I often receive phone calls from employees who are members of a union with inquiries about claims that they would like to pursue against their employers. Unfortunately, except in very limited circumstances, there is little that I can do as an employment lawyer to help them.
The limited circumstances where I can assist a union employee include:
- Applying to the Human Rights Tribunal of Ontario for relief from a violation of the employee’s right to be free from discrimination by the employer, but this would require the employee to exhaust all recourse under the grievance process prescribed by the collective agreement first;
- Applying to the Ontario Labour Relations Board for relief from the union’s breach of its duty of fair representation under Ontario’s Labour Relations Act, 1995, but this assumes that the union has handled a grievance process in a manner that is arbitrary, discriminatory or otherwise unfair;
- Providing legal advice on the merits of a grievance, but with the understanding that the collective agreement would preclude me from intervening in the grievance process as the employee’s legal representative.
These union employees who call me are usually surprised when I tell them that the assistance I can provide is limited and they ask me why that is the case. They do not realize that the collective agreement between the union and the employer renders the union the employee’s sole legal representative in relation to any dispute with the employer. Mr. Justice Schabas of the Ontario Superior Court of Justice touched on this point in his decision in Nelson v. Ontario, 2020 ONSC 2147.
The matter before Mr. Justice Schabas was a motion to dismiss an action for lack of jurisdiction, also called a “Weber motion”. The position taken by the employer, the Government of Ontario, was that the court did not have jurisdiction to determine the action because the subject matter arose out of an employment dispute governed by a collective agreement. As such, the government argued that the matter should be determined instead by a labour arbitrator or the Human Rights Tribunal of Ontario. Mr. Justice Schabas agreed and granted the motion.
His Honour’s reasons provide a useful summary of the legal principles that explain why a union member’s court action against an employer is usually precluded by the collective agreement. He begins by referring to the Supreme Court of Canada’s decision in Weber v. Ontario Hydro,  2 S.C.R. 929 which quotes the following from an earlier decision of the court that “labour relations legislation provides a code governing all aspects of labour relations, and that 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.”
Mr. Justice Schabas then turns to the Court of Appeal’s decision in Ontario (Human Rights Commission) v. Naraine,  O.J. No. 4937. This case clarifies that “Weber stands for the proposition that when several related issues emanate from a workplace dispute, they should all be heard by one adjudicator to the extent jurisdictionally possible, so that inconsistent results and remedies…may be avoided.”
As stated by His Honour at paragraph 65 of his reasons, “our labour relations and human rights regimes require that these issues not be litigated, at least at first instance, in the court, but be adjudicated by bodies with expertise in these issues…it is a consequence of the policy choices the Legislature has made in its efforts to provide appropriate forums for the protection of employees’ rights.”
In summary, through the Labour Relations Act, 1995, the government enacted a process that allows unions to enter into collective agreements with employers. These agreements govern how labour disputes are to be resolved and outline grievance processes that typically culminate in an arbitration.
The general intent behind the grievance process is that the dispute can be resolved sooner compared to a court action. Consequently, the court will defer to the process legislated by the government and will not interfere with it. This explains why I am unable to represent a union member in a court action against the employer.
This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.