Saskatchewan Federation of Labour et al. v. Saskatchewan (Attorney General) et al., (2009) 323 Sask.R. 115 (QB)

• Judge: Zarzeczny, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 14, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 323 Sask.R. 115 (QB);2009 SKQB 20

Sask. Labour Federation v. Sask. (A.G.) (2009), 323 Sask.R. 115 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JA.096

Saskatchewan Federation of Labour, Saskatchewan Joint Board, Retail, Wholesale and Department Store Union and Canadian Union of Public Employees (applicants) v. The Government of Saskatchewan (Attorney General), Department of Advanced Education (Employment and Labour) and Saskatchewan Labour Relations Board (respondents)

(2008 Q.B.G. No. 683; 2009 SKQB 20)

Indexed As: Saskatchewan Federation of Labour et al. v. Saskatchewan (Attorney General) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Zarzeczny, J.

January 14, 2009.

Summary:

A newly elected Saskatchewan government, through the Executive Council, passed an Order-in-Council terminating the appointment of the chairperson and two vice-chairpersons of the Saskatchewan Labour Relations Board, whose "at pleasure" terms, not to exceed fixed dates, had not yet expired. The Saskatchewan Federation of Labour, and others, by way of judicial review, challenged the validity of the Order-in-Council and the subsequent appointment of a new chairperson. The Order-in-Council allegedly contravened, inter alia, the Trade Union Act and administrative law principles of natural justice and freedom from institutional bias and government interference.

The Saskatchewan Court of Queen's Bench dismissed the application.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See Statutes - Topic 5503 ].

Administrative Law - Topic 8868

Boards and tribunals - Members - Independence and impartiality - [See Statutes - Topic 5503 ].

Crown - Topic 545

Orders-in-council - Judicial review - [See Statutes - Topic 5503 ].

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleasure - Termination of - [See Statutes - Topic 5503 ].

Statutes - Topic 5503

Operation and effect - Delegated legislation - Orders-in-council - Authority to enact - A newly elected Saskatchewan government, through an Order-in-Council passed by Executive Council, terminated the "at pleasure" appointment of the chairperson and two vice-chairpersons of the Saskatchewan Labour Relations Board - The Saskatchewan Federation of Labour, and others, challenged the validity of the Order-in-Council and the subsequent appointment of a new chairperson - The Federation argued that the Order-in-Council was passed "for an unlawful or improper purpose and motive, namely, to interfere with the fundamental rights of employees and trade unions as set out in s. 3 of the Trade Union Act and as recognized by the courts, international law, and the values of the [Charter]" - The Federation argued that the Act had a legislative bias in favour of employees and trade unions and that the purpose of the Order-in-Council was to give effect to a government attempt to "balance" the rights of employers and employees, contrary to the purpose of the Act - The Saskatchewan Court of Queen's Bench rejected the Federation's submission - The court's jurisdiction was limited to whether there existed statutory authority for the Order-in-Council - The wisdom or policy reasons motivating any decision that has been taken from either a policy or political perspective was beyond the scope of judicial review - Pursuant to s. 4(1.1) of the Trade Union Act and s. 19 of the Interpretation Act, the chairperson and vice-chairpersons were "public officers" who were appointed "at pleasure" for a term not longer than the period specified - The authority, by Order-in-Council, to terminate their appointments or "terms of office" under s. 20 of the Interpretation Act was clear - The court rejected the submission that the government interfered with the institutional and functional independence and impartiality required of the Board as a quasi-judicial tribunal and statutory decision-maker - The Federation's argument that the Act deliberately favoured employee rights, excluding a concept of balance, was incorrect - No informed person, viewing the matter realistically and practically, would conclude that interference with the institutional independence or impartiality of the Board was affected by the termination - See paragraphs 23 to 61.

Cases Noticed:

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1, refd to. [para. 17].

Irving Oil Ltd. et al. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 28].

Thorne's Hardware Ltd. v. R. - see Irving Oil Ltd. et al. v. National Harbours Board.

Saskatoon Criminal Defence Lawyers Association et al. v. Saskatchewan et al., [1984] 3 W.W.R. 707; 32 Sask.R. 122 (Q.B.), refd to. [para. 29].

Suzuki (David) Foundation et al. v. British Columbia (Attorney (General), [2004] B.C.T.C. 620; 17 Admin. L.R.(4th) 85 (S.C.), refd to. [para. 29].

Chromex Nickel Mines Ltd. v. British Columbia (Securities Commission) (1992), 6 Admin. L.R.(2d) 268 (B.C.S.C.), refd to. [para. 29].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 41].

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. 41].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 42].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 42].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193, refd to. [para. 48].

Rowell et al. v. Manitoba, [2006] 6 W.W.R. 258; 201 Man.R.(2d) 227; 366 W.A.C. 227 (C.A.), refd to. [para. 48].

Fletcher v. Manitoba Public Insurance Corp. et al., [2006] 3 W.W.R. 54; 190 Man.R.(2d) 277; 335 W.A.C. 277, refd to. [para. 48].

Saskatchewan Construction Labour Relations Council Inc. v. International Union of Operating Engineers, Hoisting, Portable and Stationary, Local 870 and Hudon (1987), 62 Sask.R. 301 (C.A.), refd to. [para. 64].

Iron v. Saskatchewan (Minister of the Environment and Public Safety) (1993), 107 Sask.R. 297 (Q.B.), refd to. [para. 64].

Warne et al. v. Regina Exhibition Association Ltd. et al. (1996), 170 Sask.R. 3 (Q.B.), refd to. [para. 66].

Workers' Compensation Board (Sask.) (1998), 163 Sask.R. 254; 165 W.A.C. 254 (C.A.), refd to. [para. 66].

Statutes Noticed:

Interpretation Act, S.S. 1995, c. I-11.2, sect. 19, sect. 20 [para. 12].

Trade Union Act, R.S.S. 1978, c. T-17, sect. 3, sect. 4 [para. 11].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed. 1993) (2006 Looseleaf Update, Release 31), para. 2.3915 [para. 24].

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2008) (Looseleaf Ed.), vol. 3, p. 14-153 [para. 27].

Counsel:

Peter J. Barnacle, for the applicant, Saskatchewan Federation of Labour;

Larry W. Kowalchuk, for the applicant, Saskatchewan Joint Board, Retail, Wholesale and Department Store Union;

Crystal Norbeck, for the applicant, Canadian Union of Public Employees;

Barry J. Hornsberger, Q.C., Graeme Mitchell, Q.C., and Charita Ohashi, for the respondents.

The application was heard before Zarzeczny, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on January 14, 2009.