Supreme Court Judgments

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39

Commission des droits de la personne et des

droits de la jeunesse, acting on behalf of

Normand Morin, Jocelyne Fortin, Chantal Douesnard,

Josée Thomassin, Claude Dufour et al.                                                          Appellant

v.

Attorney General of Quebec, Centrale

de l’enseignement du Québec, now

Centrale des syndicats du Québec, and

Fédération des syndicats de l’enseignement                                              Respondents

and

Canadian Human Rights Commission,

Ontario Human Rights Commission,

Quebec Human Rights Tribunal, Confédération

des syndicats nationaux, Fédération des travailleurs

et travailleuses du Québec and Canadian Union of

Public Employees                                                                                           Interveners

Indexed as:  Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General)

Neutral citation:  2004 SCC 39.

File No.:  29188.

2003:  October 14; 2004:  June 11.

Present:  McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and Fish JJ.

on appeal from the court of appeal for quebec

Labour law — Grievance arbitrator — Jurisdiction — Labour dispute raising human rights issue — Discriminatory clause included in collective agreement — Whether Human Rights Tribunal barred from hearing complaint — Whether labour arbitrator has exclusive jurisdiction over dispute.

Civil rights — Human rights tribunal — Jurisdiction — Labour dispute raising human rights issue — Discriminatory clause in collective agreement — Whether Human Rights Tribunal barred from hearing complaint — Whether labour arbitrator has exclusive jurisdiction over dispute.

The teachers’ unions entered into a modification of a collective agreement with the Province, which affected a minority group composed primarily of younger and less experienced teachers.  The younger teachers complained to the Quebec Human Rights Commission that the agreement discriminated against them, treating them less favourably than older teachers and violating the equality guarantee of the Quebec Charter of Human Rights and Freedoms.  The Commission brought the matter before the Human Rights Tribunal.  The respondents filed a motion asking the Tribunal to decline jurisdiction on the ground that the labour arbitrator possessed exclusive jurisdiction over the dispute.  The Tribunal rejected the motion but the Quebec Court of Appeal reversed the decision.

Held (Bastarache and Arbour JJ. dissenting):  The appeal should be allowed.  The Human Rights Tribunal has jurisdiction over the dispute.

Per McLachlin C.J. and Iacobucci, Major, Binnie and Fish JJ.:  Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes.  Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction.  The question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.  The first step is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction.  The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the arbitrator.

Here, this is not a matter over which the arbitrator had exclusive jurisdiction.  While s. 100 of the Quebec Labour Code gave jurisdiction over matters arising out of the collective agreement’s operation to the arbitrator, the main fact that animates the dispute between the parties is that those responsible for negotiations agreed to a term in the collective agreement that treats the complainants and members of their group less favourably than more senior teachers.  The dispute, viewed not formalistically but in its essential nature, thus engages matters which pertain more to alleged discrimination in the formation and validity of the agreement, than to its “interpretation and application”, which is the source of the arbitrator’s jurisdiction under the Labour Code.  The Human Rights Tribunal was entitled to exercise its jurisdiction over the matter under the governing legislation since it was satisfied that the complainants had not, on the basis of the same facts, personally pursued one of the remedies provided for in ss. 49 and 80 of the Charter, avoiding duplication.

Further, the complainants cannot be faulted for not asking the unions to file a grievance on their behalf.  First, the nature of the question does not lend itself to characterization as a grievance under the collective agreement, since the claim is not that the agreement has been violated, but that it is itself discriminatory.  Second, the unions were, on the face of it, opposed in interest to the complainants, being affiliated with one of the negotiating groups that made the allegedly discriminatory agreement.  If the unions chose not to file a grievance before the arbitrator, the teachers could be left with no legal recourse.  Third, even if the unions had filed a grievance on behalf of the complainants, the arbitrator would not have jurisdiction over all of the parties to the dispute.  Finally, because the complainants’ general challenge to the validity of a provision in the collective agreement affected hundreds of teachers, the Human Rights Tribunal was a “better fit” for the dispute than the appointment of a single arbitrator to deal with a single grievance within the statutory framework of the Labour Code.

Per Bastarache and Arbour JJ. (dissenting):  Arbitrators have exclusive jurisdiction over issues arising from the interpretation, application, administration or violation of a collective agreement.  This exclusive jurisdiction is consistent with the legislature’s intention that is apparent from s. 100 of the Labour Code, with the principle of exclusive arbitral jurisdiction that characterizes Canadian labour relations schemes and with the recent case law.  According to this  model, two factors must be considered when making the determination of the appropriate forum:  the essential character of the dispute in its factual context and the ambit of the collective agreement.

Here, the Human Rights Tribunal did not have jurisdiction ratione materiae to hear the dispute.  A legal characterization of the cause of action in this dispute, which would cast the dispute as being over the unlawful interference with the right to equality, ignores the factual context and the provisions of the collective agreement.  An examination of this context shows that the dispute, in its essential character, concerns pay and the taking into account of experience gained during the 1996‑1997 school year for the purpose of setting pay.  Such issues form the very foundation of the contract and working conditions and are clearly within the scope of the collective agreement and the exclusive jurisdiction of the arbitrator.  The negotiation of clauses in a collective agreement and the resulting agreements are closely linked to the application of the collective agreement of which they are a part.  The negotiation of an accord at the provincial level, subsequently accepted by the teachers’ unions, does not constitute an independent ground for a grievance outside the collective agreement, and we cannot separate them for the purpose of determining the essential character of the dispute. Moreover, since the accord constitutes in law a collective agreement, conflicts over its interpretation or application will give rise to grievances that may, if necessary, be put to arbitration.

The fact that the Tribunal has greater expertise than arbitrators with respect to human rights violations is an insufficient basis on which to conclude that arbitrators should not have the power to uphold fundamental rights.  The human rights issue is not incidental to a collective agreement.  The substantive rights and obligations provided for under human rights legislation are not only implicitly incorporated into every collective agreement, but also, in this case, expressly incorporated  into the agreement.  Moreover, even if the problem in this case could be characterized exclusively as a human rights violation, it would still be subject to the arbitrator’s exclusive jurisdiction, as the arbitrator has jurisdiction over any issue that is expressly or inferentially linked or related to the collective agreement.  Arbitrators have the authority to remedy Charter violations because their enabling legislation authorizes them to render decisions in this regard. Arbitrators have been delegated this authority in order to advance the fundamental objective of this delegation, namely the prompt, final and binding resolution of workplace disputes.  This is also consistent with the legislative intent, because the Quebec legislature has given its Human Rights Tribunal non‑exclusive jurisdiction and stipulated that administrative bodies that do not specialize in human rights would nevertheless have a duty to ensure that their decisions protect human rights.  Finally, referring such disputes to an arbitrator is the logical choice.  Reaching a collective agreement, with the intention of amending it through negotiations, raises a multitude of issues that an arbitrator is by far in the best position to handle on an informed basis.

Cases Cited

By McLachlin C.J.

Applied:  Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; referred to:  Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760; Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465, leave to appeal refused, [2002] 3 S.C.R. x.

By Bastarache J. (dissenting)

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Allen v. Alberta, [2003] 1 S.C.R. 128, 2003 SCC 13; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Latulippe v. Commission scolaire de la Jeune-Lorette, [2001] R.J.D.T. 26; Mayville v. Union canadienne des travailleurs en communication (unité 4), [2001] Q.J. No. 366 (QL); Corporation municipale de la Ville de Gaspé v. Côté, [1996] R.D.J. 142; Leroux v. Centre hospitalier Ste-Jeanne d’Arc, [1998] R.J.D.T. 554; Collège Dawson v. Muzaula, [1999] R.J.D.T. 1041; Furlong v. Résidence Christophe‑Colomb, [1995] R.D.J. 162; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760; Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; Université du Québec à Trois-Rivières v. St-Pierre, J.E. 97-1309; Hydro-Québec v. Tremblay, J.E. 2001-200; Section locale 2995 du Syndicat canadien des communications, de l’énergie et du papier v. Spreitzer, [2002] R.J.Q. 111; Centre d’hébergement et de soins de longue durée Champlain-Manoir de Verdun v. Québec (Commission des droits de la personne et des droits de la jeunesse), [1998] Q.J. No. 3250 (QL), motion to dismiss appeal allowed, C.A. Mtl., No. 500-09-007442-981, September 20, 1999, and leave to appeal refused, [2000] 1 S.C.R. ix; Syndicat des postiers du Canada v. Société canadienne des postes, [1995] R.J.Q. 2404; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345.

Statutes and Regulations Cited

Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors, R.S.Q., c. R‑8.2, ss. 1, 25, 26, 30, 31, 33.

Act respecting the reduction of labour costs in the public sector and implementing the agreements reached for that purpose, S.Q. 1997, c. 7.

Canadian Charter of Rights and Freedoms .

Charter of Human Rights and Freedoms, R.S.Q., c. C-12, preamble, ss. 10, 13, 16, 49, 49.1, 52, 77, 80, 101, 111.

Labour Code, R.S.Q., c. C-27, ss. 1(f), 100, 100.12, 139.

Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1).

Pay Equity Act, R.S.Q., c. E-12.001.

Authors Cited

Brun, Henri, et Guy Tremblay.  Droit constitutionnel, 4^e éd.  Cowansville, Qué.:  Yvon Blais, 2002.

Nadeau, Denis.  “Le Tribunal des droits de la personne du Québec et le principe de l’exclusivité de l’arbitrage de grief ou l’histoire d’une usurpation progressive de compétence” (2000), 60 R. du B. 387.

APPEAL from a judgment of the Quebec Court of Appeal (2002), 1 Admin. L.R. (4th) 187, [2002] Q.J. No. 365 (QL), reversing a judgment of the Quebec Human Rights Tribunal, [2000] R.J.Q. 3097, [2000] J.T.D.P.Q. No. 24 (QL).  Appeal allowed, Bastarache and Arbour JJ. dissenting.

Pierre-Yves Bourdeau and Christian Baillargeon, for the appellant.

Patrice Claude and Mario Normandin, for the respondent the Attorney General of Quebec.

Robert P. Gagnon and Pierre Brun, for the respondents Centrale de l’enseignement du Québec, now Centrale des syndicats du Québec, and Fédération des syndicats de l’enseignement.

Andrea Wright, for the intervener the Canadian Human Rights Commission.

Anthony D. Griffin, for the intervener the Ontario Human Rights Commission.

Written submissions only by Louise Cadieux and Dominique Pilon, for the intervener the Quebec Human Rights Tribunal.

Written submissions only by Lise Lanno and Gérard Notebaert, for the intervener Confédération des syndicats nationaux.

Written submissions only by Gaston Nadeau and Jean-Pierre Néron, for the intervener Fédération des travailleurs et travailleuses du Québec.

Written submissions only by Ronald Cloutier and Louise Valiquette, for the intervener the Canadian Union of Public Employees.

The judgment of McLachlin C.J. and Iacobucci, Major, Binnie and Fish JJ. was delivered by

The Chief Justice —

A.  Introduction

1                                   Should the Quebec Human Rights Tribunal be barred from hearing a complaint of discrimination referred to it on the ground that the labour arbitrator  has exclusive jurisdiction over the dispute?  That is the issue on this appeal.

2                                   In 1997 the teachers’ unions entered into a modification of a collective agreement with the province of Quebec, which provided that experience acquired by teachers during the 1996-1997 school year would not be recognized or credited toward their salary increments or seniority.  This term only affected teachers who had not yet obtained the highest level of the pay scale — a minority group composed primarily of younger and less experienced teachers.  The younger teachers complained that this term discriminated against them, treating them less favourably than older teachers and violating the equality guarantee of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12.

3                                   The complainants took their complaint to the Human Rights Commission established to resolve Charter discrimination claims and the Commission brought the matter before the Quebec Human Rights Tribunal.

4                                   The Attorney General of Quebec, the school boards and the unions filed a motion asking the Human Rights Tribunal to decline jurisdiction on the ground that the labour arbitrator possessed exclusive jurisdiction over the dispute.  The Tribunal rejected this motion ([2000] R.J.Q. 3097).  The Quebec Court of Appeal reversed the Tribunal’s decision holding that the dispute should be resolved by arbitration under the collective agreement ((2002), 1 Admin. L.R. (4th) 187).

5                                   I conclude that the Human Rights Tribunal has jurisdiction over this dispute and that the claim that the arbitrator has exclusive jurisdiction must be rejected.  Accordingly, I would allow the appeal.

B.  Analysis

6                                   The nature of Canadian labour-management relations changed dramatically following the Second World War.  Federal and provincial legislation, seeking to create a better climate for the resolution of labour-management disputes, introduced grievance arbitration to provide for the quick and efficient resolution of disputes arising under collective agreements.  Not surprisingly, this conferral of authority on grievance arbitrators sometimes leads to disputes about the proper scope of their jurisdiction. 

7                                   There is no easy answer to the question of which of two possible tribunals should decide disputes that arise in the labour context where legislation appears to permit both to do so.           As explained in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, three outcomes are possible.

8                                   The first possibility is to find jurisdiction over the dispute in both tribunals.  This is called the “concurrent” jurisdiction model.  On this model, any labour dispute could be brought before either the labour arbitrator or the courts or other tribunals. 

9                                   The second possibility is the “overlapping” jurisdiction model.  On this model, while labour tribunals consider traditional labour law issues, nothing ousts the jurisdiction of courts or other tribunals over matters that arise in the employment context, but fall outside traditional labour law issues.

10                               The third possibility is the “exclusive” jurisdiction model.  On this model, jurisdiction lies exclusively in either the labour arbitrator or in the alternate tribunal, but not in both.

11                               Weber holds that the model that applies in a given situation depends on the governing legislation, as applied to the dispute viewed in its factual matrix.  In Weber, the concurrent and overlapping jurisdiction approaches were ruled out because the provisions of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, when applied to the facts of the dispute, dictated that the labour arbitrator had exclusive jurisdiction over the dispute.  However, Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes.  Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction; see, for example, Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495.  As stated in Weber, supra, at para. 53, “[b]ecause the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator.”

12                               In the present case the complainants filed a complaint with the Quebec Human Rights Commission, which then decided to proceed with a claim before the Human Rights Tribunal.  The Commission, on behalf of the complainants, asked for a declaration that the terms of the collective agreement violated the equality provisions of the Quebec Charter.  That, on its face, is precisely the type of question, read in light of the legislation and in its factual matrix, that the Human Rights Tribunal is mandated to answer.

13                               However, the unions, school boards and the Attorney General object to the Human Rights Tribunal resolving this issue.  The basis of their objection is that s. 100 of the Quebec Labour Code, R.S.Q., c. C-27, gives arbitrators exclusive jurisdiction over grievances arising under collective agreements.  The complaint, they suggest, is such a grievance, and therefore, the Human Rights Tribunal has no jurisdiction.

14                               The case thus turns on whether the legislation confers exclusive jurisdiction on the arbitrator over this dispute.  At this point, I diverge, with respect, from my colleague Bastarache J. who starts from the assumption that there is an “established principle” of arbitral exclusivity in Quebec.  He formulates the principal question as whether “the principle of exclusive arbitral jurisdiction, a well‑established principle in Quebec law, [should] be abandoned in favour of the jurisdiction of the Human Rights Tribunal in cases where a dispute between unionized workers and their employer raises a human rights issue” (para. 32).  Thus framed, the question presupposes exclusivity.  But, as we have seen, there is no legal presumption of exclusivity in abstracto.  Rather, the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.

15                               This question suggests two related steps.  The first step is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction.   The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the arbitrator.  The second step is logically necessary since the question is whether the legislative mandate applies to the particular dispute at issue.  It facilitates a better fit between the tribunal and the dispute and helps “to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties”, according to the underlying rationale of Weber, supra; see Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at para. 39. 

16                               Turning to the first step, s. 100 of the Quebec Labour Code requires that “[e]very grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it.”  This tells us that the arbitrator is competent to resolve all grievances under the collective agreement.  The Labour Code s. 1(f), defines “grievance” as “any disagreement respecting the interpretation or application of a collective agreement”.  In other words, the arbitrator has jurisdiction over matters arising out of the collective agreement’s operation.  In Weber, this jurisdiction was found to be exclusive.

17                               The Quebec Charter sets out a mechanism for the investigation and enforcement of human rights.  It creates the Commission, which has the responsibility for investigating alleged violations of the Charter and which may, in turn, submit the allegations to the Human Rights Tribunal for remedy. 

18                               Section 111 of the Quebec Charter grants the Human Rights Tribunal a large jurisdiction over human rights matters in Quebec; see H. Brun and G. Tremblay, Droit constitutionnel (4th ed. 2002),  at p. 991.  The Tribunal is responsible for interpreting and applying the Charter in a wide range of circumstances.  The importance of the Tribunal’s mandate is underlined by the fact that the legislation provides that the president of the Human Rights Tribunal be chosen from judges on the Court of Québec having “notable experience and expertise in, sensitivity to and interest for matters of human rights and freedoms”; see s. 101 of the Charter.

19                               While the Tribunal enjoys generous jurisdiction over human rights violations, it is not exclusive.  First, the Quebec Charter expressly exempts certain matters from the Commission’s purview.  Section 77 does so where a complainant or victim has personally pursued a remedy under s. 49 or s. 80 of the Charter.  Similarly, s. 49.1 of the Charter removes the Human Rights Tribunal’s jurisdiction over issues covered by the Pay Equity Act, R.S.Q., c. E-12.001.  Second, the Charter permits, but does not oblige, the Commission to refuse to act or stop acting on behalf of a complainant in certain situations, including where “the victim or the complainant has, on the basis of the same facts, personally pursued a remedy other than those provided for in sections 49 and 80” (s. 77(4)).  It follows that the Commission’s and the Human Rights Tribunal’s jurisdiction may be concurrent with that of other adjudicative bodies; see Brun and Tremblay, supra, at p. 992.

20                               The second step is to look at the dispute in issue to determine whether it falls within the ambit of the arbitrator’s exclusive jurisdiction.  We must look at the dispute in its full factual context.  Its legal characterization — whether it is a tort claim, a human rights claim, or a claim under the labour contract — is not determinative.  The question is whether the dispute, viewed in its essential character and not formalistically, is one over which the legislature intended the arbitrator to have exclusive jurisdiction; see Weber, supra.

21                               In Weber, this Court concluded that the dispute — a claim for tort arising from the employer’s alleged trespass on the employee’s land in the course of a dispute about sick-leave regulated by the collective agreement — fell under the collective agreement and hence within the scope of s. 45 of the Ontario Labour Relations Act, which provided:

45. — (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

This clause is arguably stronger than the clause conferring jurisdiction on the arbitrator in the case at bar.  However, the critical difference between Weber and this case lies in the factual context that gave rise to the dispute.

22                               In Weber, the dispute clearly arose out of the operation of the collective agreement.  It was basically a dispute about sick-leave, which became encumbered with an incidental claim for trespass.  In these circumstances, the majority of the Court concluded that it fell squarely within s. 45 and should be determined exclusively by the labour arbitrator.

23                               Here, the same cannot be said.  Taking the dispute in its factual context, as Weber instructs, the main fact that animates the dispute between the parties is that the collective agreement contains a term that treats the complainants and members of their group — those teachers who had not yet attained the highest level of the pay scale who were typically younger and less experienced — less favourably than more senior teachers.  This, in turn, emerges from the fact that in the course of negotiating the collective agreement, disputes arose over how to meet the government’s budgetary demands and how cutbacks in the budget should be allocated among union members.  In its factual matrix, this is essentially a dispute as to how the collective agreement should allocate decreased resources among union members.  Ultimately, the decision was to impose the costs of the budget cutbacks primarily on one group of union members — those with less seniority.  This gave rise to the issue in the dispute:  was it discriminatory to negotiate and agree to a term that adversely affected only younger and less experienced teachers?  The essence of the dispute is the process of the negotiation and the inclusion of this term in the collective agreement.

24                               Viewed in its factual matrix, this is not a dispute over which the arbitrator has exclusive jurisdiction.  It does not arise out of the operation of the collective agreement, so much as out of the pre-contractual negotiation of that agreement.  This Court has recognized that disputes that arise out of prior contracts or the formation of the collective agreement itself may raise issues that do not fall within the scope of arbitration; see, for example, Goudie, supra; Weber, supra, at para. 52; see also Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760 (B.C.C.A.); Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609 (C.A.).  Everyone agrees on how the agreement, if valid, should be interpreted and applied.  The only question is whether the process leading to the adoption of the alleged discriminatory clause and the inclusion of that clause in the agreement violates the Quebec Charter, rendering it unenforceable.

25                               That is not to say that the arbitrator lacks the power to deal with all issues which involve a Charter claim.  This Court has recognized that arbitrators may resolve legal issues incidental to their function of interpreting and applying the collective agreement: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42.  Moreover, s. 100.12 of the Labour Code specifically confers on the arbitrator the authority to interpret and apply any Act necessary to settle a grievance.  But, at the same time, the dispute, viewed not formalistically but in its essential nature, engages matters which pertain more to alleged discrimination in the formation and validity of the agreement, than to its “interpretation or application”, which is the source of the arbitrator’s jurisdiction under the Labour Code, s. 1(f).   The Human Rights Commission and the Human Rights Tribunal were created by the legislature to resolve precisely these sorts of issues.

26                               Here the complaint was brought by the teachers to the Commission, which ultimately brought the matter before the Human Rights Tribunal.  The Tribunal was entitled to exercise its jurisdiction over it.  It was satisfied that the complainants had not “on the basis of the same facts, personally pursued one of the remedies provided for in sections 49 and 80” (s. 77 of the Quebec Charter), avoiding duplication.  As noted, the Commission could have refused to proceed as a matter of discretion if the complainants had, on the basis of the same facts, “personally pursued a remedy other than those provided for in sections 49 and 80” (also s. 77 of the Charter (emphasis added)).  But the complainants had not done so and thus the Commission was entitled to file the complaint before the Human Rights Tribunal.  Moreover, for these same reasons, the Tribunal was entitled to exercise its jurisdiction over the claim under the governing legislation.

27                               It is argued that the Tribunal should not have taken jurisdiction because the complainants could have asked their unions to “grieve” the alleged violation under the collective agreement.  I cannot accept this argument. First, the nature of the question does not lend itself to characterization as a grievance under the collective agreement, since the claim is not that the agreement has been violated, but that it is itself discriminatory.  Without suggesting that the arbitrator could not have considered these matters incidentally to a different dispute under the collective agreement, the complainant cannot be faulted for taking this particular dispute to the Human Rights Commission, which then filed a claim before the Human Rights Tribunal.

28                               Second, the unions were, on the face of it, opposed in interest to the complainants, being affiliated with one of the negotiating groups that made the allegedly discriminatory agreement.  If the unions chose not to file a grievance before the arbitrator, the teachers would be left with no legal recourse (other than possibly filing a claim against their unions for breaching the duty of fair representation).  This concern was summarized well by Abella J.A. in Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465 (Ont. C.A.) (leave to appeal refused, [2002] 3 S.C.R. x), at paras. 61-62 as follows:

[T]here may be circumstances where an individual unionized employee finds the arbitral process foreclosed, since the decision whether to proceed with a grievance is the union’s and not the employee’s.  Moreover, the alleged human rights violation may be against the union, as stipulated in the [Human Rights] Code in ss. 6 and 45(1). . . .

In an arbitration under a collective agreement, only the employer and union have party status.  The unionized employee’s interests are advanced by and through the union, which necessarily decides how the allegations should be represented or defended.  Applying Weber so as to assign exclusive jurisdiction to labour arbitrators could therefore render chimerical the rights of individual unionized employees.

29                               Third, even if the unions had filed a grievance on behalf of the complainants, the arbitrator would not have jurisdiction over all of the parties to the dispute.  Although the local unions and school boards were not involved in negotiating and agreeing to the clause impugned as discriminatory, the grievance and arbitration process set out in the collective agreement is directed at the resolution of disputes between the local unions and the school boards and not at those arising between the unions and the respondents that did actually agree to this provision.  Although the Centrale des syndicats du Québec, the Fédération des syndicats de l’enseignement and the Minister are authorized to intervene in arbitration proceedings, there is no formal mechanism to bring these parties before the arbitrator. 

30                               Finally, because the complainants’ general challenge to the validity of a provision in the collective agreement affected hundreds of teachers, the Human Rights Tribunal was a “better fit” for this dispute than the appointment of a single arbitrator to deal with a single grievance within the statutory framework of the Labour Code.   In these circumstances the complainants cannot be faulted for taking their claim to the Human Rights Commission rather than to the union with the hope (but no guarantee) of having it filed as a grievance before a labour arbitrator.

C.  Conclusion

31                               I would allow the appeal and remit the matter to the Human Rights Tribunal.

English version of the reasons of Bastarache and Arbour JJ. delivered by

Bastarache J. (dissenting) —

I.  Introduction

32                               The main issue in this case is the following: should the principle of exclusive arbitral jurisdiction, a well-established principle in Quebec law, be abandoned in favour of the jurisdiction of the Human Rights Tribunal in cases where a dispute between unionized workers and their employer raises a human rights issue?  I am of the opinion that this question must be answered in the negative.

33                               It is a firmly established principle in Quebec that labour arbitrators have exclusive authority to deal with all aspects of labour relations between employers and employees.  With respect, rejecting the exclusive jurisdiction model, as proposed by the Chief Justice in her reasons, seems to me to be incompatible with the recent decisions of this Court, contrary to the wording of s. 100 of the Labour Code, R.S.Q., c. C-27, and irreconcilable with the public interest considerations on which the existing case law is based.  In my opinion, we must recognize all the responsibilities that have been assigned to arbitrators so that they can rule on virtually all aspects of a case, insofar as those aspects are expressly or inferentially related to the collective agreement.  To this end, applying the exclusive jurisdiction model, we must identify the essential character of the dispute in its factual context and ignore the possible legal characterization of that dispute.

34                               In this case, I see nothing in the scheme established by the legislation, whether in the Labour Code or another statute, to prove that the Quebec legislature had the obvious intention of removing questions involving human rights, rights that are protected by the Charter of Human Rights and Freedoms, R.S.Q., c. C-12, from the jurisdiction of arbitrators.  Accordingly, I am of the opinion that if the test developed by this Court in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, is applied we find that the Human Rights Tribunal does not have jurisdiction to hear the application brought by the Commission des droits de la personne et des droits de la jeunesse, and that the Attorney General of Quebec’s motion to dismiss should be allowed.

II.  Facts

35                               The dispute at issue arose from a provision negotiated and agreed to at the provincial level by the parties in the spring of 1997.  At that time, the Centrale des syndicats du Québec (CSQ) comprised 11 federations, including the Fédération des enseignantes et enseignants de commissions scolaires (FECS), now known as the Fédération des syndicats de l’enseignement (FSE), which comprised a large number of unions, all of them certified associations within the meaning of the Labour Code.  The FSE is therefore a group of associations of employees within the meaning of s. 26 of the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors, R.S.Q., c. R‑8.2 (the Act).

36                               In this particular case, the FSE acted as bargaining agent, while the CSQ coordinated negotiations with management in that sector.  To this end, ss. 30 and 31 of the Act provide for the creation of a management negotiating committee composed of persons appointed by the Minister of Education and others named by the group of school boards contemplated in the Act.  Pursuant to s. 33 of the Act, the management committee, under the authority delegated by the Quebec government to the Minister of Education, is responsible for negotiating and concluding agreements on behalf of the employer, i.e., the school boards.

37                               Upon reading s. 1 of the Act, it becomes apparent that the agreement between the parties constitutes a collective agreement within the meaning of the Labour Code.  The clauses negotiated and agreed to by the committee are binding on all school boards covered by the Act (s. 25).  All clauses negotiated at the provincial, regional or local level constitute the applicable collective agreement between a given school board and its employees.

38                               In March 1997, the CSQ was coordinating sectoral negotiations with the Quebec government.  The purpose of these negotiations was to come to an agreement on cost-saving measures sought by the government and thereby avoid the enactment of special legislation imposing new working conditions.  A proposal submitted by the Quebec government on March 5 was rejected by FSE-affiliated unions because it likely would have resulted in the elimination of 3,000 teaching positions.  After postponing the enactment of the special legislation, the Minister of Education made a new proposal, which was also rejected by the Federal Council of the FSE.  The FSE was then instructed by its affiliated unions to explore other possible solutions that would bring $50 million in recurrent savings.

39                               On March 21, 1997, the Federal Council of the FSE recommended accepting an accord that had been negotiated.  At their respective general meetings, a majority of the 69 unions representing teachers employed by the school boards decided to accept the agreement in principle of March 21, 1997.  Agreements in principle were then reached between the Quebec government and each of the CSQ-affiliated federations contemplated in the Act respecting the reduction of labour costs in the public sector and implementing the agreements reached for that purpose, S.Q. 1997, c. 7.

40                               On July 3, 1997, acting on instructions from the affiliated unions, the President of the FSE signed an accord (the Accord) amending the agreement (the Agreement) between the management negotiating committee and the CSQ for the period from 1995 to 1998.  Under clause 6 of the Accord, which replaced para. D) of clause 6‑4.01 of the Agreement, experience acquired in the 1996-1997 school year would not be counted for the purpose of determining one’s standing on the pay scale.  The clause reads as follows:

[translation]

6-4.01 D)   Notwithstanding the preceding, experience gained in 1982‑1983 and 1996-1997 shall not count toward pay progression.

41                               Following the negotiations, the Commission des droits de la personne et des droits de la jeunesse (the Commission) received  numerous complaints from young teachers.  Consequently, on March 17, 2000, the Commission filed an application instituting proceedings asking that the Human Rights Tribunal (the Tribunal) declare the amended clause invalid because it discriminated against younger teachers in violation of ss. 10, 13 and 16 of the Quebec Charter.  The Commission also requested that the respondents be ordered to take teaching experience acquired in the 1996-1997 school year into account for the purpose of calculating raises in the applicable pay scale and to indemnify the teachers affected.

42                               The respondents filed two motions to dismiss the Commission’s application, claiming the Tribunal lacked jurisdiction ratione materiae because of the exclusive jurisdiction of arbitrators.  The Tribunal dismissed the motions ([2000] R.J.Q. 3097).  A majority of the Court of Appeal reversed the Tribunal’s decision, allowed the motions and dismissed the appellant Commission’s action ((2002), 1 Admin. L.R. (4th) 187).

III.  Analysis

A.  Exclusive Jurisdiction of Arbitrators

(1)  The Exclusive Jurisdiction Model

43                               This Court has, on numerous occasions and in a variety of legislative contexts, recognized that arbitrators have exclusive jurisdiction over issues arising from the interpretation, application, administration or violation of a collective agreement:  Weber, supra; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Allen v. Alberta, [2003] 1 S.C.R. 128, 2003 SCC 13.  In Weber, the Court rejected the concurrent model and the model of overlapping jurisdictions in relation to the jurisdiction of arbitrators versus other tribunals in favour of the exclusive jurisdiction model.  McLachlin J. (as she then was) gave three reasons for adopting the exclusive jurisdiction model (at para. 58):

. . . [this] model gives full credit to the language of s. 45(1) of the Labour Relations Act.  It accords with this Court’s approach in St. Anne Nackawic.  It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions.  It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts: see Ontario (Attorney-General) v. Bowie (1993), 110 D.L.R. (4th) 444 (Ont. Div. Ct.), per O’Brien J.

44                               In other words, the adoption of the exclusive jurisdiction model is the result, first, of the desire to be consistent with the decision of this Court in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, in which it was held that mandatory arbitration clauses in labour relations statutes deprive the courts of any concurrent jurisdiction.  Second, the language of s. 45(1) of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, made arbitration the only available remedy for “all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement”.  And third, the adoption of the exclusive jurisdiction model makes it possible to achieve the objectives of the scheme established by the various labour relations statutes in Canada, namely to provide a speedy, economical, final and enforceable dispute resolution procedure that is not duplicated or undermined by concurrent actions.

45                               In this case, the Chief Justice rejects the exclusive jurisdiction model and the essential character of the dispute test in favour of the best fit approach.  In my opinion, that approach is precisely what was rejected in Weber when the three criteria that support the exclusive jurisdiction of the arbitrator were adopted.  Adopting those criteria offers certainty in terms of the model to be followed and confirms the policy of judicial deference in respect of the exclusive and comprehensive dispute resolution mechanisms in the field of labour relations that the legislature has adopted.

46                               I am of the opinion that the exclusive jurisdiction model, and consequently the essential character of the dispute test, best reflect the legislature’s intention in this case.  According to the exclusive jurisdiction model, the determination of the appropriate forum centres on the dispute between the parties and, more specifically, whether the dispute arises out of the collective agreement:  Weber, supra, at para. 51.  Two factors must be considered when making this determination:  the nature of the dispute and the ambit of the collective agreement: Weber, at para. 51, and Regina Police, supra, at para. 25.  The Chief Justice now says that the legal characterization is an issue even though it is not determinative.  I see no justification for this change of direction.

Application to the Scheme in Issue

(i)  Language of the Provision

47                               It seems to me that the legislature’s intention is apparent from the language of s. 100 of the Labour Code, as it was from the language of s. 45(1) of the Labour Relations Act in Weber.  That provision, which clearly required that the exclusive jurisdiction model be applied, reads as follows:

45. — (1)  Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.  [Emphasis added.]

In enacting that subsection, the Ontario legislature manifested its intent not to apply the concurrent jurisdiction model or the model of overlapping jurisdictions.  In my opinion, the same legislative intent is found in s. 100 of the Labour Code:

1. . . .

(f) “grievance”: any disagreement respecting the interpretation or application of a collective agreement;

100.  Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister. . . . [Emphasis added.]

48                               It is apparent from this comparison that the two provisions contain similar clauses granting exclusive arbitral jurisdiction over the settlement of disputes arising from the interpretation or application of a collective agreement.

(ii)  Comprehensiveness of the Scheme

49                               Adopting the exclusive jurisdiction model in this case is consistent with the principle of exclusive arbitral jurisdiction that characterizes Canadian labour relations schemes.  The objectives of those schemes were considered in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, at p. 1326:

It is clear then that this Court has enunciated a principle of deference, not only to decision‑making structures under the collective agreement but as well to structures set up by labour legislation and in general, to specialized tribunals operating within their fields of expertise.  When the relevant statute requires collective agreements to provide for the final and binding settlement of disputes, it becomes difficult if not impossible to distinguish St. Anne, supra, and similarly reasoned cases on the basis that the issue in those cases concerned the relationship between contractual dispute resolution and the jurisdiction of the ordinary courts, not the relationship between statutory dispute resolution and the courts.  The concern that recourse to the ordinary courts may jeopardize the comprehensive dispute resolution process contained in labour relations legislation is one that arises in this latter situation as well.  Allowing parties to disputes which, by their very nature, are those contemplated and regulated by labour legislation, to have recourse to the ordinary courts would fly in the face of the demonstrated intention of Parliament to provide an exclusive and comprehensive mechanism for labour dispute resolution, particularly in the context of the present case.

50                               In this case, I have no doubt that we are dealing with a “comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting”:  see St. Anne Nackawic, supra, at p. 721.  It is clear that the Labour Code creates an exclusive and comprehensive mechanism for the settlement of disputes in labour relations cases by requiring that all grievances be submitted to arbitration exclusively.  Adopting a model other than the exclusive jurisdiction model in this case would undermine the comprehensiveness of the scheme, and would be contrary to the legislature’s intention.

(iii)  Trend in the Case Law

51                               In this case, where there is an exclusivity clause and a comprehensive and exclusive scheme for the settlement of disputes, adopting the exclusive jurisdiction model is consistent with the decisions of this Court in Regina Police, supra, Weber, supra, and St. Anne Nackawic, supra.  The Quebec Court of Appeal, too, has on numerous occasions applied the exclusive jurisdiction model to collective agreements subject to Quebec’s Labour Code: see, for example, Latulippe v. Commission scolaire de la Jeune-Lorette, [2001] R.J.D.T. 26; Mayville v. Union canadienne des travailleurs en communication (unité 4), [2001] Q.J. No. 366 (QL); Corporation municipale de la Ville de Gaspé v. Côté, [1996] R.D.J. 142; Leroux v. Centre hospitalier Ste-Jeanne d’Arc, [1998] R.J.D.T. 554; Collège Dawson v. Muzaula, [1999] R.J.D.T. 1041; Furlong v. Résidence Christophe‑Colomb, [1995] R.D.J. 162.

52                               With respect, I believe that s. 100 of the Labour Code, like s. 45(1) of the Labour Relations Act, lends itself solely to the exclusive jurisdiction model and  grants arbitrators exclusive jurisdiction to hear disputes whose essential character relates to the application or interpretation of a collective agreement.  Given that the claim brought by the plaintiffs in this case is, in its essential character, based on the application of a clause in a collective agreement, there can be no doubt that this dispute falls within the exclusive jurisdiction of the arbitrator.

(2)  The Essential Character Test

53                               When we examine the nature of the dispute, the goal is to determine the dispute’s essential character.  This determination is made on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues that could be raised:  see Weber, supra, at para. 43, and Regina Police, supra, at para. 25.

54                               In Weber, supra, this Court defined the applicable test:  if the dispute, in its essential character, concerns the interpretation, application, administration or  violation of the collective agreement, the applicant’s recourse must be arbitration.  The language of s. 100 of the Labour Code requires, for its part, that the dispute, in its essential character, relate to the interpretation or application of the collective agreement.  As noted earlier, the Chief Justice is now departing from that rule.

Application to the Facts in This Case

55                               At para. 23 of her reasons for judgment, the Chief Justice states that “the main fact that animates the dispute between the parties is that the collective agreement contains a term that treats the complainants and members of their group . . . less favourably than more senior teachers”.  She characterizes the grievance as the assertion of a Quebec Charter right and concludes that an assertion of this kind does not, in its essential character, arise from the interpretation or the application of the collective agreement.  Therefore, the arbitrator may not claim exclusive jurisdiction.

56                               With respect, I believe that such an approach is contrary to the principles laid down by this Court in Weber, supra, and St. Anne Nackawic, supra, because its effect is to determine the essence of the dispute by reference solely to the nature of the right invoked.  It is important to note that the issue raised in this case is very similar to the one raised in Weber.  While the dispute at bar concerns a claim founded on an infringement of the right to equality guaranteed by the Quebec Charter, with regard to the application of the collective agreement, in Weber it was necessary to determine whether a claim founded on s. 24(1)  of the Canadian Charter of Rights and Freedoms  fell within the exclusive jurisdiction of the arbitrator because of its attachment to the collective agreement.  In both cases, the essential character of the dispute will determine who will hear the case.  In Weber, the action founded on ss. 7  and 8  of the Canadian Charter  arose from Mr. Weber being placed under surveillance after claiming health insurance benefits under the collective agreement.  The essential character of the dispute was not arrived at solely on the basis of the violation of privacy resulting from the surveillance — an issue relating to the determination of the fundamental rights of Mr. Weber and any other employee under surveillance — but rather on the basis of all the facts alleged by the parties, which in this case indicated that the dispute between the parties arose out of the application of the collective agreement.  The surveillance was unfair treatment of the employee, even though the parties had not specifically contemplated such conduct in the collective agreement.  Following the principles set out in Weber and applying the essential character test to the case at bar while paying close attention to the factual context, we arrive at the same result:  the essential character of the dispute arises out of the application of the collective agreement and places the dispute within the arbitrator’s exclusive jurisdiction.  As Professor D. Nadeau explains in the article entitled “Le Tribunal des droits de la personne du Québec et le principe de l’exclusivité de l’arbitrage de grief ou l’histoire d’une usurpation progressive de compétence” (2000), 60 R. du B. 387, at p. 398:

[translation]  When defining the “essential character” of a dispute . . . we are not required to delve into the very quintessence of the dispute, nor to examine its legal characterization.  The procedure to be applied is simple and much more objective, as it consists solely in “examining the factual context” out of which the dispute arose and in determining if the facts surrounding the dispute between the parties concern a matter covered by the collective agreement, that is, if the dispute “had to do with the collective agreement or did not” or “arose expressly or inferentially out of it.”  [Emphasis in original.]

57                               In the case at bar, an examination of the factual context shows that the dispute, in its essential character, concerns pay and the taking into account of experience gained during the 1996-1997 school year for the purpose of setting pay. Such issues form the very foundation of a contract and working conditions.  More specifically, this application concerns the reimbursement of lost wages resulting from the refusal to recognize experience gained over the 1996-1997 school year, an issue that is clearly within the scope of the collective agreement.  A legal characterization of the cause of action in this dispute, which would cast the dispute as being over the unlawful interference with the right to equality, ignores the factual context and the provisions of the collective agreement in question.  I believe it cannot be denied that the arbitrator would have had jurisdiction to rule on the grievance if the arbitrator had heard it.  If that is the case, I can see no way here to avoid applying the clause granting exclusive jurisdiction.

58                               The Chief Justice, at para. 23 of her reasons, also states that the essential character of the dispute “is the process of the negotiation and the inclusion of [its terms] in the collective agreement”.  In her opinion, disputes arising out of the negotiation of collective agreements do not fall within the exclusive jurisdiction of the arbitrator.  I cannot accept this argument for two reasons.

59                               First, that reasoning treats disputes arising out of the negotiation of a collective agreement in the same manner as disputes arising from contracts predating the collective agreement.  Sometimes the time when the claim originated is important, such as in cases of contracts agreed to before the collective agreement is signed:  see Weber, supra, at para. 52; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760 (B.C.C.A.); Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609 (C.A.).  However, I do not think that negotiations leading up to the conclusion of a collective agreement could qualify as independent grounds for a grievance in the way that pre-employment agreements can, for example.

60                               The facts of the present case can be distinguished from the situation in Goudie, supra, in which this Court decided that the essential character of the dispute consisted in a demand arising out of an alleged pre-employment agreement.  Since this dispute was clearly not related to the collective agreement, the Court ruled that it was not covered by the legislature’s intent to favour arbitration:  Goudie, supra, at para. 24.  On the contrary, 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.  Thus, the negotiation of the Accord does not constitute an independent ground for a grievance outside the collective agreement.  We cannot separate them for the purpose of determining the essential character of the dispute.

61                               Second, as Judge Rivet explained for the Tribunal, under s. 1 of the Act,  the Accord between the government and the FSE constitutes a collective agreement within the meaning of the Labour Code:

1.  This Act applies to the negotiation and making of a collective agreement within the meaning of the Labour Code (chapter C‑27) between an association of employees within the meaning of the said Code and a school board . . . .

62                               It is the entire collection of provisions negotiated by the parties that constitutes the collective agreement binding on an association of employees and a school board.  Section 25 of the Act confirms this:

25.  The clauses of a collective agreement binding between an association of employees and a school board, a college or an institution shall be negotiated and agreed by unions and management at the national level or at the local or regional level in accordance with the provisions of this chapter.

If the agreement resulting from negotiations constitutes a collective agreement, then conflicts over the interpretation and application of that agreement will give rise to grievances within the meaning of s. 1(f) of the Labour Code that may, if necessary, be put to arbitration.  It is not possible to separate agreements resulting from negotiations and the collective agreement itself.

63                               For these reasons, it is my opinion that the Tribunal erred in attempting to centre the debate on the negotiation of the Accord when the discrimination alleged by the Commission is actually a result of the application of a clause of the collective agreement.  As Nadeau explains, supra, at pp. 402‑5:

[translation] We feel it is safe to assume that any clause of a collective agreement that a party alleges to be discriminatory would certainly have been preceded by negotiations.  However, it is not the negotiations that the complainants challenge, but rather the application of the collective agreement resulting from them.  Even if the collective agreement was negotiated at the [provincial] level . . . this does not change the fact that the collective agreement in question is applied and interpreted at the school board level. . . . Therefore, to avoid finding a link between the claim and the collective agreement, the Tribunal invoked the essential character of the dispute, claiming that the dispute stemmed from what it called “an effect . . . arising out of the negotiation process”.  We cannot accept . . . this new variation on the essential character test.

. . . In adopting a subjective method for analysing the cause of action and in casting the arbitrator’s jurisdiction as narrowly as possible, these tribunals are, as the Supreme Court put it, undermining both “the legislative purposes underlying” the establishment of a system of mandatory arbitration and “the intention of the parties to the agreement”.

64                               Although the clause in dispute here was negotiated at the provincial level, it is part of every collective agreement between a school board represented by the management committee and an association of employees representing teachers who work for that school board.  The cause of the alleged injury is not the negotiations leading up to the Accord, but the tangible effect of the negotiations, namely the signing of the Agreement and the incorporation of clause 6-4.01D) into each collective agreement binding the parties affected by the negotiations.  It is the results, not the talks, that are challenged.  The Accord is without effect on the parties until the Agreement, and by extension the collective agreements, is amended.  Therefore, the arbitrator’s exclusive jurisdiction over disputes relating to the interpretation and application of clause 6‑4.01D) cannot be ousted.

65                               In discussing the appropriate forum for settling this dispute, the Chief Justice observes that this Court “has recognized that arbitrators may resolve legal issues incidental to their function of interpreting and applying the collective agreement” (para. 25).  In my opinion, however, the principle actually stated by this Court in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, is this: the substantive rights and obligations provided for under human rights legislation are incorporated into every collective agreement.  As Iacobucci J. stated, at para. 28:  “The absence of an express provision that prohibits the violation of a particular statutory right is insufficient to conclude that a violation of that right does not constitute a violation of the collective agreement.”  It cannot be said that a human rights issue is incidental to a collective agreement if it is implicitly incorporated into it.

66                               Moreover, in the case at bar, clause 14‑3.02 of the Agreement incorporates into the collective agreement the right of teachers to the full and equal exercise of the rights and freedoms guaranteed by the Quebec Charter.  Human rights are clearly not incidental to the collective agreement; in this case, they are expressly incorporated into it.  It would be most peculiar if the Labour Code were to be interpreted liberally in all cases except those where the infringement of a Quebec Charter right is alleged, especially in light of the above-mentioned clause 14-3.02 and ss. 100 and 139 of the Labour Code.

67                               Even if the problem in this case could be characterized exclusively as a human rights violation, it would still be subject to the arbitrator’s exclusive jurisdiction, as the arbitrator has jurisdiction over any issue that is expressly or inferentially linked to the collective agreement.  Arbitrators have the authority to remedy Canadian Charter  violations because their enabling legislation authorizes them to render decisions in this regard:  see Weber, supra, and R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81.  The same is true in Quebec. In Quebec law, arbitrators are empowered to remedy Charter violations (ss. 100 and 100.12 of the Labour Code).  Even if the remedy requested is founded on an infringement of fundamental rights guaranteed by the Charters, the Quebec case law is consistent on this point:  arbitrators retain their exclusive jurisdiction so long as there is a link or relationship between the aggrieved conduct and the provisions of the collective agreement:  Gaspé v. Côté, supra; Leroux, supra; Université du Québec à Trois-Rivières v. St-Pierre, J.E. 97‑1309 (C.A.); Hydro-Québec v. Tremblay, J.E. 2001-200 (C.A.); Collège Dawson, supra; Latulippe, supra; Mayville, supra; Section locale 2995 du Syndicat canadien des communications, de l’énergie et du papier v. Spreitzer, [2002] R.J.Q. 111 (C.A.); Centre d’hébergement et de soins de longue durée Champlain-Manoir de Verdun v. Québec (Commission des droits de la personne et des droits de la jeunesse), [1998] Q.J. No. 3250 (QL) (Sup. Ct.), motion to dismiss appeal allowed, C.A. Mtl., No. 500‑09‑007442-981, September 20, 1999, and leave for the Commission to appeal refused, [2000] 1 S.C.R. ix; Syndicat des postiers du Canada v. Société canadienne des postes, [1995] R.J.Q. 2404.  Thus, even if we characterized this dispute as being over the infringement of a Quebec Charter right, it would still be subject to the arbitrator’s exclusive jurisdiction.

B.  The Integration of Fundamental Rights in the Arbitration Process

68                               There is no cause to call into question the principle of exclusive arbitral jurisdiction, as this principle governs all aspects of the relationship between the parties respecting labour relations.  We should bear in mind that arbitrators have been delegated the authority to enforce the substantive rights and obligations provided for under human rights legislation in order to advance the fundamental objective of this delegation, namely the prompt, final and binding resolution of workplace disputes for the benefit of the parties and society as a whole:  see Parry Sound, supra, at para. 50; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 36; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at p. 489.  It is important that administrative bodies with the authority to apply the Charters be called upon to do so and that they incorporate into their procedures a constant concern for upholding the Charters’ guiding principles.  This is consistent with the legislative intent, because the Quebec legislature has given its Human Rights Tribunal non‑exclusive jurisdiction and stipulated that administrative bodies that do not specialize in human rights would nevertheless have a duty to ensure that their decisions protect human rights.  It seems clear to me that the legislative objective is to foster the development of a general culture of respect for human rights throughout Quebec’s administrative system.

69                               Although there already is a tribunal for resolving disputes involving human rights, this does not mean that delegating arbitrators the authority to enforce the substantive rights and obligations provided for under the Charters cannot serve to reinforce human rights protection:  Parry Sound, supra, at para. 52.  I also believe that referring such disputes to an arbitrator is the logical choice, since reaching a collective agreement, with the intention of amending it through negotiations, raises a multitude of issues that an arbitrator is by far in the best position to handle on an informed basis.  If, for example, one benefit under a collective agreement or its newly negotiated clauses is exchanged for another, or if a group is disadvantaged by one clause while being favoured by another, it is only by examining the collective agreement as a whole that a full assessment of the problem can be achieved.  In the context of a collective agreement, it is not enough to examine the contested clause in isolation.  Since arbitrators have exclusive jurisdiction to hear disputes related to collective agreements, only an arbitrator is competent to hear this case.  On this point, I would also note that decisions of the Human Rights Tribunal and of arbitrators are all subject to judicial review, and that it is therefore not so much their legal expertise that should concern us here as their expertise in assessing facts: see, on this point, Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, at para. 30; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, at pp. 604-5.

70                               As Rousseau-Houle J.A. explained in the Court of Appeal decision, only a comprehensive vision of the situation will allow us to resolve disputes related to a collective agreement (at para. 129):

[translation]  In the case at bar, the alleged discrimination must be interpreted in light of the simultaneously collective and individual nature of the rights under the collective agreement and of the bargaining system currently in force under Quebec labour law.  As Gagnon, LeBel and Verge wrote, “The collective agreement encompasses an incredibly varied range of aspects of the relationships between employers, unions and employees, to the point where it has become a veritable ‘Workplace Charter of Rights’. [Emphasis in original.]

71                               Under the current legislative framework, we must determine the essential character of the issue and find one single entity to handle it.  If the parties had several fora available to them, violence would be done to the comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting and the foundation upon which the arbitrator’s exclusive jurisdiction is built would be undermined:  St. Anne Nackawic, supra, at p. 721.  This would also be a source of uncertainty in a number of cases in which the dominant aspect of a dispute or the required degree of dissociation between the incident event, on the one hand, and the collective agreement and its application, on the other, must be addressed.  The same problem could arise in cases where the grievance includes several grounds, with only one of those grounds involving an infringement of Charter rights.

72                               Even if the remedy sought is founded on the infringement of fundamental rights protected by the Quebec Charter, the arbitrator will have exclusive jurisdiction as long as the essential character of the dispute involves the interpretation or application of the collective agreement.  The fact that the Commission or the Tribunal has greater expertise than arbitrators with respect to human rights violations is an insufficient basis on which to conclude that arbitrators should not have the power to uphold fundamental rights:  Parry Sound, supra, at para. 53.  In Weber, supra, at para. 60, this Court gave a clear indication of the advantages of giving arbitrators exclusive jurisdiction over issues of fundamental rights raised in disputes that, based on their facts, would fall within an arbitrator’s jurisdiction:

Citizens are permitted to assert their Charter rights in a prompt, inexpensive, informal way.  The parties are not required to duplicate submissions on the case in two different fora, for determination of two different legal issues.  A specialized tribunal can quickly sift the facts and compile a record for the reviewing court.

C.  The Tribunal’s Lack of Exclusive Jurisdiction

73                               Under the jurisdiction-endowing provisions provided for under the Quebec Charter, the Tribunal does not have exclusive jurisdiction over hearing and ruling on complaints concerning human rights violations.  As the respondents indicated, the Quebec Charter favours the universality of jurisdiction for tribunals, be they ordinary or specialized ones, to ensure its proper application.  There is no provision in the Quebec Charter that would favour or give precedence to one jurisdiction in particular.

74                               In fact, s. 111 of the Quebec Charter, which defines the scope of the Tribunal’s jurisdiction, does not indicate that this jurisdiction is exclusive.  This is compatible with s. 77, which recognizes that an individual whose rights under the Quebec Charter have been infringed may institute proceedings in a forum other than the  Tribunal.  Thus, there is nothing in the Quebec Charter that would prevent such plaintiffs from applying to a different forum, such as a court of law.

75                               Moreover, once the Commission has determined that a complaint is sufficiently founded and that all attempts at resolving the dispute have failed or the agreed-upon proposal has not been implemented, s. 80 of the Quebec Charter gives the Commission the right to apply to a tribunal to obtain, where consistent with the public interest, any appropriate measure against the person at fault or to demand, in favour of the victim, any measure of redress it considers appropriate at that time.  The tribunal that the Commission applies to could just as well be a court of law as the specialized tribunal created by the Quebec Charter.

76                               In addition to the non-exclusive nature of the Tribunal’s jurisdiction, it should be noted that any competent tribunal, not just the Tribunal, has the power to grant a remedy pursuant to s. 49 of the Quebec Charter.  The Tribunal’s lack of exclusive jurisdiction was recognized by this Court in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345.

77                               The Quebec legislature did not deem it essential to the implementation of the Quebec Charter that the Tribunal alone should rule on fundamental rights issues.  Nevertheless, its intent with regard to the legislative framework established by the Labour Code is very clear.  It wished to give arbitrators exclusive jurisdiction, without exception, over the resolution of disputes arising out of collective agreements.  Regardless of whether a case concerns a simple pay dispute or discrimination in the determination of pay, the principle of exclusive arbitral jurisdiction must still be applied.  As I observed in Regina Police, supra, at para. 34, we must avoid formalistic interpretations of the provisions that would deny the decision-making body jurisdiction where it was clearly the intention of the legislature that it hear the dispute.

IV.  Conclusion

78                               Since in my view the Quebec Court of Appeal was correct in its decision that the Tribunal did not have jurisdiction ratione materiae to hear the dispute, I would dismiss the appeal, with costs.

APPENDIX

Legislative Provisions:

Charter of Human Rights and Freedoms, R.S.Q., c. C-12

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

49.1.  Any complaint, dispute or remedy the subject-matter of which is covered by the Pay Equity Act (chapter E-12.001) shall be dealt with exclusively in accordance with the provisions of that Act.

52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.

77.  The commission shall refuse or cease to act in favour of the victim where

(1)  the victim or the complainant so requests, subject to the commission’s ascertaining that such request is made freely and voluntarily;

(2)  the victim or the complainant has, on the basis of the same facts, personally pursued one of the remedies provided for in sections 49 and 80.

The commission may refuse or cease to act in favour of the victim where

(1)  the complaint is based on acts or omissions the last of which occurred more than two years before the filing of the complaint;

(2)  the victim or the complainant does not have a sufficient interest;

(3)  the complaint is frivolous, vexatious or made in bad faith;

(4)  the victim or the complainant has, on the basis of the same facts, personally pursued a remedy other than those provided for in sections 49 and 80.

101.  The Tribunal is composed of not fewer than 7 members, including a president and assessors, appointed by the Government.  The president shall be chosen, after consultation with the chief judge of the Court of Québec, from among the judges of that court having notable experience and expertise in, sensitivity to and interest for matters of human rights and freedoms; the assessors shall be chosen from among the persons included in the panel provided for in the third paragraph of section 62.

111.  The Tribunal is competent to hear and dispose of any application submitted under section 80, 81 or 82, in particular in matters of employment or housing or in connection with goods and services generally available to the public, and any application submitted under section 88, 90 or 91 in respect of an affirmative action program.

Only the commission may initially submit an application to the Tribunal to pursue any of the remedies provided for in any of the said sections, subject to the substitution provided for in section 84 in favour of a complainant and to the pursuit of the remedy provided for in section 91 by a person on whom the Tribunal has previously imposed an affirmative action program.

Labour Code, R.S.Q., c. C-27

1.  In this code, unless the context requires otherwise, the following expressions mean:

                                                                   . . .

(f) “grievance”: any disagreement respecting the interpretation or application of a collective agreement;

                                                                   . . .

100.  Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister.

100.12.  In the exercise of his duties the arbitrator may

(a) interpret and apply any Act or regulation to the extent necessary to settle a grievance;

                                                                   . . .

Appeal allowed, Bastarache and Arbour JJ. dissenting.

Solicitor for the appellant:  Commission des droits de la personne et des droits de la jeunesse, Montréal.

Solicitors for the respondent the Attorney General of Quebec:  Bernard, Roy & Associés, Montréal.

Solicitors for the respondents Centrale de l’enseignement du Québec, now Centrale des syndicats du Québec, and Fédération des syndicats de l’enseignement:  Grondin, Poudrier, Bernier, Québec.

Solicitor for the intervener the Canadian Human Rights Commission:  Canadian Human Rights Commission, Ottawa.

Solicitor for the intervener the Ontario Human Rights Commission:  Ontario Human Rights Commission, Toronto.

Solicitors for the intervener the Quebec Human Rights Tribunal:  Lafortune, Leduc, Montréal.

Solicitor for the intervener Confédération des syndicats nationaux:  Confédération des syndicats nationaux, Montréal.

Solicitors for the intervener Fédération des travailleurs et travailleuses du Québec:  Trudel Nadeau, Montréal.

Solicitor for the intervener the Canadian Union of Public Employees:  Canadian Union of Public Employees, Montréal.