decision. Indeed, he fully agreed with its merits, as is
indicated by his suggestion of another way to achieve the same result as the Board:
Another way of reaching the conclusion that the parties did not preclude appli-
cation of the BFOQ to the collective agreement is by examining the definition
of discrimination as used in the collective agreement. In determining what the
parties meant by prohibiting “discrimination” one must refer to the definition
of discrimination which prevails in Newfoundland, namely, that found in the
Code. This definition incorporates the concept of BFOQ.
With respect, a decision in which a reviewing court agrees with the administrative tri-
bunal, on the merits of the decision, cannot be binding with respect to the standard of
review (particularly for the standard of correctness).
Recently, the Quebec Superior Court, in Kirkland (ville de) v. Syndicat des Em-
ployds Municipaux de la Ville de Kirkland,” had to decide on the applicable standard
of review of a grievance arbitrator’s award regarding human rights. In this case, the
employer had dismissed an employee who had been working for only two months and
then placed his name on a “recall list”. The employer based its decision on a medical
report establishing that the employee’s health did not permit him to adequately per-
form his janitorial duties (he suffered colour blindness and chronic bronchitis among
other diseases).
The collective agreement expressly refers to the Quebec Charter.’ After a thor-
ough review of the case law, Levesque J. wrote:
A d6faut d’autres autorit~s, je crois que dans le cas pr6sent la Cour sup6rieure
doit faire montre de d6f6rence
l’endroit de l’arbitre, d’une part, et que la
norme d’examen est celle de l’erreur d6raisonnable ou irrationnelle, d’autre
part, lorsqu’elle interprte la convention collective qui incorpore le droit qu6bd-
cois.
Toutefois, h cause de l’importance des questions soulev6es et de la raret6 des
indices, j’analyserai la d6cision de l’arbitre dans la perspective de l’existence
ou non d’une erreur et de la justesse de la d6cision.
See Part II above.
“Supra note 9 at 19.
“Ibi at 20.
[1997] RJ.Q. 534 (S.C.) [hereinafter Kirkland].
Supra note 23.
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Si l’on enl~ve les commentaires de l’arbitre au sujet de ia Loi assurant
l’exercice des droits des personnes handicapies et de la Loi sur les accidents
du travail et les maladies professionnelles, qui ne sont pas vraiment utiles A sa
d6cision, elle n’a pas commis d’erreur ni dans l’interpr6tation de l’article 2.07
de la convention collective ni dans celle de la charte qu6b6coise.’
The decision was not appealed. It is submitted that this case illustrates the great
confusion in this area and, consequently, does not shed much light on the applicable
standard of review. What would the Court’s conclusion have been had Levesque J. not
agreed with the arbitrator’s interpretation of the Quebec Charter or had found a “sim-
ple” error? In particular, this may also confirm that upon judicial review of awards re-
garding human rights, the courts will tend to analyse the merits of a decision, as an
appellate court would, rather than its mere legality.
Conclusion
In light of the case law analysed in this article, it appears that the standard of judi-
cial review is somewhat of a red herring. In human rights-related disputes, the courts
will use the standard of review as a vehicle or a tool to control the merits of the arbi-
trator’s decision. The judicial review procedure is then used as a quasi-appeal of the
arbitrator’s award. This ultimate control allows the courts, and particularly the Su-
preme Court of Canada, to maintain a uniform application and interpretation of one of
the most fundamental aspects of our democratic society: the protection of human
rights. It would be doubtful that a sole power-conferring provision such as section
48(12)(j) of the OLRA would change the court’s traditional stance of lack of deference
toward arbitrators deciding human rights issues.
It is questionable whether such active interventionism is desirable. It could lead to
an increasing number of applications for judicial review, which would directly affect
the delays of adjudication. Although the courts are more favourable to accepting a less
expeditious dispute resolution mechanism when human rights are at stake, in the pre-
sent state of cutbacks and budget restrictions, a backlog of judicial review cases would
” Supra note 86 at 542-43. Author’s translation:
In the absence of other authorities, I believe that in the present case, the Superior Court
must defer to the arbitrator, on the one hand, and to the standard of review being one of
unreasonable or irrational error, on the other hand, when the arbitrator interprets the
collective agreement which incorporates Quebec law.
However, due to the importance of the questions raised and to the scarcity of guide-
lines, I will analyse the arbitrator’s decision in light of whether or not there was an error
and the correctness of the decision.
If we remove the arbitrator’s comments on the Act to secure the Handicapped in the
exercise of their rights and the Act respecting industrial accidents and occupational
diseases, which are not really relevant to her decision, she did not make any error
whether in her interpretation of section 2.07 of the collective agreement or of the Que-
bec Charter.
1998] K. TABBAKH- STANDARD OF REVIEW ON HUMAN RIGHTS ISSUES
285
certainly frustrate the OLRA’s goal of expediting proceedings. It may also lead to the
undesirable consequence of awards regarding human rights being “routinely … altered
by the courts whenever they disagree”‘ with the arbitrators’ interpretations of the
agreements. What, then, would be a balanced solution that would both protect the
“magnificent goal”‘” of fairness in the workplace and meet the need for an expeditious
resolution of disputes in order to maintain “industrial peace”?’ –
The cost of reaching the “magnificent goal” is very high, both in terms of money
and undesirable delays. Indeed, in Mossop, the grievance was filed in 1985,” and the
complaint to the Canadian Human Rights Commission was made that same year, but
the final judgment was rendered eight years later, in 1993. In NAPE, six years elapsed
between the original grievance and the Supreme Court’s decision. Such delays can
only frustrate the goal of expediency of grievance arbitration, which is a necessary in-
gredient of industrial peace.
If greater deference is shown to administrative tribunals (including grievance ar-
bitrators) on human rights issues, it might have some undesirable consequences. For
example, had the Commission’s decision in Mossop been maintained, it would have
had the effect of including sexual orientation as a protected ground of discrimination
when the legislature was not ready to amend the statute. However, regardless of the
wording of any privative clause protecting the arbitrators’ awards, patently unreason-
able decisions will always be quashed on judicial review.5 Therefore, any gross injus-
tice will still be controlled by the higher courts, but this also implies that “simple” er-
rors or “small” injustices will survive.
The solution clearly lies in the hands of the legislatures. In most Canadian juris-
dictions there is a great disparity between the relevant labour relations statutes. Some
confer on the arbitrators the powers to interpret and apply other statutes and at the
same time protect their decisions with a privative clause, while others do not.’ A na-
tionwide consistency would be desirable in this matter since this lack of uniformity
gives the courts (especially the Supreme Court of Canada) an added incentive to try to
standardise the level of human rights protection from coast to coast.
Speedy dispute resolution and industrial peace can only be reached by clear leg-
islative intervention and probably at the expense of the “magnificent goal”. This
‘ The Supreme Court of Canada warned against this undesirable consequence in C.B.C., supra note
29 at 179-80.
9’ Bergevin, supra note 11 at 544.
‘” Shaw, supra note 13 at 776.
93 See Mossop v. Canada (Department of Secretary of State) (1989), 10 C.H.R.R. D/6064 (H.R.C.).
See Re Newfoundland (Green Bay Health Care Centre) and N.A.PE., Loc. 3201 (1989), 6 L.A.C.
(4th) 81.
” See Bibeault, supra note 29.
“For instance the Quebec Labour Code, R.S.Q. c. C-27, s. 100.12, contains a power-conferring
provision, but no privative clause. The Canada Labour Code, supra note 14, contains a privative
clause (s. 58(1)), but no power conferring provision specifically allowing the arbitrator to interpret
human rights statutes. Finally, the British Columbia Labour Relations Code, supra note 49, contains
both.
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might be a solution that would begin to solve the thorny question of judicial review of
grievance arbitrators deciding on human rights issues, since the courts do not seem
amenable to refraining from strict control of administrative tribunals.’ Such interven-
tion would require a power-conferring provision like the one found in section
48(12)G) of the OLRA. A provision of this kind should be coupled with a “full” or
“true” privative clause like the one recommended by the Ontario Law Reform Com-
mission.’ This power-conferring provision would amount to giving arbitrators, who
do not necessarily provide the best forum, an even greater protection from judicial re-
view than that available to the Human Rights Commission over its interpretation of
the HRC. It seems that only such a clear political choice might circumvent the courts’
restrictive interpretation of the legislature’s intent and force them to defer to arbitra-
tors’ human rights-related decisions. Then again, success would not be guaranteed,
especially if courts consider a misinterpretation of human rights law as having the
same consequences as a breach of the rules of natural justice.
The complicated character of the Ontario Law Reform Commission’s recommendations shows
how detailed and comprehensive the legislative intervention should be in order to counterbalance the
courts interventionist attitude. See Report, supra note 40.
See Report, ibid It is suggested that theprivative clause states that the arbitrator’s decision should
not be reviewable even when the arbitrator had to interpret human rights statutes in order to render a
decision.
