Some Unique Features of Weber's Application in Quebec: The Treatment of Statutory Labour Rights and Human Rights Claims

• Author: Renée-Claude Drouin
• Pages: 255-300

{  }

•

 

Some Unique Features of Weber’s

Application in Quebec: The Treatment

ofStatutory Labour Rights and

HumanRights Claims

enée-Cude Drouin

In the landmark case of Weber v Ontario Hydro, the Supreme Court of

Canada held that labour arbitrators generally have exclusive jurisdiction

to resolve disputes arising from the implementation and interpretation of

a collective agreement. Faced with deciding whether an employee could

sue his employer in court on the ground of tort rules and alleged violations

of Charter rights, the Court discarded concurrent and overlapping juris-

dictional models, and concluded that Weber’s action could not be tried.

Clearly favouring a “one-stop shop” approach to deciding all aspects of a

single dispute arising in a unionized workplace, the Court held that the

question of jurisdiction did not depend on the way the parties had legal-

ly framed their claims. Instead, the central jurisdictional question was

“whether the dispute, in its essential character, arises from the interpreta-

tion, application, administration, or violation of the collective agreement.”

  SCC  [Weber].

 Ibid (Under such a model,”[w]here an action is recognized by the common law or by

statute, it may proceed, notwithstanding that it arises in the employment context” at

para ).

 Ibid (“On this approach, notwithstanding that the facts of the dispute arise out of

the collective agreement, a court action may be brought if it raises issues which go

beyond the traditional subject matter of labour law” at para ).

 Ibid at para .

- 

{  }

Since the answer was armative, the dispute belonged within the exclu-

sive jurisdiction of an arbitrator.

The Weber decision is part of a long judicial and doctrinal reection

on the role and function of grievance arbitration in the context of evolv-

ing labour laws. Historically, the development of collective labour rela-

tions institutions was at odds with the common law, in particular given

the liberal approach of the latter regarding contractual matters, which

clashed with workers’ need for protection. Collective autonomy, or the

right of the parties in labour relations — unions and employers — to de-

velop and implement their own normative system in the workplace, was

traditionally seen as the most desirable way for workers to access better

working conditions and to establish a degree of industrial democracy.

From the perspective of industrial pluralism, grievance arbitration, the

judicial branch of the workplace governance system, was seen as a reso-

lutely private mode of justice, ensuring that the will of the parties, as

expressed in the collective agreement, would be implemented.

The legal context in which grievance arbitration initially appeared

has been profoundly transformed in recent decades by increasingly

strong state intervention in the eld of labour relations, aimed at en-

suring a number of common protections for all workers with regard to

occupational health and safety, minimum labour standards or more gen-

eral human rights and freedoms. As a result of these legislative interven-

tions, statutory rights are now just as likely to be the source of working

conditions for unionized workers as the collective bargaining agreement

itself. This development has necessarily raised questions regarding the

relationship between statutory rights, the collective agreement, and

grievance arbitration. Two issues in particular appear to be fundamental:

whether arbitrators have the power to decide a grievance not only on the

basis of the content of the collective agreement, but also on the basis of

statutory employment rights; and how that power to resolve disputes is

 Pierre Verge, “L’armation constitutionnelle de la liberté d’association: une nou-

velle vie pour l’autonomie collective?” ()  Cahiers de droit  at .

 Guylaine Vallée & Dalia Gesualdi-Fecteau, “La constitutionnalisation du droit du

travail: une menace ou une opportunité pour les rapports collectifs de travail?”

()  Cahiers de droit  at -.

 See Elizabeth Shilton, “Weber, The Common Law and Industrial Self-Government,”

Chapter , this volume.

 Vallée & Gesualdi-Fecteau, above note  at .

{  }

Some Unique Features of Weber’s Application in Quebec

divided among the arbitrator, the common law courts and the other spe-

cialized bodies.

Weber ts into a line of cases in which the Supreme Court takes a

liberal approach to the jurisdiction of labour arbitrators, extending the

arbitrator’s more traditional domain. Hence, the mixed reactions to the

ruling: “The decision and its aftermath have had a great impact on Can-

adian doctrine, with some observers seeing in it a dangerous trend toward

a form of privatization of justice while others have rejoiced at the Court’s

recognition of the integrity of the arbitral forum.” On a practical level,

despite clues provided by courts, in Quebec, as in other Canadian prov-

inces, delineating the frontiers of arbitral jurisdiction after Weber has

proved to be a challenge in many instances. One of the reasons for this

lies in the fact that the exclusive jurisdiction model put forward in Weber

derived from a case in which the competing jurisdictions at play were

arbitration on the one hand, and the general courts on the other. Since

this binary divide does not fully grasp the complex architecture of modern

labour law, Weber left many questions unanswered or only partially an-

swered. One of these relates to the proper way to integrate dierent sources

of law — primarily the collective agreement and statutory rights — in the

context of arbitral jurisdiction. Another relates to the role of arbitration in

resolving human rights disputes arising in unionized workplaces. On these

questions, the caselaw from Quebec is to some extent at odds with the rest

of Canada, in part because of the civil law tradition applicable in the prov-

ince for matters of private law.

In Part A of this essay, I examine the rst of these questions: the rela-

tionship between collective agreements and statutory law. I argue that as

a result of the decisions of the Supreme Court in Isidore Garon ltée v Trem-

blay; Fillion et Frères () inc. v Syndicat national des employés de garage

du Québec inc and Syndicat de la fonction publique du Québec v Quebec

(Attorney General), the rule developed by the Court in Parry Sound (Dis-

trict) Welfare Administration Board v Ontario Public Service Employees

Union, Local  — that human rights and other employment-related

 Gilles Trudeau, “L’arbitrage des griefs au Canada: plaidoyer pour une réforme deve-

nue nécessaire” () : Canadian Bar Review  at  [Trudeau, “L’arbitrage

des griefs”].

 Ibid at . [translated by author].

  SCC  [Isidore Garon]

  SCC  [SFPQ].

  SCC  [Parry Sound].