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December 14, 2006 |
Issue No. 1 |
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— CONTENT— |
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UNFAIR LABOUR PRACTICES COMPLAINTS WERE SETTLED, CANADA INDUSTRIAL RELATIONS BOARD RULES The Canada Industrial Relations Board has ruled that it has implied jurisdiction to determine whether an unfair labour practices complaint was settled, even though the Canada Labour Code does not expressly empower it to make such a ruling. Details below. PROVINCIAL HUMAN RIGHTS WATCHDOG TAKES JURISDICTION OVER REPRISAL COMPLAINT AGAINST INDIAN BAND Even though an employment discrimination complaint against an Indian Band falls outside the jurisdiction of a provincial human rights tribunal, because the federal government has exclusive legislative jurisdiction over Indians, a complaint of reprisal for filing such a complaint may still be heard by the provincial tribunal, since it does not impair "the essential and distinctive core values of Indianness." Details below. |
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— DETAILED REPORTS — |
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UNFAIR LABOUR PRACTICES COMPLAINTS WERE SETTLED, CANADA INDUSTRIAL RELATIONS BOARD RULES The Facts: On October 15, 2003, the Teamsters Canada Rail Conference (TCRC) filed an unfair labour practices complaint with the Canada Industrial Relations Board, accusing the Canadian National Railway Company (CN) of improperly disciplining union activist Bob Lee in 2003 with respect to his involvement in a complaint protesting CN's discipline of union activists. The Teamsters filed an additional complaint after Lee's employment was terminated November 19, 2004. The two Lee complaints were consolidated and a hearing set for April 4 to 7, 2005. In a series of telephone conversations on July 14, 2005, Teamsters Western Canada General Chairman Dan Shewchuk tried to hammer out a settlement agreement with Peter Marshall, CN's Senior Vice-President - Western Canada Region. According to Shewchuk, he and Marshall reached an agreement that would see Lee reinstated with compensation for lost wages, which Marshall confirmed by saying: "[C]onsider this a handshake over the telephone as we have a deal." The next morning, the parties' lawyers drew up papers, which the union and Lee signed on July 18. However, in a July 19 conference call with Shewchuk and Marshall, CN Labour Relations Director Myron Becker proposed changing certain provisions of the settlement agreement. That day, the Teamsters applied to the Canada Industrial Relations Board for an order affirming the settlement and requiring the Railway to comply with it. The Arguments: CN raised an objection to the Board's jurisdiction, arguing that in the absence of an express statutory provision giving the Board jurisdiction to determine whether the parties had reached a settlement, only a court could do so. Furthermore, CN argued, because settlement discussions are undertaken on a confidential, "without prejudice" basis, the Board should refrain from intervening as a matter of policy. On the merits, CN argued that the settlement was merely an agreement in principle that was conditional on final acceptance by CN's brass. The union took the position that the Board had inherent jurisdiction, flowing from its original jurisdiction over the union's complaints, to determine whether the parties had reached a settlement, and to enforce the settlement. In addition, the union argued that the Board had explicit jurisdiction to determine whether the matter had been settled pursuant to Canada Labour Code sections 15.1(1), 15.2(2) and 16(p), which respectively empower the board to "assist the parties in resolving any issues in dispute at any stage of a proceeding ... by any means that the Board considers appropriate;" to " give declaratory opinions;" and "to decide for all purposes ... any question that may arise in the proceeding." The union further ruled that, as a matter of policy, the Board should not allow a party to resile from a settlement agreement just because it had "second thoughts," and that the privilege attaching to settlement communications allows for a single exception – proving whether a settlement has been reached. On the merits, the union submitted that the parties had reached a clear settlement of all the outstanding issues, and that the agreement was enforceable. The Decision: In a decision dated September 13, 2006, the Canada Industrial Relations Board gave reasons for its August 17, 2005 "bottom line" ruling dismissing CN's jurisdictional objection and incorporating the settlement agreement into a Board order. On behalf of a unanimous three-member Board panel, Vice-Chair Julie Durette explained that, even though the Canada Labour Code "does not expressly state that the Board has the authority to determine the issue of whether a binding settlement has been concluded in respect of a matter before it," the Board's powers under sections 15.1(1), 15.1(2) and 16(p) were "sufficiently broad to encompass such power and authority without unduly stretching their intended scope." Noting that "one of the primary goals and legislative objectives of the Code is to promote the constructive settlement of disputes," Durette declared: "[T]he Board does not see the need for a distinct legislative provision to confer express authority to allow the fulfilment by the Board of the Code's objectives in this regard." In order "to protect the integrity of the informal settlement process," Durette added, "the Board must have the authority to inquire into the issue of whether or not a settlement has been reached and if so, to enforce the terms of settlement in order to prevent parties from reneging on commitments made during the informal dispute resolution process." Furthermore, she reasoned, requiring parties to ask the courts to determine whether a settlement agreement is binding "would seriously undermine the Board's authority and its process in fulfilling its statutory mandate." Durette concluded that, in light of these "compelling labour relations reasons and purposes," "the Board has the necessary jurisdiction to determine the issue of whether a settlement has in fact been reached, and if so, to enforce its terms." Durette further agreed with the union that the privilege attaching to settlement discussions allowed for a single exception – "where the existence of a settlement becomes an issue for determination." Balancing "the conflicting interests between the two principles of confidentiality and finality," Durette adopted Arbitrator Elaine Newman's statement, in U.S.W.A., Local 1-700 v. Architectural Mouldings Ltd., [2005] O.L.A.A. No. 273 (QL), that while "[t]he scope of privilege that protects discussions in the grievance procedure ... should be interpreted broadly, ... it is in the greater interests of justice, not to mention greater value to the relationship between the parties, that the allegation of settlement be explored in evidence, in order that the jurisdiction of the board can be correctly determined." Dismissing the employer's preliminary objection, Durette concluded: "[T]he Board has jurisdiction to look into the issue of the existence of a settlement concerning matters with which it is seized, and ... evidence of the settlement discussions pertaining to that very issue is relevant and admissible for that purpose." On the merits, Durette confirmed that "the parties did reach an agreement on July 14, 2005 ... to settle the various outstanding complaints before the Board." On the evidence, Durette found, "the terms of the agreement reached between Mr. Marshall and Mr. Shewchuk were sufficiently clear to constitute a settlement." The agreement was "not conditional on it being in writing or conditional on further approval or negotiation," Durette further ruled, adding: "[The parties'] decision to leave it to the lawyers to reduce to writing does not detract from the fact that a binding enforceable agreement had been reached." While it was clear that "the employer may well have had second thoughts about certain aspects of the settlement agreement," Durette observed, "this does not detract from the fact that an agreement had already been reached between the parties ... to settle all outstanding matters before the Board." Accordingly, Durette concluded, the union was entitled to a Board order incorporating the parties' settlement agreement. Comment: As Durette noted in her reasons, a number of arbitration awards and labour board decisions confirm that an agreement to settle need not be in writing in order to be enforceable. In Upholsterers' International Union of North America, Local 30 v. Bilt-Rite Upholstering Co. Ltd. (1979), 24 L.A.C. (2d) 428, for example, an arbitration board chaired by Wes Rayner held that a settlement agreement was enforceable even though the union had never signed it, declaring: "It is true that the settlement contemplated the reduction of the settlement to writing and signing by both parties. However, in our view, this was a mere procedural matter and was not an essential part of the settlement. If the union had suggested that there [were] some substantive terms that had not been covered by the settlement, the matter would be quite different. No [such] suggestion was forthcoming." Similarly, in Lafarge Canada Inc., [2001] O.L.R.D. No. 2153 (QL), the Ontario Labour Relations Board confirmed that an agreement to settle a complaint bars further Board involvement even if the agreement is not in writing, because: "Good labour relations are built, in part, on trust between the parties ... Where there has been, as we earlier found, an oral agreement reached, the fact that it is not recorded accurately in writing is immaterial. There is still a deal." Case Name: Teamsters Canada Rail Conference v. Canadian National Railway Company |
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PROVINCIAL HUMAN RIGHTS WATCHDOG TAKES JURISDICTION OVER REPRISAL COMPLAINT AGAINST INDIAN BAND The Facts: On October 24, 2005, Musqueam Indian Band Fisheries Manager Ryan Mathison filed a complaint with the British Columbia Human Rights Tribunal, accusing the Band of discriminating against him in his employment on the basis of age, contrary to s.13 of the B.C. Human Rights Code. On January 9, 2006, Mathison amended his complaint to include an allegation that the Band had retaliated against him contrary to s.43 of the Code, which provides: "A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code." The Band raised a preliminary objection to the Tribunal's jurisdiction, relying on s.91(24) of the Constitution Act, 1867, which gives the federal government exclusive legislative jurisdiction over "Indians, and Lands reserved for the Indians." In a February 17, 2006 decision, Tribunal Member Lindsay Lyster refused to accept Mathison's s.13 discrimination complaint, ruling that "[t]he Band is a federally regulated employer, and, as a general rule, under the jurisdiction of the Canadian Human Rights Commission." Acknowledging that Mathison's employment contract said that "this contract [will] be governed and interpreted according to the laws in force in the Province of British Columbia," Lyster wrote: "[I]t it is the Constitution Act, 1867 which leads to the conclusion that the complaint is under federal jurisdiction. The Constitution Act, 1867 is a pre-eminent part of the 'laws in force in the Province of British Columbia' ... Therefore, if the parties had attempted to determine by contract whether they would be under federal or provincial jurisdiction, such contractual provisions would not have the effect intended." However, finding the question of the Tribunal's jurisdiction "not as clear with respect to Mr. Mathison's s.43 [reprisal] complaint," Lyster asked the parties for further submissions on that issue. The Arguments: The Band argued that, in the absence of an underlying human rights complaint, a reprisal complaint could not be sustained, relying on the British Columbia Supreme Court's decision in Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker, [2006] B.C.J. No. 119 (QL) (see Lancaster's Human Rights & Workplace Privacy E-Bulletin, Issue No. 58), which held that the Tribunal can hear a s.43 complaint only if it pertains to a complaint already filed under another section of the Code. Alternatively, the Band submitted that Mathison's allegation of retaliation belonged before the Canadian Human Rights Commission along with the rest of his human rights complaints. Mathison submitted that the Tribunal had jurisdiction over his reprisal complaint, notwithstanding its refusal to accept his discrimination complaint for filing. The Decision: Lyster accepted Mathison's s.43 complaint, ruling that "it would be an overbroad application of the doctrine [of] interjurisdictional immunity to apply it to render a federal undertaking immune from a s.43 retaliation complaint." Lyster further rejected the Band's argument that the s.43 complaint fell under federal jurisdiction. Citing the Supreme Court of Canada's decision in Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, Lyster ruled that the doctrine of interjurisdictional immunity protects (in the Supreme Court's words) only "a 'core' of Indianness from provincial laws of general application." She explained: "Put another way, the doctrine of interjurisdictional immunity does not render federal undertakings immune from all provincial legislation. Nor ... does it necessarily render federal undertakings immune from the application in all circumstances of all provisions of a given piece of legislation. Rather, it renders them immune from provincial legislation the application of which would affect a vital part of such undertakings." Applying this reasoning, Lyster ruled that "[t]he prohibition on retaliation contained in s.43, unlike the Code's more general prohibitions on discrimination in employment, does not affect a vital part of a federal undertaking to which it applies." In this regard, Lyster drew a distinction between s.13 of the Code, which "prohibits discrimination in employment, an area which has consistently been held to be one where the application of provincial law could affect the core of a federal undertaking," and s.43, which relates not to employment but "to the Tribunal's processes," and wrote: "In my opinion, the Code's retaliation provision ... is more closely related to the protection of the integrity of the Tribunal's processes than to the regulation of the substantive human rights obligations of employers." Accordingly, she concluded, s.43 did not have " the capacity to impair a vital part of the operation of a federal undertaking nor, in the case of an Indian Band, to impair the essential and distinctive core values of Indianness." To hold otherwise would render complainants who file in the wrong jurisdiction "vulnerable to retaliatory conduct on the part of the person against whom they filed the complaint," Lyster observed, particularly since the Canadian Human Rights Act's retaliation provision applies only against "a person against whom a complaint has been filed under Part III, or any person acting on their behalf." Comment: Generally speaking, labour and human rights law fall under provincial legislative jurisdiction except in the case of undertakings falling specifically under federal jurisdiction by virtue of s.91 of the Constitution Act. Pursuant to s.91(24), the federal government has jurisdiction over "Indians, and lands reserved for Indians." Thus, if a provincial law touches on a "core of Indianness," it is unenforceable: see Paul v. British Columbia, cited above. However, the determination of whether any particular activity involving First Nations people is subject to federal regulation is highly fact-specific. In this case, for the purposes of s.13 of the Code dealing with discrimination, the employment-related activities of the complainant, who was employed directly by the Band as its Fisheries Manager, were found by the Tribunal to fall squarely within federal jurisdiction. However, the complaint of reprisal under s.43 of the Code was another matter. In this regard, the Tribunal concluded that the anti-reprisal provisions in s.43 of the provincial Code could still apply, notwithstanding the doctrine of interjurisdictional immunity, since s.43 did not relate to the substantive human rights obligations of the Band as an employer, but rather to the integrity of the Tribunal's processes. In support of her view that the provincial Tribunal retained procedural jurisdiction over federally-regulated undertakings for the purposes of s.43, Lyster found a parallel in her decision to order costs against the respondent in Altakla v. Power (No. 3), 2004 BCHRT 253, even though the respondent, an interprovincial courier company, had successfully challenged the Tribunal's jurisdiction over the complaint itself. "Considering the context of the Code as a whole, the Tribunal must have the power to order costs for improper conduct in any complaint before it, regardless of the ultimate disposition of that complaint," Lyster ruled. Case Name: Mathison v. Musqueam Indian Band |
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