PowerServe Inc. v. College of Trades (Ont.) et al., 2015 ONSC 857

• Judge: Sachs, Horkins and D. Brown, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 10, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONSC 857;(2015), 330 O.A.C. 301 (DC)

PowerServe Inc. v. College of Trades (2015), 330 O.A.C. 301 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.035

PowerServe Inc. (applicant) v. The Ontario College of Trades and IBEW Construction Council of Ontario (respondents)

(565/13; 2015 ONSC 857)

Indexed As: PowerServe Inc. v. College of Trades (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Sachs, Horkins and D. Brown, JJ.

February 10, 2015.

Summary:

The Ontario College of Trades struck a three person panel to inquire into and make recommendations regarding the appropriate ratio between journeyperson electricians and apprentices. The chair of the panel was Fishbein, who was also the chair of the Ontario Labour Relations Board (OLRB). Prior to the OLRB appointment, Fishbein was a long time partner with Koskie Minsky, representing unions, including the IBEW. The panel's decision recommended a ratio that was very close to that advanced by the IBEW. PowerServe applied for judicial review of the panel's decision, alleging a reasonable apprehension of bias by Fishbein, and issued a summons to witness under rule 39.03, requiring Fishbein to attend for examination. The College moved to quash the summons.

The Ontario Divisional Court, per Matlow, J., denied the motion. The College moved to set aside or vary the decision.

The Ontario Divisional Court granted the motion, setting aside the order below.

Courts - Topic 7507

Provincial courts - Ontario - Divisional court - Jurisdiction - Respecting review of decision of single judge - The respondent of a judicial review application moved to quash a summons to witness issued by the applicant - The motion was denied - The respondent moved to set aside or vary the decision - The Ontario Divisional Court discussed the approach to reviewing the motion judge's decision - The motion judge's very brief reasons provided little insight into how he balanced the appropriate factors - It was appropriate to consider the matter afresh - The use of the phrase "set aside or vary" in s. 21(5) of the Courts of Justice Act was intended to give a panel of the Divisional Court all of the powers of the single judge regarding the motion's proper disposition - See paragraph 20.

Evidence - Topic 4236

Witnesses - Privilege - Lawyer-client communications - When privilege may be invoked - The Ontario College of Trades struck a three person panel to inquire into and make recommendations regarding the appropriate ratio between journeyperson electricians and apprentices - The chair of the panel was Fishbein, who was also the chair of the Ontario Labour Relations Board (OLRB) - Prior to the OLRB appointment, Fishbein was a long time partner with Koskie Minsky, representing unions, including the IBEW - The panel's decision recommended a ratio that was very close to that advanced by the IBEW - PowerServe applied for judicial review of the panel's decision, alleging a reasonable apprehension of bias by Fishbein, and issued a summons to witness under rule 39.03, requiring Fishbein to attend for examination - The Ontario Divisional Court granted the College's motion to quash the summons - The scope of the examination of Fishbein proposed by PowerServe did not support its resort to rule 39.03 because its proposed areas of inquiry were either irrelevant, amounted to a fishing expedition or would require Fishbein to disclose communications that were protected by solicitor/client privilege - See paragraphs 21 to 34.

Evidence - Topic 5607

Witnesses - Competency and compellability - Compellability - Particular persons - Boards and tribunals - Members and personnel - [See Evidence - Topic 4236 ].

Practice - Topic 4250.3

Discovery - Examination - Persons who may be examined - Administrative tribunal members - [See Evidence - Topic 4236 ].

Practice - Topic 4259

Discovery - Examination - Range of - Relevant evidence - [See Evidence - Topic 4236 ].

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - [See Evidence - Topic 4236 ].

Practice - Topic 4264

Discovery - Examination - Range of - Fishing expeditions - [See Evidence - Topic 4236 ].

Cases Noticed:

Abou-Elmaati et al. v. Canada (Attorney General) et al., [2013] O.T.C. Uned. 3176; 2013 ONSC 3176, refd to. [para. 15, footnote 3].

Payne v. Human Rights Commission (Ont.) (2000), 136 O.A.C. 357 (C.A.), refd to. [para. 16, footnote 5].

Bettes v. Boeing Canada/DeHavilland Division (1992), 10 O.R.(3d) 768 (Gen. Div.), refd to. [para. 18, footnote 7].

Agnew v. Ontario Association of Architects (1987), 26 O.A.C. 354; 64 O.R.(2d) 8 (Div. Ct.), refd to. [para. 19, footnote 8].

Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 38 O.A.C. 278; 73 O.R.(2d) 73 (C.A.), refd to. [para. 20, footnote 9].

Sobeys Inc. v. United Food and Commercial Workers' International Union, Local 1000A (1993), 62 O.A.C. 78; 12 O.R. (3d) 157 (Div. Ct.), refd to. [para. 20, footnote 9].

Summitt Energy Management Inc. v. Ontario Energy Board (2012), 292 O.A.C. 268; 2012 ONSC 2753, refd to. [para. 22, footnote 10].

Terceira et al. v. Labourers International Union of North America et al. (2014), 328 O.A.C. 213; 2014 ONCA 839, refd to. [para. 23, footnote 12].

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. 30, footnote 16].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 31, footnote 17].

Counsel:

M. Gottlieb and C. Muir, for the applicant;

C. Paliare, for the respondent, The Ontario College of Trades;

R. Lebi, for the respondent, IBEW Construction Council of Ontario.

This motion was heard at Toronto, Ontario, on December 10, 2014, by Sachs, Horkins and D. Brown, JJ.A, of the Ontario Divisional Court. On February 10, 2015, D. Brown, J., delivered the following judgment for the court.