A human rights issue arises in a unionized workplace. The parties find themselves in front of an arbitrator and at the same time papers are, or have been, filed with a corresponding human rights body. Alternatively, relief is sought in front of the human rights body, the arbitrator having been altogether bypassed. For strategic reasons, employers, employees and unions all have their own positions on the “right” way and place to decide these cases. But really what is the right route, and is this something that can be harnessed to meet the strategic needs presented by these disparate groups?

The case of competing statutory regimes is not new and frequently arises between collective agreement arbitration and human rights tribunals. Where do you go to have that human rights matter decided: arbitrator or human rights statute? You would have thought that between Weber and Parry Sound and the long body of caselaw decided in that interval there would no longer be an issue. The fact of the matter is that this tension is alive and litigating human rights matters by “piece” is still a risk faced by employers and a possibility open to employees.

A fascinating example of this dilemma is presented by two recent Alberta cases, ATU (Local No. 583) v. Calgary (City of), 2005 ABQB 228 and Calgary Health Region v. Alberta (Human Rights and Citizenship Commission), 2005 ABQB 384. In Calgary Health Region, Justice Erb finds that the arbitrator had an exclusive jurisdiction to rule on a dismissal based on a discrimination complaint and in, City of Calgary, Justice Hart finds that the arbitrator does not have exclusive jurisdiction to hear the human rights complaint.

While the cases are factually different it is not open to explain these divergent outcomes on that basis. The difference appears to rest on two different approaches to fundamental legal issues. The resolution of these two cases by the Alberta Court of Appeal will hopefully shed light on the “right” way and place to hear these matters.