In De Facendis v. Toronto Parking Authority, the Ontario Superior Court of Justice held that when a claim for workplace sexual harassment and workplace sexual assault “arises under the collective agreement,” a labour arbitrator has exclusive jurisdiction to resolve it under s.48(1) of Ontario’s Labour Relations Act, 1995 (OLRA).  Furthermore, the court held that the labour arbitrator’s exclusive jurisdiction was not in violation of the equality guarantee under s. 15(1) of the Charter of Rights and Freedoms (Charter).

Background

In 2013, a 19-year-old student worked as a parking lot attendant for the Toronto Parking Authority (TPA).  The employee alleged that she was sexually assaulted and sexually harassed by a TPA maintenance worker on numerous occasions in 2013, and complained to the TPA about his conduct.  The TPA retained an external investigator, whose report concluded that the employee’s complaint was substantiated on a balance of probabilities. The TPA terminated the maintenance worker’s employment in 2014.  The employee’s employment was governed by the Part-Time Students Collective Agreement, and the maintenance worker’s employment was governed by the Full-Time Collective Agreement; both collective agreements were between Toronto Civic Employees’ Union Local 416, CUPE and the TPA. 

In 2018, the employee commenced a tort action for damages in relation to the maintenance worker’s conduct.  In addition to alleging various intentional torts against the maintenance worker, the employee alleged the TPA was liable in negligence and, alternatively, that it was vicariously liable for the maintenance worker’s actions.  The TPA and the maintenance worker brought a motion to dismiss the action on the basis that the court did not have the jurisdiction to hear it because s. 48(1) of the OLRA provides that all disputes that arise in the workplace are within the exclusive jurisdiction of a labour arbitrator. 

Decision

The court granted the TPA’s and the maintenance worker’s motion to dismiss the action.  In arriving at this conclusion, the court followed the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929 (Weber), which provided that when a dispute “arises under the collective agreement,” the labour tribunal has exclusive jurisdiction to resolve it under s.48(1) of the OLRA, and the courts cannot try it. 

Essential character of the dispute

The court examined the factual context of the dispute and asked if its essential character concerned a subject matter covered by the collective agreement.  It determined that:

• The essential nature of the dispute concerned violence and harassment in the workplace, and included sexual harassment and sexual assault; and

• Claims of workplace sexual harassment and workplace sexual assault against the TPA came within the ambit of the collective agreement:
  
  • The TPA’s Workplace Harassment & Violence Policy (Policy) was implemented by the TPA to comply with its statutory obligation under the Occupational Health and Safety Act to prepare a policy with respect to workplace harassment and workplace violence; and
  • The Policy states that, “in addition to reporting workplace harassment/violence incidents to management, unionized employees may file a human rights grievance under the collective agreement.”  

The court noted that although the maintenance worker and the employee were not parties to the same collective agreement, the employee’s claim against the maintenance worker arose from their employment relationship; consequently, the employee’s claim for workplace sexual harassment and workplace sexual assault arose out of the collective agreement, and was within the exclusive jurisdiction of an arbitrator. 

Section 15 of the Charter 

The employee argued that the court should not follow A. (K.) v. Ottawa (City) (2006), 80 O.R. (3d) 161 (A. (K.)), in which the Ontario Court of Appeal (OCA) dismissed the plaintiff’s claims for sexual harassment and sexual assault against another employee when it followed Weber.  In support of this argument, the employee claimed:

• Section 48 of the OLRA should be interpreted in a manner consistent with the equality guarantee under s. 15(1) of the Charter (i.e., the employee was subject to differential treatment on the basis of her sex); or

• The dialogue and legal landscape related to sexual assault claims had significantly developed such that the parameters of the debate had fundamentally shifted.

For the reasons set out below, the court held that the employee did not meet the high threshold to justify the court’s departing from the binding precedent of the OCA’s decision in A. (K.):

• The court did not agree with the employee’s Charter argument because the distinction in treatment was based on employment status (unionized versus non-unionized employment), which is not an enumerated or analogous ground under s. 15 of the Charter.  Furthermore, even if the distinction in treatment was based on sex, the employee did not provide evidence that s. 48(1) of the OLRA “creates a disadvantage by perpetuating prejudice or stereotyping” (para. 39); and

• The principle of vertical stare decisis requires a lower court to apply the decisions of higher courts to the facts before it unless new evidence “fundamentally shifts the parameters of the debate,” i.e., unless “the underlying social context that framed the original legal debate is profoundly altered” (para. 41).  This high threshold was not met by the employee who “filed no expert evidence providing for exclusive jurisdiction of labour in Ontario under the OLRA had been ‘profoundly altered.’” (para 42)

Remedial Gap

The employee argued there was a remedial gap that justified the exercise of the court’s jurisdiction because: 

• A labour arbitrator is unable to award punitive damages; and

• The employee is six years out of time to grieve her claim and it is unlikely that a labour arbitrator would agree to hear her claim.

The court acknowledged that in Weber the SCC stated that an arbitrator’s exclusive jurisdiction over a dispute is subject to the court’s inherent remedial jurisdiction to grant remedies that the arbitrator lacks the power to grant.  The court held, however, that a remedial gap was not created merely because an arbitrator was unable to award the same relief as a court (i.e., punitive damages).  A plaintiff could ask an arbitrator for an award of damages and other relief. 

In addition, the court held that the fact that the employee was out of time to grieve her claim did not change the dispute’s essential character or give the court jurisdiction over her claim.  Further, the court observed:

• The employee could have filed a duty of fair representation complaint against her union to obtain a Labour Relations Board Order requiring the union to file a grievance in regard to her claim; however, there was no evidence that the employee did so; and

• Pursuant to s. 48(16) of the OLRA, an arbitrator has jurisdiction to extend time limits where there are “reasonable grounds for the extensions” and where the opposing party “will not be substantially prejudiced by the extension,” and noted that arbitrators have “extended back many years” the time limit for seeking a remedy in respect of harassment.  (para, 47)  

Bottom Line for Employers

De Facendis v. Toronto Parking Authority affirms that claims that arise under a collective agreement, including claims of workplace sexual harassment and workplace sexual assault that arise under a collective agreement, are within the exclusive jurisdiction of a labour arbitrator pursuant to s. 48(1) of the OLRA, and such claims may not be tried by a court.