Legislative History

• 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: 19-98

 

Legislative Hiory

A.INTRODUCTION LIMITS ON E XECUTIVE

SOVEREIGNTY OVER GOVERNMENT EMPLOYMENT

e history of the legislation governing the Ontario public service and desig-

nated Crown agencies consists of an ongoing adjustment of limits on executive

sovereignty. Over time, the Ontar io legislature chose to have more and more, and

then, recent ly, somewhat fewer, limitat ions on government man agerial author ity.

is history, and the reasons for it, as set out in legal debate and statements of

legislative intent, are rev iewed in this chapter.

)e Justication for Executive Sovereignty

Under th century common law, employment by the government was at the plea-

sure of the Crown. is concept of Crown prerogative orig inated in the English

“sovereignty” of the monarch. Gradually, the sovereignty of the Crown became

the sovereignty of the politic al executive. By the time of Canadi an confederation,

government employment was at the pleasure of the cabinet. Since then, the leg-

islature has made eorts to deter mine the appropriate limits on the authority of

the elected executive over its employees. As the public service expanded in size

and complexity, the legislature also had to concern itself with the regulation of

a hierarchy of managers with dele gated authority and t he regulation of relations

between the execut ive and unions representing public servant s.

e legal background for leg islation governing the public serv ice has changed

in a number of important respec ts. Many of the prerogatives and immunit ies of the

Crown that origina lly dominated the government’s legal relationship with its citi-



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

zens have by statute or the evolution of the com mon law disappeared. e rights

and protections available to employees genera lly both at common law and under

legislation have i ncreased signicantly. Administrat ive law doctrine has evolved

to allow the cour ts a greater role in reviewing ad ministrative decision ma king and

now both legislative and execut ive action is subject to Charter review.

e history of the legislation reects the interaction of a number of broad

policy considerations. A “dominant characteristic of the modern law of crown

liability” ist hat:

…government ought to be under t he law, and not just any law, but the same

law as applies to everyone else. In that way, government is denied the special

exemptions and priv ileges that could lead to ty ranny.

However, there is a strong argument that:

… the state can not be equal in all resp ects to its subjects “be cause it has to gov-

ern.” e business of government requ ires that ocials b e given powers that are

not accorded to private ocia ls and, when exercising those powers , it is plain

that ocials a re not subject to the “ordinary” law.

Whatever the degree of executive privilege, it is to be exercised in accordance

with the “rule of law.” e “rule of law” is a vague and much debated concept,

and its enforceability is unclear, but it is viewed as a funda mental Canadian legal

tenet. e rule of law includes the concept of “executive accountability to legal

authority” and “It provides a shield for ind ividuals from arbitrary st ate action.”

e shi of executive authority f rom a monarch to a democratically ele cted

government seems to imply the need forsome restriction on the exercise of au-

thority over the public service by the elected executive for partisan advantage.

Alternatively, it has been argued that it is necessary for the executive to have

unfettered control over al l or some of the employment relationship with the civil

service in order to ensure t hat there is no impediment to ful lling the democratic

Ross River Dena Cou ncil Band v. Canada, []  S.C.R.  at par a. .

See Chapter .

P. Hogg & P. Monahan, Liability of the Crown, d ed. (Toronto: Carswell, ) at  and

.

Ibid. at .

See D. Dyz enhaus, “Constituti ng the Rule of Law: Fundame ntal Values in Adminis-

trative Law” ()  Queen’s L J. , and L . Sossin, “Speak ing Truth to Power? e

Search for Bureaucr atic Independence in Canad a,” ()  U.T.L.J.  at –.

e Federal Court Tria l Division has stated t hat the concept could not have the eec t

of invalidat ing legislation, includi ng back to work legislation: Public S ervice Alliance of

Canada v. Canada, [] F.C.J. No.  (T.D.) at para. .

Reference re Sec ession of Quebec, []  S.C.R.  at pa ra. , citing Referenc e re

Amendment of the Cons titution of Canada, []  S.C.R.  at –.

Ibid.

Chapter : Legislative History

wishes of the citiz ens who elected the government. According to this argu ment,

the government needs to have free control of public ser vice human resources in

order to protect the capacity to govern. is arg ument was used in Ontario in the

late-s to explain why public servant s could not be permitted to strike.

A less absolutist view of the need for Crown or executive sovereignty over

government employment has been put forward by labour law scholars. ey

have observed th at the degree of executive sovereig nty retained at any par ticular

time is the result of political debate and democratic process, not constitutional

theory. In that context, some have made principled at tempts to nd the appropri-

ate location for the reservat ion of jurisdiction along the sovereignty spe ctrum, as

follows:

Government, as government, must retain authority to carry on the business

of government. Broadly speaking, it cannot surrender to the representative of

employees authority t hat would prevent it from performi ng the duties and dis-

charging the functions that have been vested in it by parliament unless it rst

obtains the con sent of such representatives.

It is suggested that the sovereign rights that must be retained include the pass-

ing of legislation and the re-organization of any service or activity provided by

government, while only permit ting bargaining about the i mpact of these changes

on government employees. However, t his for mulat ion doe s not re ally c lari fy th e

extent to which the implementation of a reorganization can be bargained. For

example, consider interim relief decisions by the Grievance Settlement Board

(GSB) that halted the divestment of government services until there had been

compliance with collective agreement provisions dealing with the rights of dis-

placed employees.

)e Evolution of Executive Sovereignty over Government

Employment in Ontario

In Ontario, unfettere d executive authority over the public service c ame to an end

in  with the passage of the Public Service Act (PSA), which established vari-

ous compulsory aspects of government employment. An ongoing debate ensued

about the extent to which the legislature should fetter the executive. One of the

 See Judge Little’s comments leading up to CECBA , below at .

See S.J. Franke l, “Sta Relations in t he Public Service:  e Ghost of Sovereignty” () 

Can. Pub. Admi n.  and articles by A rthurs, Car ter and Swan in the biblio graphy.

J. Finklema n, Q.C., “Public Sector Barga ining: Some basic considerat ions,” () 

Queen’s L.J.  at –.

 Ibid. at .

See Ch apter  at .