In J.-M. D. v. The King, the Ontario Superior Court considered whether an employee could be forced into arbitration without proof they had agreed to arbitration provisions.
The court refused to stay the employee’s lawsuit in favour of arbitration because the employer could not show that the employee had clearly agreed to be bound by the arbitration process.
Background
The employee brought a workplace discrimination claim against the Ontario government and a professional association connected to Crown counsel. She alleged both personal discriminatory treatment and broader harm from working in an environment affected by systemic anti-Black racism and misogynoir.
The employer argued that the employee’s claims had to proceed through private arbitration under a collective agreement. The employee disputed that she had agreed to give up her right to pursue the matter in court.
The Court’s Decision
The court found that the employer had not proven the employee agreed to arbitration.
Although the employee’s hiring documents referred to her position as being “represented by” the association and stated that dues would be deducted, the court found this was not enough to prove she had agreed to arbitration terms.
The employer argued that it would not have hired Crown lawyers outside the collective agreement structure and that the parties had acted as though the agreement applied. The court rejected that argument. An employer’s assumption is not the same as clear proof of agreement.
Why This Matters for Employees
This decision reinforces that employers cannot rely on assumptions, standard practices, or unsigned documents alone when trying to limit an employee’s legal rights.
If an employer wants to enforce arbitration provisions, it must be able to show that the employee was properly informed of those terms and agreed to them. This is especially important where arbitration would prevent an employee from bringing their claim before a court.
Unsigned Agreements May Require Careful Review
Many employees are asked to follow workplace policies, manuals, or agreements they may not have signed or fully reviewed. This decision confirms that employers may face close scrutiny when trying to enforce terms that limit an employee’s rights.
Where an employer relies on an unsigned agreement, it should be able to show that the employee was given the agreement, had a reasonable opportunity to review it, and understood the rights being restricted.
Continuing to Work Does Not Always Mean Acceptance
The court also rejected the idea that an employee automatically accepts arbitration provisions simply by continuing to work.
Employees often continue working because they need income and stability. Continuing to work does not necessarily mean an employee knowingly agreed to give up important legal rights.
Courts Recognize the Power Imbalance in Employment Relationships
The decision also reflects the reality that most employees do not negotiate every term of their employment. Employment agreements are often presented on a take-it-or-leave-it basis.
Because of this imbalance of power, courts may closely examine whether an employee truly agreed to terms that limit access to legal remedies.
Systemic Racism and Workplace Harm
The decision is also notable because the court considered whether workplace harm caused by systemic racism could potentially support legal claims beyond traditional individual discrimination allegations.
The court distinguished between specific acts of discrimination directed at the employee and broader harm from working in an environment allegedly affected by systemic anti-Black racism.
The court did not decide whether the employee’s allegations would ultimately succeed. However, it allowed the case to continue rather than dismissing it at an early stage.
Key Takeaways for Employees
- Employers cannot force employees into arbitration without proof the employee agreed to it.
- Unsigned agreements and workplace policies may not be enforceable if important terms were not properly disclosed.
- Continuing to work does not necessarily mean an employee accepted restrictive legal terms.
- Courts recognize that employment relationships often involve unequal bargaining power.
- Employees experiencing systemic workplace discrimination may still have access to the courts, depending on the facts of the case.
Speak With an Employment Lawyer
If your employer is trying to force you into arbitration, relying on an agreement you do not remember signing, or limiting your ability to bring a workplace claim, it is important to get legal advice before taking the next step.
Monkhouse Law Employment Lawyers can help employees understand their rights in workplace disputes, including discrimination claims, arbitration clauses, employment agreements, and wrongful dismissal matters. Contact Monkhouse Law today for a free 30 minute phone consultation.