Editor’s Note: Addendum released April 15, 1999. Original judgment has been corrected with text of addendum appended. Dated: 19990415 Docket: 2928 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Wakeling Jackson JJ.A. SASKATCHEWAN HUMAN RIGHTS COMMISSION APPELLANT (Respondent) and CADILLAC FAIRVIEW CORPORATION LIMITED RESPONDENT (Applicant) and DARWIN FEHR NON-PARTY (Respondent) and VALERIE WATSON NON-PARTY (Board of Inquiry) and SHANNON REGIER and BARBARA JOAN WOLLF NON-PARTIES (Complainants) and THE SASKATCHEWAN FEDERATION OF LABOUR COUNSEL: Mr. Milton C. Woodard, Q.C. for the appellant Ms. Catherine A. Sloan for the respondent Mr. Neil R. McLeod for the Intervenor, Sask. Federation of Labour DISPOSITION: On Appeal From: QBG2293/1997, J.C. of Saskatoon Appeal Heard: 18 June 1998 Appeal Allowed: 15 April 1999 Written Reasons: 15 April 1999 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Wakeling and The Honourable Madam Justice Jackson VANCISE J.A. Introduction [1] Two female employees of Cadillac Fairview Corporation Ltd., unionized employer, filed complaints with the Saskatchewan Human Rights Commission alleging sexual harassment and discrimination in their employment contrary to The Saskatchewan Human Rights Code.[1] The Code prohibits an employer from discriminating against an employee on the basis of sex. Subsequent to the employee’s complaints, Board of Inquiry was appointed under the Code to investigate the alleged discrimination. In response, Cadillac Fairview applied for judicial review in the nature of prohibition contending the provisions of the Code were superseded by the collective agreement and section 25(1) of The Trade Union Act[2] with the result that the Board of Inquiry lacked jurisdiction to hear the complaint. [2] Cadillac Fairview contends the Code has no application to complaint of sexual discrimination arising out of the employee/employer relationship governed by collective bargaining agreement which provides for the resolution of all disputes by final and binding arbitration. It further contends that an arbitrator appointed under the provisions of the collective agreement and s. 25(1) of the Act has exclusive jurisdiction to resolve the complaint. [3] The two complainants, Barbara Joan Wollf and Shannon Regier were employed as night cleaners at Midtown Plaza, shopping mall in Saskatoon owned and operated byCadillac Fairview. At all material times the complainants were members of the Midtown Plaza Employee’s Association, the certified bargaining agent for the employees of Cadillac Fairview. The terms and conditions of their employment were governed by the terms of the collective agreements in force from time to time during their employment. [4] Barbara Joan Wollf was employed from May 15, 1991 to January 5, 1995 and Shannon Regier was employed from January 5, 1993 to January 31, 1996. On September 26, 1994 both Wollf and Regier filed complaints with the Saskatchewan Human Rights Commission alleging that they had been sexually harassed during the course of their employment by their supervisor Darwin Fehr, acting on behalf of Cadillac Fairview. They allege that both Darwin Fehr and Cadillac Fairview discriminated against them on the basis of their sex, contrary to section 16(1) of the Code. At no time did these complainants file grievance under their collective bargaining agreement in relation to the alleged discrimination. They simply followed the procedure set out in the Code. [5] On August 15, 1997, Valerie Watson was appointed as Board of Inquiry by the Minister of Justice pursuant to s. 29(2) of the Code to hear and determine the complaints. Cadillac Fairview applied for prohibition order pursuant to Rules 664 and 663 of the Queen’s Bench Rules of Court alleging that the Board’s jurisdiction was ousted by s. 25(1) of the Act. Essentially, Cadillac Fairview argued that the Board had no jurisdiction to hear and determine the issue of sexual discrimination as it arose under the collective agreement. On this basis an order for prohibition was granted by the Court of Queen’s Bench prohibiting the Board from hearing the complaints. The Human Rights Commission appeals that decision. Relevant Statutes and Provisions of the Collective Agreement [6] The Saskatchewan Human Rights Code: 16(1) No employer shall refuse to employ or continue to employ or otherwise discriminate against any person or class of persons with respect to employment, or any term or condition of employment, because of his or their race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, age, nationality, ancestry, place of origin or receipt of public assistance. 27(1) Any person who has reasonable grounds for believing that any person has contravened provision of this Act, or any other Act administered by the commission, in respect of person or class of persons, may file with the commission complaint in the form prescribed by the commission. 29(2) board of inquiry shall consist of one or more persons appointed by the minister to hear and decide the complaint. 44 Every law of Saskatchewan is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act unless it falls within an exemption provided by this Act or unless it is expressly declared by an Act of the Legislature to operate notwithstanding this Act. [7] The Trade Union Act: 25(1) All differences between the parties to collective bargaining agreement or persons bound by the collective bargaining agreement or on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation, including question as to whether matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective bargaining agreement. (1.2) The finding of an arbitrator or an arbitration board is: (a) final and conclusive; (b) binding on the parties with respect to all matters within the legislative jurisdiction of the Government of Saskatchewan; and (c) enforceable in the same manner as an order of the board made pursuant to this Act. [8] The Collective Agreement: 8.1 The parties agree there will be no discrimination against anyone because of race, religion, creed, colour, marital status, sex, nationality, ancestry or place of origin, nor by reasons of non-membership or non-activity in the Association. 8.2 The Company, the M.P.E.A. and the employees concerned agree to comply with the Human Rights Code.[3] [9] The issue in its simplest terms, is whether s. 25 of the Act prevents the complainants from having their allegations of sexual harassment decided under the Code. The question is whether s. 25 of the Act, which requires all differences between the parties to collective agreement to be settled by binding arbitration, takes priority over the Code and ousts the jurisdiction of Board of Inquiry established under the Code to inquire into and determine whether an alleged act of discrimination occurred. Judgment of the Court of Queen’s Bench [10] The chambers judge correctly decided that the issue in this case is confined to a determination of the correct forum in which to bring the complaint of sexual harassment: a board of arbitration appointed pursuant to the terms of the collective agreement or a Board of Inquiry appointed pursuant to the Code. [11] The chambers judge examined the controlling authorities in this jurisdiction and in the Supreme Court of Canada and relied on Weber v. Ontario Hydro[4] to decide the issue of appropriate forum. In Weber, McLachlin J., writing on behalf of the majority, decided that where dispute, “regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it”. On this basis, the chambers judge concluded that where an allegation of sexual discrimination is made in the course of employment and is addressed by collective agreement, the “labour tribunal” appointed under the collective agreement has exclusive jurisdiction to resolve the dispute. [12] The chambers judge found the Act took precedence over the Code on the basis that the Act dealt specifically with the employment relationship of the employees. He reasoned that if the legislature had intended the Code to prevail over the Act it would have simply said so in one of the two statutes. The legislature did not so state and therefore he found that the Act, which dealt specifically with the resolution of disputes between unionized employers and their employees, ousted the jurisdiction of the Board. In his opinion, the Board must defer to the arbitration process set up under the collective agreement. He granted an order prohibiting the Board of Inquiry from hearing and determining the matter. The result of the judgment is that unionized employees are required to initiate all complaints against their employer addressed in the collective bargaining agreement by the grievance procedure and do not have access to the resolution process under the Code. [13] The issue as noted is whether these complainants, who are employed by unionized employer, should have grieved their complaints of sexual harassment under the grievance and arbitration provisions of the collective agreement rather than filing the their complaints under the Code. To answer that question one must resolve a number of sub-questions:a) what are the statutory schemes under the Act and the Code for resolving disputes of this nature?b) what has the Supreme Court of Canada decided about the exclusive jurisdiction of an arbitrator to resolve disputes in the context of labour law?c) what is the essential character of the dispute and the ambit of the collective agreement?d) does either the Code or the Act have the exclusive jurisdiction to decide the dispute?e) if the answer to d) is no, which statute takes priority or is paramount? Preliminary Observations Human Rights [14] Human rights are more than just statutory rights. They are fundamental, quasi-constitutional rights which embody fundamental values and public policy. That position was made clear in the case of Winnipeg School Division No. v. Craton[5] where McIntyre J. stated: Human rights legislation is of special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims.6 [15] Moreover, human rights are not private rights, but public rights which constitute fundamental public policy. For this reason, parties are not able to contract out of human rights provisions. As McIntyre J. stated in Ontario Human Rights Commission v. The Borough of Etobicoke:7 [I]t is nevertheless public statute and it constitutes public policy in Ontario as appears from reading of the Statute itself and as declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy.8 [16] While human rights legislation is not constitutional in nature, it is of such a special nature that it cannot be contracted out of, altered, amended or repealed nor may exceptions be created to its provisions except by clear legislative intent and pronouncement. To do otherwise would permit the denigration of the rights and obviate the protection of the rights the statute seeks to protect. [17] Finally, the mere fact that a collective agreement includes an article or clause which complies with the Code or a provision which covenants not to discriminate on the basis of the grounds set out in the Code, does not in and of itself transform the nature of the dispute from a human rights violation to a breach of the collective agreement. Statutory Schemes 1. The Trade Union Act [18] The Act regulates the employment relationship between employers and unionized employees. It certifies union as the exclusive bargaining agent for all unionized employees (with few exceptions) with the result that there are no individual contracts of employment. (See McGavin Toastmaster Ltd. v. Ainscough9). Section 25 of the Act provides that all differences between the parties to collective agreement are to be resolved by binding arbitration. Throughout that process the union determines whether to file grievance and ultimately whether the matter will be submitted to arbitration in accordance with the provisions of the agreement and the Act. The decision is final and binding on the parties. All decisions leading up to arbitration are made by the union and the employee has no say in the final decision, subject, of course, to the obligation of the union to fairly represent the interests of the employee. [19] In this case Article 8.1 of the collective agreement provides that the employer will not discriminate against anyone because of, among other things, sex. Section 25 of the Act dictates that all disputes between parties to collective agreement concerning employment rights covered in the agreement must be resolved through the grievance procedure. Resolution through arbitration is made mandatory after the grievance procedure is exhausted. Essentially, the dispute is private in nature as it involves only the employee, the union, and the employer. 2. The Human Rights Code [20] The Code applies to all employees and employers, whether unionized or not. Section 27(1) provides that anyone can initiate complaint under the Code if they have reasonable grounds to believe the provisions of the Code have been violated. The complaint triggers detailed investigation which involves two step process. First, there is an investigation of the complaint pursuant to the procedure set out in the Act. Second, the Code provides for the adjudication of the complaint by board of inquiry established under the provisions of the Code. Complaints under the Code affect not only private and economic rights but human rights which are of unique nature. They are fundamental, quasi-constitutional rights which embody public policy and reflect the broader public interest. [21] Thus, there are two statutes each of which mandates forum for the resolution of complaints, one with jurisdiction to resolve disputes arising out of the collective bargaining agreement and the other with jurisdiction to decide human rights complaints. It would appear that either forum could have jurisdiction to determine the discrimination complaints in this case. In order to determine the correct forum, it is necessary to look at the decisions of the Supreme Court of Canada concerning the issue of the exclusive jurisdiction of an arbitrator to resolve disputes arising out of an employment relationship. Jurisprudential Background [22] To date, all the case law which has considered the effect of statutory provisions like s. 25, has dealt with circumstances where party to collective agreement has tried to assert concurrent common law right. See: St. Anne Nackawic Pulp Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219;10 Weber v. Ontario Hydro;11 New Brunswick v. O’Leary;12 Dwyer v. Canada Post Corp.;13 Pilen v. International Minerals and Chemicals Corporation;14 Apperley v. Delta Catalytic Industrial Services Ltd.;15 Ram v. Prasad;16 Venneri v. Bascom.17 None of the above cases have considered circumstances where there is parallel competing statutory right of public interest nature which arises out of the employment relationship. [23] In St. Anne Nackawic18 the Supreme Court of Canada decided that mandatory arbitration clauses in labour statutes such as s. 25 of the Act take away the court’s concurrent jurisdiction to hear common law actions arising out of the employment relationships under the collective bargaining agreement, subject to the court’s retaining residual power to grant injunctive relief. [24] Underlying this decision is the principle that disputes must be characterized on the basis of their facts and not in terms of how they might be framed legally. If the dispute in its essential character arises out of the interpretation, application violation or meaning of the collective bargaining agreement, it will fall to be determined by an arbitrator appointed pursuant to the collective bargaining agreement. [25] This position was reinforced by Weber v. Ontario Hydro19 and New Brunswick v. O’Leary.20 The policy driving such decisions is that the dispute resolution process, established by the various labour statutes, should not be duplicated or undermined by concurrent common law actions in the courts. This also conforms to the theory of deference that courts accord decisions of specialized tribunals. For complete discussion of the issue see Parr and Prince Albert District Health Board v. Saskatchewan Federation of Labour released concurrently with this judgment. Essential Nature of the Dispute [26] The issue in this case is whether an alleged violation of the Code can, in its essential character, be considered difference or dispute under s. 25 of the Act. In other words, can the allegation of violation of protected right under the Code be characterized in its essential nature as difference which arises out of the collective agreement? In the chambers judge’s opinion there was dispute between the parties to the collective agreement respecting the interpretation, application or violation of the agreement with the result that the arbitrator had exclusive jurisdiction. He appears to have accepted that sexual harassment is sex discrimination and that employees covered by the collective agreement are protected against sex discrimination by virtue of Article 8.1 of the agreement. In his opinion, the dispute was therefore one arising out of the collective agreement and it was of no importance that sexual harassment could also be characterized as violation of s. 16(1) of the Code that was merely the legal characterization. do not agree. [27] Weber, in my opinion, did not go so far as to state that any rights created by statute that affect employment rights must of necessity arise out of the collective agreement and can only be dealt with by arbitration. Indeed Gendron v. Supply and Services Union, P.S.C.A.21 makes it clear there are exceptions as to when exclusive jurisdiction arises under the Canada Labour Code when dealing with an issue arising out of breach of an obligation under the Canadian Human Rights Code where there is also common law duty. In deciding that common law jurisdiction was ousted the Court stated: different conclusion may also be warranted where it is not clear that the statute exclusively covers the breach. In other instances, such as in the context of human rights violations, while the statute might apply, the breach may not be properly characterized exclusively as labour relations matter. In these circumstances jurisdiction may be grounded elsewhere.22 [28] The right which was allegedly violated in this case is fundamental human right which employees and the union need not bargain and cannot contract out of. (See: Ontario Human Rights Commission v. The Borough of Etobicoke).23 It is fundamental right which forms part of every employee’s contract of employment and is enforceable under the Code. It is right which would not have existed in the absence of the Code. [29] The Supreme Court of Canada has stated that when human rights legislation comes into conflict with other, more specific legislation, the provisions of the Code prevail. Next to constitutional law, human rights provisions are more important than all other laws. They have been defined as quasi constitutional rights and statutes. They are not treated as laws of general application but rather as fundamental laws. Unless the legislature has expressly provided otherwise, the Code takes precedence over all other laws when there is conflict. In the case of Insurance Corporation of British Columbia v. Heerspink et al.,24 Lamer J. said this: When the subject matter of law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises. As result, the legal proposition generalia specialibus non derogant cannot be applied to such code. Indeed the Human Rights Code, when in conflict with “particular and specific legislation”, is not to be treated as another ordinary law of general application. It should be recognized for what it is, fundamental law.25 Section 44 of the Code expressly provides that where there is statutory conflict, the Code takes precedence unless expressly excluded. If one applies the modern approach to statutory legislation as defined by Driedger26 there is clear intention on the part of the legislature that the Code is to take priority over other statutory rights. [30] In my opinion, the fact the parties have included covenant to comply with the Code in the collective agreement cannot change the essential character of the dispute. Fundamentally, the essential nature of this complaint is human rights violation and not dispute arising out of the collective agreement dealing with the interpretation, application or violation of the collective agreement as contemplated by s. 25. The Ambit of the Collective Agreement [31] One must not lose sight of the fact that the terms of the collective agreement itself can play an important role in the determination of whether the jurisdiction of the court has been ousted in favour of an arbitrator. The fact that parties have included an anti-discrimination clause in the collective agreement does not alter the fundamental nature of the dispute or have the effect of extending the scope of the arbitrator’s jurisdiction. It may play role in determining whether the statutory tribunal would decide to hear the complaint, but it cannot affect the determination of the essential nature of the dispute or the question of jurisdiction. The essential issue is whether this complaint is dispute between the parties with respect to the meaning, application or alleged violation of the collective agreement. To find that it is, with the result that the dispute must be arbitrated, would permit the parties to contract out of the Code, something they cannot do. [32] Another indicia that the dispute is not dispute involving the interpretation, application or violation of the collective agreement between the parties is that the Commission is party to any proceedings before the Board and indeed has the carriage of those proceedings. It has long been established that human rights codes foreclose any cause of action at common law for violation of the fundamental principles which are guaranteed by the Code and that the only method of enforcement of the substantive rights based upon breach of the provisions of the Code is the complaint procedure section in the Code itself. Any action in the courts based on public policy was also foreclosed. See: Seneca College v. Bhadauria27 and Kodellas et al. v. Human Rights Commission et al.28 If the method of enforcement forecloses an action at common law, the same principles would apply in my opinion to labour arbitrator. This Court considered the limited role of an arbitration board in adjudicating human rights violations in Yorkton Union Hospital v. Saskatchewan Union of Nurses et al.29 Bayda C.J.S. said this: The board of arbitration is not board of inquiry under the Code. Its function therefore is not to apply the provisions of the Code in the sense of implementing them to give some person whose rights under the Code may be or have been violated the relief she could have got had she taken the prescribed steps under the Code. The board of arbitration exists, rather, to resolve grievance. Its function is to interpret the collective agreement and in the course of so doing to interpret any document bearing upon the interpretation of the agreement and as well to interpret any law, whether contained in the common law or statute, bearing upon the interpretation of the collective agreement. The use then to which board of arbitration is permitted to make of the Code is limited to the use it can make of it in interpreting the collective agreement or interpreting document which bears upon the interpretation of the collective agreement.30 [33] In my opinion the ambit of the collective agreement does not affect the finding that the essential nature of the dispute is a human rights violation and not one which only involves a dispute by the parties concerning the application, violation or interpretation of the collective agreement. This is particularly evident when one takes into account the public interest component of the complaint as well and the wide powers granted under the Code to redress violation of the rights guaranteed under the Code, and further to award damages or otherwise resolve the question of compensation for the violation of the guaranteed right. [34] In conclusion the essential nature of the dispute in this case is complaint under the Code alleging violation of protected right not to be discriminated against on the basis of sex. It is not in its essential character complaint arising out of the employment relationship under the collective agreement. While it is true that the employees’ employment rights were inferentially affected because the alleged act of discrimination was addressed by the collective agreement, the mere fact that an alleged violation of the Code occurred in place of employment rather than in some other setting is not determinative. Disposition [35] The result in this case is clear. The Board of Inquiry appointed under the provisions of the Code has jurisdiction to hear and determine this matter. It has decided to conduct an inquiry. In the result the order of the Court of Queen’s Bench is set aside and the matter remitted to the Board of inquiry established under the Act in accordance with the provisions under the Act. [36] The appellant, the Saskatchewan Human Rights Commission, is entitled to its costs in the usual way on double Column in this Court and on the appropriate tariff in the court below. [37] The intervenor made no request with respect to costs and none are therefore ordered. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of April, A.D. 1999. VANCISE J.A. concur WAKELING J.A. concur JACKSON J.A. Dated: 19990415 Docket: 2928 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Wakeling Jackson JJ.A. SASKATCHEWAN HUMAN RIGHTS COMMISSION APPELLANT (Respondent) and CADILLAC FAIRVIEW CORPORATION LIMITED RESPONDENT (Applicant) and DARWIN FEHR NON-PARTY (Respondent) and VALERIE WATSON NON-PARTY (Board of Inquiry) and SHANNON REGIER and BARBARA JOAN WOLLF NON-PARTIES (Complainants) and THE SASKATCHEWAN FEDERATION OF LABOUR COUNSEL: Mr. Milton C. Woodard, Q.C. for the appellant Ms. Catherine A. Sloan for the respondent Mr. Neil R. McLeod for the Intervenor, Sask. Federation of Labour DISPOSITION: On Appeal From: QBG2293/1997, J.C. of Saskatoon Appeal Heard: 18 June 1998 Appeal Allowed: 15 April 1999 Written Reasons: 15 April 1999 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Wakeling and The Honourable Madam Justice Jackson VANCISE J.A. Addendum Reasons for judgment in the above were delivered on April 15, 1999. Please substitute the following paragraphs 25 and 31 for the ones contained in the judgment. should read as follows: [25] This position was reinforced by Weber v. Ontario Hydro[6] and New Brunswick v. O’Leary.[7] The policy driving such decisions is that the dispute resolution process, established by the various labour statutes, should not be duplicated or undermined by concurrent common law actions in the courts. This also conforms to the theory of deference that courts accord decisions of specialized tribunals. For complete discussion of the issue see Parr and Prince Albert District Health Board v. Saskatchewan Federation of Labour released concurrently with this judgment. The Ambit of the Collective Agreement [31] One must not lose sight of the fact that the terms of the collective agreement itself can play an important role in the determination of whether the jurisdiction of the court has been ousted in favour of an arbitrator. The fact that parties have included an anti-discrimination clause in the collective agreement does not alter the fundamental nature of the dispute or have the effect of extending the scope of the arbitrator’s jurisdiction. It may play role in determining whether the statutory tribunal would decide to hear the complaint) but it cannot affect the determination of the essential nature of the dispute or the question of jurisdiction. The essential issue is whether this complaint is a dispute between the parties with respect to the meaning, application or alleged violation of the collective agreement. To find that it is, with the result that the dispute must be arbitrated, would permit the parties to contract out of the Code, something they cannot do. Please substitute the above paragraphs for the ones sent to you previously. [1]SS. 1979, c.S-24.1 (hereinafter the Code). [2]R.S.S. 1978, c.T-17 (hereinafter the Act. will also refer to the Act from time to time to identify or describe grievance and arbitration proceedings mandated by s. 25 of the Act). [3]This article was not in the collective agreement at the time the complaints were filed with the Commission. Articles and 10 set out the grievance procedure and grievance is described in the agreement as “an alleged violation” in respect of the interpretation or application of, or compliance with specific provision of the agreement. [4]1995 CanLII 108 (SCC), [1995] S.C.R. 929; (1995), 125 D.L.R. (4th) 583 S.C.C.). [5]1985 CanLII 48 (SCC), [1985] S.C.R. 150. 6Ibid. at p. 156. 71982 CanLII 15 (SCC), [1982] S.C.R. 202. 8Ibid. at p. 213. 91975 CanLII (SCC), [1976] S.C.R. 718. 101986 CanLII 71 (SCC), [1986] S.C.R. 704; (1986) 28 D.L.R. (4th) 1. 11Supra, Note 4. 121995 CanLII 109 (SCC), [1995] S.C.R. 967. 13[1997] O.J. No. 1575 (Ont. C.A.). 14(1997), 1996 CanLII 1178 (ON CA), 141 D.L.R. (4th) 72 (Ont. C.A.). 15(1996), 175 N.B.R. (2d) 267 (N.B.Q.B.). 16(1996), 1996 CanLII 8605 (BC SC), 27 B.C.L.R. (3d) 300 (B.C.S.C.). 17(1996), 1996 CanLII 7972 (ON SC), 28 O.R. (3d) 281 (Ont. Gen. Div.). 18Supra, Note 10. 19Supra, Note 4. 20Supra, Note 12. 211990 CanLII 110 (SCC), [1990] S.C.R. 1298. 22Ibid. at p. 1320. 231982 CanLII 15 (SCC), [1982] S.C.R. 202. 241982 CanLII 27 (SCC), [1982] S.C.R. 145. 25Ibid. pp. 157-58. 26Ruth Sullivan, Dreidger on the Construction of Statutes, 3d Ed. (Markham: Butterworths Canada Ltd, 1994) at p. 131 et seq. 271981 CanLII 29 (SCC), [1981] S.C.R. 181 at p. 195. 28(1990), 1989 CanLII 284 (SK CA), 77 Sask. R. 94 at p.131, para. 111. See also Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 CanLII 190 (SCC), [1996] S.C.R. 3. 29(1993), 1993 CanLII 6637 (SK CA), 109 Sask. R. 198. 30Ibid. at pp. 218-19. [6]Supra, Note 4. [7]Supra, Note 12.
Two female employees filed complaints with the Saskatchewan Human Rights Commission alleging sexual harassment and discrimination contrary to the Saskatchewan Human Rights Code. The unionized employer applied for judicial review in the nature of prohibition contending the provisions of the Code were superseded by the collective agreement and s.25 of the Trade Union with the result that the Board of Inquiry lacked jurisdiction to hear the complaint. The chambers judge found the Act took precedence over the Code on the basis that the Act dealt specifically with the employment relationship and granted an order prohibiting the Board of Inquiry from hearing and determining the matter. Sub-questions to be determined included: what are the statutory schemes of the Trade Union Act and the Saskatchewan Human Rights Code; what has the Supreme of Canada decided about the exclusive jurisdiction of an arbitrator to resolve disputes in the context of labour law; the essential character of the dispute and ambit of the collective agreement; whether either the Code or the Act has exclusive jurisdiction to decide the dispute and if not, which statute takes priority or is paramount. HELD: The order of the Court of Queen's Bench was set aside and the matter was remitted to the Board of Inquiry appointed under the provisions of the Code. 1)The chambers judge correctly decided that the issue in this case is confined to a determination of the correct forum in which to bring the complaint of sexual harassment. 2)Human rights are fundamental, quasi-constitutional rights which embody fundamental values and public policy. Because human rights are not private rights, but public rights which constitute fundamental public policy, parties are not able to contract out of, alter, amend, or repeal or create exceptions to human rights provisions. To do otherwise would permit the denigration of the rights and obviate the protection of the rights the statute seeks to protect. 3)The mere fact that a collective agreement includes an article or clause which complies with the Code or a provision which covenants not to discriminate on the basis of the grounds set out in the Code, does not in and of itself transform the nature of the dispute from a human rights violation to a breach of the collective agreement. The ambit of the collective agreement does not affect the finding that the essential nature of the dispute is a human rights violation particularly when the public interest component and wide powers granted under the Code to redress a violation are taken into account. It is not in its essential character a complaint arising out of the employment relationship under the collective agreement.  4)The Commission was awarded its costs on double column V in this Court and on the appropriate Court of Queen's Bench tariff. No costs were requested by the intervenor.ADDENDUM: Paragraphs number 25 and 31 are substituted as follows: [25] This position was reinforced by Weber v. Ontario Hydro and New Brunswick v. O'Leary. The policy driving such decisions is that the dispute resolution process, established by the various labour statutes, should not be duplicated or undermined by concurrent common law actions in the courts. This also conforms to the theory of deference that courts accord decisions of specialized tribunals. For a complete discussion of the issue see Parr and Prince Albert District Health Board v. Saskatchewan Federation of Labour released concurrently with this judgment. The Ambit of the Collective Agreement [31] One must not lose sight of the fact that the terms of the collective agreement itself can play an important role in the determination of whether the jurisdiction of the court has been ousted in favour of an arbitrator. The fact that parties have included an anti-discrimination clause in the collective agreement does not alter the fundamental nature of the dispute or have the effect of extending the scope of the arbitrator's jurisdiction. It may play a role in determining whether the statutory tribunal would decide to hear the complaint, but it cannot affect the determination of the essential nature of the dispute or the question of jurisdiction. The essential issue is whether this complaint is a dispute between the parties with respect to the meaning, application or alleged violation of the collective agreement. To find that it is, with the result that the dispute must be arbitrated, would permit the parties to contract out of the Code, something they cannot do.