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Labour - Remedial LRA Exclusivity (Weber) - General. Dorceus v. Ontario
In Dorceus v. Ontario (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against findings of a motion judge that "concluded that the claim constituted both an abuse of process and a pleading that disclosed no reasonable cause of action", and consequently struck the pleadings. The claim was by "a group of more than 400 current and former healthcare workers" who "allege that a provincial public health directive led to the suspension or termination of their employment because they declined vaccination".
Here the court applies the Weber doctrine to bar civil litigation "concerning the claims of the unionized and privileged hospital staff appellants against the healthcare respondents":4. Jurisdictional Issues
[63] I would also uphold the motion judge’s jurisdictional rulings concerning the claims of the unionized and privileged hospital staff appellants against the healthcare respondents.
a. No Jurisdiction Over Unionized Appellants
[64] First, I agree with the motion judge that the unionized appellants must arbitrate their dispute with the healthcare respondents because labour arbitrators have exclusive jurisdiction over its subject matter.
[65] Under s. 48(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A., a dispute between the parties to a collective agreement must be arbitrated if that agreement covers the dispute’s essential character. The facts underlying the dispute, not legal labels, determine that character: Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 S.C.R. 107, at para. 40.
[66] In an earlier case concerning Directive 6, this court concluded that the core harm alleged by unionized healthcare workers who chose to remain unvaccinated was the risk of suspension or termination. That harm, this court accepted, was both fundamentally related to employment and covered by the collective agreement in question: National Organized Workers Union v. Sinai Health System, 2022 ONCA 802, 345 L.A.C. (4th) 424, at paras. 37-41.
[67] The motion judge properly applied the governing principles and this court’s precedent. Following Sinai Health, he ruled that the essential character of the dispute was the risk of suspension or termination and that the relevant collective agreements covered that matter.
[68] The appellants’ objections fail. They cannot evade the dispute’s essential character through legal labels such as Charter breaches or intentional torts. Those claims must be arbitrated where, as here, the essential character of the dispute nonetheless arises from the collective agreement: Horrocks, at paras. 19, 36, citing Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. Contrary to the appellant’s submission, labour arbitrators can grant declarations that Charter rights have been breached if they have jurisdiction over the parties and the dispute: Weber, at para. 75. It is of no moment that the arbitrator cannot formally declare that the Directive is of no force or effect under s. 52(1) of the Constitution Act, 1982 – a power reserved to the superior courts[4] – because that remedy is properly sought against the provincial Crown rather than the healthcare respondents. . Eklund v. ACTRA Performers’ Rights Society
In Eklund v. ACTRA Performers’ Rights Society (Div Ct, 2021) the Divisional Court considered the Weber labour relations doctrine where a worker sued for unpaid royalties:[10] The first issue is whether the Deputy Judge erred in failing to find that the dispute is within the exclusive jurisdiction of the OLRB or a labour arbitrator. The Deputy Judge referred to the seminal case of Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929, which held that courts lack jurisdiction to hear disputes about union representation and other labour relations matters where “the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement”: paras. 52 and 54.
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[15] The court must define the “essential character” of the dispute, which requires a contextual analysis of the underlying facts and the collective agreement. Simply pleading a common law tort is not sufficient to invoke the jurisdiction of the courts. As the Supreme Court states in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929, at para. 43:…the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. The 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". Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it. [16] How a union represents its members in respect of the interpretation, application or administration of a collective agreement falls within the core jurisdiction of the OLRB over duty of fair representation complaints. Section 74 of the Labour Relations Act prohibits a trade union from acting in a manner that is arbitrary, discriminatory, or in bad faith in the representation of its members. The way in which a claim is framed, whether in contract or tort or some other way, is not determinative. Rather, where the claim concerns how a member was represented by a union in respect of her rights under a collective agreement, the courts do not have jurisdiction. Here, the allegations are that ACTRA misinterpreted the collective agreement and failed to properly represent her in matters concerning Use Fee payments owing for her work on The Witch, which was governed by the collective agreement. . National Organized Workers Union v. Sinai Health System
In National Organized Workers Union v. Sinai Health System (Ont CA, 2022) the Court of Appeal considered the exclusive jurisdiction of the labour relations regime over collective agreement matters (Weber):(1) The exclusive jurisdiction model of labour relations
[19] It is useful to return to first principles in order to situate the nature and scope of the Superior Court’s residual jurisdiction in labour relations matters.
[20] Labour relations statutes in Canada are intended to provide a complete code governing all aspects of labour relations. Based on this interpretive approach to labour relations legislation, the Supreme Court of Canada has held that the legislation establishes an exclusive jurisdiction model. The labour relations regime has exclusive jurisdiction over matters arising out of a collective agreement: St. Anne Nackawic Pulp & Paper v. CPU, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, at pp. 718-19, 721; Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, at paras. 50-58.
[21] Labour relations legislation establishes binding arbitration as the forum for the resolution of disputes in the context of collective bargaining relationships. In Ontario, this legislative policy is embodied by s. 48 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “LRA”).
[22] Labour arbitrators have broad remedial authority, which allows them to flexibly craft labour relations remedies to workplace issues. Of note for this appeal, the remedial jurisdiction of an arbitrator includes making orders for reinstatement of employment with seniority and compensation for lost wages: Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 45-51; James T. Casey and Ayla Akgungor, ed., Remedies in Labour, Employment and Human Rights Law, loose-leaf (Toronto: Carswell, 2022), Ch. 2, III, C., at para. 2:53; Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Association, 2021 CanLII 44852 (Ont. L.A.), at para. 38; Lakehead University v. Lakehead University Faculty Association, 2018 CanLII 112407 (Ont. L.A.), at paras. 139-44.
[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.”
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