Association of Professors of the University of Ottawa v. University of Ottawa

CITATION: Association of Professors of the University of Ottawa v. University of Ottawa, 2018 ONSC 1191

DIVISIONAL COURT FILE NO.: 15-2168 DATE: 20180221

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Morawetz R.S.J., Thomas R.S.J. and Swinton J.

BETWEEN:

ASSOCIATION OF PROFESSORS OF THE UNIVERSITY OF OTTAWA (APUO) Applicant/Responding Party

– and –

UNIVERSITY OF OTTAWA Respondent/Moving Party

COUNSEL: Bijon Roy and Natasha Udell, for the Applicant/Responding Party Frank Cesario, for the Respondent/Moving Party

HEARD at Ottawa: February 20, 2018

REASONS FOR JUDGMENT

Swinton J.

Overview

[1] The University of Ottawa (the “University”) has brought a motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to set aide the decision of Toscano Roccamo J. dated January 6, 2017 on the grounds that she erred in finding that the Divisional Court has jurisdiction to determine an application for judicial review brought by the Association of Professors of the University of Ottawa (the “Association”) and that the Association has standing to bring this application. The University also argues that she erred in failing to strike the application because of the limitation on the availability of enforcement remedies under the Broader Public Sector Accountability Act, 2010, S.O. 2010, c. 25 (“BPSAA”).

[2] For the reasons that follow, I would grant the motion to set aside on the basis that the Divisional Court has no jurisdiction to hear this application for judicial review.

The Relief Sought

[3] The Association seeks several forms of relief in the application for judicial review. First, it seeks an order in the nature of certiorari to set aside the University’s determination of the compensation payable to two non-unionized employees for the years 2012-14. The Association argues that the compensation was contrary to wage restraints imposed in ss. 7.7 and 7.8 of the BPSAA and was therefore ultra vires the power of the University under s. 11(c) of the University of Ottawa Act, S.O. 1965, c. 137 (“U of O Act”). Second, the Association seeks a declaration that the payment of the compensation was in violation of the BPSAA, and it also seeks an order requiring the University to recover the overcompensation.

The Jurisdiction Issue

[4] The Divisional Court does not have jurisdiction to hear this application for judicial review. In reaching this conclusion, I have applied a standard of correctness to the decision of the motion judge, given that the determination of jurisdiction is a question of law.

[5] I agree with the motion judge that the Divisional Court has no jurisdiction to award the declaratory relief sought. Pursuant to s. 2(1)2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), the Divisional Court may grant declaratory relief only in respect of the exercise or refusal to exercise a “statutory power”. A “statutory power” is defined in s. 1 to include the exercise of a “statutory power of decision”, defined, in part, as a power or right conferred by or under a statute to make a decision prescribing the legal rights, powers, privileges, duties or liabilities of any person or party or the eligibility of any person or party to receive a benefit or licence.

[6] In setting the compensation for the two employees, the University was not exercising a statutory power of decision. The Court of Appeal in Paine v. University of Toronto (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770 made it clear that for s. 2(1)2 to apply, there must be direct statutory authority to make the specific decision that is challenged. Section 11 of the U of O Act confers a number of general powers on the Board of Governors of the University, including the power in s. 11(c) to fix the number, duties, salaries and other emoluments of officers, members of the teaching staff, agents and servants of the University. However, the general power in s. 11(c) does not render individual compensation decisions the exercise of a statutory power of decision.

[7] In the alternative, the Association argues that this Court has jurisdiction to grant relief in the nature of certiorari pursuant to s. 2(1)1 of the JRPA. That public law remedy is available to challenge a decision affecting rights and interests if the decision has a sufficient public law dimension. In determining whether the remedy is available, a court considers a number of factors described by the Court of Appeal in Setia v. Appleby College, 2013 ONCA 753 at para. 34.

[8] The motion judge stated that she considered these factors. However, she does not discuss them in detail. Her focus appears to be on the exceptional nature of the circumtances, where the University’s compensation decision is subject to legal constraints and judicial review may provide a way to hold the University accountable.

[9] In my view, the motion judge erred in her conclusion, as she failed to address a number of the relevant factors in her analysis.

[10] One of the important factors in determining whether a matter is “coloured with a public element, flavour or character sufficient to bring it within the purview of public law” (Air Canada v. Toronto Port Authority, 2011 FCA 347 at para. 60) is the character of the matter for which the review is sought. Here the decision to be reviewed is the financial compensation to be paid to two non-unionized employees in a particular period of time. That decision is not one that affects the broader university community, nor is it principally founded on public law. It is an employment-related decision, albeit one that may be constrained by a range of employment and other laws and one that is supported by public funding. However, this is essentially a private law matter.

[11] A second factor is the nature of the decision maker and its responsibilities. While the University has powers pursuant to its constituent Act, that legislation does not have broad public effect. While the University has the express legislative purpose of the advancement of learning, compensation decisions affecting individual employees are not closely related to that statutory purpose.

[12] Third, the setting of compensation is essentially a private matter relating to employment law and financial considerations. As the Supreme Court of Canada observed in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 81, even in the case of public office holders, contract law, not public law principles, governs the employment relationship. In this case, even if there are legal constraints on the compensation payable because of the BPSAA, that does not change the nature of the compensation decision. It is essentially governed by contract and the exercise of private discretion.

[13] Fourth, this is not a situation where the public law remedy of judicial review is suitable. Judicial review is meant to be a summary proceeding, usually based on the review of a decision and a record of proceedings. Here, there is no clearly identified decision that is questioned, and there is no record of proceedings nor reasons for a decision. This application would require affidavit evidence and cross-examinations, and would require factual determinations to be made in order to determine if there was non-compliance with the BPSAA. I note that this would occur without the participation of the two individuals who are directly affected, as they are not parties.

[14] Finally, this is not a case where the University is exercising a compulsory power over the public or a group, nor is there here any exceptional circumstance that would warrant judicial oversight because of the impact of the decision on a broad segment of the public (Asa v. University Health Network, 2016 ONSC 439 (Div. Ct.) at paras. 29-30; West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881 at paras. 23-24). In the present case, we are dealing with a compensation decision by the University affecting two individual employees. That decision has no direct effect on the Association and its members, given that the constraints in the BPSAA do not apply to collective bargaining relationships. More importantly, compliance or non-compliance with the BPSAA by the University in the compensation paid to two employees does not affect any broad segment of society.

[15] In summary, the decision on the compensation of the two employees is essentially a contractual matter. While that decision was subject to constraints under the BPSAA, so, too, was it subject to other employment laws. However, the existence of the BPSAA does not change the private law nature of the decision. The compensation decision does not have the requisite public law aspect to allow this Court to exercise the power of judicial review pursuant to s. 2(1)1 of the JRPA.

Conclusion

[16] As the Divisional Court does not have jurisdiction to hear this application for judicial review, I need not address the issues of standing and the impact of the remedial provisions of the BPSAA.

[17] The motion to set aside is granted, the order of the motion judge is set aside and the application for judicial review is quashed on the basis of lack of jurisdiction.

[18] The University shall have costs of the motion to set aside in the amount of $10,000, an amount agreed upon by the parties. The University shall also have costs of the motion to quash in the amount of $7,500, the amount awarded by the motion judge.

___________________________ Swinton J.

I agree _______________________________

Morawetz R.S.J.

I agree _______________________________

Thomas R.S.J.

Released: February 21, 2018

CITATION: Association of Professors of the University of Ottawa v. University of Ottawa, 2018 ONSC 1191

DIVISIONAL COURT FILE NO.: 15-2168 DATE: 20180221

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Morawetz R.S.J., Thomas R.S.J., and Swinton J.

BETWEEN:

ASSOCIATION OF PROFESSORS OF THE UNIVERSITY OF OTTAWA (APUO) Applicant/Responding Party

– and –

UNIVERSITY OF OTTAWA Respondent/Moving Party

REASONS FOR JUDGMENT

Swinton J.

Released: February 21, 2018