HomeMy WebLinkAbout1989-0078.Blondin et al.89-08-31 ONTARIO EMP£oYES DE LA COUROh/NE
CROW~ ~:MPLOY£ES DE L 'ONTARIO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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78/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Blondin et al)
Grievor
_ and _
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
Before:
E.K. Slone Vice-Chairperson
M. Vorster Member
G. Milley Member
For the Grievor: P. Cavalluzzo
Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
For the Employer: K. Renison
Counsel
Legal Services Branch
Ministry of Community &
Social Services
Hearing: July 20, 1989
DECISION
This decision deals nominally with the narrow point of
whether and for how long this case must be adjourned - yet it '
raises issues that are vital 'to the proper and effective
operation of this Board.
Once again, we are called'upon to consider the situation
of grievors who challenge their status in the unclassified
service. We are compelled to consider the matter within the
jurisprudential context framed by this Board's decisions in
Beresford, GSB #1429/86 (Mitchnick), Millex, GSB #1972/87
(Mitchnick), and Hicks, GSB #2563/8?, (Fraser}.
It would not assist anyone for this panel to rehash
those decisions or the arguments canvassed therein, except to
the very limited extent that we must to highlight the greater
issues that we face.
Essentially, the Board in both Beresford and Milley came
to the somewhat novel but supportable conclusion that the
"unclassified" grievors'~had not been properly appointed to
the "unclassified" service, in the sense that their jobs did
not fit within the narrow confines of Section 6 of Ontario
Regulation 881 under the Public Service Act. In both those
cases the question of remedy was deferred to another day, and
it remains to be seen what tangible benefit will accrue to
the grievors as a result of the declarations made in their
cases.
Some twelve months after the release of ~eresford and
six months after the release of Milley, and while both such
cases were the subject of pending Applications for Judicial
Review, the decision in Hicks was delivered. The
Vice-Chairperson in ~ick.s was presented with facts that were
materially undistinguishable from Beresford and Mille.y, but
was presented with a novel argument on behalf of the employer
that evidently had not been made by counsel for the employer
in either of the earlier cases. As a result of that
argument, the result in Hicks was precisely the opposite of
that of the earlier cases, although the Vice-Chairperson did
not purport to overrule the earlier cases and went so far as
to say that they were correct as far as they went.
What has followed is a situation that was characterized
by Mr. Cavalluzzo as a "jurisprudential mish-mash". More
seriously, it has opened a rift in the collective mind of
this Board and brought about a state which I can only
characterize as jurisprudential schizophrenia.
Since the divergence of Hicks from the'earlier
authorities, a number of events have occurred, which it is
important to touch upon.
First of all, the Applications for Judicial Review in
· both Beresford and Milley were 'dismissed on December 6, 1988.
In its very terse reasons, the Court found no error in the
Boards' findings or approach. A motion for leave to appeal
that decision to the Court of Appeal was dismissed on June
26, 1989.
Meanwhile, Hicks has also been taken to Judicial Review
and.will be argued sometime this fall.
In the case of Bressette, GSB #1682/87 released on June
29, 1989, Vice-Chairperson Wilson faced the two-headed
monster squarely. In a careful and well-reasoned decision,
he analyzed all of the'relevant cases and came to the
conclusion that "...Beresford and Hicks cannot co-exist; and
Beresford is manifestly correct and Hicks is manifestly
wrong. Accordingly...[he] will follow and apply Beresford."
In overruling Hicks, Mr. Wilson was quite mindful of the
decision of Chairperson Shime in Blake, GSB #1275/87, wherein
the point was made in the clearest of terms that this is one
Board which speaks with one voice, and which will only depart
from its own precedents in "exceptional circumstances", it
is not a sufficient reason to depart from precedent where it
is felt that a previous panel made a manifest error. That
standard may be appropriate in the arbitral jurisprudence
generally, but this Board must apply a different and higher
standard to ensure consistency in labour relations in the
public sector. In the view of Mr. Wilson, the existence of
two opposin~ lines, of authoritF amounted to such a special
circumstance where it was necessary to discredit an earlier
authority, and he did so in the clearest of terms.
Not surprisingly, since ~eresford a great number of
grievances have been launched and are working their way
through the system. It has apparently been the position'of
counsel for the employer'in most, if not all cases that have
come up over the last'number of months, that these cases
should be adjourned pending the outcome of the Judicial
Review Applications that have been pending 'in the Courts,
The results in Beresford and Milley, bolstered by Bressette,
have not been seen to settle the matter as long as Hicks is
before the Court, notwithstanding that Hicks is being
challenged b~ the union!
Continuing in this undesirable tradition, various panels
of this Board have again diverged on the question of whether
or not to adjourn these grievances until the Courts have
finished with Hicks. On the pro-adjournment side have been
Vice-Chairperson Fraser in McKinna, GSB #0439/88,
Vice-Chairperson Samuels in E1-Karazati, GSB #0?75/88,
Vice-Chairperson Kates in Goretski, GSB #0117/88 and
Vice-Chairperson Knopf in Beenen_, GSB #1477/88. On the
contrary side have been Vice-Chairperson Epstein in Mathieu,
GSB #987/88, and Vice-Chairperson Wilson in ~T$iotsika~s_, GSB
#907/88. There have probably been others that counsel did not
bring to our attention, and more cases are arising every day.
Clearly, this Board has had a relapse into the'
schizophrenia that Mr. Wilson had' sought to cure by
discrediting Hicks in Bressette. While adjournments are
clearly a matter of discretion, and do not usually fall to be
decided on the basis of precedent, this situation is somewhat
unique. How strange it must appear to a grievor to be told
that his or her ~ase must remain in limbo, while other fellow
employees with similar cases are permitted to proceed to a
hearing on the meritS. Such a practice on our part is surely
irregular, if not downright unconstitutional. This Board
will quickly be brought into disrepute if rights are seen to
be determined on the chance basis of whether or not a
particular Vice-Chairperson will align himself or herself on
one side or the other of the scoreboard,
In those decisions where hearings on the merits have
been adjourned, there..bs 'an underlying hope that the Courts
can resolve the greater issues, leaving the individual cases
to fall into place thereafter. There is an earnest desire to
avoid confusing the issue with further considerations of the
issues on their merits, until the Courts have spoken.
These hopes and desires, while expressed differently and held
in various degrees, are natural and commendable reactions.
But what their proponents fail to acknowledge, however, is
?
that they have once aKain opened up the schism that has
c~ippled this Board, and in the process have ]eft a select
few grievers "waiting for Godot".
Several fundamental questions must be asked:
1. What is the actual state of this Board's jurisprudence in
the Beresford type of situation?
2. What can we expect from the Courts in the current
situation?
3. What is our obligation; to await a Court ruling or proceed
to hear cases?
In my view, the answer to question 1 is that this Board
has spoken clearly and definitively in Bressettg. Hicks is a
discredited decision, which cannot be followed by other
panels of this Board except at the risk of falling into the
same error once again. Bressette must be followed, unless
special circumstances arise which mandate a departure. It
would be foolish to speculate on what 'special circumstances
might arise and be held sufficient. What clearly ought not
to amount to special circumstances would be the raising of a
new a~um~n% that could have been but was not made to the
earlier panels. Human ingenuity will always bring up novel
and interesting twists on old issues, but some matters must
remain settled notwithstanding fancy new arguments if the
parties are to have a measure of predictability in their
affairs.
As for question 2, the Court that will decide Hicks will
be faced with a most unusual problem, but there is no
guarantee that ~t will consider itself under ·any duty to
delve into the matter in any depth and mend this Board's
Split personality. It must not be forgotten that the case
falls to be decided on Judicial Review, and not on an appeal,
It is trite law that the Court will not interfere with the
Board's decision unless it finds our approach to be patently
unreasonable or wrong. So long as the Board acts within its
jurisdiction, the Court will normally defer to the Board's
special expertise and proximity to the parties. That is not
to say that occasionally the Courts do not appear to be
interfering a little more heavy-handedly, but in theory the
Soa~d has the final say in matters within its jurisdiction,
and en~oys the "right to be wrong".
Judicial Review is the modern term for certiorari, an
ancient remedy that was dispensed not as a matter of right
but at the prerogative of the Crown as represented by the
Court of Chancery. There are many grounds unrelated to the
actual merits, for refusing to grant the remedy. Often, an
application will be dismissed with little if any guidance by
way of reasoning from the Court.
This is to be contrasted with the situation on an
appeal. Where rights of appeal exist, they take the litigant
through a hierarchy of Courts which are both equipped and
obligated by statute to hear the matter un its merits. The
appeal court owes no curial deference to the lower court,
par%icularly where a question of law is involved. Often, the
appeal court will receive cases from different lower courts,
sometimes in different jurisdictions. As such it is mindful
of the need to have uniform application of the law throughout
its area of jurisdiction. A good example would be the
decision of the Supreme Court of Canada in'R. v. Mor~antaler,
the 1988 decision which declared unconstitutional the
Criminal Code sections dealing with abortion. In that case,
the parties and the public had every reason to expect that,
whichever way the decision went, there would be a
pronouncement that would deal squarely with the central issue
and would provide real jurisprudential value.
A further distinction between appeals and judicial
review is the fact that in most appeals, there is an
automatic stay of the lower body's ruling pending disposition
of the appeal. Thus, there is an institutional acceptance of ~
the notion of waiting for the highest court to decide. In
judicial review, unless the parties agree or an order is
specifically obtained, there is no stay of the ruling under
review.
Thus, there is only a very small likelihood that the
Divisional Court in Hicks will say or do anything that will
change the course of our jurisprudence. If it quashes Hick__s,
to bring it in line with Beresford, we will have no option
but to folloK~Bresse%te. If it dismisses the Application, we
will still be faced with the task of speaking with one voice..
I cannot fathom how we will do that except also by following
Bressette.
As for our obligation, in my view we cannot shy away
from our statutory duty to "decide the matter" unless there
is a clear likelihood that someone else with considerable
authority is equipped and prepared to decide it for us,
There will from time to time be occasions when we should
defer to the Courts. But this is~not such a time. It is our
job to interpret the Crown Employees Collective Bar~ainin~
Ac___kt, the Public Service Act,~ ~nd the Collective Agreement.
it is our accepted practice to follow our own precedents, of
which Bressette-is the most current and comprehensive.
Moreover, there is every likelihood that Hicks in the
Divisional Court will not be the final challenge. The
Beresford and MilleY cases are coming up again for a hearing
as to remedy, and those decisions could be challenged in the
courts. Hicks could go further. Bressette or other more
recent cases could be challenged. The process of waitin_~ for
some final voice from on high could go on for years. In the
meantime, this Board ought to be doing that which it is
constituted to do, namely hear grievances.
In .the result, then, we decline to adjourn this case
pending any particular event. It was adjourned on July 20,
1989 because of the need.to read the cases prior.to ruling on
the adjournment, and because of the limited time available.
It may be brought back on for hearing ab the first available
time, before any panel of this Board. We are not seized.
It would be appropriate to point out that this decision
has nothing to do with partisan positions. ~It is purely
chance that the party seeking these adjournments is the
employer. In the long run, the interests of both parties are
equally served by having this Board harmonized in its view
and always at the ready to discharge its duty in an impartial
and reasonably predictable manner.
Dated at Toronto this ~] day of Au§ust 1989.
Eric K. Slone, Vice-Chairperson
Menno Vorster, Member
George Milley, Member