Unionized Employees’ Access to Civil Courts, The Lawyer’s Daily (January 6, 2021)

(this article originally appeared in the Lawyer’s Daily on January 6, 2021)

By Nikolay Y. Chsherbinin

Unionized employees derive security of employment from collective agreements, which vest exclusive jurisdiction over employment disputes in arbitrators and labour relations boards. The principle that unionized employees must seek redress under the terms of their collective agreements, which typically provide for a grievance procedure and binding arbitration rather than by means of a civil action in the Ontario Superior Court of Justice, has been frequently reiterated in the jurisprudence.

In Nelson v. Ontario, 2020 ONCA 751, the Court of Appeal for Ontario considered the vexing question of whether civil courts have concurrent jurisdiction to entertain a unionized employee’s claim for damages arising out a breach of human rights. The Court of Appeal reaffirmed that a civil court has a limited jurisdiction over human rights claims provided that a civil action discloses some independent civil wrong that, in its essential character, does not arise either expressly or inferentially from the workplace.

In Nelson, in February 2019, a unionized employee, Hentrose Nelson, launched a 41-page statement of claim against her employer, the Ontario Public Service (OPS) and her union, alleging, among others, discrimination and harassment in the workplace. In response, OPS and the union successfully moved to strike Nelson’s action on the basis that the Superior Court of Justice lacked jurisdiction to hear the matter, because it arose out of an employment dispute under a collective agreement and therefore should be heard by either a labour arbitrator or the Human Rights Tribunal of Ontario (HRTO). Applying the Supreme Court of Canada’s decision in Weber v. Ontario Hydro [1995] 2 S.C.R. 929, the motion judge agreed and struck Nelson’s action.

In Nelson, the motion judge observed that in Weber the Supreme Court explained: “… a court’s jurisdiction is ousted when a plaintiff is under a collective bargaining regime … [a]lthough courts have jurisdiction to consider matters arising under the Human Rights Code, it is a very limited jurisdiction which requires the existence of a separate and additional cause of action … .” In other words, if no separate actionable wrong exists, the labour arbitrator retains exclusive jurisdiction, where the essential character of the dispute arises out of the collective agreement.

Nelson appealed to the Court of Appeal arguing that the motion judge erred in not finding that the court has concurrent jurisdiction over her civil action. She argued that the motion judge’s finding that all of the pleaded causes of action “arise in the workplace and are governed by the collective agreement” was erroneous, because the workplace was merely the place and not the essential character of her claim; rather the essential character of her claim is discrimination and harassment that bestows concurrent jurisdiction on the court.

The appellate court rejected this argument. It explained that the motion judge did not simply focus on the place of Nelson’s claim, instead he accepted that discrimination and harassment arising from her employment was the essential character of her claim.

The Appeal Court added: “[i]n any event, the fact that the essential character of her claim is allegations of discrimination and harassment arising from her employment does not result in the court having concurrent jurisdiction over claims within the exclusive jurisdiction of a labour arbitration or the HRTO.” While there has been an extension of concurrent jurisdiction, it is a limited extension that, pursuant to Weber, requires the existence of a separate and additional cause of action.

In Nelson’s case, in addition to discrimination and harassment claims she did plead other causes of action, such as: negligence and invasions of privacy. Undoubtedly, it was done in order to legitimately piggyback a human rights claim upon separate, independent wrongs. In this regard, the Court of Appeal reminded that a unionized employee’s civil claim must be assessed under the Weber framework, which cannot be circumvented by “innovating pleading.” The goal is to determine the essential character of the dispute based on the facts surrounding the dispute, and not how the legal issues may be framed.

Nelson reaffirms that just because a unionized employee’s civil action is not based solely on a breach of human rights and contains other causes of action does not mean that the court will automatically assume concurrent jurisdiction. Instead, the court is required to assess the nature of the dispute and see whether there is a separate civil wrong capable of grounding a court action. The independent civil wrong must not — in its essential character — arise from the workplace governed by the collective agreement.

Ultimately, the Ontario Appeal Court upheld the motion judge’s finding that Nelson’s claims were based entirely on discrimination and harassment in the workplace, and as such — at their core — all of the pleaded causes of action arose in the workplace and are governed by the collective agreement.

Nelson is a helpful reminder that whenever a dispute, viewed in its essential character and not formalistically, arises from a collective agreement, a civil court lacks jurisdiction and the matter is reserved for the labour arbitrator. Notwithstanding the Weber framework, the HRTO has concurrent jurisdiction to consider discrimination complaints arising from non-unionized workplaces and can order individual and systemic remedies, but not costs.

Nelson also highlights that it is possible for unionized employees to argue that they should be granted access to civil courts if, in the context of the discriminatory environment in which they find themselves, a grievance and arbitration process under a collective agreement leaves them without an adequate remedy on a practical basis. To succeed, unionized employees would be required to lead evidence: (a) that they have attempted to avail themselves of the mandatory grievance/arbitration process; or (b) to demonstrate that it was practically unavailable. From a procedural perspective, this is not the easiest hurdle to overcome.