Weber v. Ontario Hydro

Weber v. Ontario Hydro
Collection
Supreme Court Judgments
Date
1995-06-29
Report
[1995] 2 SCR 929
Case number
23401
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Labour law
Notes
SCC Case Information: 23401
Decision Content
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929
Murray Weber Appellant
v.
Ontario Hydro Respondent
Indexed as: Weber v. Ontario Hydro
File No.: 23401.
1994: December 6; 1995: June 29.
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 a