Court decision gives union members more options in harassment disputes, legal expert says

A recent decision by the Nova Scotia Court of Appeal could give union members more avenues to deal with complaints about discrimination.

Canadian labour legislation requires disputes to be settled using rules set out in the collective agreement, usually arbitration.

In its September ruling, the court said the Nova Scotia Human Rights Commission could exercise shared jurisdiction over discrimination complaints in unionized workplaces.

Wayne MacKay, professor emeritus with the Schulich School of Law at Dalhousie University, told CBC Radio's Information Morning Nova Scotia people who are dissatisfied with the arbitration process now have a choice. 

This conversation has been edited for clarity and length.

Tell us more about the path that unionized employees had to take if they wanted to make a harassment complaint?

Most collective agreements cover harassment, discrimination and so on. The normal path for someone facing that would be to go to arbitration, because that's what the collective agreement said.

But the tricky question that this case raises is could they instead also go to the human rights commission? 

Tell us a bit about the case that we're talking about that's creating this change.

A police officer wanted to challenge because they were not being adequately remedied for PTSD.

They were arguing essentially that they weren't being treated the same for this mental health challenge as if they had a health challenge.

So it is a human rights issue covered by the collective agreement. Because it's discrimination under the collective agreement but also covered by the human rights commission.

She went to the [Nova Scotia] Human Rights Commission. They set up a board of inquiry. They were all set to start and the Supreme Court of Canada came up with a decision that said most cases have to go to arbitration first via the union.

Therefore the actual commission didn't have jurisdiction or authority to deal with it.

But the Court of Appeal disagreed?

They did at the end of the day.

The Nova Scotia Court of Appeal in an earlier 2008 decision said you could go to human rights commissions but then the Supreme Court of Canada, in 2021, in Manitoba, said unless there's some relatively clear intent for a shared jurisdiction, then you can't go to a human rights commission.

It was the Supreme Court decision that made this board say we can't deal with this because the Supreme Court has now changed things.

Where does this leave us as an avenue to take a complaint like this via the human rights commission? Do you still have to go through the union process or can you choose both or do them simultaneously?

The case that we're dealing with that just came down a few weeks ago from the Nova Scotia Court of Appeal now makes it clear that you can go to either one and that normally you might want to go to the arbitration first, but you don't have to,

That you can choose and you can go to the [Nova Scotia] Human Rights Commission.

That's not the case in some other provinces in Canada, but it is in Nova Scotia.

Because the issue was what's the intent in the act?  Did the Human Rights Act intend to give additional jurisdiction or did it intend that unionized workers would have to go under the collective agreement.

The majority said the ... intent of the act was that you can pick either one and that's what they were going with.

Do you think here in Nova Scotia there's going to be a a flood of people taking their complaints to the human rights commission now that they have this as an option?

I don't think necessarily so because very often the arbitration process may be sufficient and they still have that choice as well.

But I think there will be an increase in the number and this is one of those cases where the government could intervene and put clear language in the act saying we wouldn't deal with unionized workers, they have to go to arbitration.

They could do that but they haven't yet, and I wouldn't think they would.

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