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Labour - Remedial LRA Exclusivity - Exception: Court Injunctions. National Organized Workers Union v. Sinai Health System
In National Organized Workers Union v. Sinai Health System (Ont CA, 2022) the Court of Appeal considers the residual injunction court jurisdiction in labour relations, despite the general Weber exclusivity:[23] Given the comprehensive nature of the labour relations regime, the jurisdiction of the Superior Courts in labour relations matters is residual: St. Anne Nackawic, at pp. 718-19, 725-26, 729-30; Weber, at para. 57. As the Supreme Court described it in St. Anne Nackawic at pp. 718-19: “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.”
[24] In the context of the issue raised in this appeal, injunctive relief pending the arbitration of a grievance, the jurisprudence is clear that the Superior Court has residual discretion to grant injunctive relief only if the arbitral process cannot provide an adequate alternative remedy. The exercise by the Superior Court of its residual discretion is exceptional. It is only to be exercised where there is a remedial gap in the labour relations regime.
[25] In this context, “remedial gap” does not mean that the remedy available under the labour relations regime must be identical to remedies that are available in the Superior Court. It does not mean that the remedy available under the labour relations regime must be the specific type of remedy that a party might want. A remedial gap sufficient to justify the Superior Court exercising its residual discretion must rise to the level of “a real deprivation of ultimate remedy”: Weber, at para. 57; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, at para. 23; Ontario Nurses Assn. v. Toronto Hospital, [1996] O.J. No. 3861 (Gen. Div.), at paras. 7-10; Rattai v. Hydro One Inc., 2005 CanLII 13786, at paras. 8-12.
[26] In considering whether adequate remedies are available under the labour relations regime, it is important to bear in mind that the legislative choice under the LRA was to include provisions for expedited hearings, rather than give arbitrators the jurisdiction to issue substantive injunctions on employer actions or policies in advance of a grievance arbitration: LRA, s. 49. Although the LRA gives arbitrators the authority to make interim orders on procedural matters, it does not give them authority to make interim orders on substantive matters such as reinstatement pending the arbitration of a grievance: LRA, ss. 48(12) and (13). This speaks to a legislative preference for expeditious arbitration, rather than injunctive relief pending an arbitration. This is a factor which supports restraint in the exercise of the Superior Court’s residual jurisdiction.
[27] There is no dispute in this case that the underlying grievances about the respondent’s mandatory vaccination policy are matters that arise out of the collective agreement and are properly addressed through the grievance arbitration process. Article 8 of the applicable collective agreements between the appellant and the respondent for full-time and part-time workers provides for grievance arbitration when there is a difference between a member of the bargaining unit and the respondent relating to the interpretation, application, administration, or alleged violation of the collective agreement. As a result, the grievances are matters within the exclusive jurisdiction of the arbitrator. The Superior Court retains only residual jurisdiction.
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