Access to the Courts

AuthorTimothy Hadwen/David Strang
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Access to the Courts
This chapter’s primary focus is access by non-unionized public ser-
vants and government appointees to the courts to enforce the terms of
their employment through actions for breach of employment contracts
(wrongful dismissal) and applications for judicial review to enforce
statutory rights or the common law duty of fairness. The nature and
scope of the exclusion of unionized employees from access to the courts
in favour of grievance and arbitration processes are also reviewed.
The Canadian law governing employment by the Crown begins with
British common law that gave the Crown essentially unfettered control
over almost all its employees and oce holders.1 With the dissolution of
the British Empire following the Second World War and the ending of
appeals to the Judicial Committee of the British Privy Council in 1950,
Canadian courts initially modif‌ied the common law to ref‌lect a more
balanced approach to the interests of the Crown and its employees. By
the dawn of the twenty-f‌irst century, the Supreme Court was moving
to fundamentally transform the common law governing employment
by the state to ref‌lect the needs of a diverse democratic society. At the
same time the relationship between Canadian governments and their
1 Shenton v Smith, [1895] AC 229 (PC) at 234–35: “If any public servant consid-
ers that he has been dismissed unjustly, his remedy is not by a lawsuit, but by an
appeal of an ocial or political kind.”
Access to the Courts | 815
employees and appointees was increasingly governed by statute and is
of course still evolving.
The right of non-unionized members of the Ontario Public Ser-
vice (OPS)2 or government appointees to sue the Crown in contract is
a recent development. Employees of the Crown and appointed oce
holders were considered to hold their employment or oce at pleasure,
dismissible without notice or compensation, until the late 1990s. Public
servants not included in a bargaining unit, and government appoin-
tees, now have a contract of employment at common law that may be
enforced in court under the regular law of contract.3 The Public Service
of Ontario Act, 2006 (PSOA) and regulations provide for complaints to
the Public Service Grievance Board (PSGB) against dismissal for cause
by most public servants employed directly by the Crown.4 The Court
of Appeal has held that the courts will exercise concurrent jurisdiction
with the PSGB at least in respect of certain dismissals.5
Oce holders will normally be limited to seeking damages under
their employment contract and precluded from seeking judicial review
of their termination.6 In the event an oce holder is appointed at pleas-
ure or is appointed on good behaviour or has some statutory procedural
protection, they have the right to procedural fairness in the event of ter-
mination during the term of their appointment, enforceable on judicial
review. Appointees to adjudicative boards do not have constitutional
protections analogous to judges.7 Whether they have administrative law
protections will depend on the statutory context.8
2 OPS refers to direct employees of the Crown technically persons appointed under
the authority of the Public Service Commission under Part III of the Public Ser-
vice of Ontario Act, 2006, SO 2006, c 35, Sch A [PSOA], discussed in Chapter 2
section B(1).
3 Wells v Newfoundland, [1999] 3 SCR 199 at para 24 [Wells]; Dunsmuir v New
Brunswick, 2008 SCC 9 at para 113 [Dunsmuir].
4 PSOA, above note 2, as discussed in Chapter 12 section B.
5 Burgess v Ontario (Ministry of Health), 2001 CanLII 24073 (ON CA) at paras
32–34 [Burgess]; see also Benedict v Ontario, 2000 CanLII 22713 (ON SC) [Ben-
edict]; Preston v Ontario (Education), 2021 CanLII 71622 (ON PSGB) at para 37
[Preston (PSGB)].
6 Dunsmuir, above note 3.
7 OceanPortHotel Ltd v British Columbia (General Manager, Liquor Control
and Licensing Branch), 2001 SCC 52 at para 23 [Ocean Port].
8 Ibid at para 24.
The terms of employment of unionized public servants are governed
by statute which, with limited exceptions, excludes the courts in favour
of grievance and arbitration processes.9 The employment of non-com-
missioned Ontario Provincial Police ocers is also statutory and sim-
ilarly excludes access to the courts.10 Though not subject to collective
bargaining legislation, the Crown’s lawyers have collectively bargained
terms of employment enforceable through private arbitration.11
The Constitution Act, 1867 did not address the employment of public
servants in any detail.12 Ontario, as representative of the Crown within
its jurisdiction, had the authority of the Crown to employ public ser-
vants and appoint ocers.13 Ontario was part of the British Empire
until it dissolved following the Second World War. Appeal from Can-
adian courts to the Judicial Committee of the British Privy Council was
not ended until 1949,14 so Canadian common law was British common
law until then. Canada’s judges and lawyers were trained in the com-
mon law of the British Empire, so it endured in Canada long after 1950.
This was signif‌icant for the common law governing public employment,
which was designed for a public service that ruled a class-ridden colonial
empire. The Crown had largely unfettered control over its employees
and oce holders. With very few exceptions, Crown employees and
oce holders were engaged “at pleasure,” which conf‌lated the right to
dismiss and the terms of a dismissal, granting complete discretion to the
Crown. Those few appointments that were on good behaviour attracted
9 Nelson v Ontario, 2020 ONCA 751, leave to appeal ref’d 2021 CanLII 112316
(SCC) [Nelson].
10 Rivers v Waterloo Regional Police Services Board, 2019 ONCA 267, leave to
appeal ref’d 2019 CanLII 99448 (SCC) [Rivers]; Abbott v Collins, 2003 CanLII
46127 (ON CA) [Abbott].
11 Nelson et al v Her Majesty the Queen in Right of Ontario et al, 2019 ONSC
5415 [Nelson et al]; see the discussion of the bargaining by associations of
Ontario government lawyers in Chapter 4.
12 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, AppII,
No 5, s 134 [Constitution Act, 1867]. See the discussion of the constitutional
treatment of the employment of public servants in Chapter 1.
13 Verreault (JE) & Fils Ltée v Attorney General (Quebec), [1977] 1 SCR 41 at 47
14 Supreme Court Act, 1949, 13 Geo VI, c 37.

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