Social Services Admin. Bd. v. OPSEU (2003), 177 O.A.C. 235 (SCC)
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Temp. Cite: [2003] O.A.C. TBEd. SE.092
District of Parry Sound Social Services Administration Board (appellant) v. Ontario Public Service Employees Union, Local 324 (respondent) and Ontario Human Rights Commission (intervener)
(28819; 2003 SCC 42; 2003 CSC 42)
Indexed As: Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al.
Supreme Court of Canada
McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
September 18, 2003.
Summary:
Prior to the expiry of her probationary term, an employee went on maternity leave. Within a few days of returning to work, the employer discharged her. The employee filed a grievance. The grievance alleged that the employee was discharged from her position without justification and that this decision was “arbitrary, discriminatory, in bad faith and unfair”. The employer applied for a declaration that the grievance was not arbitrable.
The Ontario Divisional Court, in a decision reported 131 O.A.C. 122, granted the declaration. The employee’s union appealed.
The Ontario Court of Appeal, in a decision reported 147 O.A.C. 183, allowed the appeal. The employer appealed.
The Supreme Court of Canada, Major and LeBel, JJ., dissenting, dismissed the appeal.
Labour Law – Topic 6530
Collective agreement – Interpretation – Grievances – Probationary employees – [See both
Labour Law – Topic 7037
].
Labour Law – Topic 6701
Collective agreement – Interpretation – Management rights – General – [See first
Labour Law – Topic 7037
].
Labour Law – Topic 7037
Collective agreement – Enforcement – Arbitration – General – Matters arbitrable – A collective agreement provided that a probationary employee could be discharged for any reason and that such action was not subject to grievance and arbitration – A probationary employee was dismissed after she returned from maternity leave – The employee grieved, alleging discrimination – Section 5 of the Human Rights Code (Ont.) prohibited employment discrimination based on family status – The arbitration board ruled that the grievance was arbitrable where s. 48(12)(j) of the Labour Relations Act (Ont.) obligated and empowered a board of arbitration to interpret a collective agreement in a manner consistent with the Human Rights Code – In other words, s. 48(12)(j) imported the substantive rights of the Human Rights Code into a collective agreement over which an arbitrator had jurisdiction – The Supreme Court of Canada upheld the board’s ruling as not being patently unreasonable – The employer’s power to manage operations and direct employees was subject not only to the express provisions of the collective agreement, but also to the statutory rights of its employees – The Board was correct to conclude that the substantive rights and obligations of the Human Rights Code were incorporated into each collective agreement over which an arbitrator had jurisdiction – Because of this interpretation, an alleged violation of the Human Rights Code constituted an alleged violation of the collective agreement, and fell squarely within the Board’s jurisdiction – See paragraphs 24 to 55.
Labour Law – Topic 7037
Collective agreement – Enforcement – Arbitration – General – Matters arbitrable – A probationary employee was dismissed after she returned from maternity leave – The employee grieved, alleging that the decision was “arbitrary, discriminatory, in bad faith and unfair” – Section 5(1) of the Human Rights Code (Ont.) prohibited employment discrimination based on family status – The arbitration board ruled that the grievance was arbitrable where s. 48(12)(j) of the Labour Relations Act (Ont.) obligated and empowered a board of arbitration to interpret a collective agreement in a manner consistent with the Human Rights Code – The Ontario Court of Appeal agreed that the grievance was arbitrable but on the basis that s. 44 of the Employment Standards Act (Ont.) (ESA) prohibited an employer from dismissing an employee who took pregnancy or parental leave and s. 64.5(1) ESA made the terms and conditions of the ESA enforceable against the employer as if they were a part of the collective agreement – The Supreme Court of Canada held that it was not improper for the Ontario Court of Appeal to consider ss. 44 and 64.5(1) ESA where: (1) it would arguably have been an error of law not to have done so if the arbitration board’s ruling had been without basis; (2) s. 64.5(4) ESA, which bound an employee to a union decision not to seek the enforcement of the ESA, had no effect here since this was not a matter of a complaint under the ESA; and (3) the employer knew from the outset that the essence of the grievance was that the employee was discharged as a consequence of taking maternity leave – See paragraphs 55 to 71.
Labour Law – Topic 7041.3
Collective agreement – Enforcement – Arbitration – Jurisdiction or powers of arbitrator or board – Respecting statutory rights (incl. human rights) – [See both
Labour Law – Topic 7037
].
Labour Law – Topic 7070
Collective agreement – Enforcement – Arbitration – Interpretation of collective agreement – Effect of statutes – [See both
Labour Law – Topic 7037
].
Labour Law – Topic 7112
Collective agreement – Enforcement – Arbitration – Judicial review – Scope of review – Article 8.06(a) of the collective agreement provided that a probationary employee could be discharged for any reason and that such action was not subject to grievance and arbitration – A probationary employee was dismissed after she returned from maternity leave – The employee grieved, alleging discrimination – Section 5(1) of the Human Rights Code (Ont.) prohibited employment discrimination based on family status – The arbitration board ruled that the grievance was arbitrable where s. 48(12)(j) of the Labour Relations Act (Ont.) obligated and empowered a board of arbitration to interpret a collective agreement in a manner consistent with the Human Rights Code – In other words, s. 48(12)(j) imported the substantive rights of the Human Rights Code into a collective agreement over which an arbitrator had jurisdiction – The Supreme Court of Canada upheld the board’s ruling on arbitrability as not being patently unreasonable – The court also ruled that although the arbitration board had the power to determine whether the substantive rights and obligations of the Human Rights Code were incorporated into the collective agreement, the court had the power to interfere if the arbitration board resolved the issue incorrectly – See paragraphs 19 to 23.
Cases Noticed:
International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local 720 v. Volvo Canada Ltd., [1980] 1 S.C.R. 178; 27 N.R. 502; 33 N.S.R.(2d) 22; 57 A.P.R. 22, refd to. [para. 16].
McConnell, Hopkinson, Wilson and Benjamin v. Douglas Aircraft Co. of Canada Ltd. and O’Shea, [1980] 1 S.C.R. 245; 29 N.R. 109, refd to. [para. 16].
Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1, refd to. [para. 16].
Board of Education of Toronto v. Ontario Secondary School Teachers’ Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, consd. [para. 16].
Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, consd. [para. 18].
Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38 (S.C.C.), refd to. [para. 18].
Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 21].
United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, refd to. [para. 22].
McLeod v. Egan, [1975] 1 S.C.R. 517; 2 N.R. 443, consd. [paras. 24, 86].
MacLeod, Re – see McLeod v. Egan.
Goodyear Tire & Rubber Co. of Canada v. Eaton (T.) Co., [1956] S.C.R. 610, consd. [para. 39].
Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, consd. [para. 39].
Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 41].
Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768; 27 N.R. 103; 25 N.B.R.(2d) 613; 51 A.P.R. 613, refd to. [para. 50].
Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; 55 N.R. 194, refd to. [para. 50].
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 60].
Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R.(2d) 103 (C.A.), consd. [para. 68].
Spruce Falls Inc. v. International Woodworkers of America-Canada, Local 2995 (2002), 106 L.A.C.(4th) 41, refd to. [para. 69].
Peel District School Board v. Ontario Public School Teachers’ Federation District 19 (2000), 84 L.A.C.(4th) 289 (Ont.), refd to. [para. 69].
Woods (Harry) Transport Ltd. v. Teamsters Union, Local 141 (1977), 15 L.A.C.(2d) 140 (Ont.), refd to. [para. 69].
Aro Canada Inc. v. International Association of Machinists and Aerospace Workers (1988), 34 L.A.C.(3d) 255 (Ont.), refd to. [para. 69].
Liquid Carbonic Inc. v. United Steelworkers of America (1992), 25 L.A.C. (4th) 144 (Ont.), refd to. [para. 69].
Bank of Toronto v. Perkins (1883), 8 S.C.R. 603, refd to. [para. 90].
Statutes Noticed:
Employment Standards Act, R.S.O. 1990, c. E-14, sect. 44, sect. 64.5(1), sect. 64.5(2), sect. 64.5(3), sect. 65.4(4) [para. 5].
Human Rights Code, R.S.O. 1990, c. H-19, sect. 5(1) [para. 5].
Labour Relations Act, S.O. 1995, c. 1, Sch. A, sect. 48(1), sect. 48(12) [para. 5].
Authors and Works Noticed:
Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (3rd Ed.) (2003 Looseleaf Update – Release 39), p. 2-60 [para. 24].
Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 41].
Ontario, Minister of Labour, Proposed Reform of the Ontario Labour Relations Act, Discussion Paper (1991), p. 42 [para. 54].
Weiler, Paul, Reconcilable Differences: New Directions in Canadian Labour Law (1980), pp. 91, 92 [para. 51].
Weiler, Paul, The Remedial Authority of the Labour Arbitrator: Revised Judicial Version (1974), 52 Can. Bar Rev. 29, p. 31 [para. 30].
Counsel:
William G. Horton, Cathy Beagan Flood and Robert B. Budd, for the appellant;
Timothy G.M. Hadwen and Peggy E. Smith, for the respondent;
Naomi Overend and Prabhu Rajan, for the intervener.
Solicitors of Record:
Blake, Cassels & Graydon, Toronto, Ontario, for the appellant;
Ontario Public Service Employees Union, North York, Ontario, for the respondent;
Ontario Human Rights Commission, Toronto, Ontario, for the intervener.
This appeal was heard on January 24, 2003, by McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada.
The judgment of the Supreme Court was delivered in both official languages on September 18, 2003, when the following opinions were filed:
Iacobucci, J. (McLachlin, C.J.C., Gonthier, Bastarache, Binnie, Arbour and Deschamps, JJ., concurring) – see paragraphs 1 to 72;
Major, J., dissenting (LeBel, J., concurring) – see paragraphs 73 to 109.
