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,
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)