Access to the Courts

AuthorTimothy Hadwen - David Strang - Leonard Marvy - Don Eady
ProfessionDirector, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
 
Access to the Courts
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 . .

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