Implications of Weber V. Ontario Hydro
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A) LAWSUITS CANNOT BE COMMENCED WHEN THE ISSUE IS COVERED BY THE COLLECTIVE AGREEMENT:
B) AN ARBITRATOR’S REMEDIAL JURISDICTION MAY BE EXPANDED:
In Weber v. Ontario Hydro, decided in 1995, the Supreme Court of Canada established the general principle that employees cannot sue about things which are grieveable. For example, an employee covered by a collective agreement cannot sue an employer for constructive dismissal, as this is a matter arising out of the application of the collective agreement
and covered by the “just cause” provisions contained in the agreement.
The Weber case dealt with a unionized employee’s lawsuit claiming that his Charter rights had been violated by his government employer’s video surveillance. The employee was seeking to bring in independent legal action, rather than proceed with a grievance under the collective agreement. The court held that this independent legal action was barred because
the nature of the dispute between the employer and the employee was one which was dealt with by the collective agreement. The reason for the video surveillance was to challenge the employee’s long term disability claim. Under the particular collective agreement, employees actually had the right to grieve “unfair treatment” in the administration of the LTD
plan.
This case contains two main implications for unions. The first is to confirm that the Courts will not allow lawsuits about matters covered by collective agreements. Members can be told that it is generally the case that matters covered by collective agreements should be the subject of a grievance and a grievance only.
The second implication of the case deals with the issues which can be raised in a grievance. Unions can only grieve breaches of the collective agreement. That is the foundation of any grievance. However, given Weber, there may be an opening for broader remedial jurisdiction on behalf of an arbitrator.
In the recent GSB case of OPSEU (Anderson) and Ministry of Correctional Services, GSB #1093/01, Vice-Chair Rick Brown dealt with this issue and held:
Weber does not widen the range of disputes which may be arbitrated, but it does alter in two ways the role of arbitrators when dealing with the sorts of controversies with which they always have dealt. The Supreme Court’s decision gives arbitrators a larger set of legal tools to use in fashioning resolutions to these problems. For example, an arbitrator
may award damages for defamation based upon facts which also constitute a violation of a collective agreement. The second impact of Weber on the role of arbitrators is less obvious than the first but just as significant. By empowering arbitrators to apply the common law, the Court assigned to them the task of determining to what extent this judge-made law
has been displaced or modified by a collective agreement. In a case like O’Leary, an arbitrator will be the one to decide whether a contractual prohibition against discipline without just cause modifies or negates an employer’s common law right to be compensated for a loss caused by the negligence of an employee.
What are the practical lessons from this possible broadening of remedial jurisdiction?
First of all, the grievance is still only valid if the facts amount to a breach of the collective agreement.
However, it may be possible for the union to seek damages and remedies over and above the normal kinds of wage compensation that are normally claimed in grievances. For example, Unions may be able to make claims for the breach of Charter rights, defamation, loss of reputation, tortuous negligence, etc.
So where a breach of a collective agreement involves unusually bad employer behaviour, there may be some value in raising common law concepts like tort or libel. For example, a bad faith and widely publicized dismissal may support both reinstatement and damages for loss of reputation.
Of course, in normal circumstances, there will be no point in raising these additional grounds. Arbitrators are generally unlikely to provide remedies above and beyond the normal ones. To date, there is no Labour Board case in which a union has been criticized for failing to advance civil lawsuit type remedies in a grievance. Furthermore, there are only a
very few arbitration cases in which such remedies have been successful. For these reasons, the union does not normally need to solicit or seek out civil action types of claims to include in grievances. If an employee does wish to advance claims of this kind, that employee can normally be told that such a claim is unlikely to succeed and may be unwise because
it can unproductively complicate the litigation of more traditional grievance remedies.
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