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Staying in Your Lane: The Distribution of Work Between Tribunals and the Courts and the Need for Speed

When someone starts a conversation with “it is useful to return to first principles”, you know that things have been drifting a bit. The Ontario Court of Appeal recently used that expression when discussing the role of the court in labour relations matters (National Organized Workers Union v. Sinai Health System, 2022 ONCA 802). In this dispute, the National Organized Workers Union was seeking an interlocutory injunction to prevent Sinai Health System from enforcing a mandatory vaccination policy pending the arbitration of grievances that challenged the policy.

The first principles the court is referring to are of course the long-established principles set out by the Supreme Court in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 and other decisions. In Weber, the Supreme Court established that disputes that expressly or inferentially arise out of collective agreements are prevented from going directly to the courts. This exclusive jurisdiction model “satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions”. This model also “conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts”.

As the Ontario Court of Appeal reiterated, labour relations statutes in Canada are intended to provide a complete code governing all aspects of labour relations. The forum for resolving disputes in unionized workplaces is binding arbitration. Labour arbitrators have broad remedial authority, including making orders of reinstatement of employment with seniority and compensation for lost wages.

Courts have residual jurisdiction to grant injunctive relief only if the arbitral process cannot provide an adequate alternative remedy. This discretion is only to be exercised where there is a “remedial gap” in the labour relations regime. The Court of Appeal held that a “remedial gap” does not mean that the remedy available under the labour relations regime is identical to a remedy available before the court. The remedial gap sufficient to justify the court exercising its residual discretion must be at the level of “a real deprivation of ultimate remedy” (Weber, at paragraph 57).

The Court of Appeal noted that rather than give labour arbitrators the jurisdiction to issue substantive injunctions, the legislation included provisions for expedited hearings. Labour arbitrators only have the authority to make interim orders on procedural matters, such as document production. The court stated that this legislative choice “speaks to a legislative preference for expeditious arbitration, rather than injunctive relief pending an arbitration”. The court found that this factor supports restraint in the exercise of a court’s residual jurisdiction.

Justice Peter Cory wrote about the importance of the prompt resolution of labour disputes in Dayco (Canada) Limited v. CAW‐Canada, [1993] 2 S.C.R. 230 (at paragraph 93).

Unresolved disputes fester and spread the infection of discontent. They cry out for resolution. Disputes in the field of labour relations are particularly sensitive. Work is an essential ingredient in the lives of most Canadians. Labour disputes deal with a wide variety of work related problems. They pertain to wages and benefits, to working conditions, hours of work, overtime, job classification and seniority. Many of these issues are emotional and volatile. If these disputes are not resolved quickly and finally they can lead to frustration, hostility and violence. Both the members of the workforce and management have every right to expect that their differences will be, as they should, settled expeditiously. Further, the provision of goods and services in our complex society can be seriously disrupted by long running labour disputes and strikes. Thus society as a whole, as well as the parties, has an interest in their prompt resolution.

The rise of the exclusive jurisdiction of arbitrators has had both good and bad impacts. As summarized by former Chief Justice Warren Winkler in a 2011 speech:

The result of these jurisprudential developments was the salutary avoidance of fragmentation in the resolution of disputes. No longer did employees have to access multiple administrative tribunals in search of multiple, sometimes conflicting decisions and remedies. Arbitrators could deal with occupational health and safety claims, human rights claims, defamation claims, and basically any claim that related to a grievance grounded in a collective agreement.

The expansion of an arbitrator’s jurisdiction as a result of [these] decisions has also meant that a significantly larger volume of cases are now routed to arbitration rather than to the court process. Since many labour disputes deal with complex legal issues in such areas as human rights, employment standards, assault, and defamation, the parties have increasingly felt that they needed representation by lawyers at arbitration hearings, to ensure that all legal arguments are adequately argued at the pre-hearing and hearing stages.

Ten years ago I wrote about delays in the labour arbitration system, and not much has changed since then. In that column I referred to Chief Justice Winkler’s speech, where he noted that labour dispute resolution “has become too slow, costly, inflexible, and legalistic to meet the true needs of the parties”.

This trade-off of exclusive jurisdiction of tribunals in exchange for expeditious hearings noted by the Ontario Court of Appeal is one that tribunals do need to pay attention to. A non-systemic examination of recent vaccination mandate grievances where the unvaccinated were prevented from returning to work shows that these grievances were dealt with expeditiously. Other matters can take much longer to get to a hearing.

Chief Justice Winkler noted that there were a number of factors contributing to the cumbersome arbitration process, including “the Weber effect”. However, he did set out a series of proposed steps to restore the effectiveness of grievance arbitration to resolve disputes “in a speedy, cost-effective, fair, and efficient manner”. He recommended that serious consideration be given to expedited techniques, “statutory or private”. His call for expedited and proportional dispute resolution processes remains relevant today – and also the subject of a future column.

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