Choice of Forum: Grievance Process vs Human Rights

The right of a unionized employee to pursue the human rights process rather than the grievance and arbitration procedure is complicated and varies from one jurisdiction to another.

The general rule was considered by the Supreme Court of Canada in Northern Regional Health Authority v. Horrocks, 2021 SCC 42.

The Court held that where labour legislation provides for the final resolution of disputes arising from a collective agreement, the jurisdiction of the labour arbitrator will ordinarily be exclusive. This includes disputes alleging violations of human rights legislation where, in their essential character, they arise from the collective agreement.

A human rights tribunal will have concurrent jurisdiction only where the applicable legislation demonstrates an intention to confer it.

Alberta is such a jurisdiction.

Concurrent Jurisdiction in Alberta

Section 21 of the Alberta Human Rights Act expressly permits the Director to dismiss a complaint which “is being, has been, will be or should be more appropriately dealt with in another forum or under another Act”.

The legislation also permits the Director to accept a complaint pending the outcome of proceedings in another forum.

These provisions contemplate that the Alberta Human Rights Commission may possess jurisdiction over a dispute at the same time as another decision maker, including a labour arbitrator.

In Blackie v. Chief of Police, Calgary Police Service, 2022 AHRC 52, the Alberta Human Rights Commission concluded that these statutory provisions demonstrated the necessary legislative intention to confer concurrent jurisdiction.

The existence of concurrent jurisdiction, however, does not mean that an employee has an unrestricted choice between arbitration and the human rights process.

That issue was addressed more directly in Grewal v. Sofina Foods Inc., 2023 AHRC 46.

The Commission held that where a human rights issue arises from a dispute governed by a collective agreement, and the collective agreement provides a grievance procedure capable of addressing the human rights issue, grievance arbitration will usually be the more appropriate forum.

The Commission added an important qualification. Exceptions would be rare and confined to clear cases in which the interests of justice demanded a different result.

The difficulty was determining what circumstances would satisfy that exception.

The recent decision in Haynes v. Alberta (Human Rights Commission and Tribunal), 2026 ABKB 575 now provides important guidance.

Why Would a Unionized Employee Prefer the Human Rights Process?

There are ordinarily considerable advantages to the grievance process.

A labour arbitrator may apply human rights legislation and grant remedies for discrimination. Reinstatement is also a conventional remedy in labour arbitration, whereas reinstatement through the human rights process is discretionary.

The arbitral process will also generally proceed more quickly than a human rights complaint.

The union will ordinarily provide and fund legal representation for the employee.

These considerations favour the grievance procedure.

The difficulty arises where the union decides not to pursue the grievance, abandons it before arbitration or otherwise leaves the employee without an effective means of advancing the human rights issue.

Until Haynes, it remained uncertain when such circumstances would satisfy the exceptional “interests of justice” test described in Grewal.

Haynes v. Alberta

The complainant in Haynes was a unionized Alberta government employee.

Following a medical leave, a dispute arose concerning her return to work and the position to which she would return.

She filed a human rights complaint alleging discrimination based upon age, gender, mental disability and race.

Her union, AUPE, also filed a grievance arising from substantially the same circumstances.

The employer asked the Human Rights Commission to dismiss the complaint because the grievance procedure was the more appropriate forum or, alternatively, to defer the human rights proceeding pending resolution of the grievance.

The two processes were allowed to continue concurrently.

This fact ultimately became critical.

The Union Withdraws the Grievance

AUPE subsequently decided not to proceed to arbitration and withdrew the grievance.

The employee potentially had another remedy.

She could have filed a duty of fair representation complaint against the union with the Alberta Labour Relations Board.

The limitation period for such a complaint expired while her human rights complaint remained before the Commission.

The employee did not pursue the duty of fair representation complaint because she understood that the Human Rights Commission was aware of the parallel proceedings and had permitted her human rights complaint to continue notwithstanding the grievance.

She therefore believed that the human rights process remained available to her.

The Director’s Decision

The Director subsequently dismissed the human rights complaint on the basis that it had no reasonable prospect of success.

Importantly, the Director did not dismiss the complaint because the grievance had been the more appropriate forum.

The employee sought review of the Director’s decision by the Chief of the Commission and Tribunals.

The Chief upheld the dismissal on the no-reasonable-prospect-of-success ground.

The Chief also added a second basis for dismissal.

The dispute had been, or should have been, more appropriately addressed through the grievance process.

The fact that the union had ultimately withdrawn the grievance did not, in the Chief’s view, change the analysis. The employee had originally possessed access to a grievance procedure capable of resolving the human rights dispute.

The Chief acknowledged that exceptional circumstances might justify overlapping proceedings in the interests of justice but concluded that this was not such a case.

The Court of King’s Bench

The Court of King’s Bench disagreed with the Chief on the choice-of-forum issue.

The significant fact was not simply that the union had withdrawn the grievance.

The employee had reasonably relied upon the Commission’s earlier position that the human rights complaint and grievance could proceed concurrently.

When AUPE subsequently withdrew the grievance, she continued to believe that the Human Rights Commission remained available to determine her complaint.

In reliance upon that position, she did not pursue the duty of fair representation remedy against her union.

By the time the Commission subsequently took the position that the grievance procedure should have been used, the limitation period for the duty of fair representation complaint had expired.

The Court concluded that it was unreasonable for the Commission to change course in these circumstances.

The employee had relied upon the Commission’s treatment of the two proceedings and, as a consequence, had lost the ability to pursue another available remedy.

The interests of justice therefore prevented the Commission from subsequently relying upon the grievance process as the reason to close the human rights forum.

Defining the Exceptional Circumstance

This is the important contribution of Haynes.

Grewal had stated the rule.

Grievance arbitration will ordinarily be the preferred forum, and exceptions will be rare and confined to clear circumstances where the interests of justice demand otherwise.

Haynes now gives practical meaning to that exception.

The exceptional circumstance arose from the combination of three factors.

First, the Commission was aware that the grievance and human rights proceedings were continuing concurrently and allowed that situation to continue.

Second, the employee reasonably relied upon the continuing availability of the human rights process.

Third, because of that reliance, another potentially available remedy became unavailable through the expiry of its limitation period.

The exceptional circumstance was therefore not simply that the union abandoned the grievance.

It was the unfairness which would result from the Commission changing its position after the employee had reasonably relied upon its earlier conduct to her detriment.

That distinction is important.

Union Withdrawal Alone Is Not Necessarily Enough

Haynes should not be read as establishing that an employee may resort to the Human Rights Commission whenever a union decides not to take a grievance to arbitration.

That would effectively convert Alberta’s concurrent jurisdiction into an unrestricted alternative forum.

The existing authorities do not support such a result.

The grievance process remains ordinarily the appropriate mechanism for resolving human rights disputes arising from a collective agreement.

If the union refuses to proceed, the employee may have a duty of fair representation complaint against the union.

The simple fact that the employee is dissatisfied with the union’s decision will not necessarily satisfy the exceptional circumstances test.

What made Haynes different was the employee’s reasonable reliance upon the Commission’s own handling of the concurrent proceedings and the consequential loss of another remedy.

A Missed Limitation Period

The same distinction should apply where a limitation period has expired.

The mere fact that an employee or union has allowed a grievance deadline or another statutory limitation period to expire should not automatically require the Human Rights Commission to assume the dispute.

Otherwise, the ordinary preference for grievance arbitration could readily be circumvented simply by failing to preserve the grievance remedy.

Haynes involved something materially different.

The lost remedy resulted from reasonable reliance upon the Commission’s position that the human rights proceeding remained available.

It was that additional element which engaged the interests of justice.

This is likely to be an important distinction in future cases.

Where the Union Is Alleged to Have Discriminated

A further issue may arise where the union itself is alleged to have engaged in discrimination.

An employee may contend, for example, that the union declined to pursue a grievance because of disability, race, gender or another protected characteristic.

In such circumstances, the union’s own conduct becomes part of the human rights dispute.

This may present a stronger argument for the continued availability of the human rights process.

The issue should not, however, be regarded as resolved by Haynes. That was not the dispute before the Court.

The proper forum will depend upon the statutory scheme, the nature of the allegations against the union and the remedies available through the labour relations process.

Haynes Ultimately Lost the Application

There is an important qualification to the result.

Although the Court found that the Chief’s reliance upon the grievance process was unreasonable, Haynes did not ultimately result in the discrimination complaint proceeding to a hearing.

The Chief had also upheld the Director’s finding that the complaint had no reasonable prospect of success.

The Court found that conclusion reasonable.

The evidence demonstrated a broader workplace reorganization affecting other employees and showed that the employer remained prepared to accommodate the employee upon her return by placing her in an equivalent position.

Accordingly, although the Court rejected the alternative-forum basis for dismissal, the complaint remained dismissed because the separate no-reasonable-prospect-of-success determination survived judicial review.

This distinction should be kept clear.

Haynes succeeded on the choice-of-forum issue.

It did not succeed on the underlying human rights complaint.

The Alberta Rule After Haynes

The Alberta position can now be stated with greater precision.

The Alberta Human Rights Commission has concurrent jurisdiction over human rights disputes involving unionized employees.

Concurrent jurisdiction does not ordinarily mean concurrent proceedings.

Where the dispute arises from a collective agreement and the grievance procedure is capable of addressing the human rights issue, grievance arbitration will usually be the more appropriate forum.

Departure from that rule remains exceptional.

The governing standard is whether the interests of justice clearly require the Human Rights Commission to retain the complaint.

Haynes now demonstrates that such circumstances may arise where the Commission permits concurrent proceedings, the complainant reasonably relies upon the continued availability of the human rights process and that reliance causes another potentially available remedy to become unavailable.

The exception is therefore based upon fairness and meaningful access to a forum, rather than simply dissatisfaction with the grievance process.

Practical Consequences

A unionized employee should not regard a human rights complaint as insurance against an unsuccessful or abandoned grievance.

All grievance and statutory limitation periods should continue to be protected while the appropriate forum remains uncertain.

If a union withdraws or refuses to advance a grievance, immediate consideration should be given to the applicable duty of fair representation procedure and its limitation period.

Similarly, if the Human Rights Commission permits grievance and human rights proceedings to continue concurrently, the employee should retain written confirmation of that position.

Haynes demonstrates why this matters.

A complainant who reasonably relies upon the Commission’s conduct and consequently loses another remedy may be able to invoke the interests-of-justice exception recognized in Grewal.

A complainant who simply allows another remedy to expire may be in a very different position.

Conclusion

Alberta has taken a distinctive approach to human rights complaints brought by unionized employees.

Unlike jurisdictions in which grievance arbitration is exclusive, Alberta legislation gives the Human Rights Commission concurrent jurisdiction.

That concurrency is nevertheless restrained by a strong preference for grievance arbitration.

Grewal stated that exceptions would be rare and limited to the clearest cases in which the interests of justice demanded intervention by the Human Rights Commission.

Until recently, the content of that exception remained uncertain.

Haynes gives it practical meaning.

Where the Commission has permitted parallel proceedings to continue and the employee reasonably relies upon that position to the extent of losing another available remedy, it may be contrary to the interests of justice for the Commission subsequently to insist that the other forum should have been used.

This does not create a general right to abandon the grievance process in favour of a human rights complaint.

It does something more limited and more important.

It identifies fairness, detrimental reliance and the preservation of meaningful access to a forum as circumstances capable of bringing an Alberta case within the exceptional category contemplated in Grewal.

That is the significant contribution of Haynes.

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