Ontario Public Service Employees Union v. Forer and Ontario Public Service Labour Relations Tribunal, (1985) 12 O.A.C. 1 (CA)

• Judge: Blair, Thorson and Cory, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 21, 1985
• Jurisdiction: Ontario
• Citations: (1985), 12 O.A.C. 1 (CA)

OPSEU v. Forer (1985), 12 O.A.C. 1 (CA)

MLB headnote and full text

Ontario Public Service Employees' Union v. Forer and Ontario Public Service Labour Relations Tribunal

Indexed As: Ontario Public Service Employees Union v. Forer and Ontario Public Service Labour Relations Tribunal

Ontario Court of Appeal

Blair, Thorson and Cory, JJ.A.

November 21, 1985.

Summary:

The Crown Employees Collective Bargaining Act, s. 16(2), permitted the Ontario Public Service Labour Relations Tribunal (the Tribunal) to grant an employee an exemption from payment of union dues, where to make such a payment was contrary to the employee's religious convictions. An employee, who was a member of the Ontario Public Service Employees' Union (the union), applied for an exemption under s. 16(2). The employee argued that since his union was a member of the Ontario Federation of Labour, which passed a resolution to, inter alia, recognize the Palestine Liberation Organization, that his religious convictions were offended. The Tribunal granted the exemption. The union applied to quash the Tribunal's decision.

The Ontario Divisional Court, Saunders, J., dissenting, in a decision reported 4 O.A.C. 226; 46 O.R.(2d) 789, allowed the union's application to quash and disallowed the exemption. The employee and the Tribunal appealed.

The Ontario Court of Appeal allowed the appeal and restored the Tribunal's decision, thereby restoring the exemption.

Administrative Law - Topic 1417

Finality - Privative clauses - Scope of - The Ontario Court of Appeal held that no express language is required by statute to take away the right of certiorari against administrative tribunals - The court held that whether certiorari is preserved by any statute depends on the proper construction of finality or other preclusive clauses in the context of the statute as a whole - See paragraph 24.

Administrative Law - Topic 1420

Finality - Privative clauses - Effect of - By s. 39 of the Crown Employees Collective Bargaining Act, decisions of the Ontario Public Service Labour Relations Tribunal were "final and binding for all purposes" - The Act did not specifically take away the court's certiorari jurisdiction - The Ontario Court of Appeal held that although the Act failed to contain a "no certiorari" clause, s. 39 was a privative clause, therefore the standard of review of the Tribunal's interpretation of words in a statute was whether or not the interpretation was patently unreasonable - See paragraphs 13 to 43.

Administrative Law - Topic 1442

Finality - Collateral, jurisdictional or preliminary issues - What constitute - A decision of the Ontario Public Service Labour Relations Tribunal was quashed on the application of a union - On appeal the affected employee and the Tribunal argued that the Tribunal's interpretation of the applicable statute was a preliminary or collateral matter and therefore was subject to judicial review and not protected by the privative clause (s. 39, Crown Employees Collective Bargaining Act) - The Ontario Court of Appeal held that the Tribunal's decision was one of mixed law (interpretation of the statute) and fact (application of the interpretation to the case), and could not be divided - See paragraphs 47 to 50.

Administrative Law - Topic 5020

Judicial review - Certiorari - Grounds for granting - Error of law on the face of the record - The Ontario Court of Appeal held that courts may now use the test of "whether there was an error of law of such magnitude that it should intervene", when reviewing the decisions of administrative tribunals - See paragraphs 44 to 46.

Labour Law - Topic 629

Labour relations boards - Judicial review - Bars - Privative clause - Patently unreasonable interpretations - The Ontario Court of Appeal held that s. 39 of the Crown Employees Collective Bargaining Act, which provided that decisions of the Ontario Public Service Labour Relations Tribunal were "final and binding for all purposes", had privative effect, regardless that the Act failed to contain a "no certiorari" clause - The court held that the standard of review of the Tribunal's interpretation of words in a statute was whether or not the interpretation was patently unreasonable - See paragraphs 13 to 43.

Labour Law - Topic 2550

Unions - Membership - Exemption - Religious belief - The Crown Employees Collective Bargaining Act, s. 16(2) permitted the Ontario Public Service Labour Relations Tribunal to exempt employees from paying union dues, where to make such payments offended the employee's religious convictions - The Tribunal permitted an exemption for an employee who claimed that a resolution by a provincial Labour Federation (of which his union was a member) to, inter alia, recognize the Palestine Liberation Organization offended his religious convictions - The Ontario Court of Appeal upheld the decision, because it was not patently unreasonable - See paragraphs 51 to 59.

Words and Phrases

Religious convictions and belief - The Ontario Court of Appeal discussed the meaning of the words "religious convictions and belief" as found in s. 16(2) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108 - See paragraphs 52 to 58.

Cases Noticed:

Schochet v. O.P.S.E.U. and Humber College, [1983] O.L.R.B. Rep. Sept. 1472, refd to. [para. 10].

Teamsters Union Local 938 et al. v. Massicotte et al., [1982] 1 S.C.R. 710; 44 N.R. 340; 134 D.L.R.(3d) 385 (S.C.C.), refd to. [para. 14].

United Headwear, Optical and Allied Workers Union of Canada, Local 3 et al. and Biltmore/Stetson (Canada) Inc. et al., Re (1983), 43 O.R.(2d) 243, refd to. [para. 14].

Service Employees' Int'l. Union, Local No. 333 v. Nipawin District Staff Nurses Ass'n. et al., [1975] 1 S.C.R. 382; 41 D.L.R.(3d) 6; [1974] 1 W.W.R. 653 (S.C.C.), refd to. [para. 15].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [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 (S.C.C.), refd to. [para. 15].

Alberta Board of Industrial Relations v. Stedelbauer Chevrolet Oldsmobile Ltd., [1969] S.C.R. 137, refd to. [para. 16].

Ontario Labour Relations Board, Bradley et al. v. Canadian General Electric Co. Ltd., Re (1957), 8 D.L.R.(2d) 65 (Ont. C.A.), refd to. [para. 19].

McConnell et al. v. Douglas Aircraft Co. of Canada Ltd., [1980] 1 S.C.R. 245; 29 N.R. 109; 99 D.L.R.(3d) 385, refd to. [para. 21].

Fraser and Pringle et al., Re, [1971] 2 O.R. 749 (Ont. C.A.), refd to. [para. 22].

Pringle v. Fraser, [1972] S.C.R. 821, refd to. [para. 23].

Labour Relations Board et al. v. Traders' Service Ltd., [1958] S.C.R. 672, refd to. [para. 24].

Canadian Broadcasting Corporation v. Syndicat des Employes de Production du Quebec et de l'Acadie, [1984] 2 S.C.R. 412; 55 N.R. 321 (S.C.C.), refd to. [para. 26].

Yellow Cab Ltd. v. Board of Industrial Relations, [1980] 2 S.C.R. 761; 33 N.R. 585; 24 A.R. 275, refd to. [para. 27].

Alberta Union of Provincial Employees v. Olds College, [1982] 1 S.C.R. 923; 42 N.R. 559; 37 A.R. 281, refd to. [para. 27].

Northside Electric Ltd. v. International Brotherhood of Electrical Workers, Local 424 et al. (1983), 53 A.R. 114; 4 D.L.R.(4th) 635, refd to. [para. 29].

Halifax Longshoremen's Association v. Nauss et al. (1983), 46 N.R. 324; 144 D.L.R.(3d) 1, refd to. [para. 33].

Tandy Electronics Ltd. and United Steelworkers of America et al., Re (1980), 30 O.R.(2d) 29, refd to. [para. 36].

International Union of Operating Engineers Local 793 v. Traugott Construction Ltd. (1984), 1 O.A.C. 381; 6 D.L.R.(4th) 122, refd to. [para. 37].

R. v. Medical Appeal Tribunal, Ex parte Gilmore, [1957] 1 Q.B. 574; [1957] 1 All E.R. 796 (C.A.), refd to. [para. 40].

Hughes Boat Works Inc. and Int'l Union, United Automobile, Aerospace, Agricultural & Implement Workers of America (UAW) Local 1620 et al. (1979), 26 O.R.(2d) 420; 102 D.L.R.(3d) 661; 79 C.L.L.C. 15,361, refd to. [para. 44].

R. v. Videoflicks Ltd. (1984), 5 O.A.C. 1; 48 O.R.(2d) 495, refd to. [para. 53].

Donald v. Hamilton Board of Education, [1945] 3 D.L.R. 424 (Ont. C.A.), refd to. [para. 54].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 55].

Keeprite Workers' Independent Union et al. and Keeprite Products Ltd., Re (1980), 29 O.R.(2d) 513; 114 D.L.R.(2d) 162, refd to. [para. 62].

Securicor Investigations and Security Ltd. v. Labour Relations Board (Ont.) et al. (1985), 8 O.A.C. 372; 50 O.R.(2d) 570, refd to. [para. 62].

Statutes Noticed:

Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108, sect. 16(2) [paras. 4, 16, 50, 52, 56, 59]; sect. 39 [paras. 12, 16-18, 21, 39-42].

Judicial Review Procedure Act, R.S.O. 1980, c. 224, generally [para. 38]; sect. 2(1) [para. 13].

Labour Relations Act, R.S.O. 1980, c. 228, sect. 106(1) [paras. 18-19]; sect. 108 [paras. 18-20].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 18, sect. 28 [para. 26].

Authors and Works Noticed:

de Smith, Judicial Review of Administrative Action (4th Ed. 1980), pp. 364-369 [para. 20]; 366-367 [para. 40].

Wade, Administrative Law (4th Ed. 1977), pp. 566-577 [para. 20].

Reid and Hillel, Administrative Law and Practice (2nd Ed. 1978), pp. 181-203 [para. 20].

Evans, Janisch, Mullan and Risk, Administrative Law (2nd Ed. 1984), pp. 512 [para. 44]; 531-535 [para. 20].

Laskin, Bora, Certiorari to Labour Boards: The Apparent Futility of Privative Clauses (1952), 30 Can. Bar Rev. 987 [para. 32].

Sutherland, H., Administrative Law - Privative Clauses and the Courts - A Review (1952), 30 Can. Bar Rev. 70 [para. 32].

Millward, P.J., Judicial Review of Administrative Authorities in Canada (1961), 39 Can. Bar Rev. 351 [para. 32].

Counsel:

D.J.M. Brown, Q.C., for the appellant;

Chaim Forer, in person;

Paul J. Cavalluzzo, for the respondent.

This appeal was heard before Blair, Thorson and Cory, JJ.A., of the Ontario Court of Appeal on May 16 and 17, 1985. The decision of the Court of Appeal was delivered by Blair, J.A., and released on November 21, 1985.