Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), (2003) 173 O.A.C. 38 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 08, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 173 O.A.C. 38 (SCC);2003 SCC 29;66 OR (3d) 735;50 Admin LR (3d) 1;[2003] FCJ No 28 (QL);EYB 2003-41592;[2003] 1 SCR 539;[2003] ACS no 28;226 DLR (4th) 193;JE 2003-968;AZ-50174950;[2003] SCJ No 28 (QL);304 NR 76;173 OAC 38

CUPE v. Ont. (2003), 173 O.A.C. 38 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] O.A.C. TBEd. MY.046

Minister of Labour for Ontario (appellant) v. Canadian Union of Public Employees and Service Employees International Union (respondents) and Canadian Bar Association and National Academy of Arbitrators (Canadian Region) (interveners)

(28396; 2003 SCC 29; 2003 CSC 29)

Indexed As: Canadian Union of Public Employees et al. v. Ontario (Minister of Labour)

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

May 16, 2003.

Summary:

Section 6(5) of the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) provided that if the two members of an interest arbitration board appointed by the parties failed to agree on a third member "the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act". In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the HLDAA. The applicant unions applied for judicial review seeking a declaration: (i) that the appointment process adopted by the Minister interfered with the institutional independence and impartiality of boards of arbitration under the HLDAA, creating a reasonable apprehension of bias; and (ii) that such an appointment process interfered with the legitimate expectations of the applicants and other unions, contrary to natural justice. The applicants also sought an order quashing all of the appointments of former judges by the Minister under the HLDAA.

The Ontario Divisional Court, in a decision reported at 117 O.A.C. 340, dismissed the application. The court held that the actions of the Minister, being based on a power granted by statute, could not be attacked as a denial of natural justice or on the basis of a lack of institutional independence or impartiality. The unions appealed.

The Ontario Court of Appeal, in a decision reported at 138 O.A.C. 256, allowed the appeal. The court granted: (1) a declaration that the Minister created a reasonable apprehension of bias and interfered with the independence and impartiality of boards of arbitration established under the HLDAA, contrary to the principles of fairness and natural justice; (2) a declaration that the Minister interfered with the legitimate expectations of the appellants and other affected unions, contrary to the principles of fairness and natural justice; and (3) an order prohibiting the Minister from appointing persons to sit as chairs of boards of interest arbitration under the HLDAA, unless such appointments were made from the long-standing and established roster of experienced labour relations arbitrators. The Minister appealed.

The Supreme Court of Canada, McLachlin, C.J.C., Major and Bastarache, JJ., dissenting, dismissed the appeal for reasons that differed from those of the Court of Appeal. The court held that the Minister's approach to the s. 6(5) appointments was patently unreasonable where he excluded the relevant criteria of labour relations experience and broad acceptability. The court was reluctant, in a judicial review which did not focus on the circumstances of individual appointments, to give effect to the unions' request to set aside the Minister's appointments. Some retired judges did have the necessary labour relations background and the fact they also happened to be members of the class of retired judges would not, in their case, be a ground of disqualification. Any challenges to continuing arbitrations, including those chaired by retired judges appointed by the Minister under s. 6(5), were subject to judicial review on a case-by-case basis.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - Section 6(5) of the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) provided that if the two members of an interest arbitration board appointed by the parties failed to agree on a third member "the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act" - In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the HLDAA - The applicant unions applied for judicial review, alleging a violation of the doctrine of legitimate expectation - The Supreme Court of Canada held that the conditions precedent to the application of the doctrine were not established - The evidence of past practice was equivocal, and as a result the evidence of a promise to "return to" past practice or the status quo was also equivocal - See paragraphs 131 to 147.

Administrative Law - Topic 2405

Natural justice - Procedure - General - Notice of subject matter to be considered - In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) - The applicant unions applied for judicial review, arguing that the Minister violated procedural fairness by changing the entrenched system of appointments without prior consultation with the unions - The Supreme Court of Canada held that, assuming that there was a duty to consult, it was satisfied - There had been extensive meetings at the time of Bill 136 in 1997 - Both the Minister and the Deputy Minister had signalled that the appointments process was subject to reform and that retired judges were potential candidates for appointments - The unions had made clear their opposition to anything short of a system based on mutual agreement - There was thus some notice of the proposed change and an opportunity to comment - The court did not think, as a matter of general legal principle, that s. 6(5) imposed on the Minister a procedural requirement to consult with the parties to each arbitration from and after the general consultations in 1997 - See paragraphs 127 to 130.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - Section 6(5) of the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) provided that if the two members of an interest arbitration board appointed by the parties failed to agree on a third member "the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act" - The Supreme Court of Canada held that the legislature intended the Minister's appointments to prevail unless his selection was shown to be patently unreasonable - The court stated that "applying the more deferential patent unreasonableness standard, a judge should intervene if persuaded that there is no room for reasonable disagreement as to the decision maker's failure to comply with the legislative intent ... A correctness approach means that there is only one proper answer. A patently unreasonable one means that there could have been many appropriate answers, but not the one reached by the decision maker. A patently unreasonable appointment, then, is one whose defect is 'immediate and obvious' ... and so flawed in terms of implementing the legislative intent that no amount of curial deference can properly justify letting it stand" - See paragraphs 148 to 165.

Administrative Law - Topic 8868

Boards and tribunals - Members - Independence and impartiality - In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) - The applicant unions applied for judicial review, arguing that the appointment of retired judges created arbitration boards that lacked institutional independence - The Supreme Court of Canada rejected the union's generic objection based on the issue of institutional independence and stated that if individual facts were raised on a case by case challenge, they would have to be addressed at that time - The HLDAA commanded the use of ad hoc arbitration boards, which were constituted on a case by case basis - Security of tenure did not survive the termination of the arbitration and financial security was similarly circumscribed - Administrative independence had little formal protection - The independence of arbitrators was guaranteed not by their remoteness, security of tenure, financial or administrative security, but by training, experience and mutual acceptability - See paragraphs 190 to 193.

Administrative Law - Topic 8868

Boards and tribunals - Members - Independence and impartiality - In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) - The applicant unions applied for judicial review, arguing that the appointment of retired judges created arbitration boards that lacked impartiality - The Ontario Court of Appeal concluded that the retired judges might reasonably be seen to be "inimical to the interests of labour, at least in the eyes of the [applicant unions]" - The Supreme Court of Canada held that the proper test was not so narrowly focused - The test was not directed to the subjective perspective of one of the parties, but to the reasonable detached and informed observer, i.e., what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude - See paragraph 199.

Administrative Law - Topic 8868

Boards and tribunals - Members - Independence and impartiality - In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) - The applicant unions applied for judicial review, arguing that the appointment of retired judges created arbitration boards that lacked impartiality - The Supreme Court of Canada rejected the unions' argument, but accepted that a challenge might be made to the impartiality of a particular retired judge to a particular ad hoc tribunal on a case by case basis - The court did not think that a fully informed reasonable person would tar the entire class of retired judges with the stigma of an anti-labour bias - See paragraphs 194 to 204.

Arbitration - Topic 3546

The arbitrator - Appointment - Disqualification for apprehension of lack of independence - [See first Administrative Law - Topic 8868 ].

Arbitration - Topic 3547

The arbitrator - Appointment - Disqualification for partiality - [See second and third Administrative Law - Topic 8868 ].

Arbitration - Topic 3551

The arbitrator - Appointment - Independent - Meaning of - [See first Administrative Law - Topic 8868 ].

Crown - Topic 673

Authority of Ministers - Exercise of - Statutory authority - Section 6(5) of the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) provided that if the two members of an interest arbitration board appointed by the parties failed to agree on a third member "the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act" - In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the HLDAA - The applicant unions applied for judicial review - The unions argued that the Minister could not, as a member of a cost-cutting government, make the appointments impartially and that he was therefore disqualified and ought to have delegated the appointments to senior officials - The Supreme Court of Canada stated that the legislature specifically conferred the power of appointment on the Minister and absent a constitutional challenge, a statutory regime expressed in clear and unequivocal language on this specific point prevailed over common law principles of natural justice - The Minister's perceived interest in the outcome of s. 6(5) arbitrations did not bar him from exercising a statutory power of appointment conferred on him in clear and unequivocal language - See paragraphs 114 to 126.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative decisions - Judicial review -[See Administrative Law - Topic 3202 ].

Labour Law - Topic 6372

Industrial relations - Collective agreement - Arbitration of terms or interest arbitration - Appointment of arbitrator or arbitration board - [See first and third Administrative Law - Topic 8868 and Crown - Topic 673 ].

Labour Law - Topic 6372

Industrial relations - Collective agreement - Arbitration of terms or interest arbitration - Appointment of arbitrator or arbitration board - Section 6(5) of the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) provided that if the two members of an interest arbitration board appointed by the parties failed to agree on a third member "the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act" - The Supreme Court of Canada stated that "although the s. 6(5) power is expressed in broad terms, the legislature intended the Minister, in making his selection, to have regard to relevant labour relations expertise as well as independence, impartiality and general acceptability within the labour relations community. By 'general acceptability', I do not mean that a particular candidate must be acceptable to all parties all the time, or to the parties to a particular HLDAA dispute. I mean only that the candidate has a track record in labour relations and is generally seen in the labour relations community as widely acceptable to both unions and management by reason of his or her independence, neutrality and proven expertise" - See paragraph 111.

Labour Law - Topic 6372

Industrial relations - Collective agreement - Arbitration of terms or interest arbitration - Appointment of arbitrator or arbitration board - Section 6(5) of the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) provided that if the two members of an interest arbitration board appointed by the parties failed to agree on a third member "the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act" - In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the HLDAA - The applicant unions applied for judicial review, challenging the Minister's appointments on the basis that he did not restrict himself to the list of arbitrators established under s. 49(10) of the Ontario Labour Relations Act - The Supreme Court of Canada held that it was not patently unreasonable for the Minister not to have limited his appointments to the s. 49(10) list - The principal witness for one of the applicant unions had conceded that some of the arbitrators in the s. 49(10) list were unacceptable to her union - Just as being on the s. 49(10) list was no guarantee of acceptability, so the unions' acceptance of non s. 49(10) candidates confirmed the reasonableness of the Minister's view that candidates could qualify for s. 6(5) appointments without being on the s. 49(10) list - See paragraphs 166 to 170.

Labour Law - Topic 6372

Industrial relations - Collective agreement - Arbitration of terms or interest arbitration - Appointment of arbitrator or arbitration board - Section 6(5) of the Ontario Hospital Labour Disputes Arbitration Act (HLDAA) provided that if the two members of an interest arbitration board appointed by the parties failed to agree on a third member "the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act" - In 1998, the Ontario Minister of Labour started appointing retired judges as chairs of boards of interest arbitration under the HLDAA - The Supreme Court of Canada held that the Minister's approach to the s. 6(5) appointments was patently unreasonable where he excluded the relevant criteria of labour relations experience and broad acceptability and substituted another criteria (prior judicial experience), which, while relevant, was not sufficient to comply with his legislative mandate - The factors of labour relations experience and broad acceptability were not only relevant, but went straight to the heart of the HLDAA legislative scheme - See paragraphs 171 to 185.

Labour Law - Topic 9482

Public service labour relations - Collective agreement - Arbitration of proposed terms of - Appointment of arbitrator or arbitration board - [See first and third Administrative Law - Topic 8868 , Crown - Topic 673 and second, third and fourth Labour Law - Topic 6372 ].

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [paras. 7, 149].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [paras. 7, 101].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [paras. 8, 91].

Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 (H.L.), refd to. [paras. 8, 94].

Board of Education of Toronto Catholic District v. Ontario English Catholic Teachers' Association (Toronto Elementary Unit) et al. (2001), 149 O.A.C. 328; 55 O.R.(3d) 737 (C.A.), leave to appeal denied (2002), 294 N.R. 396; 170 O.A.C. 400 (S.C.C.), refd to. [para. 9].

Domtar Inc. v. Commission d'appel en matière de lésions professionnelles et autres, [1993] 2 S.C.R. 756; 154 N.R. 104; 55 Q.A.C. 241, refd to. [para. 10].

National Corn Growers' Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81; 74 D.L.R.(4th) 449; 45 Admin. L.R. 161, refd to. [paras. 10, 161].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, refd to. [paras. 10, 161].

Pasiechnyk v. Saskatchewan (Workers' Compensation Board) - see Pasiechnyk et al. v. Procrane Inc. et al.

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [paras. 11, 148].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [paras. 16, 149].

Ivanhoe Inc. et al. v. United Food and Commercial Workers, Local 500 et al., [2001] 2 S.C.R. 566; 227 N.R. 201, refd to. [para. 16].

Ajax (Town) v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Local 222 et al., [2000] 1 S.C.R. 538; 253 N.R. 223; 133 O.A.C. 43, refd to. [para. 16].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [paras. 16, 149].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104, refd to. [paras. 16, 94].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [paras. 17, 149].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15; 60 D.L.R.(4th) 682; 38 Admin. L.R. 1, refd to. [para. 17].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201, refd to. [paras. 17, 155].

Ryan v. Law Society of New Brunswick (2003), 302 N.R. 1; 257 N.B.R.(2d) 207; 257 R.N.-B.(2e) 207; 674 A.P.R. 207 (S.C.C.), refd to. [paras. 17, 149].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [paras. 17, 94].

R. v. Advance Cutting and Coring Ltd. et al., [2001] 3 S.C.R. 209; 276 N.R. 1, refd to. [para. 17].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363; 142 D.L.R.(4th) 193, refd to. [para. 18].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 24].

Canadian Union of Public Employees, Local 301 v. Montreal (City) - see Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville).

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101; 144 D.L.R.(4th) 577, refd to. [para. 25].

Katz v. Vancouver Stock Exchange et al., [1996] 3 S.C.R. 405; 207 N.R. 72; 82 B.C.A.C. 29; 133 W.A.C. 29, refd to. [paras. 44, 191].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [paras. 44, 116].

Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; 72 N.R. 135, refd to. [para. 94].

Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 98].

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 93 B.C.L.R.(3d) 1, refd to. [para. 99].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 100].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 106].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 106].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 108].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

MacBain v. Lederman, [1985] 1 F.C. 856; 62 N.R. 117 (F.C.A.), refd to. [para. 116].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81; 84 D.L.R.(4th) 105, refd to. [para. 116].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241; [1989] 3 W.W.R. 456; 57 D.L.R.(4th) 458; 65 Alta. L.R.(2d) 97; 35 Admin. L.R. 1, refd to. [para. 118].

McMaster University v. McMaster University Faculty Association (1990), 13 L.A.C.(4th) 199 (Ont.), refd to. [para. 120].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 127].

Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374 (H.L.), refd to. [para. 128].

Reference Re Canada Assistance Plan - see Reference Re Constitutional Question Act (B.C.).

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 131].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 60 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 131].

Preston, Re, [1985] A.C. 835 (H.L.), refd to. [para. 145].

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170 (S.C.C.), refd to. [para. 149].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382; 41 D.L.R.(3d) 6, refd to. [para. 161].

Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), [1985] 2 S.C.R. 164; 61 N.R. 321; 36 Man.R.(2d) 215, refd to. [para. 172].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321, refd to. [para. 173].

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

Consolidated Bathurst Packaging Ltd. v. International Woodworkers of America Local 2-69, [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321; 68 D.L.R.(4th) 524, refd to. [para. 189].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241; 88 D.L.R.(4th) 110, refd to. [para. 189].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 24 D.L.R.(4th) 161, refd to. [para. 190].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1; 150 D.L.R.(4th) 577, refd to. [para. 190].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 195].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 195].

R. v. Lippé - see Lippé et autres v. Québec (Procureur général) et autres.

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 199].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 199].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 15 O.R.(3d) 324 (C.A.), leave to appeal refused, [1994] 1 S.C.R. x; 175 N.R. 321; 72 O.A.C. 159, refd to. [para. 199].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 199].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310, refd to. [para. 200].

Statutes Noticed:

Hospital Labour Disputes Arbitration, R.S.O. 1990, c. H-14, sect. 6(5), sect. 7 [para. 83].

Labour Relations Act, S.O. 1995, c. 1, Sched. A, sect. 49(10) [para. 83].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (Looseleaf Ed.), paras. 7-2431 [para. 131]; 13:1221 [para. 94].

Canadian Press (September 18, 1997), generally [para. 71].

de Smith, S.A., and Brazier, R., Constitutional and Administrative Law (4th Ed. 1981), p. 558 [para. 98].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 106].

Dyzenhaus, David, The Politics of Deference: Judicial Review and Democracy, in Taggart, Michael, The Province of Administrative Law (1997), pp. 279, 290 [para. 17].

Hansard (Ont.) - see Ontario, Hansard, Legislative Debates.

Hansard (Ont.) - see Ontario, Hansard, Legislative Assembly, Official Report of Debates.

Ontario, Department of Labour, Research Branch, The Impact of the Ontario Hospital Labour Disputes Arbitration Act, 1965: A Statistical Analysis (November 1970), p. 1 [para. 63].

Ontario, Hansard, Legislative Assembly, Official Report of Debates, No. R-69, Standing Committee on Resources Development (September 23, 1997), p. R-2577 [paras. 71, 133, 138].

Ontario, Hansard, Legislative Assembly, Official Report of Debates, No. 218 (August 25, 1997), pp. 11462 [para. 69]; 11464 [para. 70].

Ontario, Hansard, Legislative Debates, No. 35, 3rd sess., 27th Leg. (March 3, 1965), p. 935 [para. 62].

Ontario, Hansard, Legislative Debates, No. 53, 3rd sess., 27th Leg. (March 22, 1965), p. 1497 [para. 62].

Ontario, Hansard, Legislative Debates, No. 134, 2nd sess., 29th Leg. (December 14, 1972), p. 5760 [paras. 64, 110].

Ontario, Royal Commission, Compulsory Arbitration in Disputes Affecting Hospitals and Their Employees (1964), pp. 5 [para. 55]; 16 [para. 56]; 43, 50 [para. 57]; 51 [paras. 58, 110]; 55 [para. 59]; 58 [para. 60].

Pépin, Gilles, and Ouellette, Yves, Principes de contentieux administratif (2nd Ed. 1982), p. 264 [para. 94].

The Record (June 5, 1997), p. B5 [paras. 70, 140].

Taggart, Michael, The Province of Administrative Law (1997), pp. 297, 290 [para. 17].

Counsel:

Leslie McIntosh, for the appellant;

Howard Goldblatt, Steven Barrett and Vanessa Payne, for the respondents;

J. Gregory Richards, Jeff G. Cowan and Susan Philpott, for the intervener, Canadian Bar Association;

Michel G. Picher and Barbara McIsaac, for the intervener, National Academy of Arbitrators (Canadian Region).

Solicitors of Record:

The Attorney General for Ontario, Toronto, Ontario, for the appellant;

Sack Goldblatt Mitchell, Toronto, Ontario, for the respondents;

Koskie Minksy, Toronto, Ontario, for the intervener, Canadian Bar Association;

Michel G. Picher, Toronto, Ontario, for the intervener, National Academy of Arbitrators (Canadian Region).

This appeal was heard on October 8, 2002, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on May 16, 2003, including the following opinions:

Bastarache, J., dissenting (McLachlin, C.J.C., and Major, J., concurring) - see paragraphs 1 to 47;

Binnie, J. (Gonthier, Iacobucci, Arbour, LeBel and Deschamps, JJ., concurring) - see paragraphs 48 to 209.