Context for the PSOA and CECBA
| Author | Timothy Hadwen/David Strang |
| Pages | 5-43 |
5
Context for the PSOA and CECBA
A. INTRODUCTION: DIFFERENCES AND THE PUBLIC
INTEREST JUSTIFICATION
The context for the Public Service of Ontario Act, 2006 (PSOA)1 and
needs to be approached with a note of caution and a sense of inquiry.
Some caution is needed because, until relatively recently, there
was a presumption of the validity of the exercise of Crown employer
authority or executive sovereignty, counterbalanced by judicial striving
to articulate checks on that sovereignty. Now, many of the prerogatives
and immunities of the Crown that used to dominate the government’s
legal relationship with its citizens and employees have, by statutory
change or the evolution of the common law, disappeared.3 The com-
mon law of employment largely now applies to government as it does
to other employers.4
1 SO 2006, c 35, Sch A [PSOA].
2 SO 1993, c 38 [CECBA].
para54 and, in the employment context, Dunsmuir v New Brunswick, 2008
SCC 9, as discussed in Chapter 13.
4 OPSEU (DeFreitas) and Ministry of Environment and Energy, PSGB#0007/94,
28May 1998 (Lynk) at 56–57. See also Thomson v Canada (Minister of Agricul-
ture), [1992] 1SCR 385 at para 19.
6 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW
Turning to inquiry, Ontario, like all other Canadian provinces and
the federal government,5 has tailored legislation in place for employ-
ment in its public service and for collective bargaining with Crown
employees. How did this legislation come to be in its current form?
Tradition, aspirational political leadership, employee and union voice,
“deal making” through the political process, and collective bargaining,
as well as expediency, have all played their part, as outlined below and
referenced in the subsequent chapters of this book.
How is this legislation to be evaluated? Ontario’s private sector
employment and labour law — mainly set out in the common law, the
(LRA)7 — establishes the generic benchmark for how the province regu-
lates employment and labour relations. It has been usefully suggested that
[t]he individual employment and collective bargaining regimes gov-
erning the public service should be the same regime in eect for other
employees unless the dierence is justifiable in the public interest.8
The leading justifications for the dierences found in Ontario
Crown employment and labour law are:
• the maintenance of a non-partisan and impartial public service
• ensuring that government and designated Crown agency collect-
ive bargaining does not unduly disrupt the public service or the
provision of public services
Those justifications and their history are reviewed in this chapter.
5 Saskatchewan was the last province to adopt this approach. Since 1944, it had
included its own employees under the general labour legislation: The Trade
Union Act, RSS 1978, c T-17, s 2(g). In 2008, thePublic Service Essential
Services Act, SS 2008, c P-42.2 introduced an essential services regime for the
Saskatchewan public sector, including government employees. For other prov-
inces, see John E. Hodgetts & Onkar I. Dwivedi, Provincial Governments as
Employers: A Survey of Public Personnel Administration in Canada’s Provinces
(Toronto: Institute of Public Administration of Canada, 1974). For the federal
experience, see Advisory Committee on Labour Management Relations in the
Federal Public Service, Identifying the Issues: First Report (Ottawa: The Commit-
tee, 2000), online: www.fryercommittee.com at 17–30.
6 SO 2000, c 41.
7 SO 1995, c 1, Sch A.
8 Donald Carter, “Legal Regulation of Collective Bargaining in the Ontario Public
Sector” (1974) 29:4 Relations Industrielles/Industrial Relations 776 at 778
[Carter].
Context for the PSOA and CECBA | 7
Over time, there have been varying views on whether special
employment and labour legislation for Crown employees can be jus-
tified. At a time of greater commonality of view, in 1962, it was said:
There is, to be sure, substantial agreement that public employment dif-
fers from private employment; and this in turn suggests there should
be dierences in their procedures of sta relations.9
More recently, a dierent view has been expressed:
The special statutes that segregate provincial employees and make
them easy targets for discriminatory treatment need to be repealed.
Their historical relevance is just that — historical.10
The view of the authors of this book is that, while Ontario’s public
service employment and labour law framework does not always meet
the standards it claims to promote, it is justified in the public interest
because it eectively serves valuable public purposes.
B. PUBLIC SERVICE OF ONTARIO ACT
The PSOA’s core stated purposes are to ensure that the public service
of Ontario is eective, “non-partisan, professional, ethical, and com-
petent,” and to set out roles and responsibilities in its administration.11
The Act addresses these topics directly in its parts. Positive attributes
are addressed through sections on oaths of oce and allegiance (sec-
tions 5–7), and parts on rules for ethical conduct, political activity, and
processes for disclosing wrongdoing (Parts IV, V, and VI). Governance
9 Saul J. Frankel, Sta Relations in the Civil Service: The Canadian Experience
(Montreal: McGill University Press, 1962) at 318.
10 John L. Fryer, “Provincial Public Service Labour Relations” in Gene Swimmer &
Mark Thompson, eds, Public Sector Collective Bargaining in Canada (Kingston:
IRC Press, 1995) at 341.
11 PSOA, above note 1, s 1, 1–3. These subsume the remaining purposes listed in s 1,
4–7, which are to provide a framework for leadership and management, to set out
rights and duties concerning ethical conduct and political activity, and to establish
procedures for disclosure of wrongdoing and whistleblowing. On introduction
of the bill, the Minister of Government Services, the Honourable Gerry Phillips
said “[t]he legislation includes a new statement of purpose, which I frankly think
is important. I think it will foster a greater common understanding of the role of
this fundamental democratic institution that we call our public service.”: Ontario
Legislative Assembly, Hansard, 15 November 2006 at 1610.
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