Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre) [1996] 2 S.C.R. 3 Discrimination -- Bona fide occupation qualification -- Collective agreement more stringent than legislation with respect to discrimination -- Whether collective agreement can impose conditions beyond those provided in provincial human rights code -- Judicial review -- Standards of review -- Patently unreasonable or correctness standards -- Collective agreement more stringent than provincial human rights code

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEWFOUNDLAND

Civil rights -- Discrimination -- Bona fide occupation qualification -- Collective agreement more stringent than legislation with respect to discrimination -- Whether collective agreement can impose conditions beyond those provided in provincial human rights code -- Human Rights Code, 1988, S.N. 1988, c. 62, s. 10(1).

Labour law -- Collective agreements -- Human rights legislation -- Discrimination -- Whether collective agreement can impose conditions beyond those provided in provincial human rights code.

Judicial review -- Standards of review -- Patently unreasonable or correctness standards -- Collective agreement more stringent than provincial human rights code -- Arbitration board deciding that agreement's definition of discrimination must be the same as the Code's -- Whether the patently unreasonable standard should apply or the correctness standard in review of Board's decision.

The Green Bay Health Care Centre issued a job posting for a personal care attendant but did not specify that the applicants must be male. The employer, however, had determined that a male would be needed to meet the staffing requirement as the position involved intimate personal care of elderly male residents. The Newfoundland Human Rights Code, 1988 provided that discrimination could be excused for a bona fide occupational qualification (BFOQ). The collective agreement, however, provided that there should be no discrimination in hiring by reason of sex and that union members were entitled to be hired ahead of external candidates. A female union member's application was rejected in favour of a male applicant who was not a member of the bargaining unit. An arbitration board decided that the employer, notwithstanding the collective agreement, was entitled to rely on a BFOQ to excuse the discrimination in hiring. This decision was reversed on judicial review. The Court of Appeal restored the decision of the Board. At issue were whether the parties could contract out of the Code, whether the collective agreement must be read in harmony with the Code, and whether the parties had bound themselves to the application of the Code. Underlying these issues was the standard of judicial review which governs on the appeal.

Held: The appeal should be dismissed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. A court should not interfere with a labour arbitration board's interpretation of a collective agreement unless that decision is patently unreasonable. When a tribunal interprets and applies questions of general law, however, its decision is reviewable on a standard of correctness.

The posting of a position merely sets out the technical requirements for application and cannot be the basis for demonstrating either that the parties contracted out of the Code or that the employer is estopped from relying on the BFOQ provision. Not mentioning the requirement that the applicant be male in the job posting did not preclude putting the requirement forward as a BFOQ.

The matter was not necessarily a contracting out situation even though it was dealt with on that assumption. Contracting out of human rights legislation is not permitted because, if it were, those without bargaining power might be coerced or forced to give up their rights under human rights legislation. No conflict existed with any of the provisions of the human rights legislation. The collective agreement did not affect any remedy under the Code and dealt only with remedies available by way of grievance.

Human rights legislation sets out a floor beneath which the parties cannot contract out. Parties can contract out of human rights legislation if the effect is to raise and further protect the human rights of the people affected. Here, the parties were entitled to contract out of the BFOQ provision contained in s. 10(1) of the Code. The contract could prevent the employer from discriminating in the employment process where a BFOQ might plainly exist. This conclusion has no effect on the rights of third parties.

The court will not interfere with a board's interpretation of a collective agreement unless that interpretation is patently unreasonable. The Board's decision that parties could not contract out of the BFOQ provision of the Code was wrong. It was not patently unreasonable, however, as the Board considered the relevant collective agreement provision and jurisprudence in its deliberations. Moreover, using the Code's definition of discrimination, which incorporated the concept of BFOQ, as the province's prevailing definition could reasonably result in a decision that the parties did not intend to further alter that definition when they added protection against discrimination based on union membership.

Per L'Heureux-Dubé J.: Parties to an employment contract or collective agreement may negotiate a non-discrimination clause conferring greater protection than the minimum guaranteed by human rights legislation. The ability to do so could not possibly offend the general policy behind human rights legislation. In particular, parties may freely negotiate a clause that prohibits all discrimination and need not allow an exception for a bona fide occupational qualification (BFOQ). The term "contracting out" was misapplied here. The parties were not "contracting out" of the Code so long as the collective agreement did not purport either to authorize discrimination or to affect the remedies which are available under the Code in proceedings before the human rights commission. The collective agreement left intact all remedies available under the Code and added remedies by means of the grievance procedure in the event of discrimination on the part of the employer.

The Board erred in holding that parties are not permitted to negotiate a non-discrimination clause that does not provide for a BFOQ defence. Moreover, while an arbitration board may refer to a human rights statute for guidance when interpreting an analogous provision of a collective agreement, the Board did not do so here. Rather, the Board found that the contractual non-discrimination clause must be read as incorporating a BFOQ because any other interpretation would amount to "contracting out" of the Code. The Board made no finding on the crucial issue of whether the parties actually wished to incorporate a BFOQ provision; it merely deemed the parties to have intended to include such a provision.

As this appeal arose out of an application for judicial review, the remedies sought by the appellant were discretionary. Given that almost eight years had passed since the Board convened, that the collective agreement has long expired, and that the Board would almost certainly dismiss the grievance if it were sent back, the normal course of sending the grievance back for redetermination would serve no purpose. The appeal accordingly should be dismissed.

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