One of the side effects of the pandemic has been considerably higher movement in the employment sector. In addition to what is being termed “the Great Resignation,” employees have increasingly opted to organize and unionize their workplaces.
In early 2021, Statistics Canada noted that the union density rate was 31.3%, an increase from 30.2% in 2019, and the highest it has been for 15 years. Safety concerns, greater stability, and more input into decisions during the pandemic and recovery are all attributed to driving forced behind increased interest in unionization.
While unions play a crucial role in addressing all of these issues, the nature of collective representation invariably means that individual issues are often not advanced in the same manner. A single collective agreement for the entire bargaining unit replaces the individual employment contract for separate employees.
Practically this means that employees have very limited means to advance individual concerns of the workplace separately from the union. This was highlighted in the 1995 Supreme Court of Canada decision of Weber v. Ontario Hydro, where the majority concluded that labour arbitrators have exclusive discretion to deal with issues that fall under s. 45(1) of the Ontario Labour Relations Act, which states,
45. (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, 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 majority concluded that the proper interpretation of the provision meant statutory tribunals created by legislatures may be courts of competent jurisdiction to grant Charter remedies under s. 24(1). More importantly, the entire court agreed with the exclusive jurisdiction model that would avoid duplicating and undermining the dispute resolution processes under labour statutes.
Since that time, employers have regularly utilized Weber motions to have matters before the court dismissed, where the “essential character” of the dispute is covered by a collective agreement. Several notable exceptions to this preference in avoiding overlapping jurisdictions exist, especially after the Court’s decision in Vavilov.
The majority in Weber considered the submission that labour arbitrators lack the expertise on ever legal question that may come under this essential character, but expressed confidence at para 55 in the ability of judicial review, as it promotes judicial efficiency. Vavilov decided at paras 65-68 that jurisdictional questions no longer fall into a distinct category that attracted a correctness review, and that a reasonableness standard does not allow decision-makers to interpret their enabling statute beyond what the legislature intended.
Both of the cases that the Court in Vavilov referred to as examples of cases that attract a correctness review for questions around jurisdictional boundaries between two or more administrative bodies were in the labour context. The rule of law requires that the correctness standard be applied in the context of resolving jurisdictional boundaries,
 Administrative decisions are rarely contested on this basis. Where they are, however, the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another. The rationale for this category of questions is simple: the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions. Members of the public must know where to turn in order to resolve a dispute. As with general questions of law of central importance to the legal system as a whole, the application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making.
[emphasis added; citations omitted]
The first, Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, involved the jurisdiction of a labour arbitrator to consider police discipline and dismissal issues, where there is already a complex. The Court decided that the discipline issue was not an employment matter, but a disciplinary matter.
The second, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), involved the the Quebec Human Rights Tribunal’s jurisdiction to hear a complaint of discrimination. The Court concluded that in that specific factual context the labour arbitrator did not have exclusive jurisdiction over the despite, despite the holding in Weber, because the the labour issues did not lend itself to characterization as a grievance under the collective agreement,
11 Weber holds that the model that applies in a given situation depends on the governing legislation, as applied to the dispute viewed in its factual matrix. In Weber, the concurrent and overlapping jurisdiction approaches were ruled out because the provisions of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, when applied to the facts of the dispute, dictated that the labour arbitrator had exclusive jurisdiction over the dispute. However, Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction; see, for example, Goudie v. Ottawa (City),  1 S.C.R. 141, 2003 SCC 14; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC),  2 S.C.R. 495. As stated in Weber, supra, at para. 53, “[b]ecause the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator.”
The reason why the Court departed from Weber is that the claim was not that the collective agreement was violated, but that the agreement itself was discriminatory by significantly favouring more senior members of the bargaining unit. The Court noted that the human rights tribunal was entitled to exercise jurisdiction, but could also have refused to proceed as a matter of discretion.
Unions are also required to ensure a non-discriminatory workplace, but their roles in this are invariably different than employers. Unions must ensure they do not discriminate against their members, but realistically there may be unintentional or even systemic forms of discrimination created as a result of seniority. What differentiates this context from other forms of systemic discrimination is that this seniority may be a necessary feature of s. 2(d) rights, and therefore justified under s. 1.
In Mounted Police, the Court discussed the content of s. 2(d) and adopted the purposive approach advanced in the Alberta Reference, which guarantees the empowerment of groups to work to right societal imbalances, where members’ individual voices would otherwise be drowned out. Although this would not necessarily protect all associational activity, it may justify the internal coherence of a collective agreement in light of Charter considerations.
While this tension between seniority and equity considerations can be differentiated from guaranteeing a particular model or outcome, it still prevents governmental interference that would effectively make meaningful association in the workplace impossible. However, Commission des droits would appear to allow adjudication on this issue before a human rights tribunal, and that approach appears to be maintained under Vavilov.
The Ontario Human Rights Commission states that unions have obligations to advance human rights in the workplace. They should try to make sure that collective agreements explicitly protect human rights, and should include clauses related to preventing and resolving harassment and discrimination in the workplace.
The Commission cites Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, which affirmed that s. 48(12)(j) of the Ontario Labour Relations Act, 1995 effectively imported the substantive rights of the Human Rights Code into a collective agreement that a labour arbitrator has jurisdiction over. Just because the human rights tribunal has greater expertise in human rights does not mean that labour boards and arbitrators don’t have the power to enforce human rights obligations.
The Supreme Court of Canada recently released its decision in Northern Regional Health Authority v. Horrocks, which evaluates the exclusive jurisdiction issue of human rights tribunals in the labour context under the Vavilov framework.
The employee was terminated after refusing to abstain from alcohol and seek additional treatment for her alcoholism. The termination was grieved, and the employee was reinstated on the condition that she still enter this agreement for treatment.
The employee then filed with the human rights tribunal, which found that the employer had engaged in discrimination. However, the employer brought a Weber motion, claiming the essential character of the dispute was the employment relationship.
The majority agreed with this position, indicating that the human rights tribunal did not have jurisdiction. There was no clear statutory language that would grant concurrent jurisdiction to the human rights tribunal. The Court emphasized that this model is not a mere preference, but an interpretation of the mandate that is provided by statute. The mere existence of a competing tribunal is not enough to displace the jurisdiction of a labour arbitrator to hear these types of disputes.
In B.C., the mandatory dispute resolution clause under s. 78 of the Labour Relations Act read in conjunction with the provisions of the B.C. Human Rights Code did not support an interpretation of a legislative intent to displace jurisdiction,
 The second relevant statute here, The Human Rights Code, provides that “[a]ny person may file . . . a complaint alleging that another person has contravened this Code” (s. 22(1)), and directs the Commission to investigate such complaints (s. 26). Where such investigation leads the Commission to conclude that “additional proceedings in respect of the complaint would further the objectives of this Code or assist the Commission in discharging its responsibilities under this Code”, it must either request the designation of an adjudicator to hear the complaint or recommend that the minister commence a prosecution for an alleged contravention of the Code (s. 29(3)). While such provisions vest broad jurisdiction in the Commission over Code violations, they are — absent express displacement of the exclusive jurisdiction of a labour arbitrator established by the mandatory arbitration clause — insufficient to support a finding that the Commission holds concurrent jurisdiction here.
 I would therefore conclude that the arbitrator’s jurisdiction under The Labour Relations Act over claims that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement is exclusive and, more particularly, exclusive of the Commission.
 The adjudicator, I observe, sought to escape the inescapable by describing the essential character of the dispute as “aris[ing] from an alleged violation of the complainant’s human rights and not out of the ‘interpretation, application, administration or violation of the collective agreement”’ (MBHR reasons, at para. 110; see also Weber, at para. 52). Respectfully, the adjudicator’s error here was to do what Weber directs not to do, by focussing on the legal characterization of Ms. Horrocks’ claim instead of on “whether the facts of the dispute fall within the ambit of the collective agreement” (para. 44). It is of course true that Ms. Horrocks alleges a human rights violation. But were that sufficient to displace the exclusive jurisdiction of the labour arbitrator, exclusive arbitral jurisdiction would be significantly undermined, because every human rights complaint would automatically fall within the jurisdiction of the human rights adjudication system. Again, what matters are the facts of the complaint, not the legal form in which the complaint is advanced.
The implications of this decision is that it addresses some of the uncertainties as to how Weber would apply post-Vavilov, as the mere allegation of a human rights violation does not bring the dispute within the jurisdiction of a human rights tribunal.
While this may complicate the role of labour arbitrators, in that they will usually have to interpret and adjudicate complex issues including human rights, harassment, accommodation, and a variety of other statutory considerations, this is largely what has occurred over the past 35 years.
It also ensures that these types of complaints will continue to be interpreted in light of any relevant collective agreement, and may not not take primacy over other considerations under labour statutes or the agreement between the parties.
Unionized employees frequently misunderstand the role of unions in the unionized workplace, which often entails advancing policy issues and grievances that are of interest and relevant for the entire bargaining unit, and not any individually unionized employee. This may mean that a union can in good faith choose not to advance a particular grievance, if there are particular strategic or other reasons for doing so, as long as those decisions are not arbitrary or discriminatory themselves.
Further, the broad discretion provided under management rights clauses, or under managerial authority generally for matters not covered by a collective agreement, could still preclude unionized employees from advancing claims outside of the grievance process. A contemporary example of this could include professed human rights grounds for COVID-19 accommodations, and the need of the employer to maintain a safe workplace for everyone in it (i.e. not just the bargaining unit).
The Court’s decision ensures that the majority of labour disputes will continue to be interpreted under labour statutes, and by labour adjudicators, rather than other administrative tribunals, where the statutory language fails to displace jurisdiction. This provides greater stability to the labour law context, and fosters quick and economical resolution of disputes, the main policy rationale originally found in Weber (para 46).