Case In Point
Court Finds Workplace Violence and Harassment Dispute Falls Within Exclusive Jurisdiction of Labour Arbitrator
Date: March 23, 2021
The Ontario Superior Court recently confirmed that disputes arising from a collective agreement, including allegations of sexual harassment and sexual assault in a unionized workplace, fall within the exclusive jurisdiction of a labour arbitrator and cannot be pursued through a civil action. In De Facendis v. Toronto Parking Authority, the Court held that this regime of exclusive jurisdiction did not violate the equality guarantee under section 15(1) of the Canadian Charter of Rights and Freedoms (Charter).
The plaintiff was a parking lot attendant with the defendant employer and a member of the union’s part-time/student bargaining unit. In October 2013, the plaintiff complained that the individual defendant, a maintenance worker in a different bargaining unit, had sexually harassed and sexually assaulted her in the workplace. The employer retained an external investigator who concluded that the plaintiff’s complaint was substantiated on a balance of probabilities. Following this investigation, the employer dismissed the individual defendant.
In June 2018, the plaintiff commenced a civil action against both the individual defendant and the employer, alleging that the employer was vicariously liable for the incidents.
In December 2018, the plaintiff asked the union if it would grieve on her behalf with respect to the incidents. The union refused on the basis that the time limits to commence a grievance under the collective agreement had expired.
The employer moved to dismiss the action on the basis the Court did not have jurisdiction to hear the claim, pursuant to section 48(1) of the Labour Relations Act, 1995 (LRA).
The Court granted the employer’s motion and dismissed the action.
Applying a Weber analysis, the Court first characterized the essential nature of the dispute as violence and harassment in the workplace, which included sexual harassment and sexual assault. Consistent with the decision of the Ontario Court of Appeal decision in A. (K.) v. Ottawa (City), the Court concluded that the plaintiff’s claims of workplace sexual harassment and sexual assault came within the ambit of the collective agreement and were therefore within the exclusive jurisdiction of an arbitrator.
The plaintiff argued that A. (K.) should not be followed on the basis that it was contrary to section 15(1) of the Charter or, alternatively, because there had been a significant development in the law that had fundamentally shifted the parameters of the debate. In particular, the plaintiff claimed that section 48(1) of the LRA ought to be interpreted as giving the courts jurisdiction to decide sexual assault cases. Otherwise, the time limits in the grievance procedure would have a disproportionate impact on unionized sexual assault victims, who were predominantly female.
The Court disagreed. Applying the two-part test for assessing a discrimination claim under section 15(1) of the Charter, the motion judge found that the plaintiff had not established that she experienced differential treatment on the basis of her sex. Rather, the differential treatment was based on employment status (unionized versus non-unionized employees), which was not an enumerated or analogous ground under section 15(1). The plaintiff also led no evidence that section 48(1) of the LRA created a disadvantage by perpetuating prejudice or stereotyping. The Court further held that the plaintiff had not met the high evidentiary threshold to justify departure from the binding precedent of A. (K.) on the basis of a “profoundly altered” social context.
Finally, the Court held that there was no remedial gap justifying the exercise of its inherent jurisdiction to hear the plaintiff’s claim. The fact that the plaintiff may be out of time to grieve her claim under the collective agreement did not create a remedial gap. Indeed, it was open to the plaintiff to file a duty of fair representation complaint against her union to compel a grievance (which she did not do), and in any case, an arbitrator would have the jurisdiction to extend time limits where there were reasonable grounds and the employer was not substantially prejudiced by the extension.
This decision serves as confirmation that arbitrators continue to have a broad and exclusive jurisdiction to resolve workplace disputes in the unionized context, including claims involving historical sexual harassment and/or sexual assault.
The employer in this decision was represented by Hicks Morley’s Edward O’Dwyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©