Access to the Courts

• Author: Timothy Hadwen - David Strang - Leonard Marvy - Don Eady
• Profession: Director, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
• Pages: 707-729

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Access to the Courts

A. INTRODUCTION

Two distinct bodies of law, contract law and administrative or public law, govern

the judicial treat ment of public servants. In both case s the approach of the courts

to Crown employment has changed dra matically in t he relatively recent past.

Now, when the Crown employs persons under a statutory scheme, such as pub -

lic servants employed under t he Public Services Act (PSA), its decisions are, like

other ministeri al decisions under other statutory schemes , open to public law re-

view by the courts. Final non-legislative decisions about a signicant job i nterest

of employees of governments in Canada are subject to a duty of procedural fair-

ness, and substantive rev iew against a sta ndard of deference which varies f rom

correctnes s to patent unreasonable ness dependi ng on the application of wh at is

called a prag matic and funct ional analysi s. Employees of the Crown, including

public serva nts employed under a statute, oce holders and contr act employees

retained outside a statutor y scheme, are part y to individua l employment con-

tracts wit h the Crown governed by the norma l rules of employment law, unless

otherw ise provided by s tatute. In Onta rio, the law governing un ionized public

servants is now entirely st atutory and the terms of employment of public serva nts

are, with li mited exceptions, enforced through t he grievance and arbitr ation pro-

cess at the Grievanc e Settlement Board (GSB), and the courts are excluded. e

Wells v. Newfoundland, []  S.C.R.  [Well s] at par a. ; Vaughan v. Canada,

[]  S.C.R.  at para s.  & – [Vaugh an ].

Well s,ibid .

Giorno v. Pappas (),  O.R. (d) , [] O.J. No.  (C.A.); Burgess v. Ontario

(Ministry of Health) (),  O.R. (d) , [] O.J. No.  at paras. – (C.A.)

[Burgess]; Vaug ha n ,ibid. at para. .



         

employment of non-commissioned OPP ocers is also st atutory, and excludes

the private law of contract.

Courts w ill usua lly defer hearing applications for public law review of em-

ployment-related decisions unt il any applicable ad ministrative appeal proc esses

have been exhausted. e courts retain residual jurisdiction to enforce employ-

ees’ contract ual rig hts unless e xplicitl y excluded by legisl ation. e Supreme

Court has favoured what it cal ls the exclusive jurisdiction model in determining

the jurisdict ion of tribunals and the courts where a n issue appears to fall with in

the jurisdict ion of more than one tribunal or a tribu nal and the courts. Under the

exclusive juri sdiction model, only the court or t ribunal t hat is most appropriate

has jurisdict ion to hear a matter unless the governing leg islation clearly contem-

plates that two or more tribuna ls or the courts wil l share concurrent jurisdict ion.

Even where the courts retain residual concurrent jurisdiction in contract over a

matt er that can be adequat ely add ressed by an ad mini strat ive appe al proc ess, t he

Supreme Court has indicated t hat the courts should dec line to hear the matter

and allow it to be address ed by the applicable administrat ive appeal process.

e extent to which the court s will defer contrac tual clai ms to the Public

Service Griev ance Board (PSGB) is not fully addressed in the decided c ases. e

Court of Appeal ha s held that allegat ions of unjust dismissa l, as a result of a

release under section  () of the PSA by an employee with the right under t he

regulations to t he PSA to grieve dismi ssal, but not the right to g rieve working

conditions, may be litigated in cou rt. e more recent decision of the Supreme

Court in Va ug h an sug gests t hat employ ment cla ims by t hose able to griev e work-

ing conditions are more appropriately taken to t he PSGB and the courts should

defer to the PSGB in such cases.

e Supreme Court has indicated t hat where a labour relations dispute-

resolution scheme is inc omplete, there is “residua l discret ionary jur isdiction i n

cour ts of i nhere nt jur isdic tion t o gra nt relief not available under the st atutory ar-

bitration sche me.” Should matters be excluded from the scope of t he arbitration

process under the Crown Employees Collective Bargaining Act (CECBA) or the

arbitration process under t he collective agre ements governing employees of the

 Abb ott v. Collins (),  O.R. (d) , [] O.J. No.  (C.A.).

 Harelkin v. University of Regina, []  S.C.R.  at –; Coccia v. Ontario (Minis-

try of Public Safet y and Security), [] O.J. No.  (Div. Ct.).

 Va ug ha n, ab ove note  at paras. , –.

 Weber v. Ontario Hydro, []  S.C.R. ; Regina Police Assn . Inc. v. Regina (City)

Board of Police Commissione rs, []  S.C.R. ; Vaug ha n, i bid .

 Vaug ha n,ibid. at paras. –.

 Burge ss, above note ; see al so Benedict v. Ontario (),  O.R. (d) , [] O.J.

No.  [Benedict].

 Canadian Pacic Limite d v. Brotherhood of Maintenance of Way Employees, [] 

S.C.R.  at para . .