Écrit par John Gilmore, Keely Cameron and Joseph Koshan
The Court of King's Bench of Alberta recently applied the long-standing principle that labour arbitrators have exclusive jurisdiction to adjudicate disputes arising under a collective agreement, even in the context of an employer's implementation of a mandatory COVID-19 vaccination policy in a unionized workplace.
On January 25, 2023, the Court of King's Bench of Alberta released a decision striking the claims of 28 unionized plaintiffs against their employer pursuant to Rule 3.68 of the Alberta Rules of Court on the basis that the Court did not have jurisdiction to hear the claims. Bennett Jones represented the employer.
The principle of exclusive arbitral jurisdiction over unionized workplace disputes, known as the "Weber principle" due to its articulation by the Supreme Court of Canada in Weber v Ontario Hydro,  2 SCR 929, has been confirmed several times in recent memory, including by the Supreme Court of Canada in Northern Regional Health Authority v Horrocks, 2021 SCC 42. However, this particular decision is notable for two reasons:
- it was the first time an Alberta court applied the Weber principle in the context of a dispute surrounding an employer's implementation of a mandatory COVID-19 vaccination policy in a workplace governed by a collective agreement; and
- the Court struck the Unionized Plaintiffs' Claim at the very beginning of the litigation process, before the close of pleadings or any document discovery or questioning being completed.
The Unionized Plaintiffs' Claim
In June 2022, the unionized plaintiffs, along with three employees whose employment was not governed by a collective agreement, filed a civil claim in the Court of King's Bench of Alberta relating to the employer's implementation of its COVID-19 vaccination policy. The Statement of Claim pleaded breaches of the Alberta Human Rights Act, Criminal Code, Employment Standards Code, and Assisted Human Reproduction Act, and claimed punitive, exemplary, and aggravated damages, all stemming from the implementation of the COVID-19 vaccination policy.
The plaintiffs amended their Statement of Claim in August 2022, adding the Alberta government as a defendant, alleging that the employer was acting as the government's agent in its implementation of the COVID-19 vaccination policy, and pleading breaches of the Charter of Rights and Freedoms.
In November 2022, the plaintiffs amended their Statement of Claim for a second time, removing their claims under the Criminal Code, and adding claims of tortious interference with economic relations, intentional infliction of mental suffering, and assault and battery.
The Court's Decision: Regardless of Legal Framing, Essential Character Remains a Unionized Workplace Dispute
In his decision, Applications Judge J.R. Farrington of the Court of King's Bench agreed with the Employer that the Court did not have jurisdiction to hear the claim, and struck the unionized plaintiffs' claim against the employer for lack of jurisdiction.
In coming to this conclusion, the Court reiterated that the Weber principle governs in this arena, and that the ultimate consideration is whether the essential character of the dispute at issue arises from the parties' collective agreement. In this case, conditions were imposed by the employer upon the unionized plaintiffs, and the unionized plaintiffs did not agree with those conditions. Therefore, the essential character of the dispute was "defining the limits of the employer's authority of the workplace and what terms it may or may not impose", which fell within the purview of a labour arbitrator.
The Court rejected the plaintiffs' argument that the claims under the Charter and Alberta Human Rights Act brought this dispute outside of the exclusive jurisdiction of an a labour arbitrator, pointing out that labour arbitrators in Alberta have the power to award remedies under both of these statutes, that civil courts in the province do not have jurisdiction to grant remedies under the Alberta Human Rights Act, and that it was difficult to contemplate how there would be Charter remedies against a private employer.
The Court also rejected the plaintiffs' claim that the Alberta government directed the employer to implement the COVID-19 vaccination policy, noting that the COVID-19 vaccination policy was ultimately imposed by the employer, and not the province. According to Judge Farrington, even if the province had imposed a requirement on the employer to impose a mandatory vaccination policy, the unionized plaintiffs' dispute with the employer over the implementation of that policy would still be a labour dispute and thus within the exclusive jurisdiction of a labour arbitrator under the grievance arbitration provisions of the applicable collective agreements.
Finally, after rejecting several other attempts by the unionized plaintiffs to bring their claim within an exception to the Weber exclusive jurisdiction principle, the Court remarked on the fact that the unionized plaintiffs' unions had grieved the COVID-19 vaccination policy through the grievance process provided for in the parties' collective agreements, and several of the unionized plaintiffs filed duty of fair representation claims against their unions under Alberta's Labour Relations Code alleging that the unions did not properly serve their interests in the grievance process. While Judge Farrington did not comment on the result of the arbitration or various duty of fair representation complaints, he cautioned against a party attempting to avoid unfavourable results in one venue by filing an action in a different venue regarding the same conduct.
Takeaways: Weber Applies to Vaccination Policies in Alberta; Offending Claims Can be Dispensed of at the Outset of the Litigation Process
Ultimately, this decision provides a welcome assurance to employers in workplaces covered by collective agreements in Alberta that Weber is still the law of the land, and applies to disputes surrounding the implementation of mandatory COVID-19 vaccination policies in unionized workplaces in the province. Weber applies regardless of whether the claim is legally framed in tort, as a breach of employment standards or human rights legislation or even under the Charter.
While this has been the trend in other provinces, Alberta has now followed suit in respecting the exclusive jurisdiction of labour arbitrators over these types of disputes in workplaces covered by collective agreements, and confirmed that the fact that disputes surrounding mandatory COVID-19 vaccination policies may be politically charged or raise important policy concerns does not bring those disputes outside of the exclusive domain of a labour arbitrator.
This decision is also notable for demonstrating that an employer faced with a civil claim surrounding the application of a mandatory COVID-19 vaccination policy in a unionized workplace, or any other dispute arising out of a collective agreement, is able to dispense of that claim at the very outset of the litigation process. While being served with a Statement of Claim is always a stressful experience, it is important to canvass all available options, as it may not be necessary to expend time, resources, and legal fees submitting to the typical trial-centred litigation process, or even filing a Statement of Defence.
If you have questions about the effect of this decision and how it may apply to your business, please contact the Bennett Jones Employment Services group to discuss.