Court of Appeal Declines Jurisdiction to Review Arbitrator's Application of Human Rights Principles

The British Columbia Court of Appeal recently clarified its jurisdiction to review arbitration awards involving the application of the Human Rights Code.

The employer permanently closed a paper mill. Under the collective agreement, employees terminated as a result of such closures were entitled to severance pay. It was agreed, however, that employees on long term disability would continue to receive their LTD benefits.

The employer did not provide severance pay to employees in receipt of LTD at the time of the plant closure. The union grieved, alleging that this violated both the collective agreement and section 13 of the Human Rights Code, which prohibits discrimination in employment on the basis of a disability.

The arbitrator found there had been no violation of the employees’ human rights. The complainants were not denied severance pay because they were disabled, but, rather, because the employment relationship was not terminated by the closure. The complainants, who remained on leave, did not lose their jobs. As a result, no breach of the agreement or the Code occurred.

The issue before the Court of Appeal was its jurisdiction to review the arbitrator’s award. Under the Labour Relations Code, the Labour Relations Board has the exclusive jurisdiction to review arbitration awards unless the basis of the decision is a matter of the general law, in which case the Court of Appeal may take jurisdiction. The union argued that the Court should review the award on the basis that the arbitrator’s application of the Human Rights Code was a matter of general law.

The Court found that the real basis for the arbitrator’s decision was his interpretation of the collective agreement, and not the Human Rights Code. The arbitrator’s application of human rights principles to his findings was in accordance with well-established principles and raised no question of general law. As a result, the appeal was quashed on the grounds that the Court was without jurisdiction to review the award.

This case will be of interest to all unionized employers for the purpose of determining the appropriate forum to review such matters.

CEP, Local 789 v. Domtar Inc., 2009 BCCA 52