Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 SCR 3

Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 S.C.R. 3

Newfoundland Association of Public Employees                              Appellant

v.

Her Majesty The Queen in right of

Newfoundland and Newfoundland Hospital

and Nursing Home Association, on behalf of

Green Bay Health Care Centre                                                        Respondents

Indexed as:  Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre)

File No.:  24525.

1996:  February 29; 1996:  May 2.

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.

Cases Cited

By Major J.

Considered:  Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Re Sunnyside Home for the Aged and London & District Service Workers' Union, Local 220 (1985), 21 L.A.C. (3d) 85; referred to:  Alberta Union of Provincial Employees v. University Hospitals Board, [1991] 2 S.C.R. 201; McLeod v. Egan, [1975] 1 S.C.R. 517; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Canadian Odeon Theatres Ltd. v. Saskatchewan Human Rights Commission, [1985] 3 W.W.R. 717; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103.

By L'Heureux‑Dubé J.

Considered:  Re Sunnyside Home for the Aged and London & District Service Workers' Union, Local 220 (1985), 21 L.A.C. (3d) 85; distinguished:  Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202; referred to:  In re Anti‑dumping Tribunal and re transparent sheet glass, [1972] F.C. 1078, rev'd [1973] F.C. 745, rev'd sub nom. P.P G. Industries Canada Ltd. v. Attorney General of Canada, [1976] 2 S.C.R. 739; Frito‑Lay Canada Ltd. v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647 (1976), 77 C.L.L.C. ¶14,061; Re City of Toronto and Canadian Union of Public Employees, Local 79 (1982), 35 O.R. (2d) 545.

Statutes and Regulations Cited

Human Rights Code, 1988, S.N. 1988, c. 62, s. 10(1).

APPEAL from a judgment of the Newfoundland Court of Appeal (1994), 125 Nfld. & P.E.I.R. 271, 389 A.P.R. 271, 119 D.L.R. (4th) 604, 95 C.L.L.C. ¶230-001, allowing an appeal from a judgment of Puddester J. (1990), 81 Nfld. & P.E.I.R. 201, 255 A.P.R. 201, allowing an application for judicial review of a decision of the Newfoundland Arbitration Board (1989), 14 C.L.A.S. 10, 6 L.A.C. (4th) 81, and remitting the matter back to the Board.  Appeal dismissed.

V. Randell J. Earle, Q.C., and Thomas Johnson, for the appellant.

Augustus G. Lilly, for the respondents.

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

1                                  Major J. -- The issue in this appeal is whether the respondent employer may rely on the bona fide occupational qualification ("BFOQ") provision in the Newfoundland Human Rights Code, 1988, S.N. 1988, c. 62, to discriminate on the basis of sex, in hiring employees to care for elderly male patients.  The collective agreement between the parties contained a no-discrimination provision without reference to BFOQs.

I.                  Background

2                                  The respondent operated the Green Bay Health Care Centre, which included, among other facilities, a nursing home.  On November 12, 1987 the respondent issued a job posting for the position of personal care attendant.  Prior to issuing the posting the respondent had determined that its staffing need would be best met by hiring a male, as the position required intimate personal care of elderly male residents of the nursing home.  The position when posted did not specify that applicants must be male.  The respondent was aware of the BFOQ provision in the Code. 

3                                  Rose Howe, an employee of the Green Bay Health Care Centre, and a member of the bargaining unit represented by the appellant, applied for the position.  Under the terms of the collective agreement she was entitled to be hired ahead of external candidates.

4                                  The respondent rejected Ms. Howe's application because she was a female.  The successful male candidate was not a member of the bargaining unit.

5                                  Ms. Howe filed a grievance before a board of arbitration claiming that the respondent had discriminated against her on the basis of sex, contrary to art. 4.01 of the Collective Agreement, which provides:

4.01    Employer Shall Not Discriminate

The Employer agrees that there shall be no discrimination with respect to any employee in the matter of hiring, wage rates, training, upgrading, promotion, transfer, lay-off, recall, discipline, classification, discharge, assignment of work, or otherwise by reason of age, race, creed, color, national origin, political or religious affiliation, sex, or marital status, nor by reason of his/her membership or activity in the Association.

The collective agreement does not have a BFOQ provision.

6                                  The respondent, in reply to the grievance, argued that notwithstanding art. 4.01, it was entitled to rely on s. 10(1) of the Code and employ a male personal care attendant because the need for such an employee in the circumstances of this case was a BFOQ.  Section 10(1) states:

10. (1)  No employer, or person acting on behalf of an employer, shall refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment because of

(a)       that person's race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, marital status, physical disability or mental disability; or

(b)       subject to subsection (5), that person's age, if that person has attained the age of nineteen years and has not attained the age of sixty-five years,

but this subsection does not apply to the expression of a limitation, specification or preference based on a bona fide occupational qualification.

7                                  The arbitration board (the "Board"), (1989), 6 L.A.C. (4th) 81, agreed with the respondent that it was entitled to rely on the existence of a BFOQ to excuse the discrimination in the hiring in question.  The Board concluded at p. 116:

In summary, the board finds (1) that the parties cannot contract out of the Human Rights Code, 1988; (2) that the collective agreement must be read in conjunction with the Code; (3) that the employer has the burden of proving that a BOQ existed in this case; (4) that the employer has discharged its burden by meeting the subjective and objective tests in these circumstances; (5) that the employer's selection of a male for the third position on the male rota was based on a bona fide occupational qualification pursuant to s. 10 of the Human Rights Code, 1988.

8                                  The decision of the Board was reversed by Puddester J., of the Supreme Court of Newfoundland, Trial Division, on judicial review:  (1990), 81 Nfld. & P.E.I.R. 201.  He held that the Board erred in deciding that the parties could not contract out of the BFOQ provision of the Code.  The Newfoundland Court of Appeal (1994), 125 Nfld. & P.E.I.R. 271, in turn reversed Puddester J. and restored the decision of the Board, Cameron J.A. dissenting.

II.                 Analysis

9                                  By considering only applications from males, the respondent prima facie discriminated against females and prima facie violated art. 4.01.  The question is whether the Board's decision, that such discrimination was not prohibited by the collective agreement, should stand.

10                              The duties of the employee here included assisting in the personal hygiene of elderly male patients and it was not disputed that for the purposes of this appeal a BFOQ existed.

11                              The dispute centred on the Board's finding that the parties could not contract out of the Code, that the collective agreement must be read in harmony with the Code, and that the parties had (at p. 108) "bound themselves to the application of the Human Rights Code, 1988".  These findings raise the issue of what standard of judicial review governs on the appeal.

A.                Standard of Review

12                              The Board was a tribunal established by agreement of the parties under art. 12 of the collective agreement.  Its decisions are protected by the privative clause in art. 12.04.  It is a generally accepted principle that a decision of a properly constituted labour arbitration board in the interpretation of a collective agreement should not be interfered with by a court unless it is patently unreasonable.  See Alberta Union of Provincial Employees v. University Hospitals Board, [1991] 2 S.C.R. 201.  However, when such a tribunal interprets and applies questions of general law, such as application of the Code, the Board's decision is reviewable on a standard of correctness.  See McLeod v. Egan, [1975] 1 S.C.R. 517.

13                              Patent unreasonableness was described by Beetz J. in Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412, at p. 420:

[Patently unreasonable refers to an error in] interpretation of a provision which an administrative tribunal is required to apply within the limits of its jurisdiction.  This kind of error amounts to a fraud on the law or a deliberate refusal to comply with it.  As Dickson J. (as he then was) described it, speaking for the whole Court in Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227 at p. 237, it is

... so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review . . .

An error of this kind is treated as an act which is done arbitrarily or in bad faith and is contrary to the principles of natural justice.

In considering the Board's interpretation of the collective agreement, the Court should not interfere unless the decision cannot be rationally supported by the collective agreement.  The focus will be on whether a rational basis for the Board's decision exists.

14                              In the present appeal, both the "patently unreasonable" and the "correctness" standards of review are involved.  The Board interpreted the collective agreement and the Code.  If the Board was incorrect but not patently unreasonable in all of its findings, the Court can only interfere on the "correctness" standard with those portions of the decision that as questions of law interpret the Code.

B.                Contracting out of BFOQ Provisions

15                              The Board found that parties could not "contract out" of the BFOQ provision of the Code.  In doing so, the Board interpreted the Code and its interpretation must be correct; with respect, I do not think that it is.

16                              An initial point to consider is the argument that, since the job posting made no mention of the requirement that the applicant be male, the respondent is precluded from putting the requirement forward as a BFOQ.  In my opinion, this argument fails.  The posting of the position merely sets out the technical requirements for application and cannot be the basis to demonstrate that either the parties contracted out of the Code or that the employer is estopped from relying on the BFOQ provision.

17                              In reaching its decision, the Board relied on Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, where a provision of a collective agreement required mandatory retirement at age sixty.  This was directly contrary to The Ontario Human Rights Code, R.S.O. 1970, c. 318, s. 4(6), and the Court held that such a provision was invalid.  At pp. 213-14, McIntyre J. stated:

Although the Code contains no explicit restriction on such contracting out, it is nevertheless a public statute and it constitutes public policy in Ontario as appears from a reading of the Statute itself and as declared in the preamble.  It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy....The Ontario Human Rights Code has been enacted by the Legislature of the Province of Ontario for the benefit of the community at large and of its individual members and clearly falls within that category of enactment which may not be waived or varied by private contract; therefore this argument cannot receive effect.

18                              In Etobicoke, the parties were attempting to contract for less protection  against discrimination than was guaranteed by the statute.  See Winnipeg School Division No. 1 v. Craton , [1985] 2 S.C.R. 150, and Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145.  However, in this appeal it was argued that parties cannot contract out of the legislation even in those cases where the result would be more protection for the individual.  

19                              On one view of the matter, it is not a question of contracting out.  The collective agreement does not purport to affect any remedy under the Code nor does either party seek to set up a provision in the collective agreement in respect of such a remedy.  The collective agreement deals only with what remedies are available by way of grievance.  In this regard, there is no conflict with any of the provisions of the human rights legislation.  The situation in Etobicoke was quite different in that the employer sought to rely on the collective agreement to affect the remedy sought under The Ontario Human Rights Code.  The argument before this Court, however, proceeded on the basis of an alleged attempt to contract out.  The Board also proceeded on this basis.  I will, therefore, deal with the matter on the assumption that it is a contracting out situation.  It should be noted that this issue is of minor importance here as I conclude that the collective agreement is in fact consistent with the Code.

20                              The rationale for the rule against contracting out of human rights legislation is in part because of its quasi-constitutional status.  In Craton, McIntyre J. described human rights legislation, at p. 156:

In any event, I am in agreement with Monnin C.J.M. where he said:

Human rights legislation is public and fundamental law of general application.  If there is a conflict between this fundamental law and other specific legislation, unless an exception is created, the human rights legislation must govern. 

This is in accordance with the views expressed by Lamer J. [as he then was] in [Heerspink, supra].  Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature.  It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.  To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims.

21                              Human rights legislation frequently deals with situations where the parties may not possess equal bargaining power.  By prohibiting the ability to contract out of the statute, the courts have prevented the exploitation of inequality of bargaining power.  If contracting out were allowed, those without bargaining power might be coerced or forced to give up their rights under human rights legislation.

22                              The overriding purpose of human rights legislation is the elimination of discrimination.  In Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, McIntyre J. said, at p. 547, "[t]he Code aims at the removal of discrimination.   This is to state the obvious."  In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, Dickson C.J. noted, at p. 1134, that the legislation seeks to "prevent all `discriminatory practices'", and cited with approval at p. 1138 the following passage from Canadian Odeon Theatres Ltd. v. Saskatchewan Human Rights Commission, [1985] 3 W.W.R. 717 (Sask. C.A.), at p. 735:

Generally human rights legislation has been given a broad interpretation to ensure that the stated objects and purposes are fulfilled.  A narrow restrictive interpretation which would defeat the purpose of the legislation, that is, the elimination of discrimination, should be avoided.

23                              If the purpose of human rights legislation is prevention of discrimination, it seems obvious that parties should be able to negotiate increased protection against discrimination than that provided by the legislation.  The ability to do so could not possibly offend the general policy behind human rights legislation. 

24                              This Court has commented, at least obliquely, on the characterization of BFOQ provisions, and in doing so has described them as a mere exemption or defence.  See McIntyre J. (dissenting, but not on this point) in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 175-76:

It should be noted as well that when the Human Rights Acts create exemptions or defences, such as a bona fide occupational requirement, an exemption for religious and political organizations, or definitional limits on age discrimination, these generally have the effect of completely removing the conduct complained of from the reach of the Act.  [Emphasis added.]

25                              In Dickason v. University of Alberta, [1992] 2 S.C.R. 1103, Cory J., for the majority, said at p. 1121:

The right against discrimination provided in human rights statutes will be subject to any defence provided by those same statutes to those who discriminate.  However, as McIntyre J. recognized in Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, a defence which allows discrimination to continue stands as an exception to the rule of non-discrimination.   In Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, this Court held that while rights should receive a broad interpretation, defences to the exercise of those rights should be interpreted narrowly. [Emphasis added.]

26                              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.  In my opinion, the parties to this appeal 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.  Those rights, if any, are deferred to another day. 

27                              Here, the respondent employer is not prohibited from discriminating against women where a BFOQ of "maleness" exists.  However, the respondent is free to agree not to discriminate against women in spite of this fact.  If it does so, it should be bound by the agreement. 

28                              Support in this construction of the effect of the BFOQ provision is found in the numerous statements of this Court that human rights legislation should be interpreted broadly in protecting against discrimination and narrowly in restricting such protection.  See Simpsons-Sears Ltd., Dickason, and Canadian National Railway Co.  These statements support the notion that protection against discrimination is the overriding policy concern of human rights legislation.  Discrimination permitted under BFOQ provisions and other exceptions is a derogation of the right, and not a right unto itself.

29                              The Board was incorrect in its opinion that parties cannot contract out of the BFOQ provision of the Code, as was the majority in the Court of Appeal in upholding that portion of the Board's decision.  It remains to determine whether the parties contracted out of s. 10(1), and if not, whether the Board was patently unreasonable in its determination that the collective agreement was to be read in harmony with the Code, and that the parties bound themselves to the BFOQ provision of the Code. 

C.               Construction of the Collective Agreement

30                              As stated, when an arbitration board interprets a collective agreement the court will not interfere with the decision unless it is patently unreasonable.

31                              In interpreting the collective agreement in this case, the Board held that the parties had bound themselves to the Code and said at p. 108:

Indeed, the board is of the opinion that the parties have clearly and unequivocally bound themselves to the application of the Human Rights Code, 1988 by the first sentence of art. 31.01 of the collective agreement:

All provisions of this Agreement are subject to applicable laws now or hereafter in effect...

This statement confirms that the Board found that the parties intended to incorporate the BFOQ provision into the definition of discrimination found in the collective agreement. 

32                              The Board relied on art. 31.01 and on Re Sunnyside Home for the Aged and London & District Service Workers' Union, Local 220 (1985), 21 L.A.C. (3d) 85, where the facts are strikingly similar to the present appeal.  In that case a male nursing attendant employed at the Sunnyside Home for the Aged alleged that his employer had discriminated against him on the basis of sex. 

33                              The Ontario Human Rights Code, 1981, S.O. 1981, c. 53 contained a BFOQ provision similar in effect to the provision in the present appeal.  The collective agreement between the griever's union and the employer contained a prohibition against discrimination which is almost identical to that in the present appeal.  The provision (quoted at p. 86) stated:

2.04    The Employer and the Union agree that there will be no discrimination, interference, restriction or coercion exercised or practiced by the Employer or by the Union or by any of their representatives with respect to any employees by reason of race, colour, age, sex, marital status, national origin, political or religious affiliation, nor by reason of his membership or non-membership in the Union which is hereby recognized as a voluntary act on the part of the individual concerned. [Emphasis in original.]

34                              The Sunnyside arbitration board held, at p. 94, that "the parties intended the `no discrimination' clause in their agreement to incorporate the general and well understood meaning of discrimination established by the Human Rights Code, 1981."  At p. 95 the arbitration board made the following ruling, upon which the Board in the present case relied:

[The employer] asserts, more generally, that consistent with the Human Rights Code, 1981 the parties must be understood as having intended to prohibit unjustifiable discrimination and not simply any and all differences between males and females.  We agree.  It is our conclusion, then, that the "no discrimination" clause of the collective agreement should be construed consistently and in harmony with the Human Rights Code, 1981, and thus understood as prohibiting the [employer] from discriminating against an employee in his employment on the basis of sex where, using the words of s. 23(b) of the Human Rights Code, 1981, it is not a "reasonable and bona fide qualification because of the nature of the employment".

35                              The arbitration board there held that the employer had not established that a BFOQ of "femaleness" existed and the grievance was allowed.  It is clear, however, that the arbitration board viewed the parties as having incorporated the BFOQ provision of the Ontario Human Rights Code, 1981 into their collective agreement.  Had a BFOQ existed, the grievance would have failed.  This was an interpretation of the collective agreement by an expert tribunal and would have been reviewable only on a standard of patent unreasonableness.

36                              The Board in this appeal felt that the Sunnyside case was "on all fours" with the present appeal, except that in the present appeal a BFOQ did exist on the facts.  Since the arbitration board in Sunnyside held that the parties had intended to incorporate the relevant human rights legislation, including the BFOQ provision, it is clear that the Board interpreted the collective agreement between the appellant and the respondent in the same way. 

37                              By relying on art. 31.01 and Sunnyside, the Board was interpreting the collective agreement, not "outside" legislation, and thus is entitled to deference.  The Board's method of interpretation, reading the collective agreement in harmony with the Code, was not patently unreasonable.  While the Board's conclusion, that the parties intended to be bound by the BFOQ provision, could be incorrect, it cannot be said that it is patently unreasonable.  The reliance on art. 31.01 and Sunnyside provide a rational basis for the Board's decision.  This alone is sufficient to uphold the decision of the Board.

38                              Another way of reaching the conclusion that the parties did not preclude application of the BFOQ to the collective agreement is by examining the definition of discrimination as used in the collective agreement.  In determining what the parties meant by prohibiting "discrimination" one must refer to the definition of discrimination which prevails in Newfoundland, namely, that found in the Code.  This definition incorporates the concept of BFOQ, pursuant to s. 10(1).  Parties may contract for more protection than the "base" of the Code, for the reasons stated above.  In this case they did so in adding protection against discrimination based on membership in the union.  Without more, however, it cannot be said that the parties intended to alter further the prevailing definition of discrimination from that found in the Code.

III.                Conclusion

39                              The appeal is dismissed with costs.

The following are the reasons delivered by

40                              L'Heureux-Dubé J. -- I have read the reasons of my colleague Justice Major, and share his view that parties to an employment contract or collective agreement may negotiate a non-discrimination clause that confers greater protection than the minimum guaranteed by human rights legislation.  I also agree that, despite the error of the arbitration board (the "Board") on this point, the appeal should be dismissed.  I am unable however, to agree, with my colleague's reasons for dismissing the appeal as they are based, in my opinion, upon a mistaken understanding of the reasons of the Board. 

Whether Parties Can Agree Contractually to More Protection from Discrimination than the Minimum Guaranteed by Human Rights Legislation

41     The purpose of the Newfoundland Human Rights Code, 1988, S.N. 1988, c. 62,  is to prevent and eliminate discrimination.  As my colleague Major J. observes at para. 23, "it seems obvious that parties should be able to negotiate increased protection against discrimination than that provided by the 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).

42     The parties and the courts below refer to the negotiation of such a clause as "contracting out" of the BFOQ provision of the Code.  In my opinion, the term is misapplied in this case.  The parties have not attempted to "contract out" of the Code as the term was used in Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202.

43                              In Etobicoke, the employer argued in essence that a human rights board of inquiry should not apply s. 4(6) of The Ontario Human Rights Code, R.S.O. 1970, c. 318, because the discriminatory employment qualification had been agreed to by the parties.  The employer's argument, in effect, was that the collective agreement authorized the discrimination and immunized the parties' relationship from review under The Ontario Human Rights Code.  The Court rejected the argument on the ground that The Ontario Human Rights Code is a public enactment and that (at p. 213) "parties are not competent to contract themselves out of the provisions of such enactments".

44                              The situation here is quite different.  The collective agreement leaves intact all remedies available under the Code in proceedings before the provincial human rights commission.  The parties have simply provided that, in addition to those remedies, discrimination by the employer shall give rise to remedies under the collective agreement by means of the grievance procedure.  Even assuming that the non-discrimination clause in the collective agreement has a different scope from the Code, I do not see how the parties can be said to be "contracting out" of the Code, within the meaning of Etobicoke, so long as the collective agreement does 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 Board's Construction of the Collective Agreement

45                              Like my colleague Major J., I conclude that the Board erred in holding that parties are not permitted to negotiate a non-discrimination clause that does not provide for a BFOQ defence.  This error is not merely incidental to the Board's decision, but rather constitutes an essential pillar on which the decision rests.  Major J. suggests that the Board's decision can be supported on the basis of its finding that the parties intended to incorporate the BFOQ provision of the Code into their collective agreement.  I, however, do not believe that the Board made any such finding.

46                              The Board's analysis ((1989, 6 L.A.C. (4th) 81) begins with a long quotation from pp. 213-14 of this Court’s decision in Etobicoke, on the question of whether parties may "contract out" of human rights legislation.  The Board, at p. 106,  placed emphasis on McIntyre J.'s statement that The Ontario Human Rights Code “may not be waived or varied by private contract” and continued at p. 108:

In the board’s view, the court’s decision [in Etobicoke] may be read equally persuasively in the context of the dispute before us, and its ruling should apply mutatis mutandis to the status of the Newfoundland Human Rights Code, 1988 in interpreting the parties’ collective agreement.  Indeed, the board is of the opinion that the parties have clearly and unequivocally bound themselves to the application of the Human Rights Code, 1988 by the first sentence of art. 31.01 of the collective agreement:

All provisions of this Agreement are subject to applicable laws now or hereafter in effect...

Our thinking on this issue is further supported in Studies in Labour Law (1983), at p. 127, where the authors write:

The inclusion of no-discrimination clauses in so many collective agreements indicates a consensus not only that human rights principles ought to apply to the collective agreement administration, but that the parties envision a general rule against discrimination throughout the work-place.  Given that allegations of discrimination may be enmeshed in disciplinary cases or in collective agreement interpretation, it is essential that arbitrators maintain a role in such cases to ensure that the collective agreement is preserved and administered within the law, including human rights legislation.  It would be nearly impossible to carve out discrimination issues from the general authority of arbitrators, but we would not in any way recommend any restriction of arbitral authority over the entire range of collective agreement disputes.  [Emphasis in original.]

According to Major J., at para. 31, the Board's reference to art. 31.01 of the collective agreement confirms that "the Board found that the parties intended to incorporate the BFOQ provision into the definition of discrimination".  With respect, I am unable to discern any such finding in the above passage.  In my view, the Board found only that the parties could not "contract out" of the Code, that the collective agreement contained a clause to this effect, and that the Board should not interpret the collective agreement in a manner that would violate the Code. 

47                              Immediately following the above-quoted passage, the Board discussed the decision of another arbitration board in Re Sunnyside Home for the Aged and London & District Service Workers' Union, Local 220 (1985), 21 L.A.C. (3d) 85.  According to Major J. at para. 36, the Board "felt that the Sunnyside case was ‘on all fours’ with the present appeal".  My colleague at para. 37 asserts that the Board, like the board in Sunnyside, adopted a valid interpretive method in "reading the collective agreement in harmony with the Code".  With respect, I do not agree with my colleague's description of the Board's reasoning.  In fact, the Board said at p. 108:

Also in Re Sunnyside Home for the Aged and London & District Service Workers’ Union, Loc. 220 ... the issue was sex discrimination in a nursing home for the aged.  The board was almost exactly on point at p. 95:

In the instant matter the home does not seek to import a special or narrow definition for the factor of sex.  Instead it asserts, more generally, that consistent with the Human Rights Code, 1981, the parties must be understood as having intended to prohibit unjustifiable discrimination and not simply any and all differences between males and females.  We agree.  It is our conclusion, then, that the “no discrimination” clause of the collective agreement should be construed consistently and in harmony with the Human Rights Code, 1981, and thus understood as prohibiting the home from discriminating against an employee in his employment on the basis of sex where, using the words of s. 23(b) of the Human Rights Code, 1981, it is not a “reasonable and bona fide qualification because of the nature of the employment”.

Having determined that the parties cannot contract out of the Human Rights Code, 1988, we find that the discrimination clauses of the collective agreement -- particularly art. 4.01 -- are subject to the Code.  Since the Code permits an exception to this general rule on discrimination on the basis of sex, we are satisfied that the employer is free to attempt to discharge its burden of proving that such a BOQ existed in these circumstances.

I do not dispute that an arbitration board may refer to a human rights statute for guidance when interpreting the analogous provision of a collective agreement.  However, this is not what the Board did in the case at bar when it read the collective agreement "in harmony" with the Code.  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. 

48                              I have reproduced at length the Board's observations on these points because they show that the Board made no finding on the crucial issue of whether the parties actually wished to incorporate a BFOQ provision.  Major J. relies on the Board's references to art. 31.01 of the collective agreement and to the Sunnyside decision.  However, these references appear in the context of the Board's discussion of whether the parties could "contract out" of the BFOQ.  The Board was under the mistaken impression that any attempt to adopt a non-discrimination clause without incorporating a BFOQ would constitute an impermissible attempt to "contract out" of the Code.  As a result, it made no finding about the parties' actual intention.  It merely deemed the parties to have intended to include such a provision.

Disposition of the Appeal

49                               As this appeal arises out of an application for judicial review, it is within the discretion of the Court whether to grant the remedies sought by the appellant: see In re Anti-dumping Tribunal and re transparent sheet glass, [1972] F.C. 1078 (T.D.), rev'd [1973] F.C. 745 (C.A.), rev'd sub nom. P.P.G. Industries Canada Ltd. v. Attorney General of Canada, [1976] 2 S.C.R. 739; Frito-Lay Canada Ltd. v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647 (1976), 77 C.L.L.C. ¶14,061 (Ont. C.A.); Re City of Toronto and Canadian Union of Public Employees,  Local 79 (1982), 35 O.R. (2d) 545 (C.A.), at p. 556.  In ordinary circumstances, given the Board's error, I would have favoured allowing the appeal and sending the matter back to the Board so that it may interpret the collective agreement in accordance with the actual intention of the parties.  Given that the interpretation of the collective agreement is within the specialized jurisdiction and expertise of the Board, this Court should not normally be "examining the definition of discrimination as used in the collective agreement" or "determining what the parties meant by prohibiting ‘discrimination’” as Major J. suggests at para. 38.  However, almost eight years have passed since the Board convened.  Assuming that the members of the Board are even available, it is almost certain that the Board will simply hold that the parties did not intend to adopt an absolute ban on discrimination, repeat its finding that a BFOQ existed on these facts, and dismiss the grievance.  Moreover, the collective agreement, which was scheduled to expire six years ago, on March 31, 1990, has undoubtedly been renegotiated in whole or in part.  In the exceptional circumstances of this case, sending the grievance back for redetermination would serve no purpose and would inflict additional, needless expense on the parties.  For these reasons, I would dispose of the appeal in the manner proposed by Major J.

Appeal dismissed with costs.

Solicitors for the appellant:  O'Dea, Earle, St. John's.

Solicitors for the respondents:  Stewart, McKelvey, Stirling, Scales, St. John's.