Elementary Teachers' Federation of Ontario v. Ontario (Labour), 2008 CanLII 6939 (ON SCDC)

COURT FILE NO.: 376/07 387/07

DATE: 20080221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PITT, JJ.

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

A N D B E T W E E N:

ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION AND DISTRICT 9 Applicant

• and -

MINISTER OF LABOUR FOR ONTARIO and SOPHIE DENNIS, REGIONAL DIRECTOR, WESTERN REGION and GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD Respondents

Amanda Wojcik, for the Applicant Anna Vannelli, for the Respondent, Greater Essex County District School Board

COURT FILE NO.: 387/07

Maurice A. Green, for the Applicant Anna Vannelli, for the Respondent, Greater Essex County District School Board Judy L. Chan for the Respondent, Minister of Labour for Ontario

HEARD: February 4, 2008

Pitt, J.

1On or about August 9, 2007 the Elementary Teachers’ Federation of Ontario (“ETFO”) issued a Notice of Application for Judicial Review seeking an order quashing and setting aside the June 22, 2007 decision of the Minister of Labour which revoked the Minister’s previous order of December 12, 2003 authorizing the establishment of a multi-work place joint health and safety committee at the Greater Essex County District School Board (“ESB”).

2On or about August 13, 2007 the Ontario Secondary School Teachers’ Federation and District 9 (“OSSTFD”) issued a similar notice.

3The December 12, 2003 order reads as follows:

“NOW THEREFORE BE IT ORDERED that pursuant to S.9 (3.1) of the Occupational Health and Safety Act. The Greater Essex County District School Board as employer, is hereby required to establish and maintain the Central Joint Health Safety Committee to be governed as to composition , practice and procedures by the provision of the executed document, dated 25 November 2003, between the Greater Essex County District School Board and the bargaining units of CUPE Local 1348 Office/Clerical/Technical, EFTO Greater Essex Local, EFTO Occasional Teachers Greater Essex Local, OSSTF District 9 Secondary Teachers, OSSTF District 9 Occasional Teachers, OSSTF District 9 Continuing Education Instructors, OSSTF District 9 Educational Support Staff, OSSTF District 9 Professional Student Services Personnel and the Non Bargaining Unit.”

4The June 22, 2007 order reads as follows:

“Ms. Mary Jean Gallagher Director of Education Greater Essex County District School Board 451 Park Street West P.O. Box 210 Windsor, Ontario N9A 6K1

Dear Ms. Gallagher:

Further to our meeting of February 27, 2007, I have given great consideration of all the parties’ views and wish to advise that I am revoking the Minister’s order dated December 12, 2003 issued under my signature. This revocation is effective June 30, 2007 and I would remind all parties of our expectation for compliance with your duties and obligations under the Act and regulation.

I would also like to acknowledge receipt of your letter dated March 9, 2007 wherein you have stated that the establishment of site-based health and safety committees in each of your facilities has been determined to be in the best interests of the Greater Essex County District School Board and its employees. I understand that the Board intends to require that Joint Health and Safety Committees will be effectively established at each of your ninety-four sites in order to ensure proper and effective health and safety representation.

I understand that there are outstanding health and safety issues that still need to be addressed. I have forwarded those issues to Don Hall, Acting Program Manager for London/Windsor/Sarnia who can be reached at 519-646-3226.

Should you have any questions concerning this matter, please do not hesitate to contact me.

Sincerely,

Sophie Dennis Regional Director Western Region

The grounds for each application are similar, although with minor differences.

5ETFO’s grounds are as follows:

“(a) In revoking the December 12, 2003 order, the Minister:

(i) failed to exercise his statutory discretion in a manner consistent with the purpose and object of the Occupational Health and Safety Act, R.S.O. 1990, ch. O.1, as amended;

(ii) failed to consider the criteria required by the Act for making such determinations;

(iii) breached the requirements of procedural fairness by failing to consult with the applicants and other workplace parties prior to revoking the December 12, 2003 order; and

(iv) exercised his discretion in a patently unreasonable manner;

(b) the Judicial Review Procedure Act, R.S.O. 1990, c.J.1;

(c) the Occupational Health and Safety Act, R.S.O. 1990, ch. O.1, as amended; and

(d) such further and other grounds as counsel may advise and this Honourable court may permit.”

6The OSSTFD’s grounds are as follows:

“a. that the Minister (or his delegate) erred in law and fact when he failed to properly consider and apply the criteria set out in ss. 9(5) of the Act, as required when exercising the power conferred by ss. 9(3) or 9(3.1), prior to issuing the decision dated June 22, 2007;

b. that the Minister (or his delegate) failed to exercise his authority in a manner consistent with the objects and purposes of the Act;

c. that the Minister (or his delegate) exercised his discretion in a patently unreasonable manner;

d. that the Minister erred in law in failing or refusing to give effect to the submissions regarding the Multi-Site Joint Health and Safety Committee made by the Applicant, and further that such failure or refusal was unreasonable, and/or arbitrary and contrary to natural justice;

e. the Judicial Review Procedure Act, R.S.O. 1990, c.J.1, as amended;

f. the Occupational Health and Safety Act, R.S.O. 1990, ch. O.1, as amended;

g. such other grounds as counsel may advise and this Honourable Court may permit.”

7The ESB moved for an order striking out certain portions of the affidavits filed in support of both motions. Both motions to strike were heard together.

8Although counsel for the Minister was present in court, the Minister filed no documentary material, and advised me that the Minister “took no position” on this motion while preserving the Minister’s right to oppose the application for Judicial review if and when it ultimately came up for adjudication.

Position of the Parties

9The position of the moving party is based in substance on the widely accepted principle that firstly the motion Judge has the authority to expunge from the record prior to the hearing of the application, material in the applicant’s affidavit that offends the rule limiting affidavit evidence on Judicial Review applications to depositions necessary to disclose a breach of natural justice upon which the record is silent, or where it is necessary to show that there is a complete absence of evidence on an essential point.

10The moving party also requests that the court expunge from the record Hearsay evidence, inflammatory expressions, improper opinion evidence, legal arguments and conclusions, all of which it asserts, are contained in some paragraphs of the affidavits.

11While they do not dispute the need to apply the jurisprudence limiting affidavits on Judicial review to the “Jurisdictional issue” outlined by the moving party, the respondents submit that affidavit evidence to augment a record that is particularly sparse, that is, in the form of a decision given without reasons, is appropriate, if such affidavit evidence is in the form of background, contextual material that assists the court in coming to a decision on the “Jurisdictional issue”.

12In addition, the respondents submit that the power exercised by the Minister was a statutory power. In order for the court to determine whether the Minister failed to exercise his discretion in a manner consistent with the purpose and object of the Occupational Health and Safety Act; breached the requirements of procedural fairness or acted in a patently unreasonable manner it is necessary to provide something in the nature of a historical record.

13In my view, in the final analysis, the full Divisional Court must determine only whether the requirements of procedural fairness and natural justice necessary in the particular circumstances have been met. Forestall v. Toronto Police Services Board, (2007) Carswell Ontario 5073 at 38 (Div.Ct.). In making that determination, the court will be governed in part by the principle that the mere decision not to hold a hearing is not in itself a denial of procedural fairness, Baker v. Canada (Ministry of Immigration and Citizenship), [1999] 2 S.C.R. 817. The court will also have to determine whether the decision to rescind the August order was based on matters extraneous to the objectives of the Act. See Doctors Hospital v. Minister of Health, et al, (1976), 12 O.R. (2d) 164.

The Statutory Framework

14The relevant provisions of the Occupational Health and Safety Act are as follows:

“Occupational Health and Safety Act

R.S.O. 1990, CHAPTER O.1

Joint health and safety committee

Application

9. (1) Subject to subsection (3), this section does not apply,

(a) to a constructor at a project at which work is expected to last less than three months; or

(b) to a prescribed employer or workplace or class of employers or workplaces. R.S.O. 1990, c. O.1, s. 9 (1).

Joint health and safety committee

(2) A joint health and safety committee is required,

(a) at a workplace at which twenty or more workers are regularly employed;

(b) at a workplace with respect to which an order to an employer is in effect under section 33; or

(c) at a workplace, other than a construction project where fewer than twenty workers are regularly employed, with respect to which a regulation concerning designated substances applies. R.S.O. 1990, c. O.1, s. 9 (2).

Minister’s order

(3) Despite subsections (1) and (2), the Minister may, by order in writing, require a constructor or an employer to establish and maintain one or more joint health and safety committees for a workplace or a part thereof, and may, in such order, provide for the composition, practice and procedure of any committee so established. R.S.O. 1990, c. O.1, s. 9 (3).

Same

(3.1) Despite subsections (1) and (2), the Minister may, by order in writing, permit a constructor or an employer to establish and maintain one joint health and safety committee for more than one workplace or parts thereof, and may, in the order, provide for the composition, practice and procedure of any committee so established. 1994, c. 27, s. 120 (1).

What Minister shall consider

(5) In exercising the power conferred by subsection (3) or (3.1), the Minister shall consider,

(a) the nature of the work being done;

(b) the request of a constructor, an employer, a group of the workers or the trade union or trade unions representing the workers in a workplace;

(c) the frequency of illness or injury in the workplace or in the industry of which the constructor or employer is a part;

(d) the existence of health and safety programs and procedures in the workplace and the effectiveness thereof; and

(e) such other matters as the Minister considers advisable. R.S.O. 1990, c. O.1, s. 9 (5); 1994, c. 27, s. 120 (2).”

15The Minister, acting through Sophie Dennis, Director of the Western Region, in December, 2003, utilized the subsection 9(3.1) exemption to the statutory requirement under sections 9(1) and 9(2) of the Act, to establish one (1) joint Health and Safety Committee, i.e. a multi-site joint Health and Safety Committee for the entire region compressing some 94 building and school locations throughout Essex County with approximately 4,500 employees operating 64 elementary and 16 secondary schools.

16Prior to the issuance of the order all interested parties including the parties before the court agreed upon “Terms of Reference” to govern the composition, practice and procedure of the committee. The terms of reference are part of the record in these proceedings.

17Paragraph 17.4 of the Terms of Reference provided that “The Terms of Reference can be rescinded by the Ministry of Labour after consultation with the working parties…”

18In early 2007 the Respondent School Board in accordance with the Terms of Reference requested the Minister to rescind the December 12, 2003 order. The Minister, on June 22, 2007 acting through the aforesaid Sophie Dennis, rescinded the December 12, 2003 order and reverted to the requirement of Section 9(1) and 9(2) for the establishment of individual site-based joint Health and Safety Committees at every work place.

19Both ETFO and OSSTFD say in effect that the Minister acted “without jurisdiction” in its decision to discontinue what they consider to be the benefits of operating multi-site joint Health and Safety Committees, under the section 9(3.1) exemption.

The ETFO Affidavit

20The basis for the moving party’s objection to the affidavit is summarized in paragraphs 20, 21, 22, 23, 24, 24(a),(b), (c), (d), as follows:

“20. The Applicant’s grounds for Judicial Review alleged that in revoking the December 12, 2003 Order, the Minister of Labour, or his delegate failed to exercise his statutory discretion in a manner consistent with the purpose and object of the OHSA, he failed to consider the criteria required by the OHSA for making such determinations, he breached the requirements of procedural fairness by failing to consult with the Applicants and other workplace parties prior to revoking the December 12, 2003 Order, and exercised his discretion in a patently unreasonable manner.

• Applicant’s Record, Notice of Application for Judicial Review, at Tab 1, p. 4, para.2.

21. The Applicant has filed with the Court, the Roy Affidavit sworn October 15, 2007, and

All the Exhibits attached thereto (Exhibits “A” to “J”), in support of its Application for Judicial Review challenging the Minister’s June 22, 2007 revocation Decision.

• Applicant’s Record, Affidavit of Nicolette Roy, sworn October 15, 2007, at Tab 3, pp. 9-20;

• Applicant’s Record, Exhibits “A” to “J” attached to the Affidavit of Nicolette Roy, sworn October 15, 2007, at Tabs 3A to J, pp. 21-92.

22. The Respondent School Board submits that certain impugned paragraphs of the Roy Affidavit and some of the Exhibits attached thereto are improper and defective and generally offend the rules respecting Affidavits for the reasons stated below and, as such, those portions of the Roy Affidavit ought to be struck from the Court’s record.

23. The Affidavit material filed by the Applicant is extensive. The Roy Affidavit consists of thirty-nine paragraphs and ten Exhibits, totaling eighty-three pages. If the impugned portions of the Affidavit are not struck at this stage in the proceedings, the Respondent School Board would very likely be compelled to cross-examine this Affiant and, perhaps, file lengthy Affidavit material in response. The administration of justice therefore demands that this motion be determined on a preliminary basis before the hearing of the Application for Judicial Review in order to ensure expediency and the interests of justice.

24. The Respondent School Board submits that portions of the Roy Affidavit offend the rules respecting affidavits. Specifically, the Respondent School Board submits that the following paragraphs in the Roy Affidavit are improper and defective for the following reasons:

(a) paragraphs 6, 7, 8, 11, 12, 13 to 23 inclusive, 26, 27, 31, 32, 34 and 37, and Exhibits “B”, “E”, “F”, “G”, “H”, and “J” referred to therein, contain information that is irrelevant to the issues raised in the Application for Judicial Review because the information either pre-dates the December 12, 2003 Minster’s (sic) Order, and/or is extraneous to the grounds relied on in the Application for Judicial Review;

(b) paragraphs 13 to 25 contain improper expressions of opinion and unsupported personal views, and expressions in the nature of legal argument or conclusions of law disguised as opinion evidence. The information contained therein also impermissibly purports to give evidence as to the meaning of the applicable legislation.

(c) paragraphs 7, 8, 11, 12, 13 to 27 inclusive, and the Exhibits referred to therein contain information and statements that constitute an attempt by the Applicant to improperly supplement the Record and are speculative, and at odds with the facts or without any stated basis;

(d) paragraphs 24, 25, 26, 27, 31, 32, and 34 contain statement that are inflammatory and improperly constitute hearsay evidence.

Therefore, those portions of the Affidavit and the Exhibits attached thereto ought to be struck out in their entirety.”

The OSSTF Affidavit

21The basis for the moving party’s objection to the affidavit is summarized in the Motion Record for an order striking out paragraphs 8, 9, 10, 12 to 28 8 inclusive, 30 to 38 inclusive, and 41 to 47 inclusive and striking out exhibit “C”, “D”, “F”, “G”, “H” and “I” based on the grounds in the Notice of Motion as follows:

(a) the objectionable portions of the Affidavit and the Exhibits are not properly included in a supporting Affidavit on an Application for Judicial Review for the reasons hereinafter state;

(b) some of the objectionable portions of the Affidavit and the Exhibits are irrelevant to the issues raised in the Notice of Application for Judicial Review and/or are extraneous to the grounds set out in the Application for Judicial Review and/or constitute an attempt to supplement the record and/or relate to events/assertions which predate the Minister’s Order issued on December 12, 2003, pursuant to Section 9 sub-section 3.1 of the Occupational Health and Safety Act which Order is not the subject matter of the within Application for Judicial Review;

(c) some of the objectionable portions and Exhibits constitute submissions or argument generally or with respect to what appears to be the assertion of the Applicant that the prior Health and Safety Committee structure was better than the Health and Safety Committee structure resulting from the Minister’s Order dated June 22, 2007;

(d) some of the objectionable portions and Exhibits constitute opinion and not facts and are not properly included in a supporting Affidavit on an Application for Judicial Review.”

Analysis

22876502 Ontario Inc. et al v. I.F. Propco Holdings (Ontario) 10 Limited et al. [Indexed as 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd.], 37 O.R. (3d) 70 [1997] O.J. No 4722 throws doubt on the appropriateness of expunging material from affidavits on preliminary (interlocutory) motions purely on the grounds of relevance. However, Propco and cases that follow it do not, in any way, conflict with the principle that Judicial Review is a very special procedure posited on the clear understanding that it is not intended to resolve factual disputes or whether as in a case of this nature, the Minister was “right” in a policy sense in making the decision to rescind the original order.

23I agree with the respondents that most of the material and information contained in the affidavits constitute the balance of the record as those were the materials before the Minister when he made his decision. The full panel will probably be in a better position than I am to deal with the issues relating to hearsay evidence, inflammatory expressions, improper opinion evidence, legal arguments and conclusions. The affidavits ought not to be struck.

24This motion is dismissed.

Costs

25Subject to any agreement between the parties, brief written submissions on costs are to be made within forty-five (45) days of the release of these reasons.

Pitt, J.

Released: February 21, 2008

COURT FILE NO.: 376/07 387/07