More Glue than Cracks? Rethinking Weber Gaps and Access to Justice for Unionized Employees

AuthorKaren Schucher
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 
More Glue than Cracks?
Rethinking Weber Gaps and Access
toJustice for Unionized Employees
Kren Schucher
In the liberal-individualist approach that has dominated American
thought about legal procedure (and so much else), the purpose of law is to
protect rights, and the purpose of rights is to empower the self. . . . Since
the liberal theory of justice isolates the self from its social context and
relationships, it considers that protection against others is sucient for
Focusing on human relations is consistent with the traditional project of
law. Law is deeply implicated in creating, interpreting, rationalizing, ap-
plying and enforcing rules of social interaction between individuals and
groups. Though not always acknowledged in relational terms, law is inte-
grally connected to the nature, quality and character of human relation-
ships. It is in this capacity that law has contributed to the absence of caring
and the widespread existence of relations of permanent inequality. Ironic-
ally, this same capacity also gives law the potential to promote more caring
relationships and thereby enhance equality.
David M Trubek, “Critical Moments in Access to Justice Theory: The Quest for the
Empowered Self” in Allan C Hutchinson, ed, Access to Civil Justice (Toronto: Car-
swell, )  at .
Colleen Sheppard, “Caring in Human Relations and Legal Approaches to Equality”
(–)  National Journal of Constitutional Law  at .
 
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One potential outcome of the Supreme Court’s decision in Weber
v Ontario Hydro, as Brian Etherington has argued in this volume and
elsewhere, is that individual unionized employees may be denied ac-
cess either to the courts or to labour arbitration to pursue common law
or Charter claims relating to their employment. Etherington sees this
outcome as constituting a denial of access to justice for unionized em-
ployees. I agree that where an individual is precluded from advancing
a legal claim through formal legal enforcement processes, this raises an
access-to-justice question that merits careful examination. However, I
have concluded that such an examination provides considerable reason
to doubt that by consigning common law and Charter issues to labour
arbitration, Weber has resulted in a denial of access to justice. I have sim-
ilarly concluded that consigning statutory issues to labour arbitration
does not result in a denial of access to justice. In this paper, I explain why
I have reached these conclusions.
Etherington’s particular concern is that Weber produces what he calls
Weber gaps”: situations where unionized employees have no access to
a legal forum in which to enforce common law or Charter rights claims
relating to the workplace. He identies two types of Weber gaps created
by Weber and its application in subsequent cases. The rst occurs where
neither a court nor a labour arbitrator will accept jurisdiction to address
[]  SCR  [Weber].
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, , being
Schedule B to the Canada Act  (UK), , c .
Brian Etherington, “Weber and Almost Everything After:  Years Later — Its Impact
on Charter, Common Law, and Individual Statutory Rights Claims,” Chapter , this
volume [Etherington, “ Years Later”]; Brian Etherington, “O.P.S.E.U. v. Seneca
College: Deference as a Two-Edged Sword — A Missed Opportunity to Address the
Weber Gap’” (–)  Canadian Labour and Employment Law Journal 
[Etherington, “O.P.S.E.U. v. Seneca College”]; Brian Etherington, “Promises, Prom-
ises: Notes on Diversity and Access to Justice” () : Queen’s Law Journal 
[Etherington, “Promises, Promises”]; Ray Brown & Brian Etherington, “Weber v
Ontario Hydro: A Denial of Access to Justice for the Organized Employee” () :
Canadian Labour and Employment Law Journal .
This argument was at the heart of the debate over replacing the Ontario Human
Rights Commission enforcement process with direct access by individuals to the
human rights tribunal. See e.g., Michael Gottheil & Katherine Laird, “Direct Access
to a Specialized Tribunal: The Ontario Experience” in Le Tribunal des droits de
la personne et le Barreau du Québec, eds, L’accès direct à un tribunal spécialisé en
matière de droit à l’égalité: l’urgence d’agir au Québec? (Cowansville, Québec: Édi-
tions Yvon Blais, ) .
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More Glue Than Cracks?
a unionized employee’s common law or Charter claim. This could occur
where a court concludes that the claim is connected with a matter cov-
ered by a collective agreement, and therefore falls within the exclusive
jurisdiction of an arbitrator, but an arbitrator can nd nothing in the
agreement which would permit meaningful adjudication of the claim.
This type of Weber gap is a true gap, in that valid common law or Charter
claims may exist, but employees cannot advance these claims in any for-
mal legal process, with or without the support of the union.
The second type of gap is perhaps better described as a barrier rather
than a gap. It occurs where a rights claim clearly falls within the exclusive
jurisdiction of an arbitrator, but the union will not support the employee’s
grievance to arbitration. In other words, there is an enforcement process
available, but the unionized employee does not have independent access
to this process and the union — the gatekeeper will not provide access.
This type of gap was not, of course, created by Weber; it has always existed
with respect to employment rights owing directly from the collective
agreement and has long been a concern to liberal commentators such
as Bora Laskin and Bernie Adell, who argued that unions should not
control access to arbitration. But Etherington suggests that by sweeping
Etherington, “ Years Later,” above note  at –. See also Elizabeth Shilton,
“Enforcing Workplace Pension Rights for Unionized Employees: Is There a ‘Weber
Gap’?” ()  Canadian Labour and Employment Law Journal .
Etherington, “ Years Later,” above note  at –.
As far back as , Bora Laskin argued that “[i]f collective bargaining is to be
viewed as helping to fulll an employee’s claim to decent working conditions, then
he should be given access to the machinery by which they may be vindicated if his
bargaining agent chooses to refuse its support.” Bora Laskin, “Collective Bargaining
and Individual Rights” ()  Canadian Bar Journal  at .
 BL Adell, “The Duty of Fair Representation: Eective Protection for Individual
Rights in Collective Agreements?” () : Relations industrielles/Industrial Rela-
tions ; Bernard Adell, “Collective Agreements and Individual Rights: A Note on
the Duty of Fair Representation” () : Queen’s Law Journal  [Adell, “Collec-
tive Agreements”]; Bernard Adell, “Establishing a Collective Employee Voice in the
Workplace: How Can the Obstacles Be Lowered?” in G England, ed, Essays in Labour
Relations Law (Don Mills, ON: CCH Canadian Limited, ) ; Bernard Adell, “The
Union’s Duty of Fair Representation in Discrimination Cases: The New Obligation
to Be Proactive” in Kevin Whitaker et al, eds, (–)  Labour Arbitration Year-
book (Toronto: Lancaster House, )  [Adell, “Union’s Duty”]; Bernard Adell,
“Jurisdictional Overlap Between Arbitration and Other Forums: An Update” () 
Canadian Labour and Employment Law Journal  at ; Bernard Adell, “The Duty
of Fair Representation: ‘a form of words . . .’?”, (PowerPoint delivered at Adjudicating

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