Canadian labour law is predicated on the Wagner Act model and its twin pillars of majoritarianism and exclusivity. (1) This means that once a union has proven majority support within a bargaining unit, "it becomes the exclusive bargaining agent for that unit". (2) In these circumstances, unionized employees lose their individual bargaining rights, and the union is the only bargaining partner with management. Individual freedom is suspended for the utility of the collective.
Similar principles govern disputes concerning individual employee rights under a collective agreement. The Wagner Act model also prescribes that when a dispute concerning the interpretation or application of a collective agreement arises, it is to be resolved by way of grievance and potentially labour arbitration. (3) This Wagner Act model principle appears in collective agreements, (4) labour statutes, (5) and the jurisprudence articulating these principles. (6)
Consequently, unionized employees lose the freedom to enforce many of their individual rights in the courts. (7) This loss of individual freedom is even more troubling because individuals may be denied access to the courts when they seek redress for Charter rights, the most fundamental individual rights we have as Canadian citizens. (8)
In its landmark decision on judicial deference for labour arbitration, Weber v Ontario Hydro, the Supreme Court of Canada (the "Court") was incorrect to hold that if a dispute regarding Charter rights expressly or inferentially arises from a collective agreement, labour tribunals and arbitrators have exclusive jurisdiction. (9) For Charter claims, the Court in Weber should have adopted the overlapping model of jurisdiction. The overlapping model of jurisdiction allows unionized employees to commence a civil action if the issues raised thereunder go beyond the traditional subject matter of labour law. If adopted for Charter claims, this option would respect judicial deference for labour arbitration, but at the same time protect individual Charter rights. Under this model of jurisdiction, if a union denied an employee representation for a Charter claim, that employee could still pursue the matter in the courts.
The Court erred by adopting the exclusive model of jurisdiction for three reasons. First, in adopting the exclusive jurisdiction model, the Court overlooked important considerations about the nature of Charter rights. Second, the Court's reasons to support the exclusive jurisdiction model are contradictory and do not fully justify the model. And finally, in adopting the exclusive jurisdiction model, the Court improperly balanced respecting Charter rights against judicial deference for labour arbitration. All these mistakes of the Court in Weber demonstrate why it should have adopted the overlapping model of jurisdiction for Charter claims arising from collective agreements. This paper will examine all of these issues.
Weber v Ontario Hydro
Mr. Weber was employed by Ontario Hydro ("Hydro"). As a result of back problems, he took an extended leave of absence. Hydro paid him sick benefits stipulated by the collective agreement. As time passed, Hydro began to suspect that Mr. Weber was malingering. Hydro hired investigators to substantiate its concerns. The investigators came to his property and entered his home. With the information it obtained, Hydro suspended Mr. Weber for abusing his sick leave benefits.
Mr. Weber responded by taking the matter to his union, which filed a grievance. The grievance alleged that Hydro's hiring of the private investigators violated terms of the collective agreement. The union asked the arbitrator to require Hydro to pay Mr. Weber and his family damages for mental anguish and suffering arising out of the surveillance. The union subsequently settled the arbitration.
Mr. Weber also commenced a court action in contract, tort, and for breach of his Charter rights--claiming damages for the surveillance. Mr. Weber's claims under the Charter were for breaching his rights under sections 7 and 8. In response, Hydro applied for an order dismissing Mr. Weber's court action. The motions judge dismissed the claim because "the dispute arose out of the collective agreement depriving the court of jurisdiction, and was moreover a private matter to which the Charter did not apply. The Court of Appeal agreed, except with respect to the Charter claims, which it allowed to stand". (10)
The Court had to address the issue of labour arbitration as a forum of original jurisdiction for the resolution of common law and Charter disputes under a collective agreement. (11) In its ruling, the Court denied Mr. Weber access to the courts to pursue claims based on contract, tort, and alleged violations of his Charter rights based on different employment issues and privacy violations.
The Court had to pick the appropriate model of jurisdiction for disputes arising out of a collective agreement. It had three options. The "concurrent" model "contemplates concurrent regimes of arbitration and court action: if an action is recognized either at common law or by statute, the action may proceed and the collective agreement cannot deprive a court of jurisdiction." (12) Under the "overlapping jurisdiction" model, a civil action may be brought "if the issues raised go beyond the traditional subject matter of labour law." (13) The final view is the "exclusive jurisdiction" model. Under this model, if the differences between the parties arise from the collective agreement, they must proceed by way of arbitration, and the courts have no jurisdiction to entertain an action. (14) After discussing the three possible models of jurisdiction, the Court endorsed the exclusive jurisdiction model. (15)
In her reasons for the majority, Justice McLachlin (as she then was) relied on the St Anne-Nackawic Pulp & Paper Co v CPU, Local 219 decision, and the mandatory arbitration clause in the Ontario Labour Relations Act. (16) She articulated that exclusive jurisdiction is given to labour tribunals and arbitrators to decide all disputes between the parties arising from the collective agreement. (17) Thus, the Weber analysis proceeds in two parts. First, the "essential character" of the dispute must be determined, "in the sense that the form in which it is cast is to be eschewed in favour of a more searching analysis." (18) Second, the arbitrator or court must then decide "whether the matter comes within the ambit of the collective agreement, in the sense of whether it arises from the interpretation, application, administration or violation of the agreement, either implicitly or directly." (19)
The Weber analysis captures Charter and common law claims if the basis of the individual claim arises expressly or inferentially out of the collective agreement. This is contingent on the legislation or collective agreement in question empowering the arbitrator to hear the dispute and grant the remedies claimed. Justice McLachlin, however, limited her reasons and did not preclude all actions in the courts between an employer and unionized employee. (20) But the court has no jurisdiction over disputes that expressly or inferentially arise out of the collective agreement.
In a manner that is troubling, Justice McLachlin used the Douglas College decision to support her conclusion that Charter claims inferentially arising out of collective agreements are foreclosed to the courts. (21) In Douglas College, the Court held that the Charter applies to a public college's collective agreement. For these reasons, the Court agreed that this decision allowed labour arbitrators to make decisions on Charter claims. (22) Paradoxically, Justice McLachlin used a decision which recognised that the Charter could apply to collective agreements to support the conclusion that Charter claims are foreclosed to the courts when the dispute arises out of a collective agreement. (23)
To justify her reasons for this jurisprudential shift, Justice McLachlin commented that the exclusive jurisdiction model followed precedent and statute, eliminated the potential for the multiple proceedings, and conformed to a pattern of growing judicial deference for the arbitration and grievance process. (24) Another support for her reasons was that, where arbitrators lack expertise in an area of law, their errors can be corrected by way of judicial review. (25) Reviewing the decision, the driving force behind the Court's reasons in Weber appears to be access to justice concerns and the cost of litigation.
Weber's Main Defects
Subsequent treatment of Weber demonstrates that the exclusive jurisdiction model has only raised more issues. The Court's goal of simplifying the jurisdiction question for grievance arbitration in Weber has only led to more confusion, criticism, and questions. (26) Labour arbitrators and courts have often struggled to apply the reasoning of Weber to different contexts in which there is potential for jurisdictional overlap. (27) For these reasons, the decision is defective in certain respects.
One major defect in the Weber decision is that the two-factor test for exclusive jurisdiction developed by the majority is ambiguous and difficult to apply. (28) The question of whether a dispute arises "inferentially" from the collective agreement is heavily fact-dependent and subject to different interpretations. This weakness contributes to the confusion in applying the two-factor test. In a variety of decisions, arbitrators, tribunals, trial courts, and courts of appeal have reached different conclusions as to whether a dispute arises "inferentially" from a collective agreement. (29)
The lack of precision in the Weber test is troubling. Consider a situation in which an employee is denied the right to bring an action in the courts because the dispute arises from the collective agreement. If a labour arbitrator subsequently finds that the dispute does not arise out of the collective...