Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Labour law ‑‑ Labour relations ‑‑ Courts ‑‑ Jurisdiction ‑‑ Employer suspending employee for abusing sick leave benefits ‑‑ Employee filing grievance alleging that employer's hiring of private investigators violated collective agreement ‑‑ Employee also commencing court action based on tort and breach of rights under Canadian Charter of Rights and Freedoms ‑‑ Motions judge striking out court action ‑‑ Court of Appeal allowing Charter claims to stand ‑‑ Whether courts' jurisdiction over claims ousted by binding arbitration provision ‑‑ Ontario Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1).
The appellant was employed by Ontario Hydro. As a result of back problems, he took an extended leave of absence. Hydro paid him the sick benefits stipulated by the collective agreement. As time passed, Hydro began to suspect that the appellant was malingering. It hired private investigators to investigate its concerns. The investigators went onto the appellant's property and, pretending they were someone else, gained entry to his home. As a result of the information it obtained, Hydro suspended the appellant for abusing his sick leave benefits. The appellant took the matter to his union, which filed grievances against Hydro, which were eventually settled. In the meantime, the appellant commenced a court action based on tort and breach of his rights under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms , claiming damages for the surveillance. Hydro applied for an order striking out the action. Under s. 45(1) of the Ontario Labour Relations Act, every collective agreement "shall provide for the final and binding settlement by arbitration . . . of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement". The motions judge struck out the action on the grounds that the dispute arose out of the collective agreement, depriving the court of jurisdiction, and was moreover a private matter to which the Charter did not apply. The Court of Appeal agreed, except with respect to the Charter claims, which it allowed to stand. The appellant appeals to this Court, asking that his action be reinstated in its entirety. Hydro cross‑appeals the decision to allow the Charter claims to stand.
Held: The appeal should be dismissed. The cross‑appeal should be allowed, La Forest, Sopinka and Iacobucci JJ. dissenting.
Tort claim
The cases reveal three different views on the effect of final and binding arbitration clauses in labour legislation. The concurrent model, under which an action recognized by the common law or by statute may proceed, notwithstanding that it arises in the employment context, should be rejected. This Court's decision in St. Anne Nackawic supports the proposition that mandatory arbitration clauses in labour statutes deprive the courts of concurrent jurisdiction. Underlying the decision is the insistence that 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. A second difficulty with the concurrency model lies in the wording of the statute. The word "differences" denotes the dispute between the parties, not the legal actions which one may be entitled to bring against the other. Finally, the concurrent actions model undercuts the purpose of the regime of exclusive arbitration which lies at the heart of all Canadian labour statutes. The alternative model of overlapping jurisdictions, under which a court action may be brought if it raises issues which go beyond the traditional subject matter of labour law, notwithstanding that the facts of the dispute arise out of the collective agreement, also fails to meet the test of the statute, the jurisprudence and policy. The exclusive jurisdiction model is the one that should be adopted. Under this approach, if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement. This model gives full credit to the language of s. 45(1) of the Labour Relations Act, accords with this Court's approach in St. Anne Nackawic, 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, and 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.
The appellant's tort action cannot stand. The provisions of the collective agreement in this case are broad, and expressly purport to regulate the conduct at the heart of this dispute. Article 2.2 extends the grievance procedure to any allegation that an employee has been subjected to unfair treatment or any dispute arising out of the content of the agreement. This wide language, combined with the item providing that the benefits of the sick leave plan are to be considered part of the agreement, covers the conduct alleged against the employer. While aspects of the alleged conduct may arguably have extended beyond what the parties contemplated, this does not alter the essential character of the conduct.
Charter claim
Per L'Heureux‑Dubé, Gonthier, McLachlin and Major JJ.: The power and duty of arbitrators to apply the law extends to the Charter , an essential part of the law of Canada. In applying the law to the disputes before them, arbitrators may grant such remedies as the legislature or Parliament has empowered them to grant in the circumstances. Assuming for the purposes of argument that the remedy of damages can only be claimed under s. 24(1) of the Charter , statutory tribunals created by Parliament or the legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought. In this case the arbitrator is empowered to consider the Charter questions and grant the appropriate remedies. He has jurisdiction over the parties and the dispute, and is further empowered by the Labour Relations Act to award the Charter remedies claimed ‑‑ damages and a declaration.
Per La Forest, Sopinka and Iacobucci JJ. (dissenting): While arbitrators must not apply provisions which they determine violate the Charter , it does not follow that they have the power under s. 24(1) of the Charter to remedy the Charter violations they find. An arbitrator cannot award a remedy for a Charter breach, because arbitrators are not courts of competent jurisdiction. The use of the word "court" in s. 24(1) was deliberate; it was meant to correspond to an adjudicating body with specific characteristics that enable it to grant Charter remedies. If a magistrate sitting in a preliminary inquiry does not possess the characteristics of a "court", as found in Mills, it is difficult to accept that a tribunal, which is not even presided by a judge in a traditional courtroom, can be so considered. Like "court", the word "tribunal" used in the French version refers to courts of justice, and an administrative tribunal does not come within that ordinary meaning. A more purposive approach to interpreting s. 24(1) also supports the view that labour arbitrators were not intended to be included in s. 24(1). Courts must decide cases according to the law and are bound by stare decisis, while tribunals are not so constrained. As the Charter forms part of the supreme law of the country, it is in keeping with its status to have Charter claims decided by a system of adjudication that tries to be relatively uniform. Tribunals also differ from courts in their institutional organization and functioning. The flip side of the accessibility of tribunals is that their procedure is often simplified or altered. A tribunal such as a labour arbitrator is ill‑equipped to deal with the requirements of a s. 24(1) application. Structurally, it has not been designed to hold a hearing requiring evidence of a constitutional violation, nor is there a procedure in existence to obtain the participation of an Attorney General before it where legislative provisions are at issue. Its members are not trained in determining appropriate remedies for a constitutional violation, and often have no formal legal training. Moreover, a tribunal does not have the same guarantee of independence as a court.
Even if an arbitrator is a "court", it is not a court "of competent jurisdiction". While arbitrators have the ability to decide Charter issues, this ability does not include the ability to grant Charter remedies. A labour arbitrator is empowered to grant labour relations remedies, and this empowerment does not extend to include a constitutional empowerment to grant Charter remedies. Further, the fact that an arbitrator can decide that behaviour is violative of the Charter does not mean that the tribunal has the power to sanction that behaviour because it is a Charter violation. The fact that a tribunal has the ability to grant the type of relief sought does not mean that it can award that relief in any context, including that of remedying Charter violations. In order to award damages for a Charter violation, the court must possess the ability to award a s. 24(1) remedy in addition to the power to award damages generally. Accordingly, in this case, although a labour arbitrator is empowered to grant remedies authorized by the Labour Relations Act, that does not, of itself, confer a jurisdiction to grant Charter remedies.
Cases Cited
By McLachlin J.
Referred to: New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; Franck v. Kenebuc (Galt) Ltd. (1985), 7 C.C.E.L. 85; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, aff'g (1982), 142 D.L.R. (3d) 678; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Kim v. University of Regina (1990), 74 D.L.R. (4th) 120; Energy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 148 D.L.R. (3d) 398; Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760; Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609; Bartello v. Canada Post Corp. (1987), 46 D.L.R. (4th) 129; Bourne v. Otis Elevator Co. (1984), 45 O.R. (2d) 321; Forster v. Canadian Airlines International Ltd. (1993), 3 C.C.E.L. (2d) 272; Bell Canada v. Foisy (1989), 26 C.C.E.L. 234; Ne‑Nsoko Ndungidi v. Centre Hospitalier Douglas, [1993] R.J.Q. 536; Elliott v. De Havilland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C. 250; Butt v. United Steelworkers of America (1993), 106 Nfld. & P.E.I.R. 181; McLeod v. Egan, [1975] 1 S.C.R. 517; David Taylor & Son, Ltd. v. Barnett, [1953] 1 All E.R. 843; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Moore v. British Columbia (1988), 50 D.L.R. (4th) 29; Ontario (Attorney‑General) v. Bowie (1993), 110 D.L.R. (4th) 444; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Re Ontario Council of Regents for Colleges of Applied Arts & Technology and Ontario Public Service Employees Union (1986), 24 L.A.C. (3d) 144; Mills v. The Queen, [1986] 1 S.C.R. 863; Imbleau v. Laskin, [1962] S.C.R. 338; Re Halton Board of Education and Ontario Secondary School Teachers' Federation, District 9 (1978), 17 L.A.C. (2d) 279.
By Iacobucci J. (dissenting on the cross‑appeal)
Douglas/Kwantlen Faculty Assn. v. Douglas College , [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey [1987] 1 S.C.R. 588.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 7 , 8 , 24(1) .
Constitution Act, 1982 , s. 52(1) .
Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1).
Authors Cited
Concise Oxford Dictionary of Current English, 7th ed. Oxford: Oxford University Press, 1989, "court".
Le Petit Robert 1. Paris: Le Robert, 1990, "tribunal".
APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (1992), 11 O.R. (3d) 609, 98 D.L.R. (4th) 32, 60 O.A.C. 201, 12 C.R.R. (2d) 101, 45 C.C.E.L. 129, 13 C.C.L.T. (2d) 241, 93 C.L.L.C. ¶ 14,011, reversing in part a decision of the Ontario Court (General Division) (1991), 38 C.C.E.L. 126, striking out the appellant's court action based on tort and the Canadian Charter of Rights and Freedoms . Appeal dismissed. Cross‑appeal allowed, La Forest, Sopinka and Iacobucci JJ. dissenting.
Stephen T. Goudge, Q.C., Martha Milczynski and Andrew K. Lokan, for the appellant.
Joan M. Prior, for the respondent.
The reasons of La Forest, Sopinka and Iacobucci JJ. were delivered by
1 Iacobucci J. (dissenting on the cross-appeal) -- Although I agree with my colleague, Justice McLachlin, with respect to her disposition of the main appeal, I do not respectfully agree with her disposition of the cross-appeal. The extent of my disagreement is limited to the treatment of arbitrators as "courts of competent jurisdiction".
2 I do not dispute the fact that arbitrators are bound to apply the law, and as a result, the Canadian Charter of Rights and Freedoms . I agree that arbitrators can and must make decisions in conformity with the Charter . The trilogy of decisions of this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, clearly sets out that tribunals must not apply provisions which they determine violate the Charter .
3 However, I do not agree with my colleague when she suggests that it follows from this principle that arbitrators have the power, under s. 24(1) of the Charter , to remedy the Charter violations they find. In my view, an arbitrator cannot award a remedy for a Charter breach, because arbitrators are not courts of competent jurisdiction. There is a distinction between the power to find a Charter violation and actually providing a remedy for the Charter violation. In order to award a Charter remedy, the arbitrator must have specific jurisdiction to do so. In the following discussion, I shall try to explain why arbitrators have not been granted such jurisdiction under the Charter .
4 At issue in the cross-appeal is whether a labour arbitrator can grant the s. 24(1) Charter remedy sought by the appellant, Weber. In McLachlin J.'s view, the question can be answered by examining whether the text of s. 45(1) of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2 ("OLRA") ousts the jurisdiction of the courts with respect to a claim for a Charter remedy. In this way, she sees the conferral of broad jurisdiction upon the tribunal as evidence of the legislature's intention to oust the jurisdiction of the courts, even on Charter issues.
5 This approach differs substantially from my own, which focuses on the intention of those who drafted the Charter . In my view, the wide powers granted to an arbitrator pursuant to s. 45 OLRA must be interpreted in the light of the Charter and not the reverse. The relevant inquiry is thus whether a labour arbitrator was intended to be included in the expression "court of competent jurisdiction" in s. 24(1) of the Charter . To this end, one must examine the phrase "court of competent jurisdiction" as comprising two elements which must be determined individually. As a first step, one must decide if the arbitrator is the type of adjudicating body which can be granted the jurisdiction to award Charter remedies, that is, was it intended to be included in the term "court". This first step is a necessary but insufficient condition to finding that an adjudicating body has the ability to grant Charter remedies. Where this condition is met, one must then examine whether the "court" is of competent jurisdiction, according to the three-pronged test outlined by this Court in Mills v. The Queen, [1986] 1 S.C.R. 863: jurisdiction over the parties, the subject matter, and the remedy sought.
6 Consequently, my discussion of the issue will be divided as follows. First, I shall discuss some of the differences between courts and tribunals which explain why s. 24(1) of the Charter does not, nor was it intended to, include tribunals. Second, I shall examine the powers of a labour arbitrator in order to show that, even if it could be considered a "court" for the purposes of s. 24(1), it does not meet the third criterion set out in Mills to be a court "of competent jurisdiction", that is, jurisdiction over the remedy.
1. An arbitrator is not a "court"
7 My colleague cites the reasons of McIntyre J. in Mills, supra, in order to assert that it is the powers of a tribunal and not its label of "tribunal" which determines whether it can grant a s. 24(1) remedy in a given case. In other words, McLachlin J. does not consider first whether the tribunal was intended to be included in the word "court". She assumes all adjudicating bodies have the potential to grant s. 24(1) remedies. She focuses upon whether an adjudicating body is "of competent jurisdiction", that is, whether it meets the three-pronged Mills test. With respect, I disagree for the following reasons.
8 First, in Mills, McIntyre J. restricted his comments to the context of criminal cases. Second, a consideration of McIntyre J.'s reasons as a whole reveals that he consistently refers only to adjudicating bodies which are in fact "courts" within the ordinary meaning of the word, as I shall discuss below. Third, the focus of his discussion is more on the effect of the words "appropriate and just in the circumstances" on the type of remedy a court could grant, rather than on what constitutes a "court". Finally, when considering whether a magistrate sitting at a preliminary inquiry is a "court of competent jurisdiction", McIntyre J. does not clearly identify whether it is the "court" or "of competent jurisdiction" part of s. 24(1) that is not met. It is instructive to reproduce his words, at pp. 954-55:
The preliminary hearing magistrate, now ordinarily a provincial court judge, finds his jurisdiction in Part XV of the Criminal Code of Canada . He is given jurisdiction to conduct the inquiry and in the process he must hear the evidence called for both parties and all cross‑examination. He is given procedural powers under ss. 465 and 468 of the Code, including a power to direct the trial of an issue as to the fitness to stand trial. His principal powers are conferred in s. 475. After all the evidence has been taken, he may commit the accused for trial if, in his opinion, the evidence is sufficient, or discharge the accused if, in his opinion, upon the whole of the evidence no sufficient case is made out to put the accused on trial. He has no jurisdiction to acquit or convict, nor to impose a penalty, nor to give a remedy. He is given no jurisdiction which would permit him to hear and determine the question of whether or not a Charter right has been infringed or denied. He is, therefore, not a court of competent jurisdiction under s. 24(1) of the Charter . It is said that he should be a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2). In my view, no jurisdiction is given to enable him to perform this function. He can give, as I have said, no remedy. Exclusion of evidence under s. 24(2) is a remedy, its application being limited to proceedings under s. 24(1). In my view, the preliminary hearing magistrate is not therefore a court of competent jurisdiction under s. 24(1) of the Charter , and it is not for courts to assign jurisdiction to him. I might add at this stage that it would be a strange result indeed if the preliminary hearing magistrate could be said to have the jurisdiction to give a remedy, such as a stay under s. 24(1), and thus bring the proceedings to a halt before they have started and this in a process from which there is no appeal. [Emphasis added.]
9 McIntyre J. held that a judge sitting in a preliminary inquiry does not possess the requisite capacity to hear and dispose of a Charter claim. There is language in this passage to suggest that a judge sitting in a preliminary inquiry is not a court of competent jurisdiction because he cannot award the appropriate remedy for the Charter violation. On the other hand, it is also possible to read McIntyre J.'s words as saying that a judge sitting in a preliminary inquiry does not have the powers necessary to determine whether there is a violation of the Charter , let alone remedy the situation. As I understand his reasoning, there are two components to a court of competent jurisdiction: one, the ability to hear the Charter claim, and second, the jurisdiction to grant a remedy. In sum, my reading of this passage is that McIntyre J. held that preliminary inquiries were not proper fora for adjudicating Charter claims, because the nature and purpose of preliminary inquiries did not correspond to those of a "court" under s. 24(1).
10 Reading Mills in this way, I find that my colleague's conception of s. 24(1) is fundamentally at odds with the intention of those who drafted s. 24(1). The use of the word "court" was deliberate; it was meant to correspond to an adjudicating body with specific characteristics that enable it to grant Charter remedies. If a magistrate sitting in a preliminary inquiry does not possess the characteristics of a "court", it is difficult to accept that a tribunal, which is not even presided by a judge in a traditional courtroom, can be so considered.
11 This being said, the term "court" is not defined in the text of s. 24(1). However, an examination of the ordinary meaning of the word sheds some light on its interpretation. The dictionary definition of the English word "court" is as follows: "assembly of judges or other persons acting as tribunal (court of law, lawcourt; court of justice, of judicature . . .)" (Concise Oxford Dictionary (7th ed. 1989). Thus a "court" in its ordinary sense would refer to courts of justice. In Canada, this would refer to provincial superior and inferior courts, and federal courts. Generally, the word "court" does not imply a reference to a tribunal in the same way the term "adjudicative body" might.
12 When one considers the French version, the word "tribunal" can be viewed as not having the same immediate and exclusive reference to courts of justice as the English expression has. However in fact, the dictionary definition resembles the English meaning: "Magistrat ou corps de magistrats exerçant une juridiction (V. Juge, juridiction, justice; chambre, conseil, cour). Spécialt. (Dr.) Juridiction inférieure (opposé à chambre, cour)" (Paul Robert, Le Petit Robert 1 (1990)). One can easily observe that the enumerated synonyms of the word "tribunal" reveal that the scope of the generic meaning of the word is not as large as some would suggest; all the bodies referred to are presided by judges in traditional courtrooms. Moreover, in Canada, an administrative tribunal is generally identified more specifically as a tribunal administratif, rather than simply a tribunal. As a result, I would not read the French version as in conflict with the English version. In fact, I am of the view that the words "tribunal" and "court" have the same meaning, namely, that both refer to courts of justice, and that an administrative tribunal does not come within that ordinary meaning.
13 This examination of the ordinary meaning of the term "court" tends to counter the suggestion that administrative tribunals were intended to be included in the word "court" for the purposes of s. 24(1). However, s. 24(1), as part of the Constitution, commands more than a literal reading; it requires an interpretation which keeps in mind the goal of the provision and its interplay with the rest of the Charter . Nonetheless, a more purposive approach to interpreting s. 24(1) reveals that there are more compelling reasons that support my view that labour arbitrators were not intended to be included in s. 24(1). These relate to the fundamental differences between courts and tribunals. I should like to mention two.
14 The first significant difference between courts and tribunals relates to the difference in the manner in which decisions are rendered by each type of adjudicating body. Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate. In labour arbitration, the arbitrator is not bound to follow the decisions of other arbitrators, even when similar circumstances arise. Although appropriate in labour relations, where each dispute between union and employer is a private matter, to be decided by mutually agreed to rules, such is not the case for constitutionally protected rights which are supposed to be held by all Canadians equally. In the area of Charter adjudication, it is quite important to ensure a relatively constant application and interpretation of Charter rights and remedies. As the Charter forms part of the supreme law of the country, it is in keeping with its status to have Charter claims decided by a system of adjudication that tries to be relatively uniform (both in the interpretation of Charter rights and Charter remedies), that is to say, by the courts of justice.
15 A second difference lies in the institutional organization and functioning of tribunals, as opposed to that of courts. Tribunals are intended to provide adjudicating bodies with specialized knowledge the courts are unable to offer. They are also designed structurally to provide decisions in a shorter amount of time and with less expense than the courts. Particularly in an area such as labour law, the establishment of a system which bars traditional litigation in favour of conflict resolution mutually agreed upon in the collective agreement has advantages for promoting labour peace and negotiation between employer and union. However, the flip side of the accessibility of tribunals is that their procedure is often simplified or altered. Inside the area of expertise of a tribunal, this is perfectly acceptable, as the interests of quick and inexpensive resolution of specific problems is a desirable objective.
16 However, this is not the case where a constitutional issue arises. A tribunal such as a labour arbitrator is ill-equipped to deal with the requirements of a s. 24(1) application. Structurally, it has not been designed to hold a hearing requiring evidence of a constitutional violation, nor is there a procedure in existence to obtain the participation of an Attorney General before it where legislative provisions are at issue. Its members are not trained in determining appropriate remedies for a constitutional violation, and often have no formal legal training. Moreover, a tribunal does not have the same guarantee of independence as a court. This is where the formal arrangement of a traditional courtroom, with its rules of evidence and procedure, finds its role. Although not every "court" is of competent jurisdiction in every circumstance (see: Mills, supra, and R. v. Rahey, [1987] 1 S.C.R. 588), the structure of a court, be it superior or inferior, is such that a s. 24(1) application could be properly adjudicated before it. In short, the choice of the word "court" in s. 24(1) reflects an intention to confer the ability to decide questions of remedies for Charter violations on those institutions which are conceptually "courts". It is the characteristics of a "court": the rules of procedure and evidence, the independence and legal training of its judges, the possibility of hearing from a third party intervener such as an Attorney General or an amicus curiae, which make it the most suitable forum to hear a s. 24(1) application.
17 For the above reasons, it is my view that it was not the intention of the framers of the Charter to include tribunals in the term "court" used in s. 24(1).
2. Even if a court, an arbitrator is not a court "of competent jurisdiction"
18 In Mills, supra, this Court examined the text of s. 24(1) in an effort to discern the meaning of the words "of competent jurisdiction". In the view of the majority, in order for a "court" to be so qualified, it must have jurisdiction over the parties, the subject matter of the claim, and the remedy sought. In the present appeal, the only issue is whether an arbitrator has jurisdiction to award the remedy sought. In Mills, this Court decided that the Charter did not create jurisdiction for a "court"; jurisdiction had to exist independently of the Charter . The issue is thus whether a labour arbitrator possesses an independent source of jurisdiction to award Charter remedies. I shall offer my conclusions on the issue first before discussing the reasons therefor.
19 My colleague concludes that the labour arbitrator had jurisdiction over the remedy sought in this case. She finds the independent source of this jurisdiction in an arbitrator's legal power to consider Charter issues. Although I do not dispute the ability of arbitrators to decide "Charter issues", this ability does not include the ability to grant Charter remedies. In particular, I cannot agree with her when she states (at pp. 960-61):
In applying the law of the land to the disputes before them, be it the common law, statute law or the Charter , arbitrators may grant such remedies as the Legislature or Parliament has empowered them to grant in the circumstances. For example, a labour arbitrator can consider the Charter , find laws inoperative for conflict with it, and go on to grant remedies in the exercise of his powers under the Labour Code: Douglas/Kwantlen Faculty Assn. v. Douglas College, supra. If an arbitrator can find a law violative of the Charter , it would seem he or she can determine whether conduct in the administration of the collective agreement violates the Charter and likewise grant remedies.
20 While I agree that arbitrators must not apply an invalid law, an arbitration decision cannot have the effect of actually striking down the law; only a court can make such a declaration (see Cuddy Chicks, supra, at p. 17). Moreover, the remedies which a tribunal is empowered by Parliament or the Legislature to give, are, in my view, limited to those circumstances which arise out of the mandate of the tribunal. A labour arbitrator is empowered to grant labour relations remedies. In my view, a labour relations remedy is qualitatively different from a Charter remedy, even though the latter may be required in a labour relations context. Thus, when an arbitrator grants a remedy "in the exercise of his powers under the Labour Code", he or she can only grant a remedy within the confines of his statutory authority. This statutory empowerment to grant labour relations remedies does not extend to include a constitutional empowerment to grant Charter remedies.
21 Finally, the fact that an arbitrator can decide that behaviour is violative of the Charter does not mean that the tribunal has the power to sanction that behaviour because it is a Charter violation. I draw the analogy with this Court's interpretation of a tribunal's power under s. 52(1). There a tribunal can only not apply a law which violates the Charter ; it cannot declare that provision invalid generally (see Cuddy Chicks, supra). In short, it cannot remedy the fact that the law is invalid, it can only remark that it is so. In the same way, a tribunal may determine if behaviour violates the Charter ; however, it cannot remedy that fact. The reason for this lies in the fact that the drafters of the Constitution have decided that such a task, like declaring a law invalid, is within the realm of the courts.
22 To support the foregoing conclusions, it is important to review the trilogy of Douglas College/Cuddy Chicks/Tétreault-Gadoury. In particular, one must consider this Court's decision to sever its analysis of a tribunal's ability to apply s. 52(1) of the Constitution Act, 1982 from the question of a tribunal's ability to grant s. 24(1) remedies. In my opinion, this clearly reflects the view that the two powers are materially different. Furthermore, the question of whether tribunals are courts "of competent jurisdiction" for the purposes of s. 24(1) was expressly not decided in the cases.
23 In Douglas College, supra, a labour arbitrator was called upon to determine whether or not a mandatory retirement provision in a collective agreement violated s. 15(1) of the Charter . The union party to the agreement had proceeded by way of a grievance on behalf of the two employees contesting their forced retirements. The arbitrator, who had a broad statutory jurisdiction similar to that granted under the OLRA, found that the provision violated s. 15(1) and did not apply the provision. The Court of Appeal upheld the decision.
24 At issue in the case was whether the arbitrator had the jurisdiction to disregard the provision of the collective agreement which was judged to be in violation of the Constitution. La Forest J., writing for the majority, did not find it was necessary to consider the issue whether an arbitrator is a court of competent jurisdiction under the Charter ; he resolved the appeal by reference to s. 52(1). To the degree an enactment is not valid constitutionally, the tribunal must disregard it, as s. 52(1) requires. La Forest J. stated (at p. 594):
Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the provisions of the Constitution of Canada -- the supreme law of the land -- is, to the extent of its inconsistency, of no force or effect. A tribunal must respect the Constitution so that if it finds invalid a law it is called upon to apply, it is bound to treat it as having no force or effect.
Where, however, a tribunal is asked to determine whether Charter rights have been infringed or to grant a remedy under s. 24(1), the situation is different. A tribunal's power is that conferred by its statutory mandate. . . . In a word, an administrative tribunal is limited to exercising its statutory mandate.
25 What results from this passage and from the decision of the Court is that the ability to verify the validity of an enactment is part of a tribunal's power to decide questions of law. It is called upon to apply the law, and thus must be able not to apply laws which violate the supreme law of the country.
26 In Cuddy Chicks, supra, the tribunal in question was the Ontario Labour Relations Board. At issue was the Board's jurisdiction to determine, in the course of its consideration of an application for certification, the validity under the Charter of a provision of the Labour Relations Act. La Forest J., again writing for the majority, is careful to note that s. 52(1) is not attributive of jurisdiction, and that as such, it does not function as an independent source of the tribunal's jurisdiction. Jurisdiction must be expressly or impliedly conferred on the tribunal by its enabling statute or otherwise. He sets out that a tribunal must have jurisdiction over the parties, the subject matter and the remedy in order to apply s. 52(1). However, this framework is distinct from s. 24(1) (at pp. 14-15):
While this analytical framework mirrors the requirements for a court of competent jurisdiction under s. 24(1) of the Charter as outlined in Mills v. The Queen, supra, as was the case in Douglas College, it is unnecessary to have recourse to s. 24(1) to determine whether the Board has jurisdiction over Charter issues. An administrative tribunal need not meet the definition of a court of competent jurisdiction in s. 24(1) of the Charter in order to have the necessary authority to subject its enabling statute to Charter scrutiny. In the present case, the relevant inquiry is not whether the tribunal is a "court" but whether the legislature intended to confer on the tribunal the power to interpret and apply the Charter . [Emphasis added.]
27 It follows from this passage that the ability to decide Charter issues flows from the text of s. 52(1) and not s. 24(1). However, as s. 52(1) is not attributive of jurisdiction, the tribunal must already possess the ability to decide questions of law in order to have the necessary jurisdiction to apply s. 52(1). That was precisely the issue in the third case of the trilogy, Tétreault-Gadoury, supra. In that case, the Court decided that the absence of a provision granting a power to decide questions of law to the Board of Referees (constituted under the Unemployment Insurance Act, 1971) prevented it from applying s. 52(1). Given the findings of this Court concerning the ability to decide Charter issues, it cannot be argued that such a power constitutes an empowerment to award s. 24(1) remedies.
28 To return to the present appeal and the specific question of the arbitrator's jurisdiction over the remedy, my colleague is of the view that once a tribunal has the ability to grant the type of relief sought, it can award that relief in any context, including that of remedying Charter violations. I have difficulty accepting this view. The reason for this is that remedies under s. 24(1) are, collectively, a distinct type of remedy. That is to say, awarding damages pursuant to s. 24(1) is not merely awarding damages, it is awarding damages for a Charter breach. As a result, the power to order a s. 24(1) remedy must be conferred on the "court" in question, over and above the power to award the specific remedy which may arise in another context. That is to say, in order to award damages for a Charter violation, the court must possess the ability to award a s. 24(1) remedy in addition to the power to award damages generally. Accordingly, in this case, although a labour arbitrator is empowered to grant remedies authorized by the OLRA, that does not, of itself, confer a jurisdiction to grant Charter remedies. In other words, the "court" must first have the ability to grant Charter remedies before one considers the range of relief it is able to grant for the Charter violation. I believe such an approach best respects the meaning and intention of the drafters of s. 24(1) of the Charter . It is not open to the legislature, be it federal or provincial, to alter unilaterally the constitutional choice of forum for awarding Charter remedies.
3. Conclusion
29 In the case at bar, it is completely within the power of the arbitrator to decide that the actions of the employer in this case violated s. 8 of the Charter . It can decide on this basis that where the Charter has been violated, this is evidence that can assist the tribunal in concluding that the collective agreement has also been violated. However, deciding that the employer has violated s. 8 of the Charter does not open the door to the arbitrator awarding a remedy for the s. 8 violation itself. A proper reading of the Douglas College/Cuddy Chicks/Tétreault-Gadoury trilogy indicates that the power to decide whether a collective agreement respects the Charter , or even, as in this case, that the behaviour of the parties to a collective agreement is a violation of the Charter , does not extend to the ability to grant a remedy for the violation of the Charter itself.
30 For the reasons explained above, I am of the view that the drafters of the Charter , in selecting the expression "court of competent jurisdiction", clearly did not intend to confer jurisdiction on tribunals to award Charter remedies. First, a labour arbitrator is not of the type of adjudicating body intended to be included in the term "court" used in s. 24(1) of the Charter . The conceptual differences between courts and tribunals, as well as an examination of the ordinary meaning of the word "court", militate against interpreting "court" as including a labour arbitrator. Second, even if one were to accept that an arbitrator is a "court", a labour arbitrator is not a court "of competent jurisdiction" within the meaning of s. 24(1).
31 I would dismiss the cross-appeal with costs.
The judgment of L'Heureux-Dubé, Gonthier, McLachlin and Major JJ. was delivered by
32 McLachlin J. -- When may parties who have agreed to settle their differences by arbitration under a collective agreement sue in tort? That is the issue raised by this appeal and its companion case, New Brunswick v. O'Leary, [1995] 2 S.C.R. 967.
33 Mr. Weber was employed by Ontario Hydro. As a result of back problems, he took an extended leave of absence. Hydro paid him the sick benefits stipulated by the collective agreement. As time passed, Hydro began to suspect that Mr. Weber was malingering. It hired private investigators to investigate its concerns. The investigators came on Mr. Weber's property. Pretending they were someone else, they gained entry to his home. As a result of the information it obtained, Hydro suspended Mr. Weber for abusing his sick leave benefits.
34 Mr. Weber responded by taking the matter to his union, which filed grievances against Hydro on August 28, 1989. One of the grievances alleged that Hydro's hiring of the private investigators violated the terms of the collective agreement. Among other things, the union asked the arbitrator to require Hydro to give an undertaking to discontinue using private security firms to monitor health absences, and to pay Mr. Weber and his family damages for mental anguish and suffering arising out of the surveillance. The arbitration commenced on March 8, 1990, and was subsequently settled.
35 In the meantime, on December 27, 1989, Mr. Weber commenced a court action based on tort and breach of his Charter rights, claiming damages for the surveillance. The torts alleged were trespass, nuisance, deceit, and invasion of privacy. Weber's claims under the Canadian Charter of Rights and Freedoms were for breaches of his rights under ss. 7 and 8. Hydro applied for an order dismissing Mr. Weber's court action. The motions judge dismissed it on the grounds that the dispute arose out of the collective agreement depriving the court of jurisdiction, and was moreover a private matter to which the Charter did not apply: (1991), 38 C.C.E.L. 126. The Court of Appeal agreed, except with respect to the Charter claims, which it allowed to stand: (1992), 11 O.R. (3d) 609, 98 D.L.R. (4th) 32, 60 O.A.C. 201, 12 C.R.R. (2d) 101, 45 C.C.E.L. 129, 13 C.C.L.T. (2d) 241, 93 C.C.L.C. ¶ 14,011. Mr. Weber appeals to this Court, asking that his action be reinstated in its entirety. Hydro cross-appeals the decision to allow the Charter claims to stand.
36 I agree with the Court of Appeal that the tort action cannot stand. I would go further, however, and hold that the action for Charter claims is also precluded by the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, and the terms of the collective agreement.
Legislation
Labour Relations Act, R.S.O. 1990, c. L.2
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.
Summary of Issues
37 The crucial question we face is when employees and employers are precluded from suing each other in the courts by labour legislation providing for binding arbitration. It is common ground that s. 45(1) of the Ontario Labour Relations Act prevents the bringing of civil actions which are based solely on the collective agreement. This leaves the following issues:
1.To what extent does s. 45(1) oust the courts' jurisdiction:
(a) generally;
(b) over Charter claims?
2.Is the courts' jurisdiction ousted in this case?
Analysis
1.When is the Courts' Jurisdiction over Civil Actions Ousted by s. 45(1) of the Labour Relations Act?
(a) Generally
38 The cases reveal three different views on the effect of final and binding arbitration clauses in labour legislation. I shall deal with each in turn.
The Concurrent Model
39 The appellant Weber's first argument is that the claims in his action do not fall within s. 45(1) because they are based on the common law and the Charter , not on the collective agreement. This view of the law contemplates concurrent regimes of arbitration and court actions. Where an action is recognized by the common law or by statute, it may proceed, notwithstanding that it arises in the employment context. Although based on the same facts, the court proceedings are considered independent because the issues are different. This view finds its ultimate expression in the proposition that "no collective agreement can deprive a Court of its jurisdiction in tort": Franck v. Kenebuc (Galt) Ltd. (1985), 7 C.C.E.L. 85 (Ont. H.C.), at p. 90.
40 There are three difficulties with this view. The first is jurisprudential; the second the wording of the statute; and the third the practical effect of such a rule.
41 The jurisprudential difficulty arises from this Court's decision in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704. As the Court of Appeal below noted, both the holding and the philosophy underlying St. Anne Nackawic support the proposition that mandatory arbitration clauses in labour statutes deprive the courts of concurrent jurisdiction. In St. Anne Nackawic, the employer, after obtaining an interim injunction against the striking union, sued the union in tort for damages caused by its illegal strike. The employer had argued that where the claim could be characterized as arising solely under the common law, and did not depend for its validity on the collective agreement, the mandatory arbitration clause of the legislation did not apply -- the same argument which Weber makes on this appeal. The Court, per Estey J., rejected that argument, concluding that to allow concurrent actions in the courts would be to undermine the purpose of the legislation (at pp. 718-19).
The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. . . . The more modern approach is to consider 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. [Emphasis added.]
Estey J. concluded at p. 721 that subject to a residual discretionary power in courts of inherent jurisdiction over matters such as injunctions, concurrent court proceedings were not available:
What is left is an attitude of judicial deference to the arbitration process. . . . It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting. Arbitration ... is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements. From the foregoing authorities, it might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement. [Emphasis added.]
42 The New Brunswick Court of Appeal in St. Anne Nackawic also rejected the concurrency approach (1982), 142 D.L.R. (3d) 678. La Forest J.A. (as he then was) wrote that simply framing the action in terms of the tort of conspiracy would not be sufficient to take the action outside the realm of the collective agreement.
43 Underlying both the Court of Appeal and Supreme Court of Canada decisions in St. Anne Nackawic is the insistence that 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.
44 The appellant Weber suggests that St. Anne Nackawic went no further than to exclude concurrent actions based on the master-servant relationship, leaving open the possibility of actions in tort, contract or for Charter breach. It is true that Estey J. pointed out that the whole of master-servant law had been subsumed under the labour regime, leaving no scope for a concurrent court action based on this branch of the common law. But this does not undercut the broader proposition that the policy of the legislation is against concurrency and that what matters is not the legal characterization of the claim, but whether the facts of the dispute fall within the ambit of the collective agreement.
45 This brings me to the second reason why the concurrency argument cannot succeed -- the wording of the statute. Section 45(1) of the Ontario Labour Relations Act, like the provision under consideration in St. Anne Nackawic, refers to "all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement" (emphasis added). The Ontario statute makes arbitration the only available remedy for such differences. The word "differences" denotes the dispute between the parties, not the legal actions which one may be entitled to bring against the other. The object of the provision -- and what is thus excluded from the courts -- is all proceedings arising from the difference between the parties, however those proceedings may be framed. Where the dispute falls within the terms of the Act, there is no room for concurrent proceedings.
46 The final difficulty with the concurrent actions model is that it undercuts the purpose of the regime of exclusive arbitration which lies at the heart of all Canadian labour statutes. It is important that disputes be resolved quickly and economically, with a minimum of disruption to the parties and the economy. To permit concurrent court actions whenever it can be said that the cause of action stands independent of the collective agreement undermines this goal, as this Court noted in St. Anne Nackawic. More recently, this Court reaffirmed the policy considerations that drove the St. Anne Nackawic decision in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, at p. 1326, per L'Heureux-Dubé J.
The Model of Overlapping Jurisdiction
47 An alternative model may be described by the metaphor of overlapping spheres. On this approach, notwithstanding that the facts of the dispute arise out of the collective agreement, a court action may be brought if it raises issues which go beyond the traditional subject matter of labour law. Following this line of reasoning, the appellant contends that the issues of trespass, nuisance, deceit and the unreasonable interference with and invasion of privacy pleaded in his action go beyond the parameters of the collective agreement, and that consequently the court action should be permitted to proceed.
48 This approach was adopted by the Saskatchewan Court of Appeal in Kim v. University of Regina (1990), 74 D.L.R. (4th) 120, at p. 124, in ruling that an action which raised issues beyond those raised in the arbitration grievance could proceed. Cameron J.A., speaking for the court, stated:
. . . it will be seen that while the two proceedings overlap, especially as to matters of fact going to Dr. Kim's early retirement under the collective bargaining agreement and how that came about, the two are not co-extensive. The action raises issues quite beyond the capacity of the arbitration board to deal with. This is especially so in relation to the statutory cause of action founded on the University of Regina Act.
49 While more attractive than the full concurrency model, the overlapping spheres model also presents difficulties. In so far as it is based on characterizing a cause of action which lies outside the arbitrator's power or expertise, it violates the injunction of the Act and St. Anne Nackawic that one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute. It would also leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action, as remarked by La Forest J.A. in the Court of Appeal decision in St. Anne Nackawic, at pp. 694-95. This would undermine the legislative purposes underlying such provisions and the intention of the parties to the agreement. This approach, like the concurrency model, fails to meet the test of the statute, the jurisprudence and policy.
The Exclusive Jurisdiction Model
50 The final alternative is to accept that if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. There is no overlapping jurisdiction.
51 On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.
52 In considering the dispute, the decision-maker must attempt to define its "essential character", to use the phrase of La Forest J.A. in Energy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 148 D.L.R. (3d) 398 (N.B.C.A.). The fact that the parties are employer and employee may not be determinative. Similarly, the place of the conduct giving rise to the dispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise from the collective agreement: Energy & Chemical Workers Union, supra, per La Forest J.A. Sometimes the time when the claim originated may be important, as in Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760 (B.C.C.A.), where it was held that the court had jurisdiction over contracts pre-dating the collective agreement. See also Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609 (C.A.). In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.
53 Because 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. However, a review of decisions over the past few years reveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith on the part of the union; conspiracy and constructive dismissal; and damage to reputation (Bartello v. Canada Post Corp. (1987), 46 D.L.R. (4th) 129 (Ont. H.C.); Bourne v. Otis Elevator Co. (1984), 45 O.R. (2d) 321 (H.C.); Butt v. United Steelworkers of America (1993), 106 Nfld. & P.E.I.R. 181 (Nfld. T.D.); Forster v. Canadian Airlines International Ltd. (1993), 3 C.C.E.L. (2d) 272 (B.C.S.C.); Bell Canada v. Foisy (1989), 26 C.C.E.L. 234 (Que. C.A.); Ne-Nsoko Ndungidi v. Centre Hospitalier Douglas, [1993] R.J.Q. 536).
54 This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts: Elliott v. De Havilland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C. 250 (Div. Ct.), at p. 258, per Osler J.; Butt v. United Steelworkers of America, supra; Bourne v. Otis Elevator Co., supra, at p. 326. Additionally, the courts possess residual jurisdiction based on their special powers, as discussed by Estey J. in St. Anne Nackawic, supra.
55 Against this approach, the appellant Weber argues that jurisdiction over torts and Charter claims should not be conferred on arbitrators because they lack expertise on the legal questions such claims raise. The answer to this concern is that arbitrators are subject to judicial review. Within the parameters of that review, their errors may be corrected by the courts. The procedural inconvenience of an occasional application for judicial review is outweighed by the advantages of having a single tribunal deciding all issues arising from the dispute in the first instance. This does not mean that the arbitrator will consider separate "cases" of tort, contract or Charter . Rather, in dealing with the dispute under the collective agreement and fashioning an appropriate remedy, the arbitrator will have regard to whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter .
56 The appellant Weber also argues that arbitrators may lack the legal power to consider the issues before them. This concern is answered by the power and duty of arbitrators to apply the law of the land to the disputes before them. To this end, arbitrators may refer to both the common law and statutes: St. Anne Nackawic; McLeod v. Egan, [1975] 1 S.C.R. 517. As Denning L.J. put it, "[t]here is not one law for arbitrators and another for the court, but one law for all": David Taylor & Son, Ltd. v. Barnett, [1953] 1 All E.R. 843 (C.A.), at p. 847. This also applies to the Charter : Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, at p. 597.
57 It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case, the courts of inherent jurisdiction in each province may take jurisdiction. This Court in St. Anne Nackawic confirmed that the New Brunswick Act did not oust the residual inherent jurisdiction of the superior courts to grant injunctions in labour matters (at p. 724). Similarly, the Court of Appeal of British Columbia in Moore v. British Columbia (1988), 50 D.L.R. (4th) 29, at p. 38, accepted that the court's residual jurisdiction to grant a declaration was not ousted by the British Columbia labour legislation, although it declined to exercise that jurisdiction on the ground that the powers of the arbitrator were sufficient to remedy the wrong and that deference was owed to the labour tribunal. What must be avoided, to use the language of Estey J. in St. Anne Nackawic (at p. 723), is a "real deprivation of ultimate remedy".
58 To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act. It accords with this Court's approach in St. Anne Nackawic. It 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. It 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: see Ontario (Attorney-General) v. Bowie (1993), 110 D.L.R. (4th) 444 (Ont. Div. Ct.), per O'Brien J.
(b) The Charter Claims
59 The appellant Weber submits that the arbitrator cannot deal with his Charter claims. The Court of Appeal shared his concern, voicing uncertainty about whether Charter claims raise unique policy considerations which are best left to the superior courts of inherent jurisdiction.
60 In so far as this argument turns on policy considerations, it is answered by the comments of the majority of this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, supra. That case, like this, involved a grievance before a labour arbitrator. In that case, as in this, Charter issues were raised. It was argued, inter alia, that a labour arbitration was not the appropriate place to argue Charter issues. After a thorough review of the advantages and disadvantages of having such issues decided before labour tribunals, La Forest J. concluded that while the informal processes of such tribunals might not be entirely suited to dealing with constitutional issues, clear advantages to the practice exist. Citizens are permitted to assert their Charter rights in a prompt, inexpensive, informal way. The parties are not required to duplicate submissions on the case in two different fora, for determination of two different legal issues. A specialized tribunal can quickly sift the facts and compile a record for the reviewing court. And the specialized competence of the tribunal may provide assistance to the reviewing court. Douglas/Kwantlen Faculty Assn. v. Douglas College also answers the concern of the Court of Appeal below that the Charter takes the issue out of the labour context and puts it in the state context. While the Charter issue may raise broad policy concerns, it is nonetheless a component of the labour dispute, and hence within the jurisdiction of the labour arbitrator. The existence of broad policy concerns with respect to a given issue cannot preclude the labour arbitrator from deciding all facets of the labour dispute.
61 This brings us to the question of whether a labour arbitrator in this case has the power to grant Charter remedies. The remedies claimed are damages and a declaration. The power and duty of arbitrators to apply the law extends to the Charter , an essential part of the law of Canada: Douglas/Kwantlen Faculty Assn. v. Douglas College, supra; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Re Ontario Council of Regents for Colleges of Applied Arts & Technology and Ontario Public Service Employees Union (1986), 24 L.A.C. (3d) 144. In applying the law of the land to the disputes before them, be it the common law, statute law or the Charter , arbitrators may grant such remedies as the Legislature or Parliament has empowered them to grant in the circumstances. For example, a labour arbitrator can consider the Charter , find laws inoperative for conflict with it, and go on to grant remedies in the exercise of his powers under the Labour Code: Douglas/Kwantlen Faculty Assn. v. Douglas College, supra. If an arbitrator can find a law violative of the Charter , it would seem he or she can determine whether conduct in the administration of the collective agreement violates the Charter and likewise grant remedies.
62 This leaves the question of whether a labour arbitrator appointed under the Act can grant damages for Charter breach (assuming that damages are an appropriate remedy for Charter breach). It is argued that the remedy of damages finds its source in s. 24(1) of the Charter , and can only be granted by a court of competent jurisdiction under that section, which provides that persons whose Charter rights have been infringed or denied "may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances".
63 Assuming for the purposes of argument that the remedy of damages can only be claimed under s. 24(1), the test set out by the majority of this Court in Mills v. The Queen, [1986] 1 S.C.R. 863, determines whether arbitrators are courts of competent jurisdiction for that purpose. The issue in Mills was which criminal tribunals were courts of competent jurisdiction. The majority, per McIntyre J., rejected the view that s. 24(1) created a special class of court which alone could grant Charter remedies (at p. 953): "The Charter has made no attempt to fix or limit the jurisdiction to hear such applications. It merely gives a right to apply in a court which has jurisdiction." The task in determining whether a tribunal is a court of competent jurisdiction is to "fit the application into the existing jurisdictional scheme of the courts in an effort to provide a direct remedy". A tribunal will be a court of competent jurisdiction, McIntyre J. concluded, if its constituent legislation gives it power over the parties, the issue in litigation and power to grant the remedy which is sought under the Charter .
64 Applying this test to the criminal courts, McIntyre J. concluded that a preliminary hearing magistrate is not a court of competent jurisdiction. The Criminal Code gives such magistrates "no jurisdiction to acquit or convict, nor to impose a penalty, nor to give a remedy" (p. 954). By contrast, summary conviction courts are courts of competent jurisdiction "where they have jurisdiction conferred by statute over the offences and persons and power to make the orders sought" (p. 955). Within their statutory powers they may fashion such remedies as the Charter breach may require, except for prerogative writs, traditionally the province of the superior courts. The superior courts are, of course, courts of competent jurisdiction.
65 It is thus Parliament or the Legislature that determines if a court is a court of competent jurisdiction; as McIntyre J. puts it, the jurisdiction of the various courts of Canada is fixed by Parliament and the Legislatures, not by judges. Nor is there magic in labels; it is not the name of the tribunal that determines the matter, but its powers. (It may be noted that the French version of s. 24(1) uses "tribunal" rather than "cour".) The practical import of fitting Charter remedies into the existing system of tribunals, as McIntyre J. notes, is that litigants have "direct" access to Charter remedies in the tribunal charged with deciding their case.
66 It follows from Mills that statutory tribunals created by Parliament or the Legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought.
Summary of the Law
67 I conclude that mandatory arbitration clauses such as s. 45(1) of the Ontario Labour Relations Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. This extends to Charter remedies, provided that the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed. The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal. Against this background, I turn to the facts in the case at bar.
Application of the Law to the Dispute in this Case
68 On the interpretation outlined above, the question is whether the conduct giving rise to the dispute between the parties arises either expressly or inferentially out of the collective agreement between them.
69 The appellant contends that the dispute in this case falls outside the collective agreement. The act of hiring private investigators who used deception to enter his family home and report on him does not, he contends, relate to the interpretation, application or administration of the collective agreement. It is not in its essential character a labour matter; it is rather a matter of the common law and the constitutional rights of himself and his family. It follows, he submits, that the arbitrator does not have jurisdiction over the claims and that the courts may entertain them.
70 Hydro, on the other hand, argues that the essential character of the dispute places it firmly within the scope of the collective agreement. It points out that the conduct complained of arose in response to a claim for sick benefits provided for in the collective agreement, and argues that the manner in which the employer monitors entitlement to those benefits is part of the administration of the agreement.
71 Isolated from the collective agreement, the conduct complained of in this case might well be argued to fall outside the normal scope of employer-employee relations. However, placed in the context of that agreement, the picture changes. The provisions of the agreement are broad, and expressly purport to regulate the conduct at the heart of this dispute.
72 Article 2.2 of the collective agreement extends the grievance procedure to "[a]ny allegation that an employee has been subjected to unfair treatment or any dispute arising out of the content of this Agreement. . .". The dispute in this case arose out of the content of the Agreement. Item 13.0 of Part A of the Agreement provides that the "benefits of the Ontario Hydro Sick Leave Plan ... shall be considered as part of this Agreement". It further provides that the provisions of the plan "are not an automatic right of an employee and the administration of this plan and all decisions regarding the appropriateness or degree of its application shall be vested solely in Ontario Hydro". This language brings the medical plan and Hydro's decisions concerning it expressly within the purview of the collective agreement. Under the plan, Hydro had the right to decide what benefits the employee would receive, subject to the employee's right to grieve the decision. In the course of making such a decision, Hydro is alleged to have acted improperly. That allegation would appear to fall within the phrase "unfair treatment or any dispute arising out of the content of [the] Agreement" within Article 2.2.
73 I conclude that the wide language of Article 2.2 of the Agreement, combined with item 13.0, covers the conduct alleged against Hydro. Hydro's alleged actions were directly related to a process which is expressly subject to the grievance procedure. While aspects of the alleged conduct may arguably have extended beyond what the parties contemplated, this does not alter the essential character of the conduct. In short, the difference between the parties relates to the "administration . . . of the agreement" within s. 45(1) of the Labour Relations Act.
74 The case at bar may be compared with Gendron, supra. In that case, the fact that the collective agreement imposed a duty of fair representation on the union was held by this Court to oust recourse to the courts for unfair representation. In this case, the fact that the collective agreement covers all unfair treatment regarding matters within its ambit may similarly be said to oust recourse to the courts for complaints of unfair treatment, which is the essence of the appellant's statement of claim. The arbitrator has exclusive jurisdiction to consider the dispute between the parties, provided that the dispute falls under the collective agreement under the test enunciated above. That the facts may be capable of being characterized as a tort or a constitutional breach may be taken into account by the tribunal, which must apply the law as it stands. Having heard the claim, the tribunal awards such relief as it may properly do, having regard to the powers which the Legislature has conferred upon it.
75 The final question is whether the arbitrator has power to decide the Charter claims. The arbitrator has jurisdiction over the parties and the dispute. The arbitrator is further empowered by the Act to award the Charter remedies claimed -- damages and a declaration (see Imbleau v. Laskin, [1962] S.C.R. 338; Re Halton Board of Education and Ontario Secondary School Teachers' Federation, District 9 (1978), 17 L.A.C. (2d) 279 (Swan)). On the test propounded in Mills, he is empowered to consider the Charter questions and grant the appropriate remedies.
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