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Labour - Remedial LRA Exclusivity (Weber) - Exception: Inherent Court Jurisdiction

. 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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Last modified: 17-03-23
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