The Attorney General for Ontario v. CUPE Local 27 et al
CITATION: The Attorney General for Ontario v. CUPE Local 27 et al, 2015 ONSC 5172
DIVISIONAL COURT FILE NO.: 558/14
DATE: 20150817
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C.
BETWEEN:
ATTORNEY GENERAL FOR ONTARIO
Applicant
– and –
THE CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 27, and
THE GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD
Respondents
-and-
CANADIAN UNION OF PUBLIC EMPLOYEES (CUPE NATIONAL)
Proposed Intervener
-and-
UNIFOR AND ITS LOCAL 2458
Proposed Intervener
Counsel:
Sara Blake, Matthew Horner and Padraig Ryan, for the Applicant
Michael Klug, for the Respondent Canadian Union of Public Employees, Local 27
Glenn P. Christie, for the Respondent Greater Essex County District School Board
Gary Leeb and Devon M. Paul, for the Proposed Intervener Canadian Union of Public Employees
James Harnum and Lewis Gottheil, for the Proposed Intervener Unifor and its Local 2458
HEARD: In Writing
Reasons for Judgment
[1] The Greater Essex County District School Board, the Canadian Union of Public Employees ("CUPE National") and CUPE Local 27 are Recognised parties in a collective agreement providing that the Greater Essex County District School Board would pay the premiums necessary to maintain retired employees' participation in a Health Benefit Plan after a retired employee reached the age of 65.
[2] The Ministry of Education directed the Greater Essex County District School Board to stop paying these premiums, because s. 177(3) of the Education Act, R.S.O. 1990, c. E.2, prohibited such payments.
[3] After receiving the Ministry's direction, the Greater Essex County District School Board advised retirees or their surviving spouses that, effective August 31, 2014, it would cease paying for this benefit for retirees over the age of 65.
[4] CUPE Local 27 grieved the School Board's decision. The arbitration proceeded before Arbitrator Thomas Kuttner. On July 29, 2014, Arbitrator Kuttner issued a declaratory award allowing the grievance.
[5] On November 28, 2014, the applicant commenced this application for judicial review of Arbitrator Kuttner's decision. On this application, the Attorney General for Ontario seeks an order setting aside Arbitrator Kuttner's award. The applicant then asks this court to refer the matter back to that arbitrator with the direction that the grievance be decided in accordance with the Divisional Court's opinion in a case which the Ministry of Education has submitted to the Divisional Court pursuant to s. 10 of the Education Act ("Stated Case").
[6] The Stated Case asks whether ss. 177(3) and 177(4) of the Education Act authorized the School Board to pay postretirement benefits of the nature described in s. 177(1) of the Education Act on behalf of persons who had retired and reached the age of 65. It also asks whether any other section of the Education Act authorized such benefits.
[7] The Stated Case was filed with this court on December 15, 2014, and it is scheduled to be heard February 22-25, 2016.
[8] Both the Stated Case and this judicial review application will turn on the proper interpretation of at least s. 177(3) of the Education Act. Further, if the applicant succeeds, the outcome will be an order remitting the matter back to Arbitrator Kuttner.
[9] On May 7, 2015, CUPE National filed a motion for leave to intervene in this application.
[10] On May 8, 2015, UNIFOR filed a motion for leave to intervene in this application.
[11] Proposed interveners may be added as a party to proceedings or permitted to intervene as a friend of the court.
[12] A person added as a party will have the right to present evidence and cross-examine. A friend of the court usually takes the facts as presented, although such an intervener may be given leave to file their own affidavit evidence.
[13] According to rule 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in order to be added as a party, the proposed intervener must demonstrate:
• An interest in the subject matter of the proceedings;
• An adverse effect from a judgment in the proceeding; or,
• That there exists between the proposed intervener and one or more of the parties to the proceeding a question of law or fact in common with a question of law or fact in issue in the proceeding.
[14] In addition, rule 13.01(2) requires the court to consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding.
[15] The Rules do not enumerate the considerations to be applied when the proposed intervener wishes to intervene as a friend of the court. However, the Court of Appeal has held that, when deciding intervener applications, the court must consider:
• The nature of the case;
• Any issues which arise; and,
• Whether the proposed intervener can usefully contribute without causing injustice to the immediate parties: see Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at para. 10.
[16] Permitting a party to intervene in a proceeding is a practical decision. Does the proposed intervener offer a perspective that is both unique and helpful? Can this perspective be received efficiently? Can this perspective be received without unfairness to the immediate parties? In this regard the court must consider its ability to restrict both the time for oral argument and the length of the proposed intervener's factum.
[17] This judicial review application and the Stated Case have been the subject of Case Scheduling Directions. Pursuant to those Directions, this judicial review application will be heard immediately after the Stated Case by the same panel which hears the Stated Case.
[18] Both CUPE National and UNIFOR are parties to the Stated Case and will fully participate in that proceeding. Any perspective that they wish to impart on the proper interpretation of s. 177(3), or any other pertinent section of the Education Act, can be communicated in that proceeding.
[19] If either or both wish to argue that the interpretation of s. 177(3) proposed by the applicant is unconstitutional, they will be able to make that argument in the Stated Case to the same panel deciding this judicial review application.
[20] UNIFOR will be able to describe in the Stated Case proceeding the effect that the interpretation of s. 177(3) and any other pertinent and applicable sections of the Education Act will have on outstanding grievances filed on behalf of the Windsor Essex Catholic District School Board.
[21] UNIFOR will also have the opportunity to bring the Divisional Court's attention in the Stated Case proceeding to its past experience litigating the interpretation of s. 177(3).
[22] UNIFOR will also have the opportunity to bring its perspective concerning the proper interpretation of other pertinent sections of the Education Act during the Stated Case proceeding.
[23] UNIFOR speculates that the applicant may attempt to introduce fresh evidence. Any attempt to do so can be resisted by any one or all of the respondents.
[24] The most practical way to bring UNIFOR's views before the court is to hear UNIFOR only once in the Stated Case proceeding before the judicial review commences. There is no need to prolong the judicial review proceedings by permitting UNIFOR to intervene in this proceeding.
[25] Accordingly, UNIFOR's application to intervene in this judicial review proceeding is dismissed.
[26] The same observations which I have made with respect to UNIFOR can be made with respect to CUPE National, with one significant exception. The Recognition Clause in the collective agreement with which Arbitrator Kuttner was concerned, recognizes both CUPE National and its Local 27 jointly as the sole and exclusive bargaining agent for the employees described in that agreement.
[27] The Judicial Review Procedure Act, R.S.O. 1990, c. J.1 does not define the respondents to an application for judicial review. All participants in an administrative hearing should be named as respondents to any judicial review of that hearing: see D. Brown & J. Evans, Judicial Review of Administrative Action in Canada, loose-leaf, (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 4-71.
[28] CUPE National and its local affiliates are separate, legal entities with specific responsibilities to their overlapping memberships: see Romard v. Canadian Union of Public Employees, 2000 3423 (NS SC), [2000] N.S.J. No. 284 (QL); 188 N.S.R. (2d) 31 (S.C.), at paras. 36-58. However, even when national unions and their local branches possess this level of autonomy, they may still be parties to the same collective agreement, provided that they are both explicit signatories: see Dryden Paper Co. Ltd. v. U.P.I.U., Locals 105 & 1323 (1976), 1976 2225 (ON LA), 11 L.A.C. (2d) 337, 1976 CarswellOnt 1395, at para. 9; G.M.P., Local 446 v. Timberjack Inc. (1996), 1996 20438 (ON LA), 62 L.A.C. (4th) 438, [1996] O.L.A.A. No. 59, at para. 12.
[29] I am satisfied that CUPE National should be made a party to this judicial review application. The policy grievance that generated the decision which the Attorney General of Ontario seeks to review was obviously significant. I am satisfied that CUPE National was sufficiently connected to the arbitration hearing through both the participation of Local 27 and its recognition in the collective agreement to warrant its addition as a party. I appreciate that the Attorney General for Ontario has not styled the judicial review application in this way, but that does not affect this Court's jurisdiction to add CUPE National as a party at this time.
[30] Accordingly, it is ordered that CUPE National be added as a responding party to this judicial review application.
[31] CUPE National in its application for permission to intervene indicated that, if successful, it would not duplicate arguments presented by Local 27. I recognize that Counsel appearing in this judicial review are experienced in these matters, and so I am sure they are well aware that the same is expected of responding parties.
[32] There will be no order concerning costs.
MARROCCO A.C.J.S.C.
Released: 20150817
CITATION: The Attorney General for Ontario v. CUPE Local 27 et al, 2015 ONSC 5172
DIVISIONAL COURT FILE NO.: 558/14
DATE: 20150817
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C.
BETWEEN:
ATTORNEY GENERAL FOR ONTARIO
Applicant
– and –
THE CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 27,
-and-
THE GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD
Respondents
-and-
CANADIAN UNION OF PUBLIC EMPLOYEES (CUPE NATIONAL)
Proposed Intervener
-and-
UNIFOR AND ITS LOCAL 2458
Proposed Intervener
REASONS FOR JUDGMENT
Released: 20150817