Executive Summary: Key Legal and Evidentiary Issues

• Whether the New Brunswick Labour and Employment Board had jurisdiction to hear a human rights complaint challenging a mandatory retirement provision in a collective agreement, or whether exclusive jurisdiction rested with a labour arbitrator under the Industrial Relations Act

• UNB argued that section 55(1) of the Industrial Relations Act grants arbitrators exclusive jurisdiction over all disputes arising from collective agreements, including human rights matters, citing the Supreme Court's decision in Northern Regional Health Authority v. Horrocks

• The Board determined that section 19(2)(d) of the Human Rights Act conferred concurrent jurisdiction by allowing discretion to dismiss complaints already dealt with in another proceeding, implicitly recognizing authority over matters also subject to grievance procedures

• Characterization of the essential nature of Ms. Robson's complaint as either concerning the discriminatory negotiation process of Article 26.01 or its application and interpretation upon her termination proved central to the jurisdictional analysis

• Application of the Supreme Court precedent in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) (Morin case), which distinguished between disputes arising from collective agreement operation versus pre-contractual negotiation of discriminatory provisions

• Standard of review applied was correctness, as jurisdictional questions are matters of law requiring courts to determine the proper scope of administrative tribunal authority without deference

Background and employment relationship

Christine Robson was employed by the University of New Brunswick from August 3, 2010, until June 30, 2017. Her employment terms were governed by a collective agreement between UNB and the Canadian Union of Public Employees, Local 3339. The collective agreement contained Article 26.01, a mandatory retirement provision stating: "Employees shall retire on or before the June 30th following their sixty-fifth (65) birthday." Ms. Robson wished to continue working beyond this date, but UNB refused to alter its position that she had to retire on the noted date, and Local 3339 was not prepared to file a grievance to challenge the application of the article.

The human rights complaint

Having had no success in convincing UNB or Local 3339 that Article 26.01 was discriminatory and should have no force or effect, Ms. Robson filed a human rights complaint with the New Brunswick Human Rights Commission on June 21, 2017, naming both UNB and Local 3339 as respondents. The complaint was amended several times, but the core remained consistent in alleging that the very process of negotiating Article 26.01 of the collective agreement violated her rights under the Human Rights Act. UNB responded by noting that Article 26.01 fell under the exception permitted by section 4(6)(a) of the Human Rights Act, which provides that age discrimination provisions "do not apply to (a) the termination of employment or a refusal to employ because of the terms or conditions of any bona fide retirement or pension plan." Local 3339 also held this view regarding the exemption.

The jurisdictional challenge

The Human Rights Commission conducted its investigation and issued a case analysis report in November 2020. As a result of certain determinations in the report, the Commission determined there were sufficient grounds to send the matter to a full board of inquiry at the New Brunswick Labour and Employment Board. UNB raised a preliminary objection to the jurisdiction of the Board based on its view that, pursuant to provisions of the Industrial Relations Act, labour arbitration was the exclusive means of resolving any workplace dispute. This view was supported by the then recent Supreme Court decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42. Subsection 55(1) of the Industrial Relations Act provides: "Every collective agreement shall provide for the final and binding settlement by arbitration or otherwise, without stoppage of work, of all differences between the parties to, or persons bound by, the agreement or on whose behalf it was entered into, concerning its interpretation, application, administration or an alleged violation of the agreement, including any question as to whether a matter is arbitrable."

The Board's jurisdictional ruling

The Board considered argument on UNB's preliminary issue on jurisdiction and, in a ruling on April 25, 2022, determined that it had jurisdiction over the complaint. The Board determined that the operative legislation—the Human Rights Act and the Industrial Relations Act—did not create a scheme of exclusive jurisdiction in labour arbitrators over matters which engaged human rights legislation. Furthermore, the essential character of the issue raised—that the process of negotiating a collective agreement article that was discriminatory—was not an issue that fell within what might otherwise be considered as an arbitrator's exclusive jurisdiction.

UNB's judicial review application

UNB filed a Notice of Application for judicial review on June 29, 2022, challenging the Board's April 25, 2022 ruling that it had jurisdiction to determine Ms. Robson's complaint. The grounds for review alleged that the Board failed to correctly apply the test from Horrocks and incorrectly determined it had jurisdiction when the Industrial Relations Act and the collective agreement contained mandatory dispute resolution clauses conferring exclusive jurisdiction to an arbitrator. UNB also argued the Board incorrectly or unreasonably determined that the essential character of the complaint concerned the negotiation of a collective agreement provision, when it actually related to the application of Article 26.01 to Ms. Robson. Despite this judicial review application being filed in June 2022, the Board, at counsels' request, on November 21, 2022, began a hearing into the merits of Ms. Robson's complaint and, on May 15, 2023, issued reasons dismissing it.

Analysis of concurrent versus exclusive jurisdiction

Justice Christie examined whether the Board correctly concluded it possessed concurrent jurisdiction with labour arbitrators. The Respondents argued that section 19(2)(d) of the Human Rights Act, which states the Commission "may dismiss a complaint at any stage of the proceedings, in whole or in part, if the Commission in its discretion determines...the complaint has already been dealt with in another proceeding," conferred concurrent jurisdiction. Justice Christie expressed concern with this characterization, noting that if section 55(1) of the Industrial Relations Act establishes exclusive jurisdiction over matters concerning interpretation, application, or administration of collective agreements, then the Board would have no jurisdiction over such matters. The judge clarified that concurrent jurisdiction means both tribunals have authority over the same dispute, allowing parties to choose their forum—a model incompatible with exclusive arbitral jurisdiction.

The essential character determination

The critical question became whether the Board correctly characterized Ms. Robson's complaint as addressing the negotiation of Article 26.01 rather than its application to her termination. Justice Christie acknowledged the complaint arose only when Article 26.01 was applied to Ms. Robson after she had been employed for eight years. The judge noted that framing an issue arising from the application of a collective agreement provision as instead arising from its negotiation process raised practical concerns. Justice Christie cited extensively from Justice Bastarache's dissent in Morin, which argued that "both the negotiation of clauses in a collective agreement and the resulting collective agreement are, as in the present case, closely linked to the application of the collective agreement of which they are a part."

Application of Morin precedent

Despite these concerns, Justice Christie concluded he was bound by the majority decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39 (Morin). In Morin, Chief Justice McLachlin held that where "the essence of the dispute is the process of the negotiation and the inclusion of this term in the collective agreement," it "does not arise out of the operation of the collective agreement, so much as out of the pre-contractual negotiation of that agreement." Justice Christie found clear similarities between the present case and Morin, stating: "It is a binding authority on me. The Board was not incorrect in finding that the present issue must be determined as per Morin - that the negotiation of art. 26.01 is a stand-alone issue and is properly characterized as such in the present complaint – and thus, it has jurisdiction."

The court's decision and costs awarded

Justice Christie dismissed UNB's judicial review application, upholding the Board's ruling that it had jurisdiction to hear Ms. Robson's human rights complaint. While expressing significant reservations about the practical implications of distinguishing negotiation from application of collective agreement provisions, the judge concluded the Board correctly applied binding Supreme Court precedent. The successful parties—Christine Robson, CUPE Local 3339, and the New Brunswick Human Rights Commission—were each awarded costs. UNB was ordered to pay costs to each respondent in the amount of $1,500 plus HST and allowable disbursements, for a total base costs award of $4,500 plus HST and disbursements, though the exact total amount including taxes and disbursements cannot be determined from the decision.