Statutory Tribunals and the Challenges of Managing Parallel Claims

• Author: Jo-Anne Pickel
• Pages: 175-200

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 

Statutory Tribunals and the Challenges of

Managing Parallel Claims

Jo-Anne Picke*

It has now been twenty years since the Supreme Court of Canada ren-

dered its decisions in Weber v Ontario Hydro and its companion case New

Brunswick v O’Leary. In those decisions, the Court adopted an exclusive

jurisdiction model to hold that arbitrators have exclusive jurisdiction to

deal with tort and constitutional claims where the essential character of

a dispute arises from the interpretation, application, administration or

violation of a collective agreement.

Numerous articles were published shortly after the release of Weber

and O’Leary, primarily addressing what this exclusive jurisdiction mod-

el meant for labour arbitration, unions, employers, and individual em-

ployees. In the decade following Weber’s release, many articles continued

to appear, focusing on the impact of Weber on labour arbitration in the

intervening years. There has been comparatively less scholarship exam-

* Any opinions expressed in this essay are those of the author and should not be

taken to reect the views of the HRTO or its Vice-Chairs.

 []  SCR  [Weber].

 []  SCR  [O’Leary].

 See e.g., Bernard Adell, “Jurisdictional Overlap Between Arbitration and Other

Forums: An Update” ()  Canadian Labour and Employment Law Journal 

; Ray Brown & Brian Etherington, “Weber v Ontario Hydro: A Denial of Access to

Justice for the Organized Employee?” ()  Canadian Labour and Employment

Law Journal ; Donald D Carter, “Looking at Weber Five Years Later: Is it Time

for a New Approach?” ()  Canadian Labour and Employment Law Journal ;

- 

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ining what impact, if any, Weber and associated cases have had on the

jurisdiction of statutory tribunals.

As many scholars have described, Weber has had a signicant impact

on labour arbitration because courts have declined jurisdiction over a

range of contract and tort claims which have then been diverted into the

arbitral forum. The discussion in the scholarship has focused mainly on

just how frequently courts have declined jurisdiction over the claims of

unionized employees on the basis of the reasoning in Weber. In this essay, I

suggest that Weber’s impact on the jurisdiction of statutory tribunals has, in

contrast, been comparatively minor, because statutory tribunals have been

much less likely than courts to decline jurisdiction on the basis of exclusive

arbitral jurisdiction.

In Part A of the essay, I review the approach taken to Weber by Can-

adian human rights tribunals and two other statutory tribunals in On-

tario. I focus on human rights tribunals because the most frequent area

of overlap between arbitrators and statutory tribunals has been in rela-

tion to human rights. As I discuss, human rights tribunals and reviewing

courts in Canadian jurisdictions other than Quebec have held that hu-

man rights tribunals have concurrent jurisdiction with labour arbitrators

Donald Carter, “An Arbitrator as Human Rights Adjudicator: The Lessons of Orillia

Soldiers Memorial Hospital” (–)  Labour Arbitration Year Book (Toronto:

Lancaster House, ) ; Andrew Lokan & Maryth Yachnin. “From Weber to

Parry Sound: the Expanded Scope of Arbitration” ()  Canadian Labour and

Employment Law Journal ; Richard MacDowell, “Labour Arbitration — The New

Labour Court?” ()  Canadian Labour and Employment Law Journal ; Michel

G Picher, “Dening the Scope of Arbitration: The Impact of Weber: An Arbitrator’s

Perspective” in Kevin Whittaker et al, eds, (–)  Labour Arbitration Year

Book (Toronto: Lancaster House, ) .

 Some exceptions are the following articles, which deal in whole or in part with the

delineation of jurisdiction between arbitrators and statutory tribunals, especially

human rights tribunals: Elizabeth Shilton, “Choice, but No Choice: Adjudicating

Human Rights Claims in Unionized Workplaces in Canada” () : Queen’s Law

Journal ; Dana F Hooker & Carman J Overholt, “Defending Claims In Dierent

Fora: The Competing Jurisdiction of Arbitrators And Tribunals In British Columbia”

() : University of British Columbia Law Review ; Craig Flood, “Eciency

v Fairness: Multiple Litigation and Adjudication in Labour and Employment Law”

()  Canadian Labour and Employment Law Journal ; Lokan & Yachnin, ibid;

Sonia Regenbogen Luciw, “Parry Sound and Its Successors in the Supreme Court

of Canada: Implications for the Scope of Arbitral Authority” ()  Canadian

Labour and Employment Law Journal .

 See articles in note  above.