COURT OF APPEAL FOR ONTARIO
CITATION: Nelson v. Ontario, 2020 ONCA 751
DATE: 20201130
DOCKET: C68333
Hoy, Brown and Thorburn JJ.A.
BETWEEN
Hentrose Nelson
Plaintiff (Appellant)
and
Her Majesty the Queen in Right of Ontario and
David Bulmer, as representative of Association of Management, Administrative and Professional Crown Employees
Defendants (Respondents)
Ranjan K. Agarwal, for the appellant
J. Thomas Curry, Rebecca Jones and Delna Contractor, for the respondent Her Majesty the Queen in Right of Ontario
James K. McDonald and Geetha Philipupillai, for the respondent David Bulmer, as a representative of Association of Management, Administrative and Professional Crown Employees of Ontario
Heard: November 10, 2020 by video conference
On appeal from the order of Justice Paul Schabas of the Superior Court of Justice, dated April 7, 2020, with reasons reported at 2020 ONSC 2147.
Hoy J.A.:
[1] The appellant appeals the order of the motion judge, dismissing her action on the ground that the court has no jurisdiction over its subject matter.
Background
[2] Briefly, the appellant is an employee of the Ontario Public Service (“OPS”) and a member of the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO” or “the union”). Her relationship with her employer is governed by the collective agreement between the union and Her Majesty the Queen in right of Ontario (“Crown”). Article 2 of the collective agreement prohibits discrimination based on, among other things, sex, disability, race, and colour. The collective agreement provides for a comprehensive grievance procedure, including binding arbitration before a labour arbitrator, the Grievance Settlement Board.
[3] Beginning in November 2011, pursuant to the collective agreement, the union initiated several grievances on the appellant’s behalf asserting discrimination based on sex, gender, disability, race including anti-Black racism and harassment by her managers and co-workers in the OPS, and alleging breaches of the collective agreement, the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”) and the Employment Standards Act, S.O. 2000, c. 41.
[4] In 2012, independently of the union, the appellant also made an application before the Human Rights Tribunal of Ontario (“HRTO”) alleging discrimination based on race, colour, disability, sex, and pregnancy. The HRTO deferred her application on the basis that the allegations in her application overlapped significantly with the first of the grievances filed by the union on her behalf pursuant to the collective agreement.
[5] At the appellant’s request, in April 2017, the union withdrew the grievances so that her HRTO application could proceed. The application was reactivated in May 2017. However, in July 2017, at the appellant’s request, the application was adjourned.
[6] Thereafter, in August 2018, the union filed a further grievance on the appellant’s behalf. It is being held in abeyance, by agreement of the union and the Crown.
[7] In February 2019, the appellant commenced this action in the Superior Court of Justice against the Crown and the union.[^1] The motion judge described the statement of claim as follows:
The statement of claim is 41 pages long describing a range of incidents and conduct of the Crown and 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.
[8] The HRTO then deferred the appellant’s application, pending completion of these civil proceedings.
[9] The Crown and the union – the respondents in the appeal – moved to dismiss the action on the basis that the court lacks jurisdiction to hear the matter because it arises out of an employment dispute under a collective agreement and therefore should be heard by a labour arbitrator or the HRTO.
The trial judge’s reasons
[10] Applying the Supreme Court’s decision in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, the trial judge granted the defendants’ motions and struck the action. By way of overview, he explained that:
...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.
[11] The motion judge reviewed the relevant jurisprudence.
[12] In Weber, the Supreme Court considered the mandatory arbitration provision in what is now s. 48(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”). That section provides that every collective agreement shall provide for the final and binding arbitration 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. The Supreme Court held that this provision grants the arbitrators exclusive jurisdiction over a dispute where that dispute arises from the collective agreement, either expressly or inferentially.
[13] Section 7(3) of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 (“CECBA”), which applies here, mirrors the provisions considered by the Supreme Court in Weber in all respects material to this appeal.
[14] Referring to Weber, at paras. 55-59, the motion judge observed that, where the “essential character” of a dispute arises from a collective agreement, the court lacks jurisdiction and the matter is reserved for the labour arbitrator.
[15] Because the appellant takes issue in her statement of claim with the union’s representation of her, the motion judge also considered s. 74 of the LRA, which is deemed to form part of the CECBA, and Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC), [1990] 1 S.C.R. 1298. He noted that s. 74 of the LRA imposes a duty on unions to fairly represent all members and that an individual member who believes that their union is violating s. 74 has the right to bring an application to the Ontario Labour Relations Board (“OLRB”).
[16] In Gendron, the Supreme Court held that the common law duty of fair representation was ousted by a statutory process for addressing that duty before a labour board. Where the statute applies, the court’s jurisdiction is limited to the review of the labour board’s decision, within the parameters contemplated by the relevant privative clause. However, there may be exceptions, including instances, such as in the context of human rights violations, where, “while the statute may apply, the breach may not be properly characterized as exclusively a labour relations matter. In these circumstances, the jurisdiction may be grounded elsewhere”: Gendron, at p. 1320. Citing Gendron, the motion judge found that the claims pleaded here against the union relate to its representation of the appellant and should be dealt with by the OLRB, subject to the exception for human rights complaints.
[17] The motion judge explained that 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 (“Morin”) and Naraine v. Ford Motor Co. of Canada (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 69, established that, despite Weber and Gendron, the HRTO has concurrent jurisdiction to consider discrimination complaints arising from the employment context.
[18] The motion judge considered s. 46.1 of the Code, the 2008 amendment to the Code invoked by the appellant in support of her argument that the court has concurrent jurisdiction. That section provides that a person cannot commence an action based solely on a breach of the Code:
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 [“Freedom from Discrimination”] of another party to the proceeding, the court may make either of the following orders, or both:
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.
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. [Emphasis added.]
[19] The motion judge noted that s. 46.1 was recently considered in Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307, aff’d, 2019 ONCA 267, 2019 C.L.L.C. 220-038, leave to appeal to SCC refused, 38707 (October 24, 2019).
[20] In Rivers, the representative plaintiffs sought certification of a proposed class action on behalf of female police officers, alleging that both the Waterloo Regional Police Services Board and the Waterloo Regional Police Association were liable for systemic gender-based discrimination and sexual harassment. The motion judge in Rivers, Baltman J., concluded that s. 46.1 did not permit the action and dismissed the action. All the alleged wrongs claimed, “at their core”, sexual discrimination: Rivers, at para. 48. There was no independent actionable wrong to ground a court action. Baltman J. accordingly dismissed the action on the basis that the court had no jurisdiction over the dispute. This court upheld her decision and the Supreme Court refused leave to appeal.
[21] The motion judge concluded that the appellant’s claim, like that in Rivers, “is based entirely on discrimination and harassment in the workplace.” While the appellant pleaded various causes of action, such as negligence and invasion of privacy, the claim must be assessed under the Weber framework, which cannot be circumvented by “innovative pleading.” He reasoned that, “[t]he essential character of this dispute, including all of the causes of action, arise in the workplace and are governed by the collective agreement.”
[22] He rejected the appellant’s argument that, notwithstanding Weber, s. 46.1 of the Code impliedly extends concurrent jurisdiction to the courts and labour arbitrators to hear matters involving violations of the Code arising in a workplace governed by a collective agreement, much like the former Human Rights Board of Inquiry and labour arbitrators shared concurrent jurisdiction as set out in Naraine. He explained:
…in my view the requirement in subsection 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.
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 “piggy back” a human rights claim, the court has no jurisdiction.
[23] Finally, the motion judge noted that the appellant can pursue all her complaints, including those against the union, before the HRTO, which can order individual and systemic remedies.
Analysis
[24] The appellant argues that the motion judge erred in not finding that the court has concurrent jurisdiction over her claim. She advances three arguments.
Section 46.1 of the Code and a “presumption of arbitration”
[25] First, the appellant argues that the motion judge erred in his analysis by starting from the position that there is a presumption of arbitration where the plaintiff’s employment is governed by a collective agreement and failing to follow the two-step approach in Morin. This, she argues, coloured his approach and led him to conclude that s. 46.1 of the Code, which was enacted after Weber, should be read together with Weber. She says s. 46.1 of the Code was enacted after and should be interpreted without reference to Weber. In her view, properly interpreted, s. 46.1 permits a plaintiff to bring a civil action that according to Weberis within the exclusive jurisdiction of a labour arbitrator provided that the action is brought in conjunction with a breach of the Code.
[26] I reject this argument.
[27] The motion judge did not err in his analytical approach.
[28] Read in context, the motion judge’s use of the expression “presumption of arbitration” in the title to a portion of his reasons and his statement that, where a plaintiff’s employment is governed by a collective agreement, “presumptively,… any employment related dispute must be dealt with by way of arbitration”, are simply his short-hand descriptions of the principle in Weber, confirmed in Morin, which he subsequently articulates in greater detail.
[29] Morin, which also predates s. 46.1 of the Code, does not assist the appellant. It does not provide jurisdiction to the civil courts for matters within the ambit of a labour arbitrator’s exclusive jurisdiction.
[30] Morin considered which of two administrative tribunals should hear a dispute. Morin does not establish a different analytical framework from Weber for determining whether a court has jurisdiction. In Morin, Chief Justice McLachlin reviewed the principles in Weber and applied those principles to different legislation than that considered in Weber and to a different factual matrix.
[31] As the appellant argues, in Morin, at paras. 14-15, the Chief Justice makes clear that Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes:
…the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.
This question suggests two related steps. The first step is to look at the relevant legislation and what is says about the arbitrator’s jurisdiction. The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the [labour] arbitrator.
[32] Applying this two-step approach, the Chief Justice found that the Quebec Labour Code, R.S.Q., c. C-27 provided jurisdiction to the labour arbitrator over matters arising out of the collective agreement’s operation and that Weber had determined that this jurisdiction is exclusive. She considered the Quebec Charter, which grants Quebec’s Human Rights Tribunal jurisdiction, and concluded that while the Tribunal enjoys broad jurisdiction over human rights violations in Quebec, it is not exclusive and that its jurisdiction may be concurrent with that of other adjudicative bodies. The Chief Justice, at para. 20, then considered whether the dispute in issue “viewed in its essential character and not formalistically” fell within the ambit of the labour arbitrator’s exclusive jurisdiction, as was the case in Weber. She concluded it did not and that, accordingly, the Human Rights Tribunal was entitled to exercise its concurrent jurisdiction over the claim.
[33] In this case, the relevant legislation is the CECBA, which mirrors the LRA, and s. 46.1 of the Code. As Morin notes, Weberhas determined that the labour arbitrator’s jurisdiction is exclusive, where the essential character of the dispute arises from the collective agreement, either expressly or inferentially. Based on Naraine, all accept that the HRTO has concurrent jurisdiction with the labour arbitrator over the appellant’s human rights issues. In interpreting s. 46.1, the motion judge applied the approach in Rivers, which was upheld on appeal to this court. He properly interpreted s. 46.1 of the Code together with Weber. The motion judge then considered the nature of the dispute and concluded that the wrongs pleaded by the appellant in her statement of claim were, subject to the limited concurrent jurisdiction of the HRTO, within the exclusive jurisdiction of the labour arbitrator.
[34] Nearly three years before Morin, and applying slightly different reasoning than Chief Justice McLachlin in Morin, this court concluded in Naraine that the HRTO has concurrent jurisdiction with a labour arbitrator over human rights issues. In coming to that conclusion, Abella J.A. (as she then was), writing for the court, noted that, “[h]uman rights legislation has consistently been found to occupy a uniquely protected sphere in the legal orbit. It enjoys quasi-constitutional status and can only be overridden by express and unequivocal language”: Naraine, at para. 47.
[35] Seizing on this language, the appellant argues that because the Code enjoys quasi-constitutional status, s. 46.1 of the Code should not be limited by Supreme Court authority which pre-dates its enactment. I disagree.
[36] Section 46.1 of the Code presupposes that the action brought is properly before the court: Jaffer v. York University, 2010 ONCA 654, 268 O.A.C. 338, at para. 44. There is no ground to presume that the legislature, in enacting s. 46(1), intended to grant the Superior Court jurisdiction over claims that otherwise should be heard by labour arbitrators or the HRTO. Indeed, the operating presumption is that “the legislature does not intend to change existing law or to depart from established principles, policies or practices”: Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (OPSEU), 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 39. As the motion judge concluded “[c]learer 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.”
The “essential character” of the appellant’s claims
[37] Second, the appellant argues that the motion judge erred in finding that the essential character of the dispute, including all of the causes of action, “arise in the workplace and are governed by the collective agreement.” That, she says, is the place of her claim, not its essential character. She says the essential character of her claim is discrimination and harassment, including systemic anti-Black racism, and the court accordingly has concurrent jurisdiction.
[38] I reject this argument. The motion judge did not simply focus on the place of her claim. He accepted that discrimination and harassment arising from her employment were the essential character of her claim. Elsewhere, in his reasons, the motion judge wrote that “[a]ll the claims are grounded in allegations of discrimination and harassment arising from Nelson’s employment by Ontario.” These allegations fall squarely within the non-discrimination provisions of Article 2 of the collective agreement. In any event, the fact that the essential character of her claim is allegations of discrimination and harassment arising from her employment does not result in the court having concurrent jurisdiction over claims within the exclusive jurisdiction of a labour arbitrator or the HRTO.
The “practical unavailability” of the grievance process
[39] Third, the appellant argues that the motion judge failed to consider whether her evidence establishes that the grievance and arbitration process under the collective agreement is “practically unavailable” to her. In her factum, she cites this court’s decision in Rivers as authority for the proposition that if the grievance/arbitration process is practically unavailable to a plaintiff, then she may be granted access to the court.
[40] As the appellant concedes in oral argument, in Rivers this court did not go so far as to hold that a plaintiff may or should be granted access to the court where she does not have an adequate remedy on a practical basis. The court did not need to determine the issue. It disposed of the appellants’ argument that they should be granted access for that reason on the basis that they had not attempted to avail themselves of the mandatory grievance/arbitration process or led evidence to demonstrate that it was practically unavailable.
[41] Here, at the appellant’s request, the union withdrew the grievances in April 2017 so that her HRTO application could proceed. The motion judge found that she can pursue all her complaints, including those against the union, before the HRTO, which can order individual and systemic remedies. There is no basis for this court to interfere with that finding. On the motion judge’s finding, a remedy is not practically unavailable to the appellant.
Disposition
[42] Accordingly, I would dismiss the appeal. As agreed by the parties, I would order that there shall be no costs of the appeal.
Released: “AH” NOV 30 2020
“Alexandra Hoy J.A.”
“I agree. David Brown J.A.”
“I agree. Thorburn J.A.”
[^1]: The appellant commenced her action against David Bulmer, as a representative of the union.