Nelson v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as: Nelson v. Ontario]

Ontario Reports Ontario Superior Court of Justice Schabas J. April 7, 2020 150 O.R. (3d) 309 | 2020 ONSC 2147

Case Summary

Arbitration — Jurisdiction — Employee with Ontario Public Service filing grievances against her employer for discrimination and harassment — Employee also filing application with Human Rights Tribunal against employer, but also making allegations against union — Employee commencing civil action against employer and union — Plaintiff's action dismissed for lack of jurisdiction as her employment was governed by a collective agreement such that disputes were to be resolved by arbitration.

Courts — Jurisdiction — Employee with Ontario Public Service filing grievances against her employer for discrimination and harassment — Employee also filing application with Human Rights Tribunal against employer, but also making allegations against union — Employee commencing civil action against employer and union — Plaintiff's action dismissed for lack of jurisdiction as her employment was governed by a collective agreement such that disputes were to be resolved by arbitration.

Employment — Labour relations — Collective agreement — Grievance arbitration — Jurisdiction — Employee with Ontario Public Service filing grievances against her employer for discrimination and harassment — Employee also filing application with Human Rights Tribunal against employer, but also making allegations against union — Employee commencing civil action against employer and union — Plaintiff's action dismissed for lack of jurisdiction as her employment was governed by a collective agreement such that disputes were to be resolved by arbitration.

The plaintiff was hired as a contract employee with the Ontario Public Service in 2005 and became a permanent employee in 2006. As a result of being made a team lead in 2007, she became a union member and her employment relationship was governed by the terms of the collective agreement between her union and Ontario. Between 2011 and 2018, the union filed four grievances on her behalf alleging discrimination, harassment and denial of a training opportunity. In 2012, the plaintiff filed an application at the Human Rights Tribunal of Ontario, alleging harassment and discrimination based on race, colour, disability, sex and pregnancy. That application did not name the union as a respondent, but did make allegations against the union's representation of her. She also made unsuccessful complaints involving the Workplace Discrimination and Harassment Prevention Policy and the Workplace Safety and Insurance Board. In 2019, the plaintiff commenced an action against the Crown and her union grounded in allegations of discrimination and harassment arising from her employment by Ontario. The initial grievances were ultimately withdrawn to allow the plaintiff to pursue her application before the Human Rights Tribunal, which deferred the application pending completion of the civil proceedings. The fourth grievance was also being held in abeyance. The defendants moved to dismiss the plaintiff's action for lack of jurisdiction.

Held, the motion should be granted.

The action was struck out for lack of jurisdiction. The plaintiff was a union member and as such her employment was governed by a collective agreement and presumptively any employment-related dispute had to be dealt with by way of arbitration. The essential character of the dispute, including all the causes of action, arose in the workplace and were governed by the collective agreement. For a unionized employee to assert human rights claims in a civil action against her employer and/or union, there had to be some independent civil wrong that did not, in its essential character, arise from the workplace governed by the collective agreement. The plaintiff pleaded no such wrong on which to "piggyback" a human rights claim. The plaintiff was able to pursue all of her complaints before the Human Rights Tribunal, including those against her union.

Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, [1990] S.C.J. No. 55, 109 N.R. 321, [1990] 4 W.W.R. 385, J.E. 90-925, 66 Man. R. (2d) 81, 44 Admin. L.R. 149, 90 CLLC para. 14,020, 21 A.C.W.S. (3d) 289; Ontario (Human Rights Commission) v. Naraine, [2001] O.J. No. 4937, 209 D.L.R. (4th) 465, 158 O.A.C. 380, 13 C.C.E.L. (3d) 208, [2002] CLLC para. 230-007, 110 A.C.W.S. (3d) 517, 41 C.H.R.R. D/349 (C.A.) [Leave to appeal to S.C.C. refused [2002] 3 S.C.R. x, [2002] S.C.C.A. No. 69], consd

Rivers v. Waterloo (Regional Municipality) Police Services Board, [2019] O.J. No. 1739, 2019 ONCA 267, 2019 CLLC para. 220-038, affg [2018] O.J. No. 3717, 2018 ONSC 4307 (S.C.J.)](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4307/2018onsc4307.html) [Leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 232], apld

Honda Canada Inc. v. Keays (2008), 92 O.R. (3d) 479, [2008] 2 S.C.R. 362, [2008] S.C.J. No. 40, 2008 SCC 39, [2008] CLLC para. 230-025, EYB 2008-135085, J.E. 2008-1354, 166 A.C.W.S. (3d) 685, 66 C.C.E.L. (3d) 159, 376 N.R. 196, 294 D.L.R. (4th) 577, 239 O.A.C. 299, 63 C.H.R.R. D/247, D.T.E. 2008T-551, varg (2006), , 82 O.R. (3d) 161, [2006] O.J. No. 3891, 274 D.L.R. (4th) 107, 216 O.A.C. 3, 52 C.C.E.L. (3d) 165, [2006] CLLC para. 230-030, 151 A.C.W.S. (3d) 612 (C.A.); Metz v. Tremblay-Hall, [2006] O.J. No. 4134, 53 C.C.E.L. (3d) 107, 152 A.C.W.S. (3d) 596 (S.C.J.); Peng v. Star Choice Television Network Inc., [2006] O.J. No. 4169, 54 C.C.E.L. (3d) 117, 155 A.C.W.S. (3d) 341 (S.C.J.), distd

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59, 125 D.L.R. (4th) 583, 183 N.R. 241, J.E. 95-1482, 82 O.A.C. 321, 30 Admin. L.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 CLLC para. 210-027, 30 C.R.R. (2d) 1, 56 A.C.W.S. (3d) 94, EYB 1995-67433, folld

Other cases referred to

Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 (2003), 67 O.R. (3d) 256, [2003] 2 S.C.R. 157, [2003] S.C.J. No. 42, 2003 SCC 42, 230 D.L.R. (4th) 257, 308 N.R. 271, J.E. 2003-1790, 177 O.A.C. 235, 7 Admin. L.R. (4th) 177, 31 C.C.E.L. (3d) 1, [2003] CLLC para. 220-062, 125 A.C.W.S. (3d) 85, REJB 2003-47356, 47 C.H.R.R. D/182, 2003 RTQ para. 10,215; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, [2004] S.C.J. No. 34, 2004 SCC 39, 240 D.L.R. (4th) 577, 321 N.R. 290, J.E. 2004-1232, 15 Admin. L.R. (4th) 1, [2004] CLLC para. 230-023, 131 A.C.W.S. (3d) 494, 49 C.H.R.R. D/413, 128 L.A.C. (4th) 1, 2004 RTQ para. 10,170; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, [1981] S.C.J. No 76, 124 D.L.R. (3d) 193, 14 B.L.R. 157, 2 C.H.R.R. D/468, 37 N.R. 455, 81 CLLC 14,117, 9 A.C.W.S. (2d) 262, J.E. 81-704; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, [1986] S.C.J. No. 34, 28 D.L.R. (4th) 1, 68 N.R. 112, 73 N.B.R. (2d) 236, 86 CLLC para. 14,037, 38 A.C.W.S. (2d) 3

Statutes referred to

• Canadian Charter of Rights and Freedoms, ss. 7, 15
• Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12
• Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, ss. 2(1) [as am.], 7(3)
• Employment Standards Act, 2000, S.O. 2000, c. 41
• Human Rights Code, R.S.O. 1990, c. H.19, ss. 10 [as am.], 34(1)(a), (11), 46.1, (2)
• Labour Code, C.Q.L.R., c. C-27, s. 100 [as am.]
• Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A [as am.], ss. 48(1), (j), 74, 96 [as am.]

MOTION to dismiss an action for lack of jurisdiction.

Counsel: Ranjan K. Agarwal, for plaintiff. Tom Curry and Delna Contractor, for defendant Her Majesty the Queen in Right of Ontario. James K. McDonald and Geetha Philipupillai, for defendant David Bulmer, as a representative of Association of Management, Administrative and Professional Crown Employees.

SCHABAS J.: —

Introduction

[1] This decision addresses what has become known as a "Weber motion", in which the defendants seek to strike out or dismiss an action on the ground that the court lacks jurisdiction to hear the matter as it arises out of an employment dispute under a collective agreement, and therefore should be heard by a labour arbitrator or the Human Rights Tribunal of Ontario ("HRTO" or the "Tribunal").

[2] The plaintiff, Hentrose Nelson ("Nelson" or the "plaintiff") is employed by the Ontario government ("the Crown", "Ontario" or the "employer"). She is a member of a union, Association of Management, Administrative and Professional Crown Employees ("AMAPCEO" or the "union"), and her relationship with her employer is governed by the Collective Agreement between AMAPCEO and Ontario. Pursuant to the Collective Agreement, through her union, beginning in 2011 Nelson has initiated several grievances asserting discrimination based on sex, gender, disability, race including anti-Black racism and harassment by her managers and co-workers in the Ontario Public Service, alleging breaches of the Collective Agreement, the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"), and the Employment Standards Act, 2000, S.O. 2000, c. 41. Nelson has also made an application before the HRTO alleging discrimination by the Crown on the basis of race, colour, disability, sex and pregnancy. However, she is dissatisfied with the union's representation of her in the arbitration process and has withdrawn several of her grievances. The HRTO proceeding was deferred under the Code while the arbitrations were outstanding and has now been deferred again since she has brought this civil action against both the Crown and AMAPCEO asserting her claims of discrimination and harassment in her employment.

[3] For the reasons that follow, I grant the motions of the defendants striking out this action. In my view, the long-standing principles stated in Weber, repeatedly reaffirmed by the courts, that a court's jurisdiction is ousted when a plaintiff is under a collective bargaining regime, apply here. Although courts have jurisdiction to consider matters arising under the Human Rights Code, it is a very limited jurisdiction which requires the existence of a separate, and additional, cause of action which is properly before the court in the case. That is not the situation here, where the plaintiff's complaints arise entirely from her employment, which is governed by a Collective Agreement, and her claim does not raise any new or separate cause of action which the court can, or should, consider.

Factual Background

Terms of employment -- The Collective Agreement

[4] The plaintiff commenced employment with the Ontario Public Service (the defendant Her Majesty the Queen in right of Ontario) as a contract employee in approximately 2005, and was subsequently hired on a permanent basis at the Ministry of Citizenship and Immigration in 2006. She continues to be employed by the Crown.

[5] In 2007, Nelson became a Team Lead and, as a result, became a member of AMAPCEO, a trade union and the exclusive bargaining agent for certain professionals employed by the Crown. Nelson's employment relationship then became governed by the terms of the Collective Agreement between the Crown and AMAPCEO made pursuant to the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 ("CECBA"). Subject to some limited exceptions, the CECBA incorporates the provisions of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A: s. 2(1) of CECBA.

[6] Section 7(3) of the CECBA provides that every collective agreement made pursuant to the CECBA is deemed to provide for the final and binding settlement of disputes arising under the collective agreement by arbitration before the Grievance Settlement Board ("GSB"). The CECBA gives the GSB exclusive jurisdiction to decide all disputes between the parties to the collective agreement.

[7] The Collective Agreement between AMAPCEO and the Crown contains, in art. 2, a provision prohibiting discrimination and harassment in the workplace based on race, ancestry, place of origin, colour, ethnic origin, sex, or disability as defined in s. 10 of the Ontario Human Rights Code, and imposes a duty on the Crown to take every precaution to protect an employee from personal harassment, vexatious comment or conduct that is known or ought to be known to be unwelcome.

[8] The Collective Agreement also prescribes, in art. 15, a comprehensive grievance procedure, including binding arbitration before the GSB, for the disposition of "any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of the Collective Agreement, including any questions as to whether a matter is arbitrable".

Grievances under the Collective Agreement

[9] Nelson states that, beginning in 2008, she faced anti-Black racism, systemic workplace harassment and discrimination. In October 2011, the stress and anxiety of the ongoing anti-Black racism, harassment and discrimination caused Nelson to go into premature labour. Although her doctor advised the employer that she was sick and not on a maternity leave, the Crown did not provide sick leave benefits; instead it placed her on pregnancy/parental leave, which she states caused her financial hardship and was degrading.

[10] Nelson was on pregnancy and parental leave from October 2011 to October 2012. She received her full salary under the short-term sickness benefits plan from October 2012 until April 2013, following which she was on a partial salary and benefits provided by an external insurer until April 2015. She returned to work in June 2015, where she claims she was exposed to a hostile and poisoned work environment. In April 2016 she went on medical leave, and after a brief return to work in early June 2016 she took another leave of absence due, she states, to ongoing systemic anti-Black racism that she experienced in the workplace. The employer paid her during this leave through, it appears, a combination of short-term sickness benefits and a discretionary leave, until January 2019, when she was placed on unpaid leave.

[11] AMAPCEO has filed four grievances on Nelson's behalf:

(a) in November 2011, the union filed a grievance alleging discrimination on the basis of disability and sex arising from the employer's refusal to provide Nelson sick leave benefits, forcing her instead to go on pregnancy leave, after the premature birth of her child (the "First Grievance");

(b) in May 2016, the union filed a grievance alleging workplace discrimination and harassment (the "Second Grievance");

(c) in July 2016, the union filed a grievance alleging discrimination and harassment relating to the employer's failure to accommodate Nelson's disability in not approving payments pursuant to the short-term sickness plan (the "Third Grievance"); and

(d) in August 2018, the union filed a grievance related to the denial of a training opportunity to Nelson, contrary to the terms of the Collective Agreement (the "Fourth Grievance").

2012 HRTO Application

[12] In October 2012, Nelson filed an application at the HRTO against the Crown, alleging harassment and discrimination based on race, colour, disability, sex and pregnancy (the "2012 HRTO Application"). In addition to the issues raised in the First Grievance, the 2012 HRTO Application alleged that in her position at the Ministry of Citizenship and Immigration, and in prior positions, Nelson had been subjected to a poisoned work environment characterized by systemic racism and racial harassment against her.

[13] Nelson filed the 2012 HRTO Application personally. Although it did not name AMAPCEO as a respondent, the application alleged that she had suffered as a result of AMAPCEO failing to provide a medical note from her physician to her employer, and of misleading her. Nelson specifically alleged that AMAPCEO's failure to deliver a medical note to the employer had prejudiced her ability to access her short-term sickness benefits following the birth of her child.

WDHP and WSIB complaints

[14] Nelson also submitted complaints under Workplace Discrimination and Harassment Prevention Policy ("WDHP") in 2011 and 2016. She also made a claim under the Workplace Safety and Insurance Board ("WSIB") for lost time and health benefits. Each of these claims related to incidents between Nelson and others in the workplace, involving allegations of discrimination and harassment against her.

[15] The WDHP and WSIB complaints were all disposed of without any success for the plaintiff, either because they were unsubstantiated or outside the scope of the policies or insurance schemes. Nelson and the union, however, have been highly critical of the WDHP process as being "unaccountable" and flawed. In particular, Nelson notes that one policy advisor found "an escalating pattern of harassing behavior" against her, but no action was taken.

Status of grievances and the 2012 HRTO Application

[16] The grievances and the 2012 HRTO Application have a more complicated history. The 2012 HRTO Application was, over Nelson's objection, deferred by the Tribunal on the basis that the allegations overlapped "significantly" with the First Grievance. Nelson describes this decision as "Kafkaesque" since the union had represented to her that the First Grievance was only about sick leave benefits and supported her in opposing a deferral by the HRTO.

[17] Nelson also makes a number of complaints about the union's handling of her grievances, which she says has frustrated her ability to obtain a remedy in that process. These complaints include poor communication with the union lawyer with carriage of the grievances, conflicting advice as to their merits, refusal to follow her instructions on a settlement proposal she had prepared, failures to provide legal advice at critical times, the union's refusal to grieve complaints Nelson made regarding a suspension in 2018, and an alleged breach of her privacy rights.

[18] The First Grievance went to a mediation in 2015, without resolution. In April 2017, at Nelson's request, AMAPCEO withdrew it and the other grievances in order to permit Nelson to pursue the 2012 HRTO Application. She applied to reactivate the application in April 2017, which was approved in May, and in July 2017 the Crown filed its response with the HRTO denying that it had discriminated against Nelson.

[19] Despite alleging in her 2012 HRTO Application that AMAPCEO had misled her, and harmed her interests by failing to remit a medical note to the employer, and despite her complaints about how the union had advised her and handled her complaints, Nelson did not join AMAPCEO as a respondent in at the HRTO, nor did she complain about the union breaching its duty of fair representation at the Ontario Labour Relations Board ("OLRB").

[20] The 2012 HRTO proceeding moved forward in 2018. In January, the Tribunal issued a Notice of Hearing scheduling a hearing for July 13, 2018, with evidence to be exchanged by May 28, 2018. However, on May 28, Nelson sought to adjourn the hearing because she was no longer represented by counsel and required additional time. Eventually, the July 13 hearing date was converted to a case management call, and the matter was adjourned.

[21] In February 2019, this action was commenced, and in June 2019, after receiving a copy of the statement of claim, the HRTO deferred the application pending the completion of these civil proceedings.

[22] In the meantime, in August 2018, AMAPCEO had submitted the Fourth Greivance, described above. This is being held in abeyance, by agreement of the union and the Crown.

The pleading in this action

[23] This action names both the Crown and AMAPCEO as defendants. The statement of claim is 41 pages long describing a range of incidents and conduct of the Crown and the union, with additional schedules containing a glossary of terms and particulars of wrongful and negligent acts of the defendants, their duties and failures to meet them, and details of the plaintiff's damages. All the claims are grounded in allegations of discrimination and harassment arising from Nelson's employment by Ontario. Indeed, the opening paragraph of the factum of the plaintiff describes the claim as one of "employment-related discrimination and harassment".

[24] Against the Crown, the plaintiff alleges that

(a) the Crown breached its duty of care by discriminating against Nelson and harassing her based on her gender, race, ethnicity, place of origin, colour, disability and sex and by permitting an "organizational culture which fosters racism, dysfunction, discrimination, harassment, racial bullying and abuse of authority/power";

(b) the Crown and its employees invaded her private affairs;

(c) the Crown's wrongful discriminatory acts created a reasonable apprehension of a threat of danger or violence to the plaintiff;

(d) the Crown and its employees breached their duty of care in failing to properly investigate Ms. Nelson's complaints;

(e) the wrongful discriminatory acts caused and continue to cause Nelson to suffer visible and provable illness;

(f) the Crown and its employees breached their obligations under their "employment and collective agreements";

(g) the Crown's actions constitute a breach of ss. 7 and 15 of the Canadian Charter of Rights and Freedoms; and

(h) some or all of the Crown's wrongful acts constitute discrimination and harassment in employment and association based on intersectional grounds of race, ancestry, place of origin, colour, ethnic origin, sex and disability contrary to the Ontario Human Rights Code.

[25] Against AMAPCEO, Nelson also claims negligence, assault, harassment, intentional infliction of mental suffering, intentional infliction of nervous shock, breach of contract and breach of the Human Rights Code. Among other things, she alleges that AMAPCEO

(a) failed to ensure the enforcement of workplace policies and grievance procedures under the Collective Agreement;

(b) did not investigate or advance Nelson's interests due to a climate of systemic anti-Black racism in the OPS; and

(c) because AMAPCEO "had and has the power to act as the representative of Hentrose for all aspects of her employment with the Crown, under the PSOA and the collective agreement between AMAPCEO and the Crown . . . AMAPCEO has failed to ensure the enforcement of the collective agreement, provisions, policies, and procedures of the WDHP, and labour and human rights legislation".

[26] The statement of claim lists at length the harms Nelson has suffered and seeks both individual and "public interest", or systemic, remedies from the court.

Issue

[27] The issue on this motion is whether the court has jurisdiction over the action pleaded by the plaintiff.

Analysis

Weber and the presumption of arbitration

[28] This case arises from the plaintiff's employment. As a member of a union, her employment is governed by a collective agreement. This means, presumptively, that any employment-related dispute must be dealt with by way of arbitration. In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59 ("Weber"), the Supreme Court confirmed that employment-related disputes arising in the context of a collective agreement shall be decided by grievance arbitration and not by resort to civil action in the courts. Faced with the argument that an employee in a bargaining unit should be permitted to sue his employer in tort arising from its actions in conducting surveillance on him in his home, resulting in his discharge, the Supreme Court held, at paras. 55-59, that where the "essential character" of a dispute arises from the collective agreement, either "expressly or inferentially", then courts have no jurisdiction to hear the matter.

[29] The Supreme Court's conclusion on this issue stemmed from its earlier recognition that "labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks": St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, [1986] S.C.J. No. 34 ("St Anne"), at pp. 718-19 S.C.R. As Estey J. stated:

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law.

[30] As to whether there is a residual jurisdiction for the courts, Estey J. also addressed that issue in St. Anne, at p. 721 S.C.R.:

What is left is an attitude of judicial deference to the arbitration process. . . . It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting. Arbitration . . . is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements. . . . [I]t might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement.

[31] In Weber, the Supreme Court considered what is now, in identical language, s. 48(1) of the Labour Relations Act, 1995 (and which is mirrored in s. 7(3) of the CECBA), which states:

48(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

[32] The reference to "all differences", as McLachlin J. emphasized in Weber, at para. 45, is that it applies not just to legal actions but to all disputes between the parties, and "makes arbitration the only remedy for such differences". As she stated: "The object of the provision -- and what is thus excluded from the courts -- is all proceedings arising from the difference between the parties, however those proceedings may be framed. Where the dispute falls within the terms of the Act, there is no room for concurrent proceedings."

[33] McLachlin J. warns, at para. 49, that one must guard against "innovative pleaders" who may attempt to draw the courts into an employment dispute by characterizing it as something else. As she states, "[t]he issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one 'arising under [the] collective agreement'", and "the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it": Weber, at para. 43 (emphasis in original).

[34] In this case, the essential character of the dispute between the plaintiff and the Crown arises from her employment situation, as the plaintiff acknowledges, and the principles in Weber apply to this case. However, as I will address later in these reasons, a limited exception has been recognized for claims that allege violations of the Human Rights Code. But before turning to that issue, it is appropriate to address the position of the union.

Unions and the duty of fair representation

[35] In order to protect individuals under collective bargaining regimes, where the union has the exclusive power to act on behalf of its members, a duty is imposed on unions to fairly represent all members. Section 74 of the Labour Relations Act, 1995 states:

74. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

[36] Where an individual member believes that its union is violating s. 74 it has the right to bring an application to the OLRB, which has broad powers under s. 96 of the Labour Relations Act, 1995 to rectify any such breach. Like grievance arbitration, and subject to the exception for human rights complaints, this is the exclusive process for pursuing complaints against a trade union for failing to fairly and adequately represent a member in an employment issue arising under a collective agreement.

[37] In Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, [1990] S.C.J. No. 55 ("Gendron"), at p. 1319 S.C.R., the Supreme Court held that the common law duty of fair representation was ousted by statute. Further, where the statutory duty is implicated, the statutory process for addressing the duty must be followed. As L'Heureux-Dubé J. stated, at p. 1327 S.C.R.: "There is no original jurisdiction in the ordinary courts to decide the matter, only the ability to review Board decisions in the very limited parameters contemplated by the privative clause."

[38] On the other hand, L'Heureux-Dubé J. recognized that there may be exceptions, such as where a statute restricts the scope of the duty or, more significantly for this case, where "in the context of human rights violations, while the statute may apply, the breach may not be properly characterized exclusively as a labour relations matter. In these circumstances jurisdiction may be grounded elsewhere": Gendron, p. 1320 S.C.R.

[39] In this case, the claims pleaded against the union relate to its representation of the plaintiff and therefore, subject to the exception for human rights complaints, fall under the issue of fair representation and should be dealt with by the OLRB.

The jurisdiction of human rights tribunals

[40] Despite the holdings in Weber and Gendron, human rights tribunals may assume jurisdiction over disputes arising from the employment relationship in the collective bargaining context.

[41] In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185, [2004] S.C.J. No. 34 ("Morin"), the court considered whether the Quebec Human Rights Tribunal had jurisdiction to consider a claim of discrimination brought following the negotiated modification of a collective agreement in 1997 [at para. 2] "which provided that experience acquired by teachers during the 1996-1997 school year would not be recognized or credited toward their salary increments or seniority". As this term had the effect of treating younger and less experienced teachers less favourably than older teachers, the younger teachers asserted that this violated the equality guarantee in the Quebec Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12. The union, school boards and the province moved to strike out the complaint on the ground that it arose from the employment relationship and, pursuant to Weber and s. 100 of the Quebec Labour Code, C.Q.L.R., c. C-27 (a provision similar to s. 48(1) of the Labour Relations Act, 1995), could only be addressed by arbitration under the collective agreement.

[42] The Supreme Court disagreed. It looked at the dispute in "its full factual context" and framed the question as one of "whether the dispute, viewed in its essential character and not formalistically, is one over which the legislature intended the arbitrator to have exclusive jurisdiction": Morin, at para. 20. The court contrasted the case with the facts in Weber which "arose out of the operation of the collective agreement" and "was basically a dispute about sick leave, which became encumbered with an incidental claim for trespass" (Morin, para. 22), and fell squarely within what was then s. 45 (now s. 48(1)) of the Labour Relations Act. In contrast, in Morin, the dispute did not arise from the operation of the collective agreement, but from "precontractual negotiation of that agreement". As McLachlin C.J.C. put it, at para. 24: "Everyone agrees on how the agreement, if valid, should be interpreted and applied. The only question is whether the process leading to the adoption of the alleged discriminatory clause and the inclusion of that clause in the agreement violates the Quebec Charter, rendering it unenforceable."

[43] In concluding that the Tribunal had jurisdiction to hear the complaint, the Supreme Court observed that this did not mean that an arbitrator could not address the issue in a particular case, as arbitrators have broad power to deal with all legal issues necessary to fulfil their function of interpreting and applying a collective agreement: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 (2003), 2003 SCC 42, 67 O.R. (3d) 256, [2003] 2 S.C.R. 157, [2003] S.C.J. No. 42. However, in Morin "the nature of the question does not lend itself to characterization as a grievance under the collective agreement, since the claim is not that the agreement has been violated, but that it is itself discriminatory" (para. 27) [emphasis in original]. Further, in Morin, there were additional parties to the dispute who had negotiated the agreement over whom the arbitrator had no jurisdiction and, as well, the unions were opposed in interest to the claimants, such that "[i]f the unions chose not to file a grievance before the arbitrator, the teachers would be left with no legal recourse (other than possibly filing a claim against their unions for breaching the duty of fair representation)" (para. 28). In the end, the Supreme Court held, at para. 30, that "because the complainants' general challenge to the validity of a provision in the collective agreement affected hundreds of teachers, the Human Rights Tribunal was a 'better fit' for this dispute than the appointment of a single arbitrator to deal with a single grievance within the statutory framework of the Labour Code".

[44] In Ontario, prior to Morin, the Court of Appeal had also recognized that employees may have resort to the human rights process where the arbitration process is foreclosed or inadequate. In Ontario (Human Rights Commission) v. Naraine, [2001] O.J. No. 4937, 209 D.L.R. (4th) 465 (C.A.) (leave to appeal to S.C.C. refused [2002] 3 S.C.R. x, [2002] S.C.C.A. No. 69) ("Naraine"), the complainant grieved, through the union, his discharge for insubordination. However, even prior to his discharge, Naraine had filed a complaint with the Ontario Human Rights Commission (the "Commission"), asserting he had been subject to racial discrimination and harassment in his employment. Although the collective agreement contained a non-discrimination clause, the issue of discrimination was not addressed by the arbitrator. A Board of Inquiry (now replaced by the HRTO) was subsequently convened and concluded that Naraine had been the victim of racial discrimination in the workplace and ordered that he be reinstated, along with other orders awarding damages and imposing systemic remedies on the employer, as is permitted under the Human Rights Code.

[45] The issue addressed by the Court of Appeal in Naraine was "whether, applying Weber v. Ontario Hydro . . . the Board erred in ordering Mr. Naraine's reinstatement given the prior arbitral decision upholding his discharge" (para. 42). At the time of Naraine's arbitration and Board of Inquiry hearings, the Labour Relations Act then in force did not provide an arbitrator with the power to consider violations of the Human Rights Code, and nor did the Code give the Commission the discretion to defer to another proceeding. Consequently, the labour arbitrator in Naraine's case did not have authority to address violations of the Code, and the Board did not have the ability to defer to another proceeding. As Abella J.A. (as she then was) put it, at para. 56: "Not only was Mr. Naraine entitled to bring his complaint of Code violations to the Human Rights Commission at the time, he had no choice but to do so."

[46] By the time the matter reached the Court of Appeal, statutory amendments had been enacted to permit arbitrators to consider Human Rights Code violations and for the Commission to defer to other tribunals if appropriate. However, this would not have changed the decision in Naraine. As Abella J.A. stated, at para. 57:

Even if Weber were applicable to the facts and circumstances of this case, a proposition I doubt, the essential character of the dispute before the arbitrator and the one before the Commission were separate and distinct, warranting consideration by separate adjudicative bodies. The essential character of Mr. Naraine's dispute before the arbitrator related to his discipline and discharge. The essence of the complaint before the Human Rights Commission, which was filed almost simultaneously with the grievance, related to racial discrimination and harassment.

[47] In reaching its conclusion, the Court of Appeal recognized the unique, quasi-constitutional status of human rights legislation, and that the individual's right to access the broad remedies for discrimination available in the Code cannot be limited by the principles in Weber or labour relations legislation. At the same time, however, the court stated that Weber should be applied to prevent bifurcation or a multiplicity of proceedings "especially when the arbitrable grievance and the human rights complaint emerge seamlessly from the same factual matrix". As Abella J.A. continued, at para. 60: "In my view, Weber stands for the proposition that when several related issues emanate from a workplace dispute, they should all be heard by one adjudicator to the extent jurisdictionally possible, so that inconsistent results and remedies, such as those in Mr. Naraine's case, may be avoided."

[48] Accordingly, despite Weber and Gendron, the HRTO has jurisdiction to consider discrimination complaints arising from the employment context. Indeed, this has occurred in this case when the Tribunal reactivated the 2012 HRTO Application following the plaintiff's withdrawal of the first three grievances.

Human rights claims in the courts

[49] When the Human Rights Code was enacted, it established a statutory scheme for addressing discrimination in the workplace, and in society. It did not create an independent cause of action for discrimination that could be pursued in the courts, but was intended to keep discrimination claims under the jurisdiction of a body with expertise, the Ontario Human Rights Commission. This was recognized by the Supreme Court in Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, [1981] S.C.J. No. 76, in which it refused to recognize an independent tort of discrimination "[t]he reason lies in the comprehensiveness of the Code in its administrative and adjudicative features" (p. 183 S.C.R.). As Laskin C.J.C. concluded, at p. 195 S.C.R.:

. . . I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.

[50] Over time, however, some exceptions to this exclusive jurisdiction developed. As discussed in Naraine, in 1995, the Labour Relations Act, 1995, in s. 48(1)(j), granted arbitrators the power to deal with violations of the Human Rights Code, and the Code was amended, in s. 34(1)(a), to permit the Commission to decide, in its discretion, not to deal with a complaint where it "could or should be more appropriately dealt with" under another Act.

[51] In addition, in some cases courts permitted human rights claims to be included in actions where the complaint arose in the same context as the underlying cause of action. For example, in Metz v. Tremblay-Hall, [2006] O.J. No. 4134, 53 C.C.E.L. (3d) 107 (S.C.J.), Shaw J. held in a wrongful dismissal case, at para. 22, that "[a]llegations of racial harassment or discrimination are therefore permissible in a pleading founded upon an independently actionable wrong, as material facts in support of that independent cause of action, but they are not permissible as causes of action per se". Similarly, in Peng v. Star Choice Television Network Inc., [2006] O.J. No. 4169, 54 C.C.E.L. (3d) 117 (S.C.J.), another wrongful dismissal case, Stewart J. permitted the plaintiff to make allegations of discriminatory conduct "insofar as they are made in the context of a claim for wrongful dismissal and in light of their relevance to the issues of the alleged wrongfulness of the dismissal" (para. 16).

[52] The holdings in Metz and Peng were supported by the Court of Appeal's decision in Keays v. Honda Canada Inc. (2006), 82 O.R. (3d) 161, [2006] O.J. No. 3891 (C.A.), a wrongful dismissal case in which the trial judge had awarded punitive damages arising from the employer's discriminatory conduct. Goudge J.A. agreed that the court could consider the human rights violation as a separate actionable wrong. The subsequent Supreme Court decision in the case, Honda Canada Inc. v. Keays (2008), 2008 SCC 39, 92 O.R. (3d) 479, [2008] 2 S.C.R. 362, [2008] S.C.J. No. 40, overturned the award of punitive damages, but on the basis of a lack of evidence to support them.

[53] The Supreme Court did not address the appropriateness of advancing a breach of the Code as a cause of action since, in 2006, the Code was amended to permit courts to award damages for violations of the Code, but the Code did not, and still does not, permit independent actions for such violations. Section 46.1 states:

46.1(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

[54] As a further part of the 2006 amendments, s. 34(11) of the Code prohibits applications to the Tribunal where damages are being sought in the civil courts under s. 46.1, or a court has determined that the issue of the violation of the right has been infringed or the matter has been settled.

[55] These provisions have been invoked in this case. Although the 2012 HRTO Application was reinstated following the withdrawal of the plaintiff's first three grievances, after the plaintiff commenced this action, the HRTO again deferred the application pursuant to s. 34(11) of the Code.

[56] Section 46.1 of the Code has been the subject of recent consideration in Rivers v. Waterloo (Regional Municipality) Police Services Board, [2018] O.J. No. 3717, 2018 ONSC 4307 (S.C.J.), affd [2019] O.J. No. 1739, 2019 ONCA 267](https://www.canlii.org/en/on/onca/doc/2019/2019onca267/2019onca267.html), leave to appeal to S.C.C. dismissed [2019] S.C.C.A. No. 232 ("Rivers"). In that case, female police officers sought certification of a class action against the employer asserting gender discrimination and sexual harassment in the workplace, and against the union for failing to take steps to ensure a workplace free of discrimination and harassment. The plaintiff had also commenced an application before the HRTO, which included the same allegations but which was adjourned pending the outcome of the proposed class action. There was no evidence of an attempt to arbitrate the dispute with the employer, nor had any application been made to the OLRB to enforce the duty of fair representation against the union.

[57] In Rivers, in the Superior Court Baltman J. applied Weber and held that the court lacked jurisdiction to hear the action. In her view, the "essential character" of the dispute involved [at para. 48] "gender-based discrimination and harassment in the workplace" which must be arbitrated. Further, Baltman J. found that there was no independent wrong aside from the discrimination and harassment complaints on which to ground a civil action. She stated, at paras. 55-57:

In 2008, the Code was amended to allow a plaintiff to advance a breach of the Code as a cause of action solely in connection with another wrong; under s. 46.1, a plaintiff who has a civil claim properly before the court may "piggy-back" their Code claim so that the entire dispute can be adjudicated in one forum. Even then, the Court's remedial authority is limited.

However, as all the alleged wrongs in this case claim, at their core, sexual discrimination, there is no independent actionable wrong to ground a court action. The plaintiffs have not pleaded any independent cause of action which would permit them to bring the Code claim before this court.

The bottom line is that whether the Plaintiffs characterize their claims as systemic negligence, the tort of harassment, or a Charter breach, this action is one of workplace discrimination which may constitute a violation of both the Human Rights Code and the Collective Agreement, but not the common law.

[58] The Court of Appeal upheld Baltman J.'s decision and in particular her application of Weber. In response to the argument that the plaintiffs would be left without a practical remedy if they could not have access to the courts, the Court of Appeal stated, at para. 7, that a "fatal flaw in this argument is that the appellants have not attempted to avail themselves of the mandatory grievance/arbitration process or led evidence to demonstrate that it is practically unavailable". As noted, the Supreme Court did not grant leave to appeal.

Application of law to this case

[59] In this case, the plaintiff submits that it should be able to seek its remedy in this court. Counsel argues that only the court has jurisdiction to hear all the disputes, and that the plaintiff, like Naraine, is otherwise left without a remedy.

[60] I cannot accept this argument. Courts only address human rights complaints in narrow circumstances, as Rivers demonstrates. This is not a wrongful dismissal case by a non-unionized employee with an independent cause of action, as was the case in Metz, Peng and Honda v. Keays. Here, the claim, like that in Rivers, is based entirely on discrimination and harassment in the workplace. While counsel for Nelson argued that the defendants have not moved to strike out the various other causes of action pleaded, such as negligence and invasion of privacy, in my view that is unnecessary on such a motion. The claim must be assessed under the Weber framework which cannot be circumvented by an "innovative pleading". The essential character of this dispute, including all of the causes of action, arise in the workplace and are governed by the collective agreement.

[61] Counsel argued that s. 46.1 of the Code extends concurrent jurisdiction to the courts to hear human rights matters arising from the workplace, just as the HRTO and the former Board of Inquiry could do as discussed in Naraine. However, in my view the requirement in s. 46.1(2) that the action not be based "solely on an infringement of a right under Part I" of the Code does not mean that Weber no longer applies. While there has been an extension of concurrent jurisdiction, it is a limited extension. Clearer language would need to be used to override Weber, and s. 48(1) of the Labour Relations Act, 1995, which contain fundamental tenets of the collective bargaining regime. Rather, s. 46.1(2) must be read together with the principles in Weber, as it was in Rivers.

[62] Accordingly, for a unionized employee to assert human rights claims in a civil action against her employer, and/or union, there must be some independent civil wrong that does not, in its "essential character", arise from the workplace governed by the collective agreement. As there is no such wrong pleaded here on which to "piggyback" a human rights claim, the court has no jurisdiction.

[63] I have also considered the preference, stated by Abella J.A. in Naraine, at para. 60, that "Weber stands for the proposition that when several related issues emanate from a workplace dispute, they should all be heard by one adjudicator to the extent jurisdictionally possible, so that inconsistent results and remedies . . . may be avoided". Counsel for the plaintiff argues that in this case the one adjudicator is a judge of this court. However, Abella J.'s point is limited "to the extent jurisdictionally possible", and my conclusion, based on Weber and the provisions of the Code and the Labour Relations Act, 1995, is that this court lacks jurisdiction.

[64] In any event, like Naraine, the plaintiff can pursue all of her complaints, including those against AMAPCEO, before the HRTO. The 2012 HRTO Application will be reinstated once this action is struck out. Although she has not done so, it is open to her to pursue a human rights complaint against her union as well; indeed, perhaps it can be done in the same proceeding as the application against the employer. I say this noting that the plaintiff also has the option of bringing an application to the OLRB alleging a breach of the duty of fair representation, although this would be an additional proceeding. Having abandoned her grievances, however, the adjudicative body with jurisdiction to hear Nelson's claims of discrimination and harassment, and if established, to order both individual and systemic remedies, is the HRTO.

Conclusion

[65] This action shall be struck out for lack of jurisdiction. In coming to this conclusion, I emphasize that this decision is in no way a comment on the merits of the complaints made by the plaintiff, which are extensive and raise serious issues regarding the plaintiff's workplace. However, our labour relations and human rights regimes require that these issues not be litigated, at least at first instance, in the court, but be adjudicated by bodies with expertise in these issues. While I appreciate that Ms. Nelson will find this result frustrating, it is a consequence of the policy choices the legislature has made in its efforts to provide appropriate forums for the protection of employees' rights.

[66] Counsel for AMAPCEO advised me that it will not be seeking any costs against the plaintiff. Should the Crown seek costs, it may make written submissions to me not exceeding three pages (not including supporting materials) within 21 days of the release of these reasons, and the plaintiff may respond within 14 days in submissions of the same length.

Motion granted.

End of Document