LABOUR RELATIONS SECTION / SECTION DES RELATIONS DE TRAVAIL
Can an Arbitrator “Deem” Employment Terminated
Due to Frustration? – One Arbitrator Says, “Yes”
Volume 9, No. 2
November/Novembre 2006 R. Lance Ceaser*
Recently, a labour Arbitrator two years. In June of 1998, while she continued to
In this Issue: “deemed” that an employee’s receive long-term disability beneﬁts, the Hospital
employment had effectively terminated her employment. Relying on section
Can an Arbitrator “Deem” come to an end as a result 58(5)(c) of the former ESA (an exception to the
Employment Terminated Due to of contractual frustration general obligation to pay severance pay in the case
Frustration? - One Arbitrator Says, in circumstances where the of an employee whose contract of employment
“Yes” employer had not taken has become impossible of performance or been
any steps to terminate the frustrated by illness or injury), the Hospital did not
Alberta Court Considers employment relationship. In pay the grievor severance pay.
Pre-Employment Drug Testing St. Joseph’s General Hospital v. Ontario Nurses’ Assn.
and Whether Casual Drug Users (Glynn),1 the Arbitrator concluded that as the The employee’s union, the Ontario Nurses’
are Protected by Human Rights employment relationship had been frustrated, the Association (“ONA”), grieved the employer’s failure
Legislation employee was entitled to statutory severance pay to provide her with severance pay. The decision at
pursuant to the Employment Standards Act, 2000 arbitration revolved around ONA’s argument that
Arbitrator has Jurisdiction Over (“ESA, 2000”).2 In order to fully understand the the exemption from severance pay entitlement
Sexual Assault Claim decision, it is ﬁrst necessary to consider an important violated section 15 of the Charter, which guarantees
recent decision of the Ontario Court of Appeal. equal protection of the law without discrimination
Invasion of Privacy as an on the basis of, inter alia, mental or physical
Independent Tort Ontario Nurses’ Association v. disability. ONA argued that the provision was,
therefore, of no force and eﬀect. On this point, the
Mount Sinai Hospital employer prevailed at arbitration.
Section Executive 2006-2007
In 2005, the Ontario Court of Appeal decided In dealing with ONA’s submission that section
that an exemption under the former Employment 58(5)(c) of the ESA violated the Charter,5 the
Standards Act (“ESA”), which disentitled employees Arbitration Board considered the Charter analysis
whose employment was frustrated by disability from described by the Supreme Court of Canada in Law v.
receiving severance pay, was unconstitutional. In Canada (Minister of Employment and Immigration).6
Ontario Nurses’ Association v. Mount Sinai Hospital,3 Applying the Law test, the Board found that
the Court conﬁrmed the decision of the Divisional although the exemption did create a distinction
Court, on an application for judicial review, that the on the basis of disability, the denial of severance
disentitlement of disabled employees infringed their pay to employees whose employment had been
rights under section 15(1) of the Canadian Charter frustrated by illness or injury did not stereotype,
of Rights and Freedoms (the “Charter”).4 exclude or devalue persons with severe disabilities so
as to constitute discrimination pursuant to section
In that case, the grievor was a ten-year employee 15(1) of the Charter. The Board noted that section
who was absent from work due to illness for over 58(5)(c) of the ESA denied severance pay to such
employees when their contracts of employment were no scheme. All doubt was swept aside when the Ontario
longer viable and were frustrated, but it did not deny government amended Regulation 288/01 under the ESA,
severance pay to all ill or injured employees. In the result, 2000 in October 2005. Not only was the exemption
the majority of the Board concluded that the Hospital from severance pay for employees whose employment was
was within its rights in not providing the grievor with frustrated by illness or injury eliminated, but the legislature
severance pay, and dismissed the grievance. also removed the equivalent exemption which applied to
notice of termination or termination pay. Accordingly, as
ONA applied for judicial review of the decision. In its the law currently stands, an employee whose employment
decision,7 the Ontario Divisional Court reviewed the comes to an end as a result of frustration due to illness
Board’s ﬁndings with respect to whether section 58(5)(c) or injury is entitled to both termination and severance
of the ESA discriminated against disabled persons. The pay, a result which is directly at odds with the traditional
Court agreed with the Board that the ﬁrst two branches of common law approach to frustration of contract.
the Law test were satisﬁed, but held that the Board erred
in ﬁnding that the third branch of the test was not met The St. Joseph’s General Hospital Decision
(i.e. whether the legislation discriminated against disabled
individuals). Of central importance to its decision,
the Court found that the nexus between the denial of In light of this decision, it should not be surprising that
severance pay and the circumstances of severely disabled an employee (or a union on behalf of an employee) would
employees (i.e. those to whom the frustration exemption seek to have an adjudicator ﬁnd that the employee’s
would apply) was lacking. In the result, the Court contract of employment has become frustrated, thereby
concluded that the provision contravened section 15(1) triggering entitlement to severance (and now termination)
of the Charter. Given that no pressing and substantial pay. Such was the case in the recent St. Joseph’s award of
societal need had been identiﬁed to justify the denial of Arbitrator Dana Randall.
severance pay, the Court found that the limitation on
equality rights under the Charter was not demonstrably In St. Joseph’s, the grievor, Bridget Glynn (“Glynn”) was
justiﬁable in a free and democratic society. Accordingly, a full-time Registered Nurse who suﬀered a workplace
the impugned provision was not saved by section 1 of the injury to her back in 2001. Glynn attempted a return to
Charter and was found to be of no force and eﬀect. work in 2002, but without success. The employer was
unable to ﬁnd any other available work within Glynn’s
A subsequent appeal to the Ontario Court of Appeal restrictions from that point forward. In 2004, ONA
upheld the decision of the Divisional Court quashing the launched a grievance on behalf of Glynn, seeking a
arbitration decision. The Court of Appeal found that the declaration that her employment with the Hospital had
Hospital’s key assumption – that people with severe and become frustrated. Arbitrator Luborsky, who heard the
prolonged disabilities will not return to the workforce initial grievance, determined that ONA had not met
– was incorrect and discriminatory. The Court held that the onus of establishing that Glynn was “incapable of
“things change” and that even a ﬁnding of frustration of fulﬁlling her employment obligations at the present time
contract did not necessarily mean that a seriously disabled and into the foreseeable future”: St. Joseph’s, at para. 7
employee might not resume employment at some point (QL). Accordingly, that grievance was dismissed. A
with improvements in accommodation techniques. second grievance was then ﬁled in 2005 and proceeded
Furthermore, the Court of Appeal found (at p. 255) to arbitration before Arbitrator Randall.
that failing to compensate disabled employees for their
investments in the employer’s business “… devalues their After dismissing a preliminary objection by the Hospital,
contribution and treats their years of service as less worthy the Arbitrator considered whether the grievor’s employment
than others”. The Court of Appeal concluded that the had become frustrated by virtue of her disability,
impugned section could not be saved by section 1 of the concluding that this was the case. Arbitrator Randall
Charter and upheld the Divisional Court’s decision that had no hesitation in ﬁnding that Glynn’s condition was
section 58(5)(c) of the ESA was of no force and eﬀect. permanent and prevented her from performing any
work for the Hospital in the foreseeable future, and also
expressed doubt that a small hospital like St. Joseph’s
Although the Court of Appeal’s decision in Mount Sinai would ever be in a position to oﬀer the grievor a position
dealt with the exemption from severance pay under the within her restrictions.
former ESA, which was replaced by a diﬀerently worded
exemption in Regulation 288/01, section 9(1)2 under the The Arbitrator was then left with the question of whether
ESA, 2000, many legal commentators questioned whether a labour arbitrator has the requisite authority to declare
the result would have been diﬀerent under the existing an employment relationship to be “deemed terminated”
2 Labour Relations • Volume 9, No. 2
due to frustration. Despite the Hospital’s argument that While the inference to be drawn from it is that the
the Arbitrator did not have jurisdiction to make such a parties intend the employment relation to continue
declaration in the absence of a “deemed termination” for some unstated duration, the provision cannot be
provision in the collective agreement, Arbitrator Randall read as occupying the entire ﬁeld. It certainly does
accepted the argument on behalf of ONA that authority not trump the statute. It cannot prevent the Grievor
could be found in the ESA, 2000. The Arbitrator held that from asserting that her employment has come to
the language of section 63(1) of the ESA, 2000 required a an end, that her seniority rights no longer have any
determination of whether the contract of employment had value, and that she would like, therefore, to be paid
been frustrated. Furthermore, based on the wording of her statutory minimum, and I so ﬁnd. A contrary
section 63(1), it was clear to the Arbitrator that no action ﬁnding – that the Grievor must continue to live in
on the part of the employer was necessary to make this a state of limbo, until the Employer acts – makes
determination. The section reads: little sense. It raises issues of potential mischief in
the statutory interpretation and may well breach the
What constitutes severance Employer’s duty, set out in article B-3 of the Local
Agreement, to “exercise its rights and administer the
63. (1) An employer severs the employment Collective Agreement reasonably and fairly”.
of an employee if,
(a) the employer dismisses the employee or In the result, the Arbitrator found that Glynn’s employment
otherwise refuses or is unable to continue had become frustrated and was deemed severed for
employing the employee; purposes of the ESA, 2000. Because of the decision of
the Courts in Mount Sinai, the grievor was entitled to
After quoting the provision, the Arbitrator stated: severance pay.
Several things are noteworthy. The provision was Implications of the Decision
amended in 2002, by adding the words in italics.
The amendment clearly broadened the meaning to Given that frustration of contract due to illness or
be given to “what constitutes severance”. Formerly, disability no longer precludes employees from claiming
a severance required one of two actions by the termination and severance pay under the ESA, 2000,
employer: dismissing the employee or refusing her employers can anticipate that more and more employees
employment. Now, ﬁnding an employer action is will be seeking to receive their statutory entitlements,
no longer a condition precedent to severance; sever- even when the employer has taken no action to sever the
ance also occurs when “the employer … is unable relationship. On the basis of the St. Joseph’s decision, it is
to continue employing the employee.” The inquiry possible that adjudicators hearing such claims will “deem”
under this arm of entitlement is simply whether an their employment to be terminated, where suﬃcient
objective state of aﬀairs exists. evidence of frustration is advanced, thereby triggering
entitlement. However, the party alleging frustration of
Having found that Glynn’s employment had become contract will still bear the onus of establishing that there
frustrated, the Arbitrator rejected the Hospital’s argument is no reasonable prospect of the contract being performed
that it needed to take some positive action in order to sever in the foreseeable future, even with accommodation.
the grievor’s employment.
* R. Lance Ceaser, Filion Wakely Thorup Angeletti LLP,
Arbitrator Randall then reviewed the Mount Sinai (519) 433-7270, lceaser@ﬁlion.on.ca.
decision and found that the exemption from severance
pay entitlement in situations of contractual frustration
 O.L.A.A. No. 155, online: QL (hereinafter “St. Joseph’s”).
under the former ESA had been struck down. The decision
S.O. 2000, c. 41.
(2005), 75 O.R. (3d) 245 (C.A.) (hereinafter “Mount Sinai”).
appears to accept that the Courts’ reasoning in Mount 4
Part I of the Constitution Act, 1982, being Schedule B to the
Sinai would apply with equal force to the language of the Canada Act 1982 (U.K.) 1982, c. 11.
current ESA, 2000 and regulations. 5
Re Mount Sinai Hospital and ONA (Tilley) (2002), 107 L.A.C.
(4th) 211 (Devlin).
Arbitrator Randall also rejected the Hospital’s assertion 6
 1 S.C.R. 497 (hereinafter “Law”).
that the employment relationship should not be deemed 7
(2004), 69 O.R. (3d) 267.
terminated because disabled employees continued to
accrue seniority while oﬀ work on a WSIB disability
claim, under the terms of the collective agreement.
The Arbitrator instead found:
Labour Relations • November 2006 3
Alberta Court Considers Pre-Employment Drug
Testing and Whether Casual Drug Users are
Protected by Human Rights Legislation
Ailsa Jane Wiggins*
The recent decision of the Alberta employer’s policy treated all prospective employees who
Court of Queen’s Bench in Chiasson tested positive for drugs the same, as if they were drug
v. Kellogg, Brown & Root (Canada) dependent and likely to report to work impaired.3 Thus
Company Halliburton Group Canada Madam Justice Martin held that the Complainant was
Inc.1 addresses two important issues: protected by the Act even though he was not disabled. The
(1) pre-employment drug testing and employer’s policy treated him as if he were. She stated that
(2) whether casual or recreational drug “the eﬀect of [the employer’s policy] on pre-employment
users are entitled to the protections drug testing is to exclude addicted individuals on the
that human rights legislation aﬀords basis of actual disability and non-addicted and non-
persons who suﬀer from substance abuse or substance impaired employees from employment based on perceived
dependence. disability.”4 Madam Justice Martin went on to ﬁnd that
the policy was “too severe, more stringent than needed for
Decision of the Human Rights Panel a safe workplace and not suﬃciently sensitive to individual
capabilities”.5 The following factors made it impossible
The Human Rights Panel of Alberta considered the case for the employer to justify pre-employment drug testing
of a receiving inspector at the Syncrude oil sands plant as a bona ﬁde occupational requirement (“BFOR”).
in Fort McMurray who tested positive for marijuana in
a pre-employment drug test. He had been at work for • The worker had been at work for 9 days before
approximately nine days before his employer learned of the the test results came back. This called into
test result. He was immediately terminated. He maintained question the link between a positive drug test
that his use of marijuana was recreational and that he was and impairment at work.6
not an addict. The Panel found that the pre-employment
drug test was prima facie discriminatory against drug • Allowing the employee to work before the test
dependent persons. There was no discrimination against results were back called into question the claim
Mr. Chiasson because he did not have a disability. The that testing was essential.7
Panel stated that if the Complainant had established that
he had a disability, real or perceived, the withdrawal of his • The worker could have been treated as an existing
oﬀer of employment would have been discriminatory. In employee and referred to the employment
other words, because the Complainant did not have or was assistance program for assessment.8
not perceived by his employer to have a substance abuse
or substance dependence problem, he was not covered by • Other methods of testing for workplace
the protections of the Alberta Human Rights, Citizenship impairment are more reliable than urinalysis
and Multiculturalism Act (the “Act”) and the employer did drug testing.9
not have to accommodate him.2
Madam Justice Martin was also inﬂuenced by the fact
that the unionized employees were not subject to pre-
Decision of the Court of Queen’s Bench employment testing and there was no random testing of
The Court of Queen’s Bench of Alberta judicially reviewed safety-sensitive employees.10
the Panel’s decision and held that the Panel erred in ﬁnding
that there was no discrimination because the Complainant Madam Justice Martin made it clear that her comments
did not suﬀer from a disability or a perceived disability. were directed to this employer’s policy and that “whether
Madam Justice Martin held that the policy was prima facie other policies may qualify as a BFOR is an open question
discriminatory. It combined mandatory pre-employment for another time.”11
testing, automatic termination for a positive result and no
accommodation. Madam Justice Martin found that the
4 Labour Relations • Volume 9, No. 2
Perceived Discrimination and Can pre-employment drug testing
the Recreational User: Is the ever amount to a BFOR?
Recreational User Protected by
Human Rights Legislation? Chiasson, like Entrop, shows how diﬃcult it is to justify
pre-employment drug testing. It is diﬃcult, but perhaps
On the face of it, one would think that the answer not impossible.
should be “no”, the recreational user does not suﬀer
from a disability and so is not protected by human rights In Entrop, the Court of Appeal stated in obiter19 that there
legislation in the same way as persons who suﬀer from were two fundamental ﬂaws with pre-employment drug
substance abuse or substance dependence. However, as testing. First, urinalysis, the drug testing technology used,
one commentator put it, perceived disability is the hook did not measure impairment20 or likely impairment on
that allows any person aﬀected by an alcohol and drug the job, but only measured the presence of drugs in the
policy to challenge it.12 system. Second, the sanction for testing positive was too
severe.21 Madam Justice Martin agreed with the Court of
Madam Justice Martin’s review of the cases indicated a Appeal stating that the ﬂaws in pre-employment testing
diﬀerence of opinion on the question.13 The employer derive from the fact that a positive test does not show
had interpreted some of the earlier cases to mean that future impairment, or even likely future impairment on
without a positive assertion of disability there can be no the job, yet the applicant who tests positive once is not
discrimination, but Madam Justice Martin distinguished hired.22
them on the basis that none of those cases involved pre-
employment drug testing.14 Will the fact that there is now a drug testing technology
that can measure impairment cause human rights
The answer may depend on the wording and application tribunals, courts and arbitrators to reconsider the validity
of the alcohol and drug policy under review. In Entrop of drug testing?23 Oral ﬂuid testing is less intrusive than
v. Imperial Oil Limited,15 the wording of the alcohol and urinalysis and it can be used to show current impairment
drug policy under review explicitly linked recreational and gives no “lifestyle” information. It requires the
users with dependent users.16 The Court found that employee to place a cotton swab in his or her mouth and
Imperial Oil Limited “believed” all drug users to be drug leave it in place for two minutes. The swab can then be
abusers for the purpose of the policy, so persons testing tested to determine if the employee is likely impaired by
positive on a drug test, perceived or actual substance the target drug. It remains to be seen whether human
abusers, were adversely aﬀected by the policy and the rights tribunals and courts24 will be prepared to ﬁnd that
provisions for pre-employment drug testing and random pre-employment drug testing using oral ﬂuid testing
alcohol and drug testing were therefore prima facie can be a BFOR. Madam Justice Martin, by referring
discriminatory.17 In Chiasson, Madam Justice Martin also favourably to oral ﬂuid testing,25 gave hope to those
found that the employer’s policy treated all prospective supporting drug testing for safety reasons.
employees who tested positive for drugs as if they suﬀered
from substance abuse or substance dependence and were In order to justify pre-employment testing as a BFOR the
likely to report to work impaired.18 employer must satisfy the three-step test set out by the
Supreme Court of Canada in Meiorin.26 In most cases,
To bolster their argument that they do not “perceive” the employer can meet the ﬁrst two steps; the diﬃculty is
casual users to be disabled, employers should make it the second part of the third step. In Chiasson, the parties
clear in the wording and application of their alcohol conceded that the ﬁrst two steps had been satisﬁed: the
and drug policies that they are aware that there is a employer adopted pre-employment drug testing for a
diﬀerence between the casual use of alcohol and drugs purpose rationally connected to the performance of the job
and use resulting from a disability. Even if an employer’s and the employer adopted pre-employment drug testing in
alcohol and drug policy is found to constitute prima an honest and good faith belief that it was necessary to the
facie discrimination against employees or candidates for fulﬁllment of its legitimate goal of preventing workplace
employment, casual users or those disabled by substance impairment.27 To meet the third step, the employer must
abuse or substance dependence, it may still be justiﬁed show that pre-employment testing is reasonably necessary
as a BFOR. to achieve its job related purpose and that it could
not accommodate disabled individuals without undue
hardship. In Chiasson, the employer failed to meet the
third step because it did not even consider accommodating
Labour Relations • November 2006 5
the Complainant. It failed to demonstrate compliance Conclusion
with the procedural or substantive components of the duty
to accommodate.28 It argued that it would be too costly Is the recreational drug user protected by human rights
to provide counselling and programs for job candidates legislation? Diﬃcult as it may be for employers to accept,
who tested positive but it did not introduce any evidence the answer is probably “yes”. Human rights tribunals,
on the relative costs of diﬀerent forms of accommodation. courts and arbitrators will likely continue to use the
According to Madam Justice Martin, this fell “well short concept of perceived disability to cover those who are not
of the standard of ‘every possible accommodation to the actually disabled. But employers take heart, the answer
point of undue hardship’”.29 Accommodation of job to the second question: Can pre-employment drug testing
candidates may involve allowing candidates to reapply ever amount to a BFOR? is also “yes”. In the appropriate
and take a second test after a set period of time or any circumstances, as long as the employer properly drafts and
of the following measures suggested by Madam Justice administers its alcohol and drug policy, pre-employment
Martin: drug testing of safety-sensitive employees should be
supportable as a BFOR. As ever, the issue for employers
(i) early, full disclosure of pre-employment drug will be accommodation.
(ii) allowing a “wash-out” period as an initial screen * Ailsa Jane Wiggins, Gowling LaFleur Henderson LLP,
to separate recreational users from dependent users; (416) 369-7260, email@example.com.
(iii) conducting an independent analysis of candidates
who test positive to assess whether they represent a 1
2006 ABQB 302. (Chiasson)
high risk of being a substance abuser; 2
(February 14, 24, 16 and March 1, 2005), Human
(iv) conditional, probationary employment of Rights Panel of Alberta, online: Alberta Human Rights
employees who test positive but are medically assessed Commission <http://www.albertahumanrights.ab.ca/
as low risk for substance dependency under enhanced legislation/panel_decis_2005.asp>.
supervision by drug-awareness trained supervisors 3
Chiasson, supra note 1 at para. 88.
and including random impairment (saliva testing) 4
Ibid. at para. 101.
for a period of time; and 5
Ibid. at para. 110.
(v) withdrawing the oﬀer of employment from those 6
Ibid. at para. 115.
admitting to or medically assessed as high risk for 7
Ibid. at para. 116.
substance dependency on condition that the oﬀer 8
Ibid. at para. 117.
may be renewed if the individual voluntarily enters 9
Ibid. at para. 120.
and successfully completes a recognized drug reha- 10
Ibid. at para. 138.
bilitation program at his or her own expense.30 11
Ibid. at para. 144.
Leanne M. Chahley, “Alberta court finds pre-
In Mr. Chiasson’s case, while he failed a pre-employment employment drug testing prima facie discriminatory”,
test, he had been working for nine days before the The Lawyers Weekly, July 7, 2006.
results of his drug test came back. The employer could 13
Chiasson, supra note 1 at para. 84.
have treated him as a non-probationary employee and 14
Ibid. at paras. 94 and 96.
oﬀered him the accommodation available to permanent 15
(2000), 50 O.R. (3d) 18 (C.A.) (Entrop) at paras.
Ibid. at para. 94.
The alcohol and drug policy considered in Entrop required 17
Ibid. at paras. 90 – 92.
all candidates for employment, not just those applying 18
Chiasson, supra note 1 at para. 88.
for safety-sensitive positions, to pass a pre-employment 19
The Court of Appeal concluded that the Board had
drug test. Pre-employment drug testing of candidates jurisdiction to expand the scope of the inquiry into all
for safety-sensitive positions, particularly if they are also aspects of alcohol testing but not drug testing (Entrop at
subject to random testing during employment, should be para. 58). Having made that decision, Mr. Justice Laskin,
easier to justify. Had the employer in Chiasson used oral “with some misgivings”, decided to address the merits of
ﬂuid testing rather than urinalysis, not allowed candidates the various aspects of Imperial’s policy on drug testing
to start work until the test results came back, required pre- (Entrop at para. 60). Paragraph 2 of the Order issued by
employment and random testing of all its safety sensitive the Court of Appeal in Entrop, states “this Court orders
employees and addressed the issue of accommodation, its that the Board of Inquiry had no jurisdiction to inquire
policy might have been upheld as a BFOR. into the drug testing provisions of the policy and, for
that reason, all ﬁndings of the Board of Inquiry with
6 Labour Relations • Volume 9, No. 2
respect to drug testing be set aside”. Mr. Justice Morden
accepted Imperial’s submission that, in light of the Court’s
ruling on the jurisdiction of the Board to inquire into
drug testing, the Board’s ﬁndings on drug testing can
have no legal status. His endorsement reads as follows:
“… regardless of the dicta in the reasons of the Court of
Appeal it follows inevitably that the ﬁndings of the Board
must be set aside once it has held that the Board had no
jurisdiction to make them. The Court of Appeal’s reasons
and the issue in question are obiter dicta”. Thus Mr. Justice
Laskin’s comments on drug testing are obiter dicta and not
binding. Even so, the case remains important in relation
to drug testing.
In fact, at certain high levels urinalysis may
indicate impairment (See e.g. Imperial Oil Limited v.
Communications, Energy and Paperworks Union of Canada,
Local 777 (Parsons Grievance),  A.G.A.A. No. 102
(QL) at paras. 206, 214-216 where a board of arbitration
upheld the dismissal for cause of an employee who tested
positive for marijuana on a post reinstatement periodic
Entrop supra note 18 at paras. 99 – 100.
Chiasson supra note 1 at para 136.
Note that Imperial Oil Limited’s reintroduction of
random drug testing using oral ﬂuid testing is the subject
of a grievance in Ontario. The award is reserved.
Arbitrators have concluded that they have no jurisdiction
over complaints made by employees pre-employment and
therefore arbitrators have not addressed pre-employment
drug testing: see Trimac Transportation Services – Bulk
Systems and Transportation Communications Union (Drug
Testing) (1999), 88 L.A.C. (4th) 237 (Burkett).
Chiasson, supra note 1 at paras. 120 and 122(d).
British Columbia (Public Service Employee Relations
Commission) v. British Columbia G.S.E.U.,  3
S.C.R. 3 (Meiorin).
Chiasson, supra note 1 at para.104.
Ibid. at para. 128.
Ibid. at para. 121 quoting Mc Lachlin J. in British
Columbia (Superintendent of Motor Vehicles) v. British
Columbia (Council of Human Rights) (Grismer),  3
S.C.R. 868 at para. 32.
Ibid. at para. 122.
Ibid. at para. 117.
Labour Relations • November 2006 7
Arbitrator has Jurisdiction Over Sexual Assault Claim
In A. (K.) v. Ottawa (City) (2006), However, the motion judge refused to strike the claims for
80 O.R. 161, the Ontario Court sexual assault. In doing so, the motion judge relied upon
of Appeal ruled that an arbitrator, Quebec v. Québec (Attorney General),  2 S.C.R. 185
rather than the Superior Court, had which states (at para. 11) that:
exclusive jurisdiction to consider a tort
claim for sexual assault commenced Weber does not stand for the proposition that labour
by unionized employees against arbitrators always have exclusive jurisdiction in
their employer. This case, yet again, employer-union disputes. Depending on the legisla-
conﬁrms the principles established in Weber v. Ontario tion and the nature of the dispute, other tribunals
Hydro,  2 S.C.R. 929. In doing so, this case also may possess overlapping jurisdiction, concurrent
addresses several other important issues that may arise in jurisdiction or themselves be endowed with exclusive
such jurisdictional disputes. jurisdiction.
The motion judge also relied upon Energy and Chemical
The Background Workers Union, Local 691 v. Irving Oil Ltd.,  N.B.J.
No. 191 (C.A.), 148 D.L.R. (3d) 398, which states (at p.
The City of Ottawa is bound to a collective agreement
401 D.L.R.) that:
pursuant to the Canada Labour Code (the “CLC”). A
group of bargaining unit employees commenced a civil
The unlawful acts alleged in the present action relate
tort action for sexual harassment and sexual assault
to the maintenance of public order and involve the
against a fellow employee, Gauthier. The employees’
criminal as well as the civil law. The mere fact that
claim for sexual assault was based upon allegations that
they take place in the context of a labour dispute
Gauthier had touched, grabbed and kissed them without
involving a collective agreement in no way changes
their consent. The employees also named the City as a
their essential character.
defendant, claiming that the City had failed to provide
a safe workplace by not stopping Gauthier from sexually
The City appealed the ruling of the motion judge to not
harassing and assaulting them.
strike the claims pertaining to sexual assault.
The Motion to Strike the Claims The Court of Appeal
The City and Gauthier brought a motion under Rule 21 The Court of Appeal conﬁrmed that such a jurisdictional
of the Rules of Civil Procedure seeking to have the claims issue is determined through a two-part analysis. First, one
struck on the basis that they arise from the interpretation, must examine the relevant legislation to determine what
application, administration or alleged violation of the jurisdiction it grants to the arbitrator. Second, one must
collective agreement and must therefore be dealt with examine the nature of the dispute to determine whether
by way of arbitration. The City submitted that in view the legislation suggests that the dispute falls exclusively
of Weber, the courts do not have jurisdiction over these within the arbitrator’s jurisdiction.
claims. The City also submitted that the sexual harassment
claim must be struck because it amounts to a claim for Accordingly, the Court of Appeal ﬁrst examined the
discrimination under the Canadian Human Rights Act (the relevant legislation, being the CLC and the CHRC. The
“CHRA”), and is therefore not actionable in court. Court of Appeal ruled that the CHRC is incorporated into
the collective agreement by virtue of section 60(1)(a.1)
The motion judge agreed that the claims for sexual of the CLC which grants an arbitrator “the power to
harassment fell under the exclusive jurisdiction of an interpret, apply and give relief in accordance with a
arbitrator. The motion judge also agreed that no tort statute relating to employment matters…”. Based on
action could be brought for the sexual harassment claim this, the Court of Appeal concluded that an arbitrator
because it amounts to a claim for discrimination under has the jurisdiction to deal with the complaint of sexual
the CHRA. harassment and that the acts of unwarranted touching
8 Labour Relations • Volume 9, No. 2
must be dealt with as “part and parcel” of the sexual be awarded in an arbitration in the present case does not
harassment complaint. amount to a remedial gap suﬃcient to justify the exercise
of the Superior Court’s jurisdiction”.
With regard to the second question pertaining to the
nature of the dispute, the Court of Appeal ruled that there The Joinder of Gauthier
was no basis to distinguish between the claims framed in
sexual harassment and the claims framed in sexual assault. The employees submitted that Gauthier was not a party
In support of that, the Court of Appeal cited cases for the to the collective agreement and that they were therefore
principle that “regardless of the legal characterization of free to sue him in the courts. Furthermore, the employees
the dispute, where the dispute arises out of the collective submitted that they should be permitted to pursue their
agreement, it must be arbitrated and the parties cannot entire claim in one proceeding. As such, they submitted
avoid arbitration simply by pleading a common law tort” that the courts should have jurisdiction over the entire
(see para. 15). dispute. The Court of Appeal dismissed these arguments,
stating that “Giorno has been consistently followed for
With regard to Irving Oil, the Court of Appeal stated (at the proposition that where the dispute arises out of the
para. 16) that: collective agreement, it will not matter that the plaintiﬀ
seeks redress against a fellow employee, as Weber still
I do not agree that the eﬀect of Irving Oil is to carve demands that the dispute be heard by an arbitrator” (see
out of the arbitrator’s jurisdiction all tort claims alleg- para. 23).
ing violent or criminal misconduct…There is now
a consistent line of authority interpreting the Weber
principle to embrace jurisdiction over any tort claim Conclusion
that amounts to a dispute arising under the collec-
tive agreement: see Piko, supra and Giorno, supra. This case stands as a strong precedent that arbitrators have
Where, as in the present case, the alleged wrong exclusive jurisdiction over a large range of tort claims, as
relates directly to conduct in the workplace and to long as the tort claim arises out of a collective agreement.
the employer’s obligation to provide a safe working Also, this case diminishes the arguments against granting
environment, it would be inconsistent with the Weber such jurisdiction to arbitrators, in that it dismissed the
principle, as elaborated in Piko and Giorno, to carve arguments that the sexual assault claim, due to its nature,
out an exception for violent or criminal acts. should be dealt with by the courts and that the remedial
gap in damages and the joinder of Gauthier required the
courts to assume jurisdiction. Rather, the Court of Appeal
The Remedial Gap Argument took an expansive view of the arbitrator’s jurisdiction,
which may indicate the trend for future cases.
The employees submitted that the courts should have
jurisdiction because they may receive lower damages * Peter Chauvin, OLRB Vice-Chair and Arbitrator/Mediator,
at arbitration because the CHRA limits the amount of (416) 460-8979, firstname.lastname@example.org.
damages a victim of discrimination may receive to a
maximum of $20,000 for pain and suﬀering, $20,000
for willful or reckless misconduct, plus compensation for
lost wages or expenses.
The Court of Appeal acknowledged that even in cases
where an arbitrator has exclusive jurisdiction over a
dispute, the court may nevertheless exercise its inherent
remedial jurisdiction where the arbitrator does not have
the power to grant a required remedy. The Court of
Appeal cited examples of such a remedial gap as being
the lack of jurisdiction to award injunctions or to make
declarations. However, the Court of Appeal quoted from
Giorno v. Pappas (1999), 42 O.R. (3d) 626 (C.A.) that
“[i]t is of no moment that arbitrators may not always have
approached the awarding of damages in the same way that
courts have awarded damages in tort” and ruled that “the
potential diﬀerence in the quantum of damages that could
Labour Relations • November 2006 9
Invasion of Privacy as an Independent Tort
Under Canadian common law, the right to privacy has not said that the common law should develop in a manner that
yet been widely accepted, and invasion of privacy has been is consistent with Charter principles.13 In addition, four of
slow to emerge as an independent tort. An independent the common law provinces have already created a statutory
right to privacy is recognized by statute in only four of the tort for the invasion of privacy.14 These advances in the
common law provinces: British Columbia,1 Saskatchewan,2 law of privacy have been driven, at least in part, by the
Manitoba3 and Newfoundland.4 Legislation in each of advent of technology that makes it easier for individuals to
these jurisdictions makes it a tort, actionable without collect, assess and disseminate the personal data of others
proof of damage, for a person wilfully and without claim without authorization. Finally, traditional torts such as
of right to violate the privacy of another. However, even nuisance, trespass, and harassment are often ill-equipped
in the face of such legislation, the law in this area has not to protect citizens from the unlawful infringement of
advanced signiﬁcantly. For example, under the British their privacy. Considering all of these factors, the Court
Columbia statute, the nature and degree of privacy to concluded that providing a common law remedy for
which an individual is entitled is limited to that which is privacy violations of the type alleged by Somwar would
“reasonable in the circumstances, due regard being given be consistent with Charter values and an extrapolation of
to the lawful interests of others.”5 Likewise, in Manitoba, current jurisprudence.
in order for a breach of an individual’s right to privacy to
occur, the invasion must have been “substantial”.6 Since the Court issued its decision in January 2006, the
case has settled. Thus, although Somwar arguably takes
The most recent judicial pronouncement on invasion of the common law a step closer to recognizing invasion of
privacy at common law came from the Ontario Superior privacy as an independent tort, the impact of the Court’s
Court of Justice earlier this year in Somwar v. McDonald’s pronouncements in this regard remains to be seen.
Restaurants of Canada Ltd.7 (“Somwar”). In that decision,
the Court indicated its willingness to recognize the tort * Rhonda Shirreﬀ, Heenan Blaikie LLP, (416) 643-6858,
of invasion of privacy. RShirreﬀ@heenan.ca.
Somwar was employed by McDonald’s as a restaurant 1
Privacy Act, R.S.B.C. 1996, c. 373, s. 1(1).
manager. After his employer conducted a credit check 2
Privacy Act, R.S.S. 1978, c. P-24, s. 2.
of him without his permission, he sued, alleging in his 3
Privacy Act, R.S.M. 1987, c. P-125, s. 2(1).
statement of claim that by conducting the credit check 4
Privacy Act, R.S.N. 1990, c. P-22, s. 3.
McDonald’s had illegally invaded his right to privacy. He 5
Davis v. McArthur (1970), 10 D.L.R. (3d) 250 (B.C.S.C.)
sought ﬁnancial compensation as well as punitive damages rev’d , 17 D.L.R. (3d) 760 (B.C.C.A.).
in order to deter his employer from invading the privacy 6
Bingo Enterprises Ltd., et al. v. Plaxton, et al. (1986), 26
of others. McDonald’s brought a motion under the Rules D.L.R. (4th) 604 at 612 (Man. C.A.).
of Civil Procedure8 to strike Somwar’s claim on the ground 7
2006 CanLII 202 (ON S.C.).
that it disclosed no reasonable cause of action, arguing 8
Courts of Justice Act R.R.O. 1990, Reg. 194.
that Ontario common law does not recognize a right of 9
Supra note 7 at para. 22.
action for invasion of privacy. 10
Ibid. at para. 31.
Canadian Charter of Rights and Freedoms, Part I of the
The Court dismissed McDonald’s motion, stating not Constitution Act, 1982, being Schedule B to the Canada
only that “it is not settled law in Ontario that there is Act 1982 (U.K.), 1982, c. 11.
no tort of invasion of privacy”,9 but also that “the time 12
R. v. Dyment,  2 S.C.R. 417.
has come to recognize invasion of privacy as a tort in its 13
R.W.D.S.V. Local 580 v. Dolphin Delivery Ltd. (1986),
own right.”10 A number of factors led the Court to this 3 D.L.R. (4th) 174 (S.C.C.). Likewise, some arbitrators
conclusion. Section 8 of the Charter,11 which protects have acknowledged that collective agreements should be
against unreasonable search and seizure, is a constitutional interpreted according to Charter values. See, for example,
embodiment of the right to be left alone by other people. Re Doman Forest Products Limited (1990), 13 L.A.C.
Although the Charter does not apply to common law (4th) 275.
disputes between private parties, the Supreme Court 14
Supra notes 1, 2, 3 and 4.
of Canada has aﬃrmed that the right to privacy is a
fundamental value meriting Charter protection12 and has
10 Labour Relations • Volume 9, No. 2
���� The articles that appear in this publication represent
the opinions of the authors. They do not represent or
embody any oﬃcial position of, or statement by, the
OBA except where this may be speciﬁcally indicated;
nor do they attempt to set forth deﬁnitive practice
LABOUR & EMPLOYMENT standards or to provide legal advice. Precedents and
other material contained herein are intended to be used
thoughtfully, as nothing in the work relieves readers of
Monday, February 5, 2007 their responsibility to consider it in the light of their
9:00 am - 12:00 pm own professional skill and judgment.
Human Rights and Labour
Law: New Challenges and New
Directions in 2007
Chairs: Erin R. Kuzz, Sherrard Kuzz LLP
Kathleen J. Martin, Arbitrator,
Human Rights Tribunal of Ontario
This upcoming year brings major changes in
human rights law in your labour and employment
practice. Bill 107, Human Rights Code Amendment
Act 2006, contains signiﬁcant amendments to the
respective roles and mandates of the Human Rights
Commission and the Human Rights Tribunal of
Ontario. In addition, there continue to be notable
developments in the caselaw on remedies for human
rights violations and the duty to accommodate,
which take the law in new directions. This program
will provide you with an in depth review and analysis
of the proposed amendments and an essential
update on the caselaw on key human rights issues
that are critical in your labour and employment
Labour Relations • November 2006 11
Section Executive 2006-2007 Editors:
Carol S. Nielsen
Chair: Erin Renée Kuzz Member-At-Large: Jonathan Dye Stephanie L. Montgomery-Graham
Sherrard Kuzz LLP (416) 603-0700 Heenan Blaikie LLP (416) 643-6841
Past Chair: Jules B. Bloch
OBA Newsletter Editor:
Member-At-Large: Denis William Ellickson
(416) 469-0367 Caley Wray (416) 366-3763 Vickie Rose
email@example.com firstname.lastname@example.org Graphic Artist:
Vice-Chair: Jeﬀrey Michael Andrew Member-At-Large: Simon Bluestein
Cavalluzzo Hayes Shilton McIntyre Gustavo Fernando Garcia Proofreader:
Cornish LLP (416) 964-1115 Dunsmore Law P.C. (416) 364-7633
email@example.com firstname.lastname@example.org Lynn Wilson
Secretary (Sections): Laura Lyn Trachuk Member-At-Large: Mark E. Geiger
Laura Trachuk Dispute Resolutions Blaney McMurtry LLP (416) 593-3926
(416) 963-5957 email@example.com
Member-At-Large: Timothy Gleason
Newsletter Editor: Sack Goldblatt Mitchell LLP (416) 979-6971
Stephanie L. Montgomery-Graham firstname.lastname@example.org
Heenan Blaikie LLP (416) 643-6909
email@example.com Member-At-Large: Tracey Henry
Cavalluzzo Hayes Shilton McIntyre & Cornish LLP
Newsletter Editor: Carol Suzanne Nielsen (416) 964-1115
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cnielsen@ﬁlion.on.ca Member-At-Large: Caroline V. Jones
Paliare Roland Rosenberg Rothstein LLP
Program Coordinator: (416) 646-7433
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Mediator & Arbitrator (416) 690-5136
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Member-At-Large: Randy Levinson
CLE Liaison: Kathleen Jocelyn Martin Randy Levinson Arbitration Services Ltd.
Mediator & Arbitrator (416) 690-5136 (905) 648-7239
Technology Liaison: Sean E. Kearney Member-At-Large: Lorenzo Lisi
Ministry of Attorney General McCarthy Tétrault LLP (416) 601-8131
Ministry ofGovernment Services firstname.lastname@example.org
email@example.com Member-At-Large: Elyse Mallins
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Regional Coordinator: (416) 847-1814 x111
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Weiler, Maloney, Nelson (807) 625-8885
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Cassels Brock & Blackwell LLP
Member-At-Large: (416) 860-6618
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(416) 864-7292 Member-At-Large: J. Benjamin Ratelband
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Member-At-Large: Keith Peter Burkhardt
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Member-At-Large: Peter Francis Chauvin email@example.com
Ontario Labour Relations Board
(416) 326-7550 Member-At-Large: Ailsa J. Wiggins
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Member-At-Large: Michael Conradi email@example.com
Miller Thomson LLP (416) 595-8500
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Member-At-Large: Blaine Donais (416) 869-1047 x399
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