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Labour - Remedial LRA Exclusivity (Weber) - General. 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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