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 Hiory
A. INTRODUCTION LIMITS ON E XECUTIVE
SOVEREIGNTY OVER GOVERNMENT EMPLOYMENT
e history of the legi slation governing the Onta rio public service a nd 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 reas ons for it, as set out in legal debate and statements of
legislative intent, are rev iewed in this chapter.
) e Justication 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. Gradual ly, 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 c abinet. Since then, t he leg-
islature has made eorts to deter mine the appropriate limits on the authority of
the elected executive over its employees. As t he public service ex panded in size
and complexity, the legislat ure also had to concern its elf with the reg ulation 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 signicantly. 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 legi slation reects the i nteraction 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 el se. In that way, government is denie d 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 ocials b e given powers that are
not accorded to private ocia ls and, when exercising those powers , it is plain
that ocials 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 accou ntability to lega l
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 for some restriction on t he exercise of au-
thority over the public ser vice by the elected execut ive for partisan adva ntage.
Alternatively, it has been argued that it is neces sary 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 eec 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 : Legi slative 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 exec utive sovereignty over
government employment has been put forward by labour law scholar s. 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 govern ment, must retai n authority to ca rry on the bu siness
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 r ights that must be retai ned include the pass-
ing of legislation and t he re-organizat ion of any service or act ivity 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 reorga nization ca n be bargained. For
example, consider interim rel ief decisions by the Grievance S ettlement Board
(GSB) that halted the divestment of government services unt il 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 establishe d vari-
ous compulsory aspects of government employment. An ongoing debate ensued
about the extent to which the legi slature should fetter the exec utive. 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 .
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