COURT FILE NO.: 7/04

DATE: 20040122

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

IN THE MATTER OF the Judicial Review Procedure Act,

R.S.O. 1990, C.J.1

AND IN THE MATTER OF a decision

dated December 12, 2003, issued by the Ontario Labour

Relations Board; and a decision dated November 21, 2003

issued by the Mississaugas of Scugog Island of First Nation

Dbaaknigewin; and an appointment of a conciliation officer by

the Ontario Minister of Labour on December 17, 2003

B E T W E E N:

GREAT BLUE HERON GAMING COMPANY

Douglas K. Gray, Glenn P. Christie, Tierney Readgrieve, for the Applicant

Applicant

• and -

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) AND ITS LOCAL 444, MISSISSAUGAS OF SCUGOG ISLAND FIRST NATION, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ONTARIO MINISTER OF LABOUR, ONTARIO LABOUR RELATIONS BOARD AND MISSISSAUGAS OF SCUCOG ISLAND FIRST NATION DBAAKNIGEWIN

Brian T. Daly, Brian Christopher C. White, for Scugog Island First Nation

Owen Young, Jennifer Ray, for Attorney General of Canada

M. Stephenson, David Guttman, for the Attorney General of Ontario

Leonard Marvy, for the Ontario Labour Relations Board

Peter K. Doody, Isabella Mentina for Dbaaknigewin

L.N. Gottheil, for CAW – Canada and its Local 444

Respondents

HEARD: January 21, 2004

MacFarland J.

1There are three motions for interim relief before the Court. Two of those, brought by Great Blue Heron Gaming Company (hereafter GBH) and Mississaugas of Scugog First Nation (hereafter First Nation) seek a stay in respect of certain orders and proceedings currently pending before the Ontario Labour Relations Board (OLRB). Blue Heron also seeks a stay of a decision of the Dbaaknigewin dated November 21, 2003 and an order enjoining that body from taking any further steps in respect of that order. In addition to its stay of motion, the First Nation seeks an order directing the within judicial review application to a trial.

2The third motion before the Court is for an order quashing the within judicial review application which motion is brought by the Attorney General of Canada.

3The materials filed are voluminous. The stay applications must of necessity be decided by the end of the day, January 22, 2004 (this matter having been argued January 21, 2004) because the OLRB is scheduled to resume its hearing in relation to the issues here raised on January 23, 2004. Because of scheduling constraints in terms of available time and counsel’s schedules, the matters were all argued in a day.

4The facts are set out in the factums filed. The parties are divided as to whether the facts here fall within the decision of the Supreme Court of Canada in British Columbia Telephone Company v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739.

5The employer GBH says it is faced with the decision of the OLRB which in effect says it must comply with the Ontario Labour Relations Act and begin to bargain with the Union Certified as bargaining agent on behalf of its employees.

6The Dbaaknigewin, the tribunal established under the Labour Code passed by the First nation, purportedly has exclusive jurisdiction in respect of labour relations matters for this First Nation. It has issued orders prohibiting the union from engaging in certain labour relations activities.

7The effect of the order of the Dbaaknigewin prohibits the employer from bargaining with the Union (hereafter the CAW), as the OLRB has directed it to do.

8Without a doubt, the order of the OLRB and that of the Dbaaknigewin directly conflict.

9However, what distinguishes this case from Shaw is the decision in this case of the OLRB.

10In the course of hearing an unfair labour practices complaint brought before it by the CAW and a reference by the Minister in relation to his or her jurisdiction to appoint a conciliation officer, the OLRB posed for itself a constitutional question as it arose on the facts of this case.

11That question can be found at page 245 of the Application Record.

12The question the OLRB posed for itself was essentially whether the OLRA—in particular, sections 17, 18, 70 and 96—were of no force and effect by reason of the enactment of the First Nation’s Labour Code, the aboriginal or treaty rights of the First Nation recognized and affirmed by section 35 of the Constitution Act, 1982 and/or the aboriginal or treaty rights of the First Nation recognized and affirmed in the Indian Act R.S.C. 1985, c.I-5.

13The parties to the proceeding before the OLRB were the Union, the Employer, and the First Nation as intervenor.

14After the OLRB settled the process for the consideration of the constitutional issue raised, the First Nation moved before Ferrier J. of the court for a stay to prevent the OLRB from embarking on the hearing on the ground that it was without jurisdiction to decide constitutional issues. The application was dismissed.

15The hearing proceeded and the OLRB’s “bottom line” decision was issued December 12, 2003. The constitutional question was answered in the negative. Sections 17, 18, 70 and 96 of the OLRA were found to apply to the labour relations of the employer and the employees. The employer is obliged to bargain with the union, and the Minister has the jurisdiction appoint a conciliation officer. The Board has yet to issue its full reasons in support of its decision.

16That the OLRB has the authority to decide constitutional questions including questions involving aboriginal and treaty rights is clear. See Paul v. British Columbia (Forest Appeals Commission) [2003] S.C.C. 55.

17The Board has determined as between the employer, GBH and its employees, the Ontario Labour Relations Act, 1995 applies and Mississaugas of Scugog Island First Nation Labour Code does not apply.

18As the Attorney General of Canada notes in his factum:

A necessary step in the Board’s legal analysis was that the First Nation’s labour relations law creating the Dbaaknigewin was unsupported by an aboriginal or treaty right of self-government.

19I agree with that analysis and that is what makes this case different from the Shaw case which is relied upon by the moving party.

20In my view, the test the moving parties seeking a stay must meet is that set out in the R.J.R. MacDonald case. They must demonstrate only that there is a serious issue raised. The Board’s decision in respect of the constitutional issue is not entitled to deference and the standard of review in respect of that aspect of its decision must be correctness. The onus is not a heavy one on this part of the test.

21It is not for this Court to say whether or not the Board’s decision was correct—only whether a real issue, as opposed to a frivolous one, is raised in respect of it. Without full reasons, it would be difficult to find no genuine issue is raised unless the matters were so well settled as to be beyond question.

22I am satisfied the applicants can satisfy the first part of the test.

23I move then to consider irreparable harm. The applicants must satisfy the Court that unless the injunction is granted, they – the Employer and the First Nation will suffer irreparable harm.

24Mr. Gray submits there will be irreparable harm to his client, the employer, because it is obliged by the terms of its agreement with the First Nation to follow all laws of the First Nation. This would include the Labour Code. He says there is some evidence his client could be put out of business if it did not follow that Code.

25Such a term could only reasonably refer to validly enacted laws. At this point in time, there is a finding of a properly constituted tribunal, the OLRB, acting within its jurisdiction, to the effect that the Code passed by the Dbaaknigewin is of no force or effect.

26Further, he says the order of the OLRB and that of the Dbaaknigewin are in conflict and it is impossible for the employer to follow both.

27I am not persuaded that any irreparable harm will come to the employer for following the ruling of the OLRB. It is at this point in time—as between the applicability of the OLRA and the Labour Code passed by the First Nation—the law so far as these parties are concerned and will remain so until a court says otherwise.

28As for irreparable harm to the First Nation, Mr. Daly raises five grounds. He says they will lose the capacity of the operator of the casino to carry on as such by obeying the Order of the OLRB, the employer will be in breach of its agreement with the First Nation. The employees will lose their jobs. I don’t accept the argument for reasons earlier stated. The agreement between the employer GBH and the First Nation could only impose an obligation on GBH to comply with validly enacted laws.

29Second, he says there would be a loss of labour relations’ peace and stability. If at the end of the day the order of Dbaaknigewin is found valid, and in the interim collective bargaining has proceeded with the CAW, all will have to be undone. I am mindful of the admonition of other courts—labour relations delayed are labour relations denied. This Union has been certified for over a year on behalf of these employees and there has not been one meeting as yet between the union and the employer. The employees voted 2 to 1 to have the union represent their interests. In my view, they are entitled to have the bargaining begin. There is simply no persuasive evidence that all would need to be “undone” in any event if the First Nation ultimately prevails.

30Thirdly, the union is operating without a licence and the refusal of the First Nation to issue one is the subject of a judicial review application pending before the Federal Court. I ask rhetorically how this factor can cause irreparable harm to the First Nation. The Court will ultimately decide the issue.

31As for unlawful trespass, the fourth issue raised, it is clear that the public generally has access to the casino and that access is open and unrestricted. There can be no harm in union representatives meeting after employees finish their work for the day provided they do not interfere with the casino operation.

32Finally, they suggest that the union will be in contempt of the order of the Dbaaknigewin. To this I say only at this point in time that order has implicitly been found to be of no force and effect.

33In result, I am not persuaded that irreparable harm will result either to the employer or the First Nation if a stay is not issued.

34Lastly, I must consider the balance of convenience and in so doing consider the public interest.

35At this point in time, the decision of the OLRB stands and is binding on the parties. Mr. Young in his submission on behalf of the Attorney General of Canada made a persuasive comparison between the OLRA and the First Nations Regime. The former is established by legislative authority, the latter by an unproven, unestablished right; the former is constitutionally valid labour relations legislation of general application, while the latter is impugned legislation based on an unproven right of limited application at best. There are but 40 people living on the reserve but the casino employs some 1000 persons, most of whom do not obviously live on the reserve.

36The OLRB has the authority to decide s.35 issues. The Dbaaknigewin’s very legislative underpinning is challenged and it has no authority to decide section 35 or other constitutional issues. The OLRB has expertise in labour relations, the Dbaaknigewin is of unknown experience and without established expertise.

37All players were before the OLRB and participated in the process; the order of the OLRB is enforceable; there is a real issue about the status of the order of Dbaaknigewin and it is not enforceable.

38I must consider the rights of the 800 employees who have been left in limbo, as it were, a year after a clear majority voted in favour of this union’s representation. Collective bargaining remains to begin.

39In my view, the balance of convenience favours the implementation of the order of the OLRB and favours neither the employer nor the First Nation.

40In result, the motions for a stay of the orders of the OLRB are denied.

41The motion to quash this judicial review on its merits is adjourned to the panel hearing the application. In my view, it is preferable that this decision come from a three-person panel of this Court rather than a single judge.

42As for the motion to convert the judicial review to a trial, that motion is dismissed, without prejudice to the right of the First Nation to raise that issue if so advised, by way of judicial review of the decision of the Board.

43This case is different from the Keewatin case upon which Mr. Daly relies. In Keewatin, there had been no process prior to the judicial review application to determine constitutionality. That is not the case here where the OLRB has considered and decided constitutionality in proceedings directed to that purpose.

44I make no order in respect of the order of the Dbaaknigewin. If the order ever can have any effect, and that is not established on this record, I am not persuaded this Court would have jurisdiction to order a stay in respect of it.

45I cannot leave this case without remarking on the process. The Board’s decision was December 12, 2003. The application for Judicial Review was filed January 7, 2004. These motions were originally scheduled for January 15th and moved by agreement of counsel to January 21st. The arguments were of necessity abbreviated by reason of time constraints—only the day was available. The argument took the entire day and required that a decision be rendered prior to the OLRB resuming the matters before it on January 23, 2004. This puts the Court in the unenviable situation of having to make an important decision with little time for consideration. The Court and counsel must, in cases of this nature, work together to ensure sufficient time is made available for the proper hearing of matters which come before it. It was impossible in the available time for the Court to have even a cursory review of all the voluminous materials filed on these motions and this is quite unsatisfactory. Where decisions are required of the Court by certain dates, counsel have a duty to bring this fact to the attention of the Court so that appropriate arrangements can be made for scheduling.

46If the parties cannot agree on costs, I may be spoken to.

MacFarland J.

Released: January 22, 2004

COURT FILE NO.: 7/04

DATE: 20040122

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

IN THE MATTER OF the Judicial Review Procedure Act,

R.S.O. 1990, C.J.1

AND IN THE MATTER OF a decision

dated December 12, 2003, issued by the Ontario Labour

Relations Board; and a decision dated November 21, 2003

issued by the Mississaugas of Scugog Island of First Nation

Dbaaknigewin; and an appointment of a conciliation officer by

the Ontario Minister of Labour on December 17, 2003

B E T W E E N:

GREAT BLUE HERON GAMING COMPANY

Applicant

• and –

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) AND ITS LOCAL 444, MISSISSAUGAS OF SCUGOG ISLAND FIRST NATION, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ONTARIO MINISTER OF LABOUR, ONTARIO LABOUR RELATIONS BOARD AND MISSISSAUGAS OF SCUCOG ISLAND FIRST NATION DBAAKNIGEWIN

Respondents