That would have been the issue considered by the Supreme Court of Canada had they not denied leave to appeal in Halifax Regional Municipality v. Nova Scotia Human Rights Commission.
The issue was succinctly summarized by the Nova Scotia Court of Appeal:
The Chambers Judge found that the Nova Scotia Human Rights Commission had concurrent jurisdiction with arbitration. The employer appealed.
The NS Court of Appeal noted that:
This involves a two step analysis:
- look at the relevant legislation to see what it says about the arbitrator’s jurisdiction.
- identify the nature of the dispute and asks whether the legislation suggests that it falls exclusively to the arbitrator.
After considering the relevant legislation in place (in this case the NS human rights legislation and labour relations legislation), the collective agreement and the factual background, the Court of Appeal concluded that the Chamber's Judge had correctly concluded that arbitration was not the exclusive forum and that, in the circumstances, the unionized employee could pursue his complaint with the Nova Scotia Human Rights Commission.
See my earlier post Concurrent Jurisdiction in Human Rights Matters.