Weber, and Almost Everything After, Twenty Years Later: Its Impact on Individual Charter, Common Law, and Statutory Rights Claims

• Author: Brian Etherington
• Pages: 25-86

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 

Weber, and Almost Everything After,

TwentyYears Later: Its Impact on

IndividualCharter, Common Law, and

Statutory Rights Claims

Brin Etherinton

In Weber v Ontario Hydro, the Supreme Court of Canada revisited the

issue of judicial deference to labour arbitration as a forum of original

jurisdiction for the resolution of disputes between organized employees

and their employer. The Court denied Mr Weber access to the courts to

pursue claims against his employer based on the common law and the

Canadian Charter of Rights and Freedoms by adopting a model of exclu-

sive jurisdiction for arbitration over employment disputes arising under

a collective bargaining relationship. This model went far beyond the

Court’s previous calls for judicial deference, and even encompassed em-

ployee claims for redress based on violations of their most fundamental,

individual rights under the Charter.

There has already been a great deal written about the implications

of Weber and the subsequent decisions of the Supreme Court of Canada

and of courts and boards across the country which have tried to apply

its reasoning to dierent contexts of potential overlap in jurisdiction be-

 []  SCR ,  DLR (th) , rev’g (),  OR (d)  (Ont CA) [Weber

Ont CA], a’g ()  ACWS (d)  (Ont Ct J (Gen Div)) [Weber]. See also the

companion decision in New Brunswick v O’Leary, []  SCR ,  (th) DLR 

released the same day, which found exclusive arbitral jurisdiction over a negligence

claim for damages brought by the employer against a bargaining unit employee.

 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, , being

Schedule B to the Canada Act  (UK) , c .

 

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tween arbitration and other forums. For a decision which was so clear-

ly designed to cut down on litigation arising from disputes which were

somehow related to the workplace, it has certainly shown great promise

in achieving the exact opposite result — at least during the rst twenty

years after its release.

Weber and its progeny, most importantly Parry Sound (District) Wel-

fare Administration Board v Ontario Public Service Employees Union, Lo-

cal , have been the key judicial contributions to the transformation

of arbitration from an alternative dispute resolution mechanism for the

resolution of private, contractual collective bargaining disputes to a quasi-

 Ray Brown and Brian Etherington, “Weber v. Ontario Hydro: A Denial of Access

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

ment Law Journal ; David Mullan, “Tribunals and Courts — The Contemporary

Terrain: Lessons from Human Rights Regimes” () : Queen’s Law Journal. ;

Bernard Adell, “Jurisdictional Overlap Between Arbitration and Other Forums: An

Update” ()  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 ; Richard MacDowell, “Labour

Arbitration — The New Labour Court?” ()  Canadian Labour and Employment

Law Journal ; George T Surdykowski, “The Limits of Grievance Arbitration: Weber

and Pilon in Perspective” in Kevin Whitaker et al, eds, (–)  Labour Arbi-

tration Year Book (Toronto: Lancaster House, ) ; Michel G Picher, “Dening

the Scope of Arbitration: The Impact of Weber: an Arbitrator’s Perspective” in Kevin

Whitaker et al, eds, (–)  Labour Arbitration Year Book (Toronto: Lancaster

House, ) ; Lewis Gottheil, “Dening the Scope of Arbitration: The Impact of

Weber — A Union Perspective” in Kevin Whitaker et al, eds, (–)  Labour

Arbitration Year Book (Toronto: Lancaster House, ) ; Eric Durnford, QC, “De-

ning the Scope of Arbitration: The Impact of Weber — A Management Perspective”

in Kevin Whitaker et al, eds, (–)  Labour Arbitration Year Book (Toronto:

Lancaster House, ) ; Kenneth P Swan, “Ships Passing in the Night: Arbitra-

tors and the Courts” in Kevin Whitaker et al, eds, (–)  Labour Arbitration

Year Book (Toronto: Lancaster House, ) ; William Kaplan et al, “The Scope of

Rights Arbitration after Weber v. Ontario Hydro” ()  Canadian Labour and Em-

ployment Law Journal ; Valerie J Matthews Lemieux, “The Ongoing Debate Over

the Scope of Weber — Who Has Jurisdiction?” in Todd Archibald & Michael Coch-

rane, eds, Annual Review of Civil Litigation (Toronto: Carswell, ) ; John-Paul

Alexandrowicz, “Restoring the Role of Grievance Arbitration: A New Approach to

Weber” ()  Canadian Labour and Employment Law Journal ; Andrew Lokan

& Maryth Yachnin. “From Weber to Parry Sound: the Expanded Scope of Arbitration”

()  Canadian Labour and Employment Law Journal .

  SCC  [Parry Sound]. This decision held that all collective agreements must

be deemed to incorporate the substantive rights and obligations contained in

applicable employment-related statutes. See below at note .

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Weber, and Almost Everything After, Twenty Years Later

public forum — some have called it a “labour court” — for the enforce-

ment of not only contractual claims but also tort claims and claims under

public statutory rights, including constitutional rights. While some have

questioned the overall eciency and policy eectiveness of using such a

privately-funded institution to administer and enforce public employment

law regimes, I contend that the prime motivations for the transformation

were the ascendancy of eciency and nality concerns during the s

and early s, in many cases at the expense of access to justice and

institutional appropriateness concerns. Weber in particular was not about

increasing access to justice or expanding arbitral jurisdiction, but rather

about getting the claims of organized workers out of the courts and into

privately-funded forums. However, I also contend that the decision of the

Supreme Court of Canada in Québec (Commission des droits de la personne

& des droits de la jeunesse) c Québec (Procureur général) in  provided

a turning point, after which courts and administrative law decision-mak-

ers, with one or two notable exceptions, became willing to take a more

nuanced and balanced approach to deciding jurisdictional issues where

the competition is between arbitration and other statutory decision-mak-

ers. Thus, while the detrimental eects of Weber on access to justice for

individual common law and Charter claims have not been undone, the sin-

gle-minded presumption of exclusive arbitral jurisdiction has been almost

transformed into an assumption of concurrent jurisdiction for overlaps

with other statutory tribunals, allowing for an appropriate and balanced

consideration of eciency, nality, access to justice and institutional ap-

propriateness concerns when dealing with those types of issues.

In this essay I set out my own thoughts on where Weber and its progeny

have brought us today on the issues relating to multiplicity of proceedings

in the adjudication of workplace-related disputes. Throughout the essay, I

discuss the hierarchy of values that appears to underlie the single-minded

drive towards an exclusive jurisdiction approach in Weber and many of

its ospring. At various points, I also touch on the impact of the Weber

movement on unions and grievance arbitration as viable institutions for

the successful pursuit of collective bargaining objectives. In Part A, I exam-

ine Weber in context, looking at its origins and purpose and considering

it as part of a larger trend to privatize and collectivize workplace dispute

resolution in the name of eciency. In Parts B, C and D, I assess the extent

 MacDowell, above note  at .

  SCC  [Morin].