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
Pages707-729
 
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 dramatically in the relatively recent past.
Now, when the Crown employs persons under a statutory scheme, such as pub-
lic servants employed under the 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 review against a standard of deference which varies from
correctness to patent unreasonableness depending on the application of what is
called a pragmatic and functional analysis. Employees of the Crown, including
public serva nts employed under a statute, oce holders and contr act employees
retained outside a statutory scheme, are party to individual employment con-
tracts with the Crown governed by the normal rules of employment law, unless
otherwise provided by statute. In Ontario, the law governing unionized 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.  [Wells] at par a. ; Vaughan v. Canada,
[]  S.C.R.  at para s.  & – [Vaughan].
Wells,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]; Vaughan,ibid. at para. .

       
employment of non-commissioned OPP ocers is also statutory, and excludes
the private law of contract.
Courts will usua lly defer hearing applications for public law review of em-
ployment-related decisions until any applicable ad ministrative appeal processes
have been exhausted. e courts retain residual jurisdiction to enforce employ-
ees’ contractual rights unless explicitly excluded by legislation. 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 tribunal 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 that the courts should decline to hear the matter
and allow it to be address ed by the applicable administrat ive appeal process.
e extent to which the courts will defer contractual claims to the Public
Service Griev ance Board (PSGB) is not fully addressed in the decided c ases. e
Court of Appeal has held that allegations of unjust dismissal, as a result of a
release under section () of the PSA by an employee with the right under the
regulations to the PSA to grieve dismissal, but not the right to grieve working
conditions, may be litigated in court. e more recent decision of the Supreme
Court in Vaughan 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 that where a labour relations dispute-
resolution scheme is incomplete, there is “residual discretionary jurisdiction in
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 the collective agreements 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.).
Vaughan, 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 .
Vaughan,ibid. at paras. –.
Burgess, 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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