COURT FILE NO.: 376/07 and 387/07
DATE: 20090217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JANET WILSON, ASTON AND LOW JJ.
B E T W E E N:
376/07
ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO Applicant
- and -
MINISTER OF LABOUR FOR ONTARIO and the GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD Respondents
387/07
B E T W E E N:
ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION AND DISTRICT 9 Applicants
- and -
MINISTER OF LABOUR FOR ONTARIO and SOPHIE DENNIS, REGIONAL DIRECTOR, WESTERN REGION and the GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD Respondents
Howard Goldblatt and Amanda Wojcik, for the Applicant Brian A. Blumenthal and Judy L. Chan, for the Ministry of Labour Len Kavanaugh and Anna M. Vannelli, for the Respondent Greater Essex County District School Board Maurice A. Green and Vaino Poysa, for the Ontario Secondary School Teachers’ Federation
HEARD at Toronto: February 3, 2009
R E A S O N S F O R J U D G M E N T
the court.:
[1] The Elementary Teachers’ Federation of Ontario (ETFO), the Ontario Secondary School Teachers’ Federation (OSSTF) and District 9 (the Applicants) seek judicial review of an Order of the Minister of Labour’s delegate, Ms. Sophie Dennis, Regional Director, Western Region, dated June 22, 2007 (the June 2007 Order).
[2] The June 2007 Order revoked a prior Order of the Minister of Labour, dated December 12, 2007 (the December 2003 Order) authorizing the establishment of Multi-Workplace Joint Health and Safety Committee for the 94 work places operated by the respondent Greater Essex County District School Board (the School Board).
[3] The applicants seek to quash the June 2007 Order on the basis, that in issuing the Order the Minister failed:
(a) To exercise his statutory discretion in a manner consistent with the purpose and object of the Occupational Health and Safety Act;
(b) To consider the criteria required in making such an order by the Occupational Health and Safety Act, and
(c) To comply with the requirements of procedural fairness by failing to consult with the parties or give reasons for the decision.
[4] The position of the respondents is that in issuing the June 2007 Order, the Minister exercised his discretion in a reasonable manner and provided the applicants with the required level of procedural fairness. They submit, therefore, that the June 2007 Order should stand.
The Nature of the Decision and the Standard of Review
[5] The June 2007 Order is acknowledged by the applicants to be an Order of the Minister as contemplated by the Supreme Court of Canada in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 149-150 and hence subject to judicial review.
[6] All parties agree in accordance with the principles of Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190, that the standard of review applicable to the June 2007 Order is that of reasonableness.
[7] The applicants acknowledge that the June 2007 Order was a discretionary decision of the Minister’s delegate that attracts the principle of deference as confirmed in paragraph 53 of Dunsmuir and paragraph 22 of Mills v. Workplace Safety and Insurance Appeals Tribunal, 2008 ONCA 436, [2008] O.J. No. 2150 (C.A.).
[8] In making the June 2007 Order, the Minister was exercising a statutory power of discretion granted to him under the Occupational Health and Safety Act. The Order is akin to a public policy decision as contemplated by the Court of Appeal in Mills. In Dunsmuir, the Supreme Court of Canada reaffirms that “where the question is one of fact, discretion or policy, deference will usually apply automatically”.
[9] The June 2007 Order was not a quasi judicial decision and the applicants acknowledge that there was no obligation upon the Minister to hold a hearing.
[10] This Court should interfere with the Minister’s decision only if the June 2007 Order is not reasonably supported by the law or evidence and would not stand up to a probing examination, or if the Order does not fall within the broad range of decisions of the Minister that would be reasonable in the circumstances.
The Legislative Framework
[11] Section 9 of the Occupational Health and Safety Act (OHSA), R.S.O. 1990, c. O.1, requires a Joint Health and Safety Committee (JHSC) to be established in all work places with more than 20 full time employees. The School Board operates some 94 work places with more than 20 full time employees.
[12] The Minister may, by Order, pursuant to s. 9(3) of the OHSA permit an employer to establish and maintain one JHSC for more than one workplace (a Multi-Site Committee) and may, in the order, provide for the composition, practice and procedure of any committee so established. The December 2003 was made under this subsection. It specifically provided that the Multi-Site committee would be “governed by” a document the parties had negotiated, referred to as the Terms of Reference agreement. In exercising the discretion to permit an employer to deviate from the requirement to have a JHSC for each site and to substitute instead a Multi-Site Committee, the Minister is required to consider the criteria outlined in s. 9(5) of the OHSA:
(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.
Background Facts
[13] The Minister made the December 2003 Order pursuant to s.9 (3) of the OHSA to create a Multi-Site Committee for the School Board at the request of all parties.
[14] The respondent School Board had been created following the amalgamation of the Windsor Board of Education and the Essex County Board of Education in December of 1997. After amalgamation, and until the December 2003 Order was made, the Board continued to run two previously existing unofficial ad hoc Multi-Site Committees to respond to the requirements of the Ontario Health and Safety Act for the 94 work places under the charge of the Board.
[15] All of the parties supported the formal formation of a Multi-Site Committee and beginning in 1998, the parties spent almost five years negotiating the Terms of Reference signed by all parties in November 2003 confirming the terms of the proposed Multi-Site Committee. The Minister approved the Multi-Site Committee. The Committee has been governed by the consensual Terms of Reference since December 12, 2003.
[16] Section 17(4) of the Terms of Reference provides that either party may seek rescission of the Multi-Site Committee by the Ministry of Labour as follows:
“This Terms of Reference can be rescinded by the MOL after consultation with the Workplace parties”.
[17] The Multi-Site Committee functioned without apparent incident until 2006. In 2006 issues arose between the parties.
[18] The Board faced three charges with respect to breaches of the OHSA. The Board pleaded guilty to one charge resulting in a $40,000.00 fine. Due to communication difficulties the parties sought the assistance of the Ministry of Labour. Ministry staff met with the parties on four occasions over a span of eight months between June 2006 and February 27, 2007.
[19] All of the evidence before us amply demonstrates that the Multi-Site Committee was not functioning well, at least in 2006 and 2007. By way of example, the parties were in a fractious dispute with respect to the contents of the minutes of each meeting of the Multi-Site Committee.
[20] On February 27, 2007, Ms. Dennis, the Minister’s delegate, met with the parties and made it clear that her preference was to continue the Multi-Site Committee. She also clearly indicated that in her 27 years with the Ministry she had never issued an Order rescinding the creation of a Multi-Site Committee. She advised the parties on February 27, 2007, however, that there were three possible solutions to the parties’ difficulties. They were:
(a) The parties could resolve their issues and function co-operatively in a Multi-Site Committee;
(b) The parties could attend mediation facilitated by the Ministry to attempt to resolve their differences, or
(c) The Minister, or his designate, would make an Order rescinding the Multi-Site Committee.
[21] After the February 2007 meeting, the Board corresponded with the Ministry without sending a copy to the applicants. Two letters were sent to the Ministry requesting that the Multi-Site Committee be rescinded.
[22] The applicants’ representative favoured mediation and confirmed this in an email to the Ministry. However, the Board refused to participate in the mediation proposed by the Minister’s delegate. The email sent by the applicants’ representative to the Ministry on March 11, 2007 provides:
“We would like to request some more time before you make a decision as to the next steps. We would like to educate the trustees to convince them to change the direction their school board administration is taking.
We would also like to invite you to speak with us again after you have taken the time to review some of the materials we provided you with at our last meeting. We would like to discuss some other issues and the need for board-wide committee even if our schools end up with site-based Committees.
We would like to ensure if there is to be a change to site-based committees, that there will be a transition plan for implementation in place to ensure adequate compliance and protection of workers.”
[23] It is not disputed that the Minister has no authority to compel the parties to attend mediation. It was equally obvious that the parties were, on their own, unable to resolve their differences.
[24] On May 28, 2007, the Minister’s delegate wrote to the Board with a copy to the applicants confirming the Board’s request to rescind the December 2003 Order. That letter states:
“As you correctly pointed out, rescinding these two orders will return the employer to the requirement to establish individual site based joint health and safety committees.
I have drafted a separate letter which will effectively rescind the orders of December 2003 and am prepared to issue it in the very near future.
In advance of that though I would just like to make it clear to everyone involved that the “assistance” we’ve provided, while critical to the process of establishing exactly where the parties were in terms of the ongoing success or failure of the multi-site JHSC’s, would most appropriately be described as a fact finding exercise in anticipation and preparation for a more formal relationship building exercise that we had proposed would be facilitated by staff of the Ministry’s Labour Management Services. By receipt of your May 3rd letter I am assuming that this is regrettably no longer an option and I will be issuing the letter rescinding the December 2003 Ministry’s orders.”
[25] The applicants did not respond to the May 28, 2007 letter even though the orders rescinding the Multi-Site Committee had not yet been made as in their view the matter was “a fait accompli”.
[26] On June 22, 2007, the Minister’s delegate, Ms. Dennis wrote to the Board and copied the applicants confirming that the December 2003 Order was rescinded. That letter provides:
“Dear Ms. Gallagher:
Further to our meeting of February 27, 2007, I have given great consideration to 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.”
[27] Since June of 2007 the Board has been functioning with 94 site specific JHSCs in accordance with the requirements of section 9 of the OHSA.
Procedural Fairness
[28] Section 17(4) of the Terms of Reference provides that either party may seek rescission of the Multi-Site Committee before the Ministry of Labour after consultation with the other party.
[29] The applicants allege that the Minister failed to comply with requirements of procedural fairness by failing to consult with the applicants prior to making the decision rescinding the December 2003 Order.
[30] We do not accept this argument.
[31] There were four meetings involving the parties and members of the Ministry of Labour which spanned a period of eight months. The Minister’s delegate, Ms. Dennis, was at two of these meetings. Although it is unfortunate that the Board did not copy the applicants in their correspondence to the Ministry, it is clear from Mr. Awad’s email sent to the Ministry on behalf of the applicants that he knew, in March 2007, that a revocation of the December 2003 order was imminent if the parties could not resolve their differences. He asked for more time to discuss the issues with the trustees of the Board.
[32] The Ministry signaled clearly to the parties in the letter of May 28 2003 that an order rescinding the December 2003 Order was imminent. The June 2007 Order was made one month later.
[33] While the Terms of Reference do not bind the Minister, we are of the view that the Minister clearly fulfilled any obligation to consult with the parties pursuant to section 17(4) of the Terms of Reference and in accordance with principles of procedural fairness prior to making a decision to rescind the Order allowing the School Board to have a Multi-Site Committee.
Absence of Written Reasons
[34] The applicants argue that the Minister’s decision should be overturned for failure to provide written reasons for it.
[35] We disagree with this assertion.
[36] It is clear that the Minister’s decision was a discretionary administrative decision to which a high degree of deference is owed. On the continuum between adjudicative decisions at one end and pure policy decisions on the other, this was a decision that was significantly more akin to pure policy. There is no requirement to give written reasons for such a decision.
[37] In Northwestern Utilities Ltd. v. Edmonton (City), 1978 17 (SCC), [1979] 1 S.C.R. 684 the Supreme Court confirmed that although giving reasons for administrative decisions is generally desirable, it does not follow that “a disposition by an administrative tribunal would be reviewable solely by reason of a failure to disclose its reasons for such disposition” (per Estey J. at p.).
Failure to consider [s. 9(5)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o1/latest/rso-1990-c-o1.html#sec9subsec5_smooth) of the [Occupational Health and Safety Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o1/latest/rso-1990-c-o1.html) when the Minister rescinded the s. 9(3) Order.
[38] The applicants allege that the Minister’s decision is unreasonable because the delegate failed to consider the criteria in s. 9(5) of the OHSA in reasons.
[39] The respondents argue that OHSA 9(5) does not apply to a decision to rescind an order for a Multi-Site Committee. They argue that it applies only when a decision is made to permit a deviation from an employer’s obligation under the OHSA by authorizing the formation of a Multi-Site Committee under s. 9(3.1).
[40] It is not clear whether s.9(5) specifically applies to a decision to rescind a s. 9(3.1) order. However, in our view the criteria of s.9(5) would properly inform a decision to rescind a s. 9(3.1) order having regard to the purpose of the OHSA.
[41] The June 22 2007 letter does not specifically refer to s. 9(5) of the OHSA, but does refer to the meeting held with the Minister’s delegate and the parties on February 27, 2007. At that meeting, the Minister’s delegate made it clear that if the parties were unable to work together and solve their differences either on their own, or through Ministry facilitated mediation, reluctantly she would have no alternative but to rescind the December 2003 Order.
[42] We note, that the “basket clause” in s. 9(5), on the facts of a case such as this one, may trump the more specific factors, and justify, the decision made. That sub-section provides:
“In exercising the power conferred by subsection (3) or (3.1), the Minister shall consider,
(e) such other matters as the Minister considers advisable.
[43] The December 2003 Order was predicated on a functional, if not collaborative, relationship between the parties. We conclude that the affidavit material before us provides the required factual context for discerning that the Multi-Site Committee was dysfunctional over a lengthy period of time. It is clear that the parties were unable to co-operate in the Multi-Site Committee and that it had not conducted any meaningful work, at least during the period of consultation with the Ministry from June of 2006 to June of 2007.
[44] The Minister’s decision to revoke the Multi-Site Committee is an administrative decision that is owed significant deference as outlined in paragraph 22 of the Mills decision:
[This] conclusion does not signal that factors such as the nature and mandate of the decision-maker and the nature of the question being decided are to be ignored. Applying the reasonableness standard will now require a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker as well as the nature and complexity of the decision will be taken into account. Where for example, the decision-maker is a Minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad. In contrast, where there is no real dispute on the facts and the tribunal need only determine whether an individual breached a provision of its constituent statute, the range of reasonable outcomes is, perforce, much narrower.
[Emphasis added]
[45] The overarching purpose of the Occupational Health and Safety Act is to promote and protect the safety of employees. The dysfunctional Multi-Site Committee had failed to adequately address health and safety issues for at least a year. The Minister’s delegate decided she had no practical alternative but to make the decision to rescind the Multi-Site Committee in this case. The decision was reasonable and seen as necessary to protect the employees.
[46] For these reasons, the application for judicial review is dismissed.
Costs
[47] The parties agree if the applications are dismissed, that each applicant will pay to the Ministry of Labour the sum of $2,500.00, for a total payment of $5,000.00 inclusive of disbursements and GST.
[48] There is a dispute with respect to whether the applicants should be required to pay to the respondent Board the sum of $10,000.00 or the sum of $20,000.00 if the applications are dismissed. In our view it would be reasonable for the applicants to be required to pay to the respondent Board the total sum of $10,000.00 inclusive of disbursements and GST, that is, $5,000.00 payable by each of applicants.
JANET WILSON J.
ASTON J.
LOW J.
Date of release: February 17, 2009
COURT FILE NO.: 376/07 and 387/07
DATE: 20090217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JANET WILSON, ASTON AND LOW JJ.
B E T W E E N:
376/07
ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO Applicant
- and -
MINISTER OF LABOUR FOR ONTARIO and the GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD Respondents
387/07
B E T W E E N:
ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION AND DISTRICT 9 Applicants
- and -
MINISTER OF LABOUR FOR ONTARIO and SOPHIE DENNIS, REGIONAL DIRECTOR, WESTERN REGION and the GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD Respondents
REASONS FOR JUDGMENT
Date of Reasons for Judgment: February 11, 2009
Date of Release: February 17, 2009