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Labour - Remedial LRA Exclusivity (Weber) - Exception: Inherent Court Jurisdiction. McMillan v. Canada
In McMillan v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal, this from class action orders from a motion judge of the Superior Court that "dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action" and refused "leave to amend his statement of claim".
Here the court considers an 'inherent court jurisdiction' exception to the Weber doctrine that the labour regime has exclusive jurisdiction over labour disputes:(5) Did the Federal Court Err in Declining to Exercise its Residual Jurisdiction over the Claims of the Broader Class?
[113] The Supreme Court has held that where Parliament has created schemes for dealing with labour disputes (such as grievance or complaint processes), courts should generally defer to those processes: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59, at para. 58; Vaughan v. Canada, 2005 SCC 11 at para. 39; Greenwood, above at para.129.
[114] Courts do, however, retain a residual discretion to deal with employment disputes where internal grievance mechanisms are incapable of providing effective redress, or where the case is otherwise exceptional: Ebadi v. Canada, 2024 FCA 39 at para. 47, leave to appeal to SCC refused, 41260 (17 October 2024); Greenwood, above at para. 130; Adelberg, above at para. 58; Bron v. Canada (Attorney General), 2010 ONCA 71 at paras. 27-30.
[115] Evidence will be admissible where a Court is asked to decline jurisdiction in favour of an alternate dispute resolution process. This is because evidence as to the nature and efficacy of the suggested alternate process is necessary to allow the Court to determine whether it ought to decline jurisdiction in favour of the administrative remedies: Greenwood, at para. 95.
[116] That said, courts should not jeopardize internal dispute resolution processes by permitting routine access to the courts, and the general rule of deference in matters arising out of labour relations should prevail: Vaughan, above at para. 39. This is especially so where, as here, no material facts have been provided in the statement of claim that would justify the exercise of the Federal Court’s residual jurisdiction in this case, except as it relates to the claims of the Kelowna TCEs over the class period.
[117] A court’s decision not to exercise its residual jurisdiction in a case such as this is a discretionary one that is thus reviewable on the palpable and overriding error standard: Greenwood, above at paras. 119−120; Adelberg, above at para. 39.
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(b) The Use of the Wrong Test in Deciding Whether to Exercise Residual Jurisdiction
[129] Mr. McMillan also says that the Federal Court erred by applying the wrong test in assessing whether it should exercise its residual jurisdiction over members of the broader proposed class, imposing too high an evidentiary burden on him to establish jurisdiction. According to Mr. McMillan, the Federal Court did this by conflating the concept of an "“exceptional case”" with that of a "“high evidentiary burden”".
[130] Mr. McMillan submits that exceptional cases are ones that arise rarely, whereas an evidentiary burden relates to whether and how to weigh evidence. A factual rarity should not be confused with an evidentiary burden.
[131] In support of this argument, Mr. McMillan points to paragraph 40 of the Federal Court’s reasons where it stated that "“… the onus turns to the plaintiff to show that the Court should exercise its residual jurisdiction (Lebrasseur v. Canada, ""2007 FCA 330"" at para. ""19"". This is reserved for ‘exceptional ""cases’ (Hudson [v. Canada, ""2022 FC 694""] at para. 22 [sic]). The evidentiary burden on the Plaintiff is therefore high”".
[132] I do not accept Mr. McMillan’s argument.
[133] Evidentiary and legal burdens are distinct concepts. An evidentiary burden refers to a party’s responsibility to provide evidence as to the existence or non-existence of a fact for that fact to be considered by the trier of fact. In contrast, a legal or persuasive burden refers to the party’s obligation to prove or disprove a fact to the applicable standard of proof: R v. Fontaine, 2004 SCC 27 at paras. 11−12.
[134] The initial legal burden is on the party seeking to establish that a pleading fails to disclose a reasonable cause of action: Brink, above at para. 44; La Rose v. Canada, above at para. 19. In this case, that would be the Crown.
[135] However, once that party satisfies the Court that there is a dispute resolution scheme in effect to which the Court must defer, the onus or burden will shift to the plaintiff to demonstrate, on a balance of probabilities, that the Court should exercise its residual jurisdiction: Davis, above at para. 74; Lebrasseur, above at para. 19. The Federal Court thus did not err in finding that Mr. McMillan bore a heavy evidentiary burden in persuading the Federal Court to exercise its residual jurisdiction over what were essentially workplace disputes. As the Supreme Court observed in Vaughan, above, while courts retain a residual jurisdiction over workplace disputes, that jurisdiction should be exercised sparingly and only in exceptional cases.
[136] Indeed, the Supreme Court of Canada cited eight different reasons in Vaughan why courts should generally decline to exercise its jurisdiction in cases such as this: above at paras. 34−41.
[137] Accordingly, the Federal Court did not use the wrong test in finding that there was a high evidentiary burden on Mr. McMillan to establish that the Court should exercise its residual jurisdiction in this case.
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(2) Did the Federal Court Err in Applying the Wrong Evidentiary Standard in Assessing Whether to Assume Jurisdiction over the Claims of the Kelowna TCEs with respect to Claims Arising during the Class Period?
[228] As noted earlier, courts should generally defer to schemes for dealing with labour disputes (such as grievance or complaint processes): Weber, above at para. 58; Vaughan, above at para. 39; Greenwood, above at para. 129. Courts do, however, retain a residual discretion to deal with employment disputes where internal grievance mechanisms are incapable of providing effective redress, or where the case is otherwise exceptional: Ebadi, above; Greenwood, above at para. 130; Adelberg, above at para. 58; Bron, above at paras. 27−30.
[229] The Crown accepts that the Federal Court identified the correct legal test for determining whether a court should exercise its residual jurisdiction over a matter in the face of an existing workplace dispute resolution scheme. .... . Thompson v. Kolotinsky [for numbered case cites see the case link]
In Thompson v. Kolotinsky (Div Court, 2023) the Divisional Court considered (what appears to me to be) an 'old-style' Weber labour case where a federal employee sued (in Ontario Superior Court) for employment harassment (a "smear campaign"). The governing statute, the Federal Public Service Labour Relations Act [at s.236] set out the exclusive grievance jurisdiction of the matter, and the Divisional Court allowed the appeal and struck the action in it's entirety [under R21.01(3)(a) "no jurisdiction"].
Despite the expected result, the case is interesting for the pains to which the court considers the residual jurisdiction of the court in such labour circumstances, notably quoting such Weber-dubious dicta as this:[16] The Court of Appeal considered whether the inherent jurisdiction of the court could play a role in allowing it to move forward with an action in the face of an applicable grievance procedure. This spoke to the reliance, by the appellant, on Brotherhood of Maintenance of Way Employees Canadian Pacific System federation v. Canadian Pacific Ltd.[28] where the following is said:The employer further argues that the dispute resolution mechanism provided by the Code is exclusive, and bars any other remedies. The court, it says, disregarded the comprehensive contractual and statutory scheme designed to govern all aspects of the relationship of the parties in a labour dispute. The difficulty with this argument lies in the assumption that the Code covers all aspects of any labour dispute. In this case, the fact is that the Code did not cover all aspects of the dispute. No matter how comprehensive a statutory scheme for the regulation of disputes may be, the possibility always remains that events will produce a difficulty which the scheme has not foreseen. It is important in these circumstances that there be a tribunal capable of resolving the matter, if a legal, rather than extra-legal, solution is to be found. It is precisely for this reason that the common law developed the notion of courts of inherent jurisdiction. If the rule of law is not to be reduced to a patchwork, sometime thing, there must be a body to which disputants may turn where statutes and statutory schemes offer no relief.[29] Similar consideration is extended at paras 14-40.
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