



COURT OF APPEAL FOR ONTARIO

CITATION: Nelson v. Ontario, 2020 ONCA 751

DATE: 20201130

DOCKET: C68333

Hoy, Brown and Thorburn JJ.A.

BETWEEN

Hentrose
    Nelson

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario and

David Bulmer, as representative of Association of Management,

Administrative and Professional Crown Employees

Defendants (Respondents)

Ranjan K. Agarwal, for the appellant

J. Thomas Curry, Rebecca Jones and Delna
    Contractor, for the respondent Her Majesty the Queen in Right of Ontario

James K. McDonald and Geetha
    Philipupillai, for the respondent David Bulmer, as a representative of
    Association of Management, Administrative and Professional Crown Employees of
    Ontario

Heard: November 10, 2020 by video conference

On
    appeal from the order of Justice Paul Schabas of the Superior Court of Justice,
    dated April 7, 2020, with reasons reported at 2020 ONSC 2147.

Hoy J.A.:



[1]

The appellant appeals the order of the motion
    judge, dismissing her action on the ground that the court has no jurisdiction
    over its subject matter.

Background

[2]

Briefly, the appellant is an employee of the
    Ontario Public Service (OPS) and a member of the Association of Management,
    Administrative and Professional Crown Employees of Ontario (AMAPCEO or the
    union). Her relationship with her employer is governed by the collective
    agreement between the union and Her Majesty the Queen in right of Ontario
    (Crown). Article 2 of the collective agreement prohibits discrimination based
    on, among other things, sex, disability, race, and colour. The collective
    agreement provides for a comprehensive grievance procedure, including binding
    arbitration before a labour arbitrator, the Grievance Settlement Board.

[3]

Beginning in November 2011, pursuant to the
    collective agreement, the union initiated several grievances on the appellants
    behalf asserting discrimination based on sex, gender, disability, race
    including anti-Black racism and harassment by her managers and co-workers in
    the OPS, and alleging breaches of the collective agreement, the
Human
    Rights Code
, R.S.O. 1990, c. H.19 (the
Code
) and the
Employment
    Standards Act
, S.O. 2000, c. 41.

[4]

In 2012, independently of the union, the
    appellant also made an application before the Human Rights Tribunal of Ontario
    (HRTO) alleging discrimination based on race, colour, disability, sex, and
    pregnancy. The HRTO deferred her application on the basis that the allegations
    in her application overlapped significantly with the first of the grievances
    filed by the union on her behalf pursuant to the collective agreement.

[5]

At the appellants request, in April 2017, the
    union withdrew the grievances so that her HRTO application could proceed. The
    application was reactivated in May 2017. However, in July 2017, at the
    appellants request, the application was adjourned.

[6]

Thereafter, in August 2018, the union filed a
    further grievance on the appellants behalf. It is being held in abeyance, by
    agreement of the union and the Crown.

[7]

In February 2019, the appellant commenced this
    action in the Superior Court of Justice against the Crown and the union.
[1]
The
    motion judge described the statement of claim as follows:

The statement of claim is 41 pages long
    describing a range of incidents and conduct of the Crown and union, with
    additional schedules containing a glossary of terms and particulars of wrongful
    and negligent acts of the defendants, their duties and failures to meet them,
    and details of the plaintiffs damages. All the claims are grounded in
    allegations of discrimination and harassment arising from Nelsons employment
    by Ontario.

[8]

The HRTO then deferred the appellants
    application, pending completion of these civil proceedings.

[9]

The Crown and the union  the respondents in the
    appeal  moved to dismiss the action on the basis that the court lacks
    jurisdiction to hear the matter because it arises out of an employment dispute
    under a collective agreement and therefore should be heard by a labour
    arbitrator or the HRTO.

The trial
    judges reasons

[10]

Applying the Supreme Courts decision in
Weber
    v. Ontario Hydro
, [1995] 2 S.C.R. 929, the trial judge granted the
    defendants motions and struck the action. By way of overview, he explained
    that:

...the long-standing principles stated in
Weber
,

repeatedly reaffirmed by the courts,
    that a courts jurisdiction is ousted when a plaintiff is under a collective
    bargaining regime, apply here. Although 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 which is properly before the court in the case. That is not the
    situation here, where the plaintiffs complaints arise entirely from her
    employment, which is governed by a Collective Agreement, and her claim does not
    raise any new or separate cause of action which the court can, or should,
    consider.

[11]

The motion judge reviewed the relevant
    jurisprudence.

[12]

In
Weber
, the Supreme Court considered
    the mandatory arbitration provision in what is now s. 48(1) of the
Labour
    Relations Act
, 1995, S.O. 1995, c. 1, Sched. A (LRA). That section provides
    that every collective agreement shall provide for the final and binding
    arbitration of all differences between the parties arising from the
    interpretation, application, administration or alleged violation of the
    agreement, including any question as to whether a matter is arbitrable. The
    Supreme Court held that this provision grants the arbitrators exclusive
    jurisdiction over a dispute where that dispute arises from the collective
    agreement, either expressly or inferentially.

[13]

Section 7(3) of the
Crown Employees
    Collective Bargaining Act
, 1993, S.O. 1993, c. 38 (CECBA), which applies
    here, mirrors the provisions considered by the Supreme Court in
Weber
in all respects material to this appeal.

[14]

Referring to
Weber
, at paras. 55-59,
    the motion judge observed that, where the essential character of a dispute
    arises from a collective agreement, the court lacks jurisdiction and the matter
    is reserved for the labour arbitrator.

[15]

Because the appellant takes issue in her
    statement of claim with the unions representation of her, the motion judge
    also considered s. 74 of the LRA, which is deemed to form part of the CECBA,
    and
Gendron v. Supply and Services Union of the Public Service Alliance of
    Canada, Local 50057
, [1990] 1 S.C.R. 1298. He noted that s. 74 of the LRA
    imposes a duty on unions to fairly represent all members and that an individual
    member who believes that their union is violating s. 74 has the right to bring
    an application to the Ontario Labour Relations Board (OLRB).

[16]

In
Gendron
, the Supreme Court held that
    the common law duty of fair representation was ousted by a statutory process
    for addressing that duty before a labour board. Where the statute applies, the
    courts jurisdiction is limited to the review of the labour boards decision,
    within the parameters contemplated by the relevant privative clause. However,
    there may be exceptions, including instances, such as in the context of human
    rights violations, where, while the statute may apply, the breach may not be
    properly characterized as exclusively a labour relations matter. In these
    circumstances, the jurisdiction may be grounded elsewhere:
Gendron
,
    at p. 1320. Citing
Gendron
, the motion judge found that the claims
    pleaded here against the union relate to its representation of the appellant
    and should be dealt with by the OLRB, subject to the exception for human rights
    complaints.

[17]

The motion judge explained that
Quebec
    (Commission des droits de la personne et des droits de la jeunesse) v. Quebec
    (Attorney General)
, 2004 SCC 39, [2004] 2 S.C.R. 185 (
Morin
)
    and
Naraine v. Ford Motor Co. of

Canada
(2001), 209 D.L.R.
    (4th) 465 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 69,
    established that, despite
Weber
and
Gendron
, the HRTO has
    concurrent jurisdiction to consider discrimination complaints arising from the
    employment context.

[18]

The motion judge considered s. 46.1 of the
Code
,
    the 2008 amendment to the
Code
invoked by the appellant in support of
    her argument that the court has concurrent jurisdiction. That section provides
    that a person cannot commence an action based solely on a breach of the
Code
:

46.1(1) If, in a civil proceeding in
    a court, the court finds that a party to the proceeding has infringed a right
    under Part I [Freedom from Discrimination] of another party to the
    proceeding, the court may make either of the following orders, or both:

1. An order directing the party
    who infringed the right to pay monetary compensation to the party whose right
    was infringed for loss arising out of the infringement, including compensation
    for injury to dignity, feelings and self-respect.

2. An order directing the party
    who infringed the right to make restitution to the party whose right was
    infringed, other than through monetary compensation, for loss arising out of
    the infringement, including restitution for injury to dignity, feelings and
    self-respect.

(2)
Subsection
    (1) does not permit a person to commence an action based solely on an
    infringement of a right under Part I.
[Emphasis added.]

[19]

The motion judge noted that s. 46.1 was recently
    considered in
Rivers v. Waterloo Regional Police Services Board
, 2018
    ONSC 4307, affd, 2019 ONCA 267, 2019 C.L.L.C. 220-038, leave to appeal to SCC refused,
    38707 (October 24, 2019).

[20]

In
Rivers
, the representative plaintiffs
    sought certification of a proposed class action on behalf of female police
    officers, alleging that both the Waterloo Regional Police Services Board and
    the Waterloo Regional Police Association were liable for systemic gender-based
    discrimination and sexual harassment. The motion judge in
Rivers,
Baltman J., concluded that s. 46.1 did not permit the action and dismissed the
    action. All the alleged wrongs claimed, at their core, sexual discrimination:
Rivers
, at para. 48. There was no independent actionable wrong to
    ground a court action. Baltman J. accordingly dismissed the action on the basis
    that the court had no jurisdiction over the dispute. This court upheld her
    decision and the Supreme Court refused leave to appeal.

[21]

The motion judge concluded that the appellants
    claim, like that in
Rivers
, is based entirely on discrimination and
    harassment in the workplace. While the appellant pleaded various causes of
    action, such as negligence and invasion of privacy, the claim must be assessed
    under the
Weber
framework, which cannot be circumvented by innovative
    pleading. He reasoned that, [t]he essential character of this dispute,
    including all of the causes of action, arise in the workplace and are governed
    by the collective agreement.

[22]

He rejected the appellants argument that,
    notwithstanding
Weber
, s. 46.1 of the
Code
impliedly extends
    concurrent jurisdiction to the courts and labour arbitrators to hear matters involving
    violations of the
Code
arising in a workplace governed by a collective
    agreement, much like the former Human Rights Board of Inquiry and labour
    arbitrators shared concurrent jurisdiction as set out in
Naraine.
He
    explained:

in my view the requirement in subsection
    46.1(2) that the action not be based solely on an infringement of a right
    under Part I of the
Code
does not mean that
Weber
no longer
    applies. While there has been an extension of concurrent jurisdiction, it is a
    limited extension. Clearer language would need to be used to override
Weber
,
    and s. 48(1) of the
Labour Relations Act
, 1995, which contain
    fundamental tenets of the collective bargaining regime. Rather, s. 46.1(2) must
    be read together with the principles in
Weber
, as it was in
Rivers
.

Accordingly, for a unionized employee to
    assert human rights claims in a civil action against her employer, and/or
    union, there must be some independent civil wrong that does not, in its
    essential character, arise from the workplace governed by the collective
    agreement. As there is no such wrong pleaded here on which to piggy back a
    human rights claim, the court has no jurisdiction.

[23]

Finally, the motion judge noted that the
    appellant can pursue all her complaints, including those against the union,
    before the HRTO, which can order individual and systemic remedies.

Analysis

[24]

The appellant argues that the motion judge erred
    in not finding that the court has concurrent jurisdiction over her claim. She
    advances three arguments.

Section 46.1 of the
Code
and a presumption
    of arbitration

[25]

First, the appellant argues that the motion
    judge erred in his analysis by starting from the position that there is a
    presumption of arbitration where the plaintiffs employment is governed by a
    collective agreement and failing to follow the two-step approach in
Morin
.
    This, she argues, coloured his approach and led him to conclude that s. 46.1 of
    the
Code
, which was enacted after
Weber
, should be read
    together with
Weber
. She says s. 46.1 of the
Code
was enacted
    after and should be interpreted without reference to
Weber
. In her
    view, properly interpreted, s. 46.1 permits a plaintiff to bring a civil action
    that according to
Weber
is within the exclusive jurisdiction of a
    labour arbitrator provided that the action is brought in conjunction with a
    breach of the
Code
.

[26]

I reject this argument.

[27]

The motion judge did not err in his analytical
    approach.

[28]

Read in context, the motion judges use of the
    expression presumption of arbitration in the title to a portion of his
    reasons and his statement that, where a plaintiffs employment is governed by a
    collective agreement, presumptively, any employment related dispute must be
    dealt with by way of arbitration, are simply his short-hand descriptions of
    the principle in
Weber
, confirmed in
Morin
, which he
    subsequently articulates in greater detail.

[29]

Morin
, which
    also predates s. 46.1 of the
Code
, does not assist the appellant. It
    does not provide jurisdiction to the civil courts for matters within the ambit
    of a labour arbitrators exclusive jurisdiction.

[30]

Morin
considered which of two administrative tribunals should hear a dispute.
Morin
does not establish a different analytical framework from
Weber
for
    determining whether a court has jurisdiction. In
Morin
, Chief Justice
    McLachlin reviewed the principles in
Weber
and applied those
    principles to different legislation than that considered in
Weber
and
    to a different factual matrix.

[31]

As the appellant argues, in
Morin
, at
    paras. 14-15, the Chief Justice makes clear that
Weber
does not stand
    for the proposition that labour arbitrators always have exclusive jurisdiction
    in employer-union disputes:

the question in each case is whether the
    relevant legislation applied to the dispute at issue, taken in its full factual
    context, establishes that the labour arbitrator has exclusive jurisdiction over
    the dispute.

This question suggests two related steps. The
    first step is to look at the relevant legislation and what is says about the
    arbitrators jurisdiction. The second step is to look at the nature of the
    dispute, and see whether the legislation suggests it falls exclusively to the
    [labour] arbitrator.

[32]

Applying this two-step approach, the Chief
    Justice found that the Quebec
Labour Code
, R.S.Q., c. C-27 provided
    jurisdiction to the labour arbitrator over matters arising out of the
    collective agreements operation and that
Weber
had determined that
    this jurisdiction is exclusive. She considered the Quebec
Charter,
which
    grants Quebecs Human Rights Tribunal jurisdiction, and concluded that while
    the Tribunal enjoys broad jurisdiction over human rights violations in Quebec,
    it is not exclusive and that its jurisdiction may be concurrent with that of
    other adjudicative bodies. The Chief Justice, at para. 20, then considered
    whether the dispute in issue viewed in its essential character and not
    formalistically fell within the ambit of the labour arbitrators exclusive
    jurisdiction, as was the case in
Weber
. She concluded it did not and
    that, accordingly, the Human Rights Tribunal was entitled to exercise its
    concurrent jurisdiction over the claim.

[33]

In this case, the relevant legislation is the
    CECBA, which mirrors the LRA, and s. 46.1 of the
Code
. As
Morin
notes,
Weber
has determined that the labour arbitrators jurisdiction is
    exclusive, where the essential character of the dispute arises from the
    collective agreement, either expressly or inferentially. Based on
Naraine
,
    all accept that the HRTO has concurrent jurisdiction with the labour arbitrator
    over the appellants human rights issues. In interpreting s. 46.1, the motion
    judge applied the approach in
Rivers
, which was upheld on appeal to
    this court. He properly interpreted s. 46.1 of the
Code
together with
Weber
.
    The motion judge then considered the nature of the dispute and concluded that
    the wrongs pleaded by the appellant in her statement of claim were, subject to
    the limited concurrent jurisdiction of the HRTO, within the exclusive
    jurisdiction of the labour arbitrator.

[34]

Nearly three years before
Morin
, and
    applying slightly different reasoning than Chief Justice McLachlin in
Morin
,
    this court concluded in
Naraine
that the HRTO has concurrent
    jurisdiction with a labour arbitrator over human rights issues. In coming to
    that conclusion, Abella J.A. (as she then was), writing for the court, noted
    that, [h]uman rights legislation has consistently been found to occupy a
    uniquely protected sphere in the legal orbit. It enjoys quasi-constitutional
    status and can only be overridden by express and unequivocal language:
Naraine
,
    at para. 47.

[35]

Seizing on this language, the appellant argues
    that because the
Code
enjoys quasi-constitutional status, s. 46.1 of
    the
Code
should not be limited by Supreme Court authority which
    pre-dates its enactment. I disagree.

[36]

Section 46.1 of the
Code
presupposes
    that the action brought is properly before the court:
Jaffer v. York
    University
, 2010 ONCA 654, 268 O.A.C. 338, at para. 44. There is no ground
    to presume that the legislature, in enacting s. 46(1), intended to grant the
    Superior Court jurisdiction over claims that otherwise should be heard by labour
    arbitrators or the HRTO. Indeed, the operating presumption is that the
    legislature does not intend to change existing law or to depart from
    established principles, policies or practices:
Parry Sound (District)
    Social Services Administration Board v. Ontario Public Service Employees Union,
    Local 324 (OPSEU)
, 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 39. As the
    motion judge concluded [c]learer language would need to be used to override
Weber
,
    and s. 48(1) of the
Labour Relations Act
, 1995, which contain
    fundamental tenets of the collective bargaining regime.

The essential character of the
    appellants claims

[37]

Second, the appellant argues that the motion
    judge erred in finding that the essential character of the dispute, including
    all of the causes of action, arise in the workplace and are governed by the
    collective agreement. That, she says, is the
place
of her claim, not
    its essential character. She says the essential character of her claim is discrimination
    and harassment, including systemic anti-Black racism, and the court accordingly
    has concurrent jurisdiction.

[38]

I reject this argument. The motion judge did not
    simply focus on the place of her claim. He accepted that discrimination and
    harassment arising from her employment were the essential character of her
    claim. Elsewhere, in his reasons, the motion judge wrote that [a]ll the claims
    are grounded in allegations of discrimination and harassment arising from
    Nelsons employment by Ontario. These allegations fall squarely within the
    non-discrimination provisions of Article 2 of the collective agreement. In 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 arbitrator or the HRTO.

The practical unavailability of the
    grievance process

[39]

Third, the appellant argues that the motion
    judge failed to consider whether her evidence establishes that the grievance
    and arbitration process under the collective agreement is practically
    unavailable to her. In her factum, she cites this courts decision in
Rivers
as authority for the proposition that if the grievance/arbitration process is
    practically unavailable to a plaintiff, then she may be granted access to the
    court.

[40]

As the appellant concedes in oral argument, in
Rivers
this court did not go so far as to hold that a plaintiff may or should be
    granted access to the court where she does not have an adequate remedy on a
    practical basis. The court did not need to determine the issue. It disposed of
    the appellants argument that they should be granted access for that reason on
    the basis that they had not attempted to avail themselves of the mandatory
    grievance/arbitration process or led evidence to demonstrate that it was
    practically unavailable.

[41]

Here, at the appellants request, the union
    withdrew the grievances in April 2017 so that her HRTO application could
    proceed. The motion judge found that she can pursue all her complaints,
    including those against the union, before the HRTO, which can order individual
    and systemic remedies. There is no basis for this court to interfere with that
    finding. On the motion judges finding, a remedy is not practically unavailable
    to the appellant.

Disposition

[42]

Accordingly, I would dismiss the appeal. As
    agreed by the parties, I would order that there shall be no costs of the
    appeal.

Released: AH NOV 30 2020

Alexandra
    Hoy J.A.

I
    agree. David Brown J.A.

I
    agree. Thorburn J.A.





[1]
The appellant commenced her action against David Bulmer, as a
    representative of the union.


