Labour III. McCoy v. Choi
In McCoy v. Choi (Ont CA, 2022) the Court of Appeal considered an understandable exception to the Weber doctrine:
 An arbitrator must adjudicate any dispute arising, expressly or implicitly, from a collective agreement which contains an exclusive arbitration clause such as the one at issue in this appeal: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC),  2 S.C.R. 929, at para. 54. In such cases, a court’s jurisdiction is limited to granting remedies that lie outside the authority of the arbitrator: Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, at para. 23.. Speck v. OLRB
 A dispute arises from a collective agreement when its “essential character” concerns a subject matter within the ambit of the collective agreement: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14,  1 S.C.R. 360, at para. 25.
 The inquiry into “essential character” is factual. It is directed at whether the dispute is factually related to the rights and obligations in the collective agreement, not at the legal character the dispute has taken; for instance, as an action in tort: Weber, at para. 43; Horrocks, at para. 20.
 The question for this court is whether the dispute arises from the Collective Agreement. In my view, the dispute in this appeal is not factually related to the rights and obligations in the collective agreement. It does not arise from the Collective Agreement and therefore it is not within the exclusive jurisdiction of an arbitrator.
 In essence, this is a dispute over a misdiagnosis of an injury by an outside physician who was not affiliated with the Redblacks, which injury was treated in accordance with the misdiagnosis, which allegedly caused damages.
In Speck v. OLRB (Div Ct, 2021) the Divisional Court considered a judicial review of an OLRB duty of fair representation case. One of the issues was procedural fairness for failure to allow the appellant to advance his case fully:
 Public decision-makers who make administrative decisions that affect the rights, privileges or interests of an individual have a general duty of procedural fairness. That duty can be heightened when decision-makers make an administrative decision that can affect a person’s profession or employment: Baker, at para. 20.. Ali v. Ontario Public Service Employees Union
 To determine whether a party before a tribunal has been accorded procedural fairness, a reviewing court must conduct an assessment of the procedures and safeguards required in a particular situation and determine whether the appropriate level of procedural fairness was accorded by the Board: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11,  1 S.C.R. 249, at para. 74. Baker sets out five factors for consideration to determine the content of procedural fairness: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the administrative body: Baker, at paras. 23-27.
 By the terms of s. 99 of the Act, the Board has the discretion to not even hold a hearing with respect to duty of fair representation complaints under s. 74. Section 110(16) of the Act empowers the Board to “determine its own practice and procedure”, which need not even accord a right to call evidence at an oral hearing: Harrison v. Ontario Labour Relations Board, 2015 ONSC 3275, at para. 40. Rule 41.3 of the Board’s Rules of Procedure permits the Board to exercise discretion with respect to the scope of evidence permitted in matters proceeding under s. 99 of the Act, which governs s. 74 complaints, including by limiting the presentation of evidence or submissions, or by proceeding without a hearing.
 Nor do we consider that the applicant was denied the opportunity to present evidence and make submissions in respect of the Union’s request for summary dismissal of his application. In fact, the Board granted the applicant’s request for an extension of time to file his submissions to address both the delay issue and the Constitutional Question that he wished to raise, and expanded its initial 10-page limit to 20 pages in its decision of October 16, 2018.
In Ali v. Ontario Public Service Employees Union (Div Ct, 2022) the Divisional Court cited law that duty of fair representation cases should generally be delayed until the full process has been concluded (prematurity):
 The principal argument advanced by the applicant was that the OLRB made a “blanket ruling,” the effect of which is that no complaint of a breach of the duty of fair representation can ever be determined before the completion of the grievance process.. Northern Regional Health Authority v. Horrocks
 In the April 2020 decision, the Vice-Chair cited the OLRB’s decisions in Berry v. Ontario Liquor Boards Employees’ Union, 2000 CanLII 4417 (ON LRB) (April 11, 2000) at para. 3, McPherson v. S.E.I.U. Local 528, 2006 CanLII 1622 (ON LRB) at para. 11, and Simpson v. Canadian Union of Public Employees Local 1764, 2004 CanLII 15609 (ON LRB) at para. 20. In each of those cases fair representation complaints were dismissed as premature. In Berry, Alternate Chair Cummings wrote, at para. 3:
The Board has consistently held that there is no good labour relations purpose to be served enquiring into a duty of fair representation complaint where the grievance at the heart of the complaint is still under discussion in the workplace parties’ grievance and arbitration procedure. OPSEU acknowledges that, as a general rule, fair representation complaints are not adjudicated until the completion of the grievance process. The rationale for this practice was explained in Zhang v. CUPE Local 79, 2016 CanLII 48776 (ON LRB) at paras. 39-40:
39. Where a trade union files grievances on behalf of an employee and is continuing to process them in a timely fashion at the time a section 74 application is made to the Board, the section 74 application is described as “premature,” and is not decided by the Board, but is rather dismissed. This approach makes sense as the arbitration hearing may result in an award that is favourable to the Applicant, she may not wish to pursue a complaint against CUPE. The rule is not, however, inviolable. Section 96(4) of the LRA invests the OLRB with a discretion to inquire into a complaint of a contravention of the LRA, including the duty of fair representation. Indeed, as the Zhang decision intimates, one circumstance in which a departure from the general rule could be warranted is where a grievance is not being processed in a timely fashion.
40. Regardless of the outcome of the arbitration hearing, if she wishes to base her complaint on CUPE’s conduct during that hearing, it only makes sense that the hearing run its course and all of her allegations be particularized prior to CUPE being required to respond to her complaint or the Board being required to decide it.
In Northern Regional Health Authority v. Horrocks (SCC, 2021) the Supreme Court of Canada considered the vexed issue of which legal regime had jurisdiction over a human rights complaint that occured in a employment/labour relations context (another Weber exclusive jurisdiction issue). The issue is similar to that of 'paramountcy' [as in Croplife Canada v Toronto (Ont CA, 2005) but instead of being between competing levels of goverment here it's between competing adjudicators at the same level of government (here a provincial human rights tribunal and a labour arbitrator):
 Labour relations legislation across Canada requires every collective agreement to include a clause providing for the final settlement of all differences concerning the interpretation, application or alleged violation of the agreement, by arbitration or otherwise. The precedents of this Court have maintained that the jurisdiction conferred upon the decision‑maker appointed thereunder is exclusive. At issue in this case, principally, is whether that exclusive jurisdiction held by labour arbitrators in Manitoba extends to adjudicating claims of discrimination that, while falling within the scope of the collective agreement, might also support a human rights complaint.The majority of the court considers these nebulous issues at paras 13-41. In this case the labour relations regime was dominant, but the case softened Weber's exclusivity to allow for as yet undefined exceptions where 'concurrent jurisdiction' exists:
 ... Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed.
 Where two tribunals have concurrent jurisdiction over a dispute, the decision‑maker must consider whether to exercise its jurisdiction in the circumstances of a particular case. For the reasons given below, concurrency does not arise in this case. I would therefore decline to elaborate here on the factors that should guide the determination of the appropriate forum.. United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc.
In United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc. (Div Ct, 2021) the Divisional Court set out a brief, recent history of labour law and agricultural workers, including a 2011 SCC freedom of association Charter case [paras 48-50]:
 Before 1994, agricultural workers were excluded from the labour relations scheme in the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”), the legislation that generally governs collective bargaining in the private sector in Ontario. The LRA is administered by the Ontario Labour Relations Board (“OLRB”). Since 1943, the dominant model for labour relations in Canada has been the American “Wagner Act” regime, which permits certification of trade unions as exclusive bargaining agents for bargaining units and a right to strike. . Eklund v. ACTRA Performers’ Rights Society
 In 1994, Ontario enacted the Agriculture Labour Relations Act, 1994, S.O. 1994, c. 6 (“ALRA”), which granted trade union and collective bargaining rights to agricultural workers. A year later, the ALRA was repealed, and that repeal was challenged as being a violation of s. 2(d) of the Charter, the right to freedom of association (see Dunmore v. Ontario (Attorney General), 2001 SCC 94). The Supreme Court of Canada found that the inability of agricultural workers to organize without protective legislation was a violation of the Charter. However, the Court was clear in Dunmore that agricultural workers did not have a right to collective bargaining under a Wagner Act model. It was the exclusion of agricultural workers from any process of collective bargaining that resulted in a finding that their freedom of association under s. 2(d) of the Charter was violated.
 Following Dunmore, Ontario enacted legislation to govern the collective bargaining rights of agricultural workers. The legislation did not accord workers the right to withdraw their services, because of the potentially catastrophic effect of a sudden withdrawal of services in the agricultural sector. Instead, the Legislature provided for interest arbitration when negotiations reached an impasse.
 This legislation was repealed after a change of government in Ontario. In place of the interest arbitration solution, new legislation, the AEPA, was enacted. It creates a distinct labour regime for agricultural workers and excludes them from the LRA. The AEPA provides the rights of agricultural employees to:
1. Form or join an employees’ association (s. 1(2)(1)) The Agriculture, Food and Rural Affairs Appeal Tribunal is responsible for the administration of the AEPA. Section 11 provides that interested parties, including employees’ associations, may apply to the Tribunal alleging that there has been a contravention of the AEPA.
2. Participate in lawful activities of an employees’ association (s. 1(2)(2))
3. Assemble (s. 1(2)(3))
4. Make representations at reasonable opportunities to their employers, through an employees’ association, respecting the terms and conditions of their employment (s. 5) and
5. Protection against interference, coercion, and discrimination in the exercise of their rights (ss. 8-10).
 The AEPA and the LRA are very different statutory schemes. Most notably, the LRA establishes an exclusive collective bargaining scheme, whereby all employees in a bargaining unit are represented by the same union. This exclusive bargaining agent model is referred to as the “Wagner Act” model. By contrast, the AEPA provides for a non-exclusive bargaining agent model, where multiple employee associations may represent different groups of employees in a single workplace. The LRA also establishes processes that employers and unions must follow before engaging in a strike or lockout, while the AEPA is silent with respect to strikes or lockouts.
 The constitutionality of the AEPA was challenged based on the Supreme Court of Canada’s prior decision in Dunmore. This challenge reached the Supreme Court of Canada, which upheld the AEPA’s constitutionality in Fraser v. Ontario (Attorney General), 2011 SCC 20.
 Section 5 of the AEPA deals with the right of agricultural employees to make representations to their employer. Subsection 5(1) sets out the employer’s obligation:
The employer shall give an employees’ association a reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer. Subsection 5(3) sets out three considerations relevant to the determination of whether a “reasonable opportunity” has been given:
1. The timing of the representations relative to planting and harvesting times.Subsection 5(4) specifies that these three conditions are not a complete list of relevant considerations.
2. The timing of the representations relative to concerns that may arise in running an agricultural operation, including, but not limited to, weather, animal health and safety and plant health.
3. Frequency and repetitiveness of the representations.
 As mentioned earlier in these reasons, the validity of the AEPA was challenged once before as a violation of s. 2(d) of the Charter, the right to freedom of association. The legislation was held to be constitutionally valid in Fraser in 2011. The summary found in para. 2 of the majority reasons of the Supreme Court of Canada in Fraser explains why:
Section 2(d) of the Charter protects the right to associate to achieve collective goals. Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter. This requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith. The Supreme Court emphasized in Fraser that s. 2(d) of the Charter does not protect a particular model of collective bargaining, such as the Wagner Act model (at para. 45). The Court set out the test for a s. 2(d) infringement as follows (at para. 47).:
If it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d) right is established, and the onus shifts to the state to justify the limit under s. 1 of the Charter. With respect to the AEPA, the Court concluded that s. 5, properly interpreted, imposed a requirement on an employer to negotiate with employees in good faith, and thus it was compliant with s. 2(d) (at para. 107). The Court also rejected the argument that the process under the AEPA would be ineffective, because there was little history of negotiations under the Act, and the process before the Tribunal, to enforce the good faith obligation, had not been pursued by those challenging the legislation (at paras. 109-112).
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:
 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),  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.. Eklund v. ACTRA Performers’ Rights Society
 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),  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. 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.
In Eklund v. ACTRA Performers’ Rights Society (Div Ct, 2021) the Divisional Court set out an exception to the Weber doctrine in the context of the duty of fair representation:
 The duty of fair representation does not encompass all claims by members against unions. Internal trade union disputes, such as qualifications for membership, elections, discipline, union meetings and so on are governed by a union’s constitution, not the Labour Relations Act, and may be resolved through court proceedings. ....