Authors: Tenechia Williams and Courtney Betty
Since 1995 the case of Weber v Hydro Ontario has served as the Holy Grail of labour and employment law in Canada. Weber is the leading authority in Canada which has been used in hundreds of cases to argue that any employment disputes arising from a collective bargaining agreement must be resolved through the grievance process set out in the collective bargaining agreement.
Practically, the result is that Canadian Courts in labor disputes automatically use the Weber case to deny the jurisdiction of the court. A strong argument can be made that this was not the intention of the Supreme Court in Weber.
The Court’s intention was to clarify the jurisdiction of the labour dispute process and allow the specialized knowledge of labour arbitrators to play a leading role in resolving disputes arising from a collective bargaining agreement.
The legal challenge for many employees is that where issues such as discrimination and constitutional issues arise, a Court of competent jurisdiction should be the proper forum for resolution. Denying these employees this basic right, places them in a situation where Justice is denied.
Over the years, various actions have been brought before the Courts attempting to clarify which employment disputes may fall outside the jurisdiction of the collective bargaining process. For instance, the COVID-19 global pandemic in 2020 prompted countries to implement measures to reasonably address the emergency and ensure the safety of their citizens, which also affected several employees.
In Canada, several Provincial mandates and directives were issued relating to workplaces, advising employers to maintain a healthy and safe working environment. Consequently, many employers implemented COVID-19 vaccination policies requiring employees to provide proof of vaccination within a specified period, with non-compliance potentially leading to termination.
During the pandemic, several unionized employees failed to become vaccinated or provide proof of vaccination, resulting in their termination. These unionized employees subsequently brought various actions alleging wrongful termination, breaches of their Charter and Constitutional Rights.
The COVID-19 emergency was not something contemplated when the collective bargaining agreements were negotiated. Therefore, it is arguable that COVID-19 policies and related issues are not part of the collective bargaining agreement until there has been a mutual agreement between the Union and the employer.
From 2020 to 2024, judges rather than recognizing this distinction used in Weber, have ruled that COVID-19 related matters fell within the scope of the employment and labour regime. As a result, unionized employees were denied the benefit of having their cases heard by the Court.
It was not until January 02, 2025, that the Federal Court in Stacey Payne v. His Majesty the King recognized the distinction between pre and post collective bargaining as a necessary element to address the legality and constitutionality of the mandatory vaccination policy implemented by the Treasury Board of Canada. The Federal Court aimed to determine whether the policy violated the rights of employees under the Canadian Charter of Rights and Freedoms.
The decision sought to balance public health measures with individual rights and freedoms, ensuring that workplace vaccination policies are reasonable, proportionate, and respectful of employees’ rights. Further, the Supreme Court of British Columbia’s decision delivered on January 30, 2025, in the case of Purolator Canada Inc. v Canada Council of Teamsters.,adopted a similar approach.
The purpose of the Purolator decision in the Supreme Court of British Columbia was to address the legality and reasonableness of Purolator’s mandatory COVID-19 vaccination policy for its employees. The Court aimed to determine whether the policy was justified and whether the company had the right to suspend or terminate employees who refused to comply with the vaccination mandate.
The Court upheld a labour arbitrator’s decision that Purolator must compensate employees who were placed on unpaid leave or terminated due to the vaccination policy. The Arbitrator found that while the policy was reasonable when implemented in September 2021, it became unreasonable by June 30, 2022, as scientific evidence showed that vaccination alone would not stop the spread of COVID-19.
The Court’s decision reinforced the importance of balancing public health measures with employees’ rights and ensuring that workplace policies are fair and justified.
The issue of unionized employees seeking redress through the Courts remains unsettled law. However, recent decisions in the cases of Stacey Payne and Purolator, based on judicial review, indicate that there are fundamental flaws with the carte blanche application of Weber, without a proper analysis of pre or post collective bargaining agreement.
It has been 30 years since the decision in Weber, and while the intention of the Court was to uphold and ensure fair resolution of employment disputes, this has not been the case for many employees. It is also public knowledge that the arbitration process does not always adequately address the employees concerns and provide fair remedies.
The challenges faced by unionized employees within the Canadian Labour and Employment regime has reached unprecedented levels. While 3rd party lawyers are not usually a part of the grievance process, it does not negate a unionized employee from seeking independent legal advice. If you are a unionized employee faced with work-related issues, contact Betty’s Law Office directly for legal advice.
Betty’s Law Office is a virtual law firm with its office located in Toronto. The firm is uniquely designed with a Consortium of Lawyers called to Bar in Ontario, Jamaica, New York, British Virgin Islands and Trinidad.
Our team of experts which specializes in Human Rights, Employment and Labour Law can help you navigate the challenges and bridge the gaps in the Labour and Employment regime in seeking redress for work-related issues.
1Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929
2Stacey Payne et al v His Majesty the King 2025 FC 5
3Purolator Canada Inc. v. Canada Council of Teamsters, 2025 BCSC 148