Attorney General for Ontario v. Ontario Secondary School Teachers’ Federation and York District School Board
CITATION: Attorney General for Ontario v. Ontario Secondary School Teachers’ Federation and York District School Board, 2015 ONSC 2438
DIVISIONAL COURT FILE NO.: 145/15 DATE: 20150414
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERMAN, MOLLOY AND CORBETT JJ.
BETWEEN:
ATTORNEY GENERAL FOR ONTARIO
Applicant
– and –
ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION and YORK DISTRICT SCHOOL BOARD
Respondents
Sara J. Blake and L. Glenn Frelick, for the Applicant
Jennifer Micallef and Robert D. Whillans, for the Respondent, Ontario Secondary School Teachers’ Federation
Daniel N. Sheppard, Intervenor, for the Labourer’s International Union of North America, Local 183
HEARD at Toronto: April 14, 2015
LEDERMAN J. (ORALLY)
[1] This is an application for Judicial Review of a summons dated November 7, 2014 and an Interim Procedural Ruling dated January 14, 2015, issued by Arbitrator Waddingham which compelled the applicant, the Attorney General of Ontario, to conduct a Wagg review of a Crown brief that the parties to the arbitration wanted disclosed, or to attend before Arbitrator Waddingham on April 15, 2015 to explain why the Attorney General has refused to conduct the Wagg review.
[2] The applicant seeks an order quashing the summons and setting aside the interim procedural ruling.
[3] By way of background, in January 2013, Mr. Farhez Lakhani, a teacher employed by the York Region District School Board, was charged under the Criminal Code with possession of property obtained by crime with a value under $5,000. The School Board placed Mr. Lakhani on non-disciplinary leave while it conducted an investigation. On June 3, 2013, the School Board terminated his employment. On June 4, 2013, the Ontario Secondary School Teachers’ Federation (“OSSTF”) filed a grievance. In July 2013, the criminal charges were withdrawn.
[4] In March 2014, the first Arbitrator, Arbitrator Raymond, was appointed to hear the grievance. Counsel for OSSTF was in possession of the Crown brief as a result of also being counsel for the grievor in the criminal proceedings. Counsel for the School Board wanted a copy in order to prepare for the hearing. The parties were in agreement as to disclosure. Counsel for OSSTF contacted the Crown Law Office – Civil (“CLOC”) to determine how to initiate the Wagg process. On April 29, 2014, Arbitrator Raymond issued two subpoenas, one to a law clerk at CLOC and one to general counsel to the York Regional Police – neither party responded. Counsel for OSSTF was in contact with Mr. Frelick, Wagg Team Lead of CLOC. However, due to a significant delay in response by Mr. Frelick, the parties to the arbitration adjourned their July 2014 hearing dates. As a result of the delay, the parties eventually withdrew the case from Arbitrator Raymond’s docket and later appointed Arbitrator Waddingham.
[5] The Crown has delayed the arbitration process since an initial summons was issued to it one year ago and has not responded to that summons other than sending letters objecting to jurisdiction.
[6] On November 7, 2014, Arbitrator Waddingham issued a summons or subpoena under s. 48(12) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, to Mr. Frelick, directing him to attend a hearing scheduled for November 27, 2014 and to bring the Crown brief or explain the refusal.
[7] Mr. Frelick wrote to counsel for one of the parties stating that it was CLOC’s position that an Arbitrator appointed under the Labour Relations Act did not have jurisdiction to issue a summons to compel production documents of the Attorney General, nor the jurisdiction to perform a Wagg screening and that he would not be attending the hearing.
[8] The Arbitrator made her interim procedural ruling after hearing submissions from the parties and after considering the written correspondence from CLOC.
[9] In the interim procedural ruling, the Arbitrator held that a Crown brief could be used and produced in an arbitration proceeding. She held that the rationale of the Court of Appeal in D.P. v. Wagg (2004), 2004 39048 (ON CA), 71 O.R. (3d) 229, relating to Crown disclosure materials applied in grievance proceedings under the Labour Relations Act.
[10] Arbitrator Waddingham held that an arbitrator has the jurisdiction to summons witnesses and compel the production of documents pursuant to s. 48(12)(d) of the Labour Relations Act. She rejected CLOC’s position that s. 71 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F., and s. 4(2) of the Labour Relations Act served to bar an Arbitrator from issuing a summons to the Crown for any reason. She held that s. 4(2) of the Labour Relations Act acted to merely exclude certain Crown employees that was not at issue here and that s. 71 of the Legislation Act had no bearing on her authority here.
[11] The Arbitrator directed that her interim procedural ruling be served on the CLOC Wagg Team together with another subpoena ordering the attendance of Mr. Frelick (or anyone else who had authority over the issue) to explain its conduct and/or make submissions as to why the Crown brief should not be produced in this case.
[12] Rather than planning to attend at tomorrow’s arbitration hearing, the Attorney General for Ontario has brought this application.
[13] The decision in question is a preliminary ruling only – the Arbitrator has invited and insisted by way of summons that the CLOC attend and make production or explain its conduct in refusing to do so.
[14] Before us, Ms. Blake has raised a number of arguments, namely:
(a) That the threshold for compelling the Crown brief has not been met;
(b) The Arbitrator does not have power to issue a subpoena duces tecum and compel the Crown to produce documents;
(c) In any event, the Crown cannot be summoned by an Arbitrator under the Labour Relations Act; and
(d) The Arbitrator has no power to determine issues pertaining to privilege contained in the Crown brief or issues of privilege generally.
[15] These are procedural and jurisdictional issues that should be addressed before the Arbitrator in the first instance.
[16] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 67, the Court of Appeal held that even a true question of jurisdiction is not by itself an exceptional circumstance justifying judicial review before administrative proceedings have been completed.
[17] Courts have repeatedly asserted their reluctance to determine applications for judicial review of interim or interlocutory decisions of administrative decision-makers and arbitrators. Such applications fragment and delay the arbitration process and frustrate the legislative goal under the Labour Relations Act to encourage an expeditious and less costly adjudicative process.
[18] Counsel for the respondent OSSTF submitted that we should at least rule on two issues that were decided in the interim ruling:
(a) that the Wagg procedure applies in arbitral proceedings; and
(b) that the Arbitrator has jurisdiction to compel the Crown to produce documents.
[19] Approaching these issues on a piecemeal basis is not ideal. There would remain other outstanding issues such as who decides the privilege questions and the threshold test for production. These matters may all be interconnected and the Arbitrator should decide all of these issues together.
[20] At the least, the Court will have the benefit of a full record and the Arbitrator’s final decision on these issues which will be of assistance.
[21] Rather than furthering these legislative objectives, the CLOC, who is not even a party to the arbitration, has been the instrument and cause of serious delay in the process.
[22] The Arbitrator has the authority to rule on her own jurisdiction and on all of these procedural matters and therefore these issues before us are premature.
[23] The application is therefore dismissed.
COSTS
[24] I have endorsed the Record, “This application is dismissed for oral reasons delivered. The respondent OSSTF will have its costs fixed at $13,785.85 all inclusive, payable by the applicant within 30 days.”
___________________________ LEDERMAN J.
MOLLOY J.
D. L. CORBETT J.
Date of Reasons for Judgment: April 14, 2015
Date of Release: April 17, 2015
CITATION: Attorney General for Ontario v. Ontario Secondary School Teachers’ Federation and York District School Board, 2015 ONSC 2438
DIVISIONAL COURT FILE NO.: 145/15 DATE: 20150414
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, MOLLOY AND CORBETT JJ.
BETWEEN:
ATTORNEY GENERAL FOR ONTARIO
Applicant
– and –
ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION and YORK DISTRICT SCHOOL BOARD
Respondents
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: April 14, 2015
Date of Release: April 17, 2015