In a devastating decision for unionized employees, the Supreme Court stripped them of their access to justice by means of personally pursuing a human rights complaint against their employer to a statutory human rights tribunal. In Northern Regional Health Authority v Horrocks, the SCC granted the employee’s union the broad discretion whether or not to pursue a grievance alleging unlawful discrimination on a human rights ground to arbitration or some other decision-maker chosen by the parties. A union’s decision whether or not to pursue a grievance to arbitration or at all is only subject to the superficial right to challenge the decision alleging breach of the union’s duty of fair representation to a labour relations board. As the BC Labour Relations Board held in Re Judd, the duty of fair representation “contains a narrow right and protection.” In this regard, it has repeatedly been held that simple negligence by a union is not sufficient to trigger the breach of the union’s duty of fair representation; something akin to gross negligence must be proven.

In reality, the initial decision of whether or not to file a grievance concerning their members’ complex human rights issues within the restricted time-limit to do so will be made by shop floor union stewards and not union members who have had the benefit of independent legal advice. Failing or refusing to file grievances involving evolving human rights issues will undoubtedly result in more (not fewer) duty of fair representation complaints by employees against their unions.

The immediate effect of the SCC’s decision that human rights tribunals do not have the jurisdiction over unionized employees’ human rights complaints is that literally hundreds of unionized employees’ outstanding human rights complaints against their employer are left “high and dry” without any other recourse or access to justice.

In its decision, the SCC vastly expanded the scope of the so-called exclusive jurisdiction model of grievance and arbitration dispute resolution previously articulated by the court in its Weber and O’Leary decisions and this isn’t good news for employers or unions. Instead of the state bearing the cost of human rights dispute resolution tribunals the immediate affect is to download the expense of adjudicating human rights disputes upon employers and unions.

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