Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al., (1987) 77 N.R. 321 (SCC)

• Judge: Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 29, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 77 N.R. 321 (SCC);77 NR 321;41 DLR (4th) 1;28 Admin LR 141;[1987] SCJ No 48 (QL);1987 CanLII 71 (SCC);[1987] 2 SCR 2;59 OR (2d) 671;23 OAC 161

OPSEU v. Ont. (A.G.) (1987), 77 N.R. 321 (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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Ontario Public Service Employees' Union, Marie Wilkinson, Edward E. Faulknor and Russell B. Smith v. Attorney General for Ontario, Attorney General of Canada, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General for New Brunswick, Attorney General of British Columbia, Attorney General for Saskatchewan and Attorney General for Alberta

(16464)

Indexed As: Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al.

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest, JJ.

July 29, 1987.

Summary:

Three provincial civil servants wished to engage in certain political activities in the 1979 federal election. Sections 12-16 of the Ontario Public Service Act prohibited them, on pain of disciplinary measures, from pursuing such political activities as, inter alia, running for election, soliciting funds for political parties and expressing opinions on political issues. The civil servants and their union applied for a declaration that ss. 12-16 were unconstitutional.

The Ontario Supreme Court, in a judgment reported 24 O.R.(2d) 324; 98 D.L.R.(3d) 168, dismissed the application. The court held that the province had jurisdiction to legislate under the property and civil rights power (Constitution Act, 1867, s. 92(13)); that although the Act restricted political activity federally and provincially it was essentially labour relations legislation and the restrictions were conditions of employment designed to preserve the impartiality of the civil service. The union appealed.

The Ontario Court of Appeal, in a judgment reported 31 O.R.(2d) 321; 118 D.L.R.(3d) 661, dismissed the appeal. The union appealed. The Supreme Court of Canada stated the following constitutional questions: "1. Are sections 12, 13, 14, 15 and 16 of the Public Service Act, R.S.O. 1970, Chapter 386 as amended, unconstitutional insofar as they purport to restrain Provincial Civil Servants and Crown Employees from engaging in certain federal political activity? "2. Do sections 12, 13, 14, 15 and 16 of the Public Service Act, R.S.O. 1970, Chapter 386 as amended, infringe or deny the rights and freedoms guaranteed by sections 2, 3 and/or 15(1) of the Canadian Charter of Rights and Freedoms insofar as they purport to restrain provincial Civil Servants and Crown Employees from engaging in certain federal and provincial political activity? "3. If sections 12, 13, 14, 15 and 16 of the Public Service Act, R.S.O. 1970, Chapter 386 as amended, infringe or deny sections 2, 3 and/or 15(1) of the Canadian Charter of Rights and Freedoms, are these sections justified by section 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?" The Supreme Court of Canada answered question 1 in the negative. The court declined to answer questions 2 and 3, because the court declined to hear Charter issues. The court held that the provincial legislation was valid under the province's s. 92(1) power to amend the provincial constitution or under the s. 92(4) power respecting the establishment and tenure of provincial offices.

Constitutional Law - Topic 6181

Federal jurisdiction - Constitution Act, 1867, s. 91 - Federal elections - General - Sections 12-16 of the Ontario Public Service Act had the effect of prohibiting provincial civil servants from participating in federal elections - The Supreme Court of Canada, in holding the legislation intra vires the province, stated that whatever the effect the legislation had on federal elections and the right of federal electors to engage in political activities, it was an indirect or incidental effect - See paragraphs 72 to 96.

Constitutional Law - Topic 6181

Federal jurisdiction - Constitution Act, 1867, s. 91 - Federal elections - General - Sections 12-16 of the Ontario Public Service Act prohibited provincial civil servants from engaging in provincial and federal political activities - The civil servants submitted that the legislation was ultra vires the province on the ground that "Canadian constitutional jurisprudence recognizes the existence of certain fundamental political rights and freedoms in the citizens of this country to participate in federal political activities. No province has the power to reduce or to derogate from these rights and freedoms" - The Supreme Court of Canada held that the legislation was intra vires, that "the impugned legislation is in essence concerned with the constitution of the province and with regulating the provincial public service and affects federal and provincial elections only in an incidental way" - See paragraphs 97 to 106.

Constitutional Law - Topic 6771

Provincial jurisdiction - Constitution Act, 1867, s. 92 - Amendment of provincial constitution - General - The Supreme Court of Canada stated that the constitution of a province was not found in a single document - The court held that a provincial constitution was the product of a variety of statutes, the common law and conventions of the constitution, the most fundamental convention being the principle of responsible government.

Constitutional Law - Topic 6771

Provincial jurisdiction - Constitution Act, 1867, s. 92 - Amendment of provincial constitution - General - The Supreme Court of Canada stated that "an enactment can generally be considered as an amendment of the constitution of a province when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1) ..." - The court held that ss. 12-16 of the Ontario Public Service Act, which restricted the political activities of provincial civil servants, were intra vires the province as an ordinary legislative amendment of the constitution of Ontario within the meaning of s. 92(1) of the Constitution Act, 1867 - See paragraphs 36 to 65.

Constitutional Law - Topic 7289

Provincial jurisdiction - Constitution Act, 1867, s. 92 - Property and civil rights - Regulatory statutes - Labour relations - Sections 12-16 of the Ontario Public Service Act prohibited provincial civil servants from engaging in political activity at the provincial and federal levels - The Supreme Court of Canada held the legislation was not in pith and substance labour relations legislation, therefore the province could not rely on its property and civil rights power (s. 92(13)) to support the legislation - The court stated that the Act was aimed at ensuring an impartial civil service, which was a public or political right, not a civil right - See paragraphs 25 to 35.

Constitutional Law - Topic 7491

Provincial jurisdiction - Constitution Act, 1867, s. 92 - Establishment and tenure of provincial offices - General - Sections 12-16 of the Ontario Public Service Act prohibited provincial civil servants from engaging in political activities at the provincial and federal levels - The Supreme Court of Canada held that the legislation was intra vires the province under the s. 92(4) power in relation to the establishment and tenure of provincial offices - The legislation was aimed at federal and provincial activities and constituted a term or condition of tenure of provincial office, enforced by compulsory resignation or dismissal - The object was to ensure global political independence for provincial officers - See paragraphs 66 to 71.

Crown - Topic 5104

Officials and employees - General - Political activities - Sections 12-16 of the Ontario Public Service Act prohibited provincial civil servants from engaging in provincial and federal political activities - The Supreme Court of Canada held that the legislation was intra vires the province under its s. 92(1) power to amend the provincial constitution and under the s. 92(4) power respecting the establishment and tenure of provincial offices.

Cases Noticed:

United Glass & Ceramics Workers of North America and Domglas Ltd., Re (1978), 19 O.R.(2d) 353, refd to. [para. 11].

Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; 63 N.R. 161, consd. [paras. 19, 121].

Maritime Bank of Canada (Liquidators of) v. Receiver-General of New Brunswick, [1892] A.C. 437, refd to. [para. 38].

Attorney General of Ontario v. Mercer (1883), 8 App. Cas. 767, refd to. [para. 38].

Constitutional Amendment References 1981, (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, consd. [para. 39].

Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; 30 N.R. 225, refd to. [para. 40].

R. v. Ulmer, [1923] 1 W.W.R. 1; [1922] 1 D.L.R. 304 (Alta. S.C.A.D.), refd to. [para. 45].

Procureur general du Quebec c. Blaikie, [1978] C.A. 351, refd to. [para. 45].

Fielding v. Thomas, [1896] A.C. 600, refd to. [para. 45].

Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, refd to. [para. 56].

Valin v. Langlois, [1879] 5 A.C. 115; 3 S.C.R. 1, refd to. [para. 58].

The Initiative and Referendum Act, Re, [1919] A.C. 935, refd to. [para. 64].

Attorney General for Canada v. Attorney General for Ontario, [1898] A.C. 247, refd to. [para. 68].

Lenoir v. Ritchie (1879), 3 S.C.R. 575, refd to. [para. 68].

Reference re Mimimum Wage Act of Saskatchewan, [1948] S.C.R. 248, refd to. [para. 72].

Johannesson v. Municipality of West St. Paul, [1952] 1 S.C.R. 292, refd to. [para. 72].

McKay v. The Queen, [1965] S.C.R. 798, dist. [paras. 72, 126, 149].

Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; 24 N.R. 1, refd to. [para. 72].

Reference re Alberta Statutes, [1938] S.C.R. 100, refd to. [para. 98].

Switzman v. Elbling, [1957] S.C.R. 285, refd to. [para. 98].

Toronto Electric Commissioners v. Snider, [1925] A.C. 396, refd to. [para. 123].

John Deere Plow Co. v. Wharton, [1915] A.C. 330, refd to. [para. 127].

Great West Saddlery Co. v. The King, [1921] 2 A.C. 91, refd to. [para. 127].

Attorney General of Manitoba v. Attorney General of Canada (Manitoba Securities Case), [1929] A.C. 260, refd to. [para. 127].

Commission du Salaire Minimum v. Bell Telephone Co., [1966] S.C.R. 767, refd to. [para. 128].

Walker v. Attorney General of Alberta, [1969] S.C.R. 383, refd to. [para. 130].

Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695, refd to. [para. 130].

Attorney General of Quebec v. Kellogg's Co. of Canada, [1978] 2 S.C.R. 211; 19 N.R. 271, refd to. [para. 130].

Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; 25 N.R. 1, refd to. [para. 130].

Four B. Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 130].

Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 130].

Oil Chemical and Atomic Workers International Union v. Imperial Oil Ltd., [1963] S.C.R. 584, refd to. [para. 138].

C.F.R.B. and Attorney General of Canada, Re, [1973] 3 O.R. 819, refd to. [para. 138].

Retail, Wholesale and Department Store Union, Local 580 et al. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 141].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 2, sect. 3, sect. 15(1).

Constitution Act, 1867, sect. 92(1), sect. 92(4), sect. 92(13) [paras. 8, 115].

Public Service Act, R.S.O. 1970, c. 386, sect. 1(a), sect. 1(e) [para. 5]; sect. 2, sect. 3, sect. 11 [para. 33]; sect. 12, sect. 13, sect. 14, sect. 15, sect. 16 [paras. 4, 112]; sect. 23, sect. 24, sect. 26, sect. 27, sect. 28, sect. 28a, sect. 29 [para. 33].

Legislative Assembly Act, R.S.O. 1970, c. 240 [para. 37].

Representation Act, R.S.O. 1970, c. 413 [para. 37].

Executive Council Act, R.S.O. 1970, c. 153 [para. 37].

Crown Employees Collective Bargaining Act, S.O. 1972, c. 67 [para. 33].

Official Languages Act, R.S.C. 1970, c. 0-2 [para. 56].

Public Service Employment Act, R.S.C. 1970, c. P-32, sect. 32 [para. 89].

Authors and Works Noticed:

Hogg, P.W., Constitutional Law of Canada (2nd Ed. 1985), pp. 331 [para. 129]; 454 [para. 26].

Garant, Patrice, La fonction publique canadienne et quebecoise (1973), pp. 347-348 [para. 49].

MacDonnell Committee Report [para. 51].

Clement, W.H.P., The Law of the Canadian Constitution (1904), p. 261 [para. 68].

Counsel:

Stephen T. Goudge and Ian McGilp, for the appellants;

Blenus Wright and Carol Creighton, for the respondents;

Graham R. Garton, for the Attorney General of Canada;

Real A. Forest and Alain Gingras, for the Attorney General of Quebec;

William M. Wilson, for the Attorney General of Nova Scotia;

Richard C. Speight, for the Attorney General for New Brunswick;

Joseph J. Arvay, for the Attorney General of British Columbia;

Robert G. Richards, for the Attorney General of Saskatchewan;

William Henkel, Q.C., and Robert J. Normey, for the Attorney General for Alberta.

Solicitors of Record:

Gowling & Henderson, Toronto, Ontario, for the appellants;

Attorney General for Ontario, Toronto, Ontario, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Attorney General of Quebec, Ste-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General of Nova Scotia, Halifax, Nova Scotia, for the intervenor, the Attorney General for Nova Scotia;

Attorney General for New Brunswick, Fredericton, New Brunswick, for the intervenor, the Attorney General for New Brunswick;

Attorney General of Bristish Columbia, Victoria, British Columbia, for the intervenor, the Attorney General of British Columbia;

James B. Taylor, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Attorney General for Alberta, Edmonton, Alberta, for the intervenor, the Attorney General for Alberta.

This appeal was heard on March 18 and 19, 1986, before Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On July 29, 1987, the judgment of the Supreme Court of Canada was delivered in both official languages, and the following opinions were filed:

Beetz, J. (McIntyre, Le Dain and La Forest, JJ., concurring) - see paragraphs 1 to 108;

Dickson, C.J.C. - see paragraphs 109 to 147;

Lamer, J. - see paragraphs 148 to 150.

Chouinard, J., did not participate in the judgment.