Scholarship by Windsor Law professor Claire Mummé was cited in a Supreme Court of Canada decision delivered on Oct. 22 in Northern Regional Health Authority v. Horrocks.

This decision may have important implications for discrimination in unionized workplaces because it reaffirms a longstanding principle that human rights matters that arise from “the interpretation, application, administration or violation of the collective agreement … must proceed by arbitration and no other forum has the power to entertain an action in respect of that dispute unless other statutory tribunals are expressly awarded jurisdiction.”

In the Horrocks decision, the court resurrected an analytical framework that had been somewhat relaxed over the last decade, during which time unionized employees were usually permitted to choose to bring their claims human rights tribunals instead of arbitration.

The issue of jurisdiction is more than a technicality because it is the union, not individual employees, that chooses which grievances to bring forward to arbitration. Although there are some important benefits to exclusive arbitral jurisdiction in discrimination matters, it also means that an individual may be foreclosed from having their human rights adjudicated at all if the union decides not to take the matter forward.

The majority of the Supreme Court relied on Dr. Mummé’s research from her chapter “Questions, Questions: Has Weber Had an Impact on Unions’ Representational Responsibilities in Workplace Human Rights Disputes?” in the book One Law for All? Weber v Ontario Hydro and Canadian Labour Law: Essays in Memory of Bernie Adell in discussing the role of the union’s duty of fair representation to “acts as a check on the principle of exclusivity” and ensure that “their decisions are reasoned, not arbitrary, in bad faith or discriminatory.”

The minority judgment of Justice Andromache Karakatsanis also relied on Mummé’s research to support a concurrent jurisdiction model that would allow both human rights tribunals and labour arbitrators jurisdiction over the human rights of unionized workers.

“Only time will tell whether the decision will apply beyond Manitoba,” says Mummé, “or whether human rights legislation in other provinces will continue to be interpreted to provide concurrent jurisdiction, allowing unionized employees the choice of where to take their workplace human rights clams. If not, the decision could indeed be highly significant, regardless of what you think of its merits.”

Learn more about this judgement on the Supreme Court of Canada’s website.