ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO
Applicant
- and -
MINISTER OF LABOUR FOR ONTARIO and the GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD
Respondents
Howard Goldblatt, for the Applicant
Judy L. Chan, for the Minister of Labour
Patrick F. Milloy, for the Greater Essex County District School Board
HEARD: August 21, 2007
CHAPNIK J.
1The Elementary Teachers’ Federation of Ontario (the Applicant) seeks an order staying the June 22, 2007 order of the Minister of Labour pending the hearing of its application for judicial review.
2The Respondent (the School Board) is required under the Occupational Health and Safety Act of Ontario (the Act) to establish and maintain a joint (that is, including an employee and employer representative) Health and Safety Committee at each of its workplaces. There are 94 workplaces in schools operated by the Essex County School Board. Ordinarily, the governmental requirement would be to have a Health and Safety Committee addressing health and safety matters related to the workplace, in each school. However, by agreement between the parties in 2003, a multi-site Health and Safety Committee was deemed to be a preferable structure to address health and safety concerns in the overall area under the School Board’s jurisdiction.
3As a result of this agreement between the parties, the Minister of Labour issued an order on December 12, 2003, allowing the Respondent to have a multi-site joint Health and Safety Committee, rather than individual Committees in each school.
4Since that time, however, problems have developed in the operation and structure of the multi-site joint Committee. Accordingly, on and around June 2006 and following, several meetings were convened with the interested parties to discuss ongoing problems with the multi-site joint Health and Safety Committee structure. Eventually, by order dated June 22, 2007, the previous designation of a multi-site Committee was revoked, thereby requiring the Respondent to establish single site-based joint Health and Safety Committees in each of its 94 workplace sites in order to be in compliance with the Act.
5The Respondent/School Board indicates that it is fully prepared to implement the site-based Committee system required by the June 22, 2007 order. All management representatives for each Committee in each school have been certified and dates are set in September 2007 to provide training for the worker members. However, the Applicant, along with the interested party, the Ontario Secondary School Teachers’ Federation (OSSTF), has challenged the June 22, 2007 order of the Minister revoking the previous designation for a multi-site Committee. The Applicant/Teachers’ Federation now brings this motion for a stay of the Minister’s order pending the judicial review hearing. The Minister takes no position on this motion.
6The factors to be considered in determining whether this court should exercise its discretion to grant a stay are whether there is a serious issue to be tried, whether the Applicant has satisfied the court that irreparable harm will occur if the interim relief is not granted and whether the balance of convenience favours granting the stay. RJR Macdonald Inc. v. Canada (Attorney General)(1994), 1994 117 (SCC), 111 D.L.R. (4th) 385 (S.C.C.) at p. 400.
7As for the first part of the test, the School Board takes the position that the application for judicial review by the Applicant is frivolous and vexatious and/or fails to establish a serious issue to be tried, particularly because the Applicant is seeking to challenge a decision of the Minister that it had agreed the Minister could issue upon request of either party. Moreover, in 2003, the Respondent and the Applicant and other Unions representing the School Board’s employees, entered into Terms of Reference which included a provision that those Terms could be rescinded by the Minister of Labour after “consultation with the workplace parties.”
8In its application for judicial review, the Applicant claims that in revoking the December 2003 order, the Minister’s delegate failed to have regard to the statutory criteria required by the Act, exercised the Minister’s discretion in a manner inconsistent with the objects and purposes of the Act and thwarted its objectives. The Minister also breached the rules of procedural fairness and the provisions of the Terms of Reference.
9The Respondent alleges that the Applicant simply does not agree with the Minister’s decision. But the threshold for this part of the test is a low one. See, for example, Ontario v. Shehrazad Non-Profit Housing Inc. (2007), 2007 ONCA 267, 85 O.R. (3d) 81 at 85 (C.A.).
10In my view, the Applicant has satisfied the first branch of the test (i.e.) there is a serious issue to be tried.
11Noting that the existing individual workplace representatives have not yet been certified within the meaning of the Act, the Applicant contends that this constitutes irreparable harm by placing the needs of some 4,000 employees in the hands of individuals whose qualifications do not comply with the Act. Furthermore, according to the Applicant, the establishment of 94 joint Health and Safety Committees will result in large amounts of lost classroom, teaching and school time with start-up costs of what appears to currently be about $100,000, all of which cannot be compensated for in damages.
12The requirement of irreparable harm to the Applicant refers to harm that cannot be cured or sufficiently compensated in monetary terms.
13As well, the case law requires evidence of irreparable harm to be “clear and not speculative” in nature. Kanda Tsushin Kogyo Co. v. Coveley (1997), 96 O.A.C. 324 at para. 14; Jaballah v Canada (Minister of Citizenship and Immigration), 2006 FCA 179, [2006] F.C.J. No. 747 at para. 4 (F.C.A.).
14Since the Respondent has certified all its representatives for the site-based Committees and set up the training schedule for employee representatives, once the Applicant and other Unions advise the Respondent as to their representatives, those Committees will commence to operate. Where there are multiple Unions representing employees at a particular location, the Unions are under a legal obligation to consult with each other and agree on representatives. See, for example, Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services, [2005] OLRB REP. January/February, 121.
15In my view, the Applicant’s allegations of harm are unclear and speculative in nature. Moreover, I agree with the submission of the Respondent that, given that the Applicant has known since May 28, 2007 that the order of December 12, 2003 would be rescinded, its failure or refusal to consult if that was the case, should not buttress its argument regarding irreparable harm.
16In all of the circumstances, the Applicant has not satisfied its onus to show on a balance of probabilities that it (or the public interest) will suffer irreparable harm if the stay is not granted.
17Finally, the balance of convenience favours the Respondent in this matter. The case law engages irreparable harm to the Respondent in an analysis of this part of the test; that is, the potential harm to the Respondent/School Board if the stay is granted, can be considered in making this assessment. Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832 (1987), 1987 79 (SCC), 38 D.L.R. (4th) 321 at para. 334 (S.C.C.).
18Clearly, if the stay order were granted, the multi-site Committee system would continue in the interim. However, according to the Respondent, that system is not working. This resulted in charges laid against the School Board under the Act. This also impedes the Respondent’s ability to carry out its ongoing obligations under the Act. According to the Respondent, the health, safety and well-being of its employees are being jeopardized on an ongoing day-to-day basis. This has resulted in an untenable and potentially dangerous state of affairs in those schools.
19The Respondent has selected and trained its representatives and stands ready and prepared to provide training to the Union representatives on all of the site-based Committees as required under the Minister’s order of June 22, 2007.
20That order will stand without prejudice until the application is determined. The parties are urged to cooperate in its implementation on an urgent basis.
21The application for a stay is denied. On consent of all parties, costs shall be in the cause.
CHAPNIK J.
Released: August 27, 2007
COURT FILE NO.: 376/07
DATE: 20070827
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO
Applicant
- and -
MINISTER OF LABOUR FOR ONTARIO and the GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD
Respondents
REASONS FOR DECISION
CHAPNIK J.
Released: August 27, 2007