Administrative Law and Labour Law

CUPE v. Ontario (Minister of Labour)

For many years, interest arbitrators in Ontario were usually appointed from a roster of trained, experienced arbitrators who were acceptable to both management and labour. However, in early 1998, Minister of Labour in the Harris government began appointing only retired judges to act as interest arbitrators under the Hospital Labour Disputes Arbitration Act (HLDAA), many with little or no labour relations knowledge or experience.

CUPE and SEIU challenged the new appointment process on the basis that the Minister of Labour had interferred with the independence and impartiality of interest arbitrators. CUPE and SEIU also maintained that the Minister had interfered with their legitimate expectations and those of other affected unions because, in February 1998, the Minister had promised to continue the existing system for the appointment of arbitrators.

The Divisional Court dismissed the application, holding that the Minister's actions were authorized under HLDAA and could not be challenged.

On November 21, 2000, the Ontario Court of Appeal overturned the Divisional Court's decision. The Court held that the Minister's actions in changing the appointment process was "an attempt to seize control of the bargaining process and ... to exclude [the unions] from it [and] to replace mutually acceptable arbitrators with a class of persons seen to be inimical to the interests of labour, at least in the eyes of the appellants."

The Court also held that the Minister's actions violated the Unions' legitimate expectations in that the Minister had promised to continue the existing system for the appointment of arbitrators and then "proceeded in an entirely different direction, one that in the circumstances may be regarded as provocative or defiant." The Court ordered the Minister of Labour to make appointments from the established roster of experienced arbitrators.

The Harris government appealed the decision to the Supreme Court of Canada. The Supreme Court dismissed the appeal, but based its decision on different grounds than the Court of Appeal had relied on.

Relying on traditional administrative law principles, the Supreme Court held that the Minister of Labour's decision to appoint only retired judges to chair boards of interest arbitration under HLDAA was patently unreasonable. The fundamental purpose and object of HLDAA, the Court reasoned, was to provide an adequate substitute for strikes and lockouts. To achieve this purpose, the parties must perceive the system as neutral and credible. In giving the Minister of Labour the power to select the chair of an interest arbitration board, the legislature intended the Minister to have regard to an individual's relevant labour relations expertise as well as his or her independence, impartiality and general acceptability within the labour relations community. In other words, the Court held, chairs must have a track record in labour relations and be generally seen in the labour relations community as widely acceptable to both unions and management. The Court concluded that the Minister's actions were inconsistent with the legislative intent of HLDAA:

The Minister's approach was antithetical to credibility because he excluded key criteria (labour relations expertise and broad acceptability) and substituted another criterion (prior judicial experience) which, while relevant, was not sufficient to comply with his legislative mandate...

The Supreme Court disagreed with the Court of Appeal that the Minister should be required to make appointments only from the roster of arbitrators. It was common ground, the Court noted, that some retired judges have the necessary labour relations background and broad acceptability to both management and labour. Accordingly, the Court declared that, in making appointments, the Minister could appoint persons who are not on the roster but must be satisfied that prospective chairpersons are not only independent and impartial but possess appropriate labour relations expertise and are recognized in the labour relations community as generally acceptable to both management and labour.

CUPE and SEIU were represented by Howard Goldblatt, Steven Barrett and Vanessa Payne

Click here to read the Supreme Court's decision