The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Real Life Pleadings

Real Pleadings: Explosive Lawsuit Alleging Systemic Discrimination in Public Service

by David Doorey March 14, 2019
written by David Doorey March 14, 2019

A Toronto Star story today describes an interesting lawsuit filed by two women employed in the Ontario public service who allege a pattern of systemic discrimination against black employees dating back years.
Here is the plaintiff’s statement of claim.  It is an interesting read.

The lawsuit alleges that,  “Anti-Black racism, and racism in general, along with white privilege and white supremacy, are pervasive and entrenched within the OPS”.  There is a lot of explosive language like that in the statement of claim,

Lawsuit Alleges Systemic Discrimination at OPS

Lawsuit Alleges Systemic Discrimination at OPS


which names the government and two unions as defendants.  For example, the statement of claim alleges that the defendant’s actions caused “miscarriages” and “premature childbirth”, among many other physical and mental harms to the plaintiffs.
I spoke to the reporter about the challenges the plaintiffs likely face in the courts in a lawsuit alleging human rights violations by the employer and the union.   Only a small part of what we talked about made it into the article.  The jest of my comments was that almost certainly the actions against the unions alleging a breach of statutory and collective agreement obligations will be dismissed for lack of jurisdiction, since these complaints must be dealt with under the duty of fair representation provisions of labour relations legislation.

Insofar as the case relies on alleged violations of the Human Rights Code and the collective agreements, the plaintiffs run into other jurisdictional hurdles. Human rights violations usually must go to human rights tribunals (or labour arbitration), but not the courts.  This conclusions flows from the case we study in employment law called Seneca College v. Bhaduaria, which prohibited lawsuits based on allegations of human rights violations.

Add to this the issue of the expansive scope of the jurisidcito of labour arbitrators in the post-Weber v Ontario Hydro world, which requires that any dispute the “essential character” of which arises from or under a collective agreement be referred to labour arbitration rather than the courts.

All told, the plaintiffs have a jurisdictional problem here.  They have attempted to bypass this problem by pleading a wide range of wrongs, including Charter violations and multiple statutory breaches.

We will keep an eye on this case.  I anticipate a motion to strike for lack of jurisdiction in the future.   I’m not saying there is no merit to the complaints.   My gut feeling based on years of experience in this stuff is that there is, although I am a complete outsider.  The point now is to get labour law students to think carefully about the jurisdictional issues and whether the lawsuit can overcome them.

Issues for Discussion
Do you think that this case will survive a motion to dismiss?


Read this case, called Rivers v Waterloo Regional Police, which raised similar allegations of systemic discrimination.  How did the court deal with the jurisdictional issue?   How would you distinguish this case if you were the plaintiffs in the case involving the Ontario Public Service?

David Doorey, “Real Pleadings: Explosive Lawsuit Alleging Systemic Discrimination in Public Service” Canadian Law of Work Forum (14 March 2019)

0 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
Real Pleadings: General Motor's Successful Illegal Strike Application Against Unifor
next post
This Blog Entry is About the Lunacy of Employment Standards Exemptions (and it has alpacas, emus, and minks too!)

You may also like

Real Pleadings: Employment Status Lawsuit Set to Shake...

June 24, 2020

CUPW Alleges that #Foodora Acted Unlawfully by Pulling...

May 12, 2020

Real Pleadings: General Motor's Successful Illegal Strike Application...

February 26, 2019

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦 @TheLawofWork@mas.to Follow

Law Prof. Talking #labor & #employment #law to the masses. @YorkUniversity @OsgoodeNews @LSELaw @CLJEHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

TheLawofWork
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
10h

I can’t believe that Almost Famous came out 23 years ago.

Time is flying by.

Reply on Twitter 1622776388179705859 Retweet on Twitter 1622776388179705859 3 Like on Twitter 1622776388179705859 14 Twitter 1622776388179705859
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
12h

I had an LLM student who had a part-time job phantom writing labor arbitration decisions based on arbitrator’s notes and instructions.

Like law clerks do for judges (except parties don’t know about the phantom arb writer).

Is using a machine different? Interesting debate.

Valerio De Stefano @valeriodeste

The crucial part starts on p. 5, where the Court reports the answers to the legal questions they posed to ChatGPT. Then, at the end of p. 6, the Court adopts the arguments given in these answers as grounds for its decision.

Reply on Twitter 1622759377944952834 Retweet on Twitter 1622759377944952834 5 Like on Twitter 1622759377944952834 8 Twitter 1622759377944952834
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
13h

Quebec passed anti-scab legislation in 1977, BC in 1993, & Ontario 1993-95.

Hysterical claims that these laws cause job losses & loss of investment aren't supported by evidence. Businesses just don't like them.

Short 🧵

1/

Seamus O'Regan Jr @SeamusORegan

We’re banning replacement workers, as we said on Oct. 19th.

We’re working with unions and employers to get the balance right.

As agreed, government will introduce legislation by the end of this year.

Reply on Twitter 1622745098088861702 Retweet on Twitter 1622745098088861702 16 Like on Twitter 1622745098088861702 39 Twitter 1622745098088861702
Load More

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.