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Labour - Remedial LRA Exclusivity (Weber) - Exception: General. Berger v. York Region District School Board
In Berger v. York Region District School Board (Div Ct, 2026) the Divisional Court granted a motion to quash a JR which was brought to address a workplace dispute, this on labour board exclusivity (Weber) grounds:[2] The applicant is a unionized employee of the School Board who seeks to challenge what the School Board submits is an internal workplace decision. The applicant’s employment is governed by a collective agreement between the School Board and the Elementary Teachers’ Federation of Ontario (York Region) (the Union). The School Board submits that since the applicant remains dissatisfied, the next step would be an application to the Ontario Labour Relations Board (OLRB) not this application for judicial review.
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Exclusive Jurisdiction of the Labour Relations Regime
[22] The first ground is based on long-established principles for which the seminal case is Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. Weber has been repeatedly reaffirmed and applied: e.g., Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, Allen v. Alberta, 2003 SCC 13, [2003] 1 S.C.R. 128, Dorceus v. Ontario, 2026 ONCA 321.
[23] In Weber, the Supreme Court adopted the exclusive jurisdiction model for the relationship between the labour relations regime and the courts with respect to workplace disputes. “This model rejects concurrent or overlapping jurisdiction between the courts and dispute resolution within the labour relations regime, because overlapping jurisdiction would undercut goals of the labour relations regime”: De Montigny v Roy, 2018 ONSC 858, at para. 20, per Copeland J., as she then was, aff’d, 2018 ONCA 884.
[24] As put in Weber, at para. 43, 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 decide it.
[25] The use of an application for judicial review to raise issues, rather than a Superior Court proceeding, does not displace these principles: George v. Anishinabek (Police Service), 2014 ONCA 581.
[26] The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement: Weber, at para. 52.
[27] If so, there is exclusive jurisdiction in the labour relations regime. The court does not have overlapping or concurrent jurisdiction: Weber, at para. 58.
[28] Here, the Policy is expressly referred to in the collective agreement, although that is not a prerequisite to finding exclusive jurisdiction to address workplace harassment within the labour relations regime: De Montigny v Roy, at paras. 30-31.
[29] Labour arbitrators adjudicate grievances that allege that an employer failed to conduct a proper investigation, reached unreasonable findings, or otherwise breached the employer’s own workplace policies: e.g., Toronto District School Board v Canadian Union of Public Employees, Local 4400, 2021 CanLII 101010 (ON LA); Corporation of the City of London v London Professional Fire Fighters’ Association, LAFF Local 142, 2025 CanLII 8815 (ON LA).
[30] Where the Union has chosen not to pursue a grievance, there is still exclusive jurisdiction. In those circumstances, the employee’s remedy is to bring a duty of fair representation complaint to the OLRB against their union: De Montigny v Roy, at paras. 45-50; Carvalho v. Matthews-Altieri, 2022 ONSC 2352. If successful, the OLRB could order that the union initiate a grievance on the employee’s behalf. Next the court considered the applicant's arguments for possible exceptions to the Weber principle:[41] In the alternative, the applicant submits that even if I conclude that the essential character of this dispute would ordinarily fall within the exclusive jurisdiction of the labour relations regime, the court retains the residual jurisdiction to provide a remedy that is not available within that regime. The applicant submits that the procedural fairness issues raised here, about the conduct of the investigation, can only be remedied through the impugned letter decisions being quashed or otherwise invalidated in court. The applicant submits that an unfair labour practice complaint to the OLRB would not address the public nature of the decisions and could take years to resolve.
[42] The comprehensive arbitration process under the collective agreement does not leave a remedial gap in this case. With respect to the alleged public nature of the decisions, the applicant relies on arguments that I have already addressed, including the scope of the Policy, the ministerial role resulting in the HRO and the independent nature of the HRO. Those arguments do not change the essential character of this dispute.
[43] The applicant further relies on the nature of this employer as a governmental institution and role of the Policy, addressing obligations of employers and others under the Human Rights Code, R.S.O. 1990, c. H.19.
[44] All employers in Ontario are required to have a workplace harassment policy, as set out in the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 32.0.1. And all employers are subject to the obligations in the Human Rights Code. The government has these obligations. The applicant is essentially submitting that every employment-related harassment decision made by a government could be the proper subject of judicial review. This is plainly incorrect.
[45] Nor does the assertion of possible delay within the labour relations regime justify an extraordinary exercise of residual jurisdiction. That is a matter to be addressed within that regime, as are the alleged procedural fairness issues regarding the steps taken under the Policy that resulted in the impugned decisions.
[46] In oral submissions, the applicant also asserted that the Union’s conduct here was so deficient that it caused this dispute to step outside the labour relations regime. This argument is also plainly without merit. It is not borne out on the applicant’s own affidavit. If it had been the focus of the application, the Union ought to have been named as a respondent with fair notice and an opportunity to respond. It was not. And it is squarely within the role of a duty of fair representation complaint within the labour relation regime.
[47] Lastly, the applicant submits that it needs the production of documents that may be available in an application for judicial review. This does not inform the relevant issue here. The question is not a matter of choosing a preferred process (even though I note that the applicant has not shown that documents would be unavailable in the labour relations regime). The issue is whether the dispute, regardless of how it may be characterized legally, arises from the interpretation, application, administration or violation of the collective agreement. If so, then the jurisdiction to resolve it lies exclusively with the labour relations regime, and the courts cannot decide it. That is the case here.
[48] This application plainly and obviously falls within the exclusive jurisdiction of the labour relations regime and is therefore quashed.
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