[1994] OLRB Rep. August 1096
1041-94-U Grant Tadman, Applicant v. Ontario English Catholic Teachers' Association Toronto Secondary Unit, Responding Party v. Metropolitan Separate School Board, Intervenor
BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members J. A. Ronson and J. Redshaw.
DECISION OF THE BOARD; August 22, 1994
This is an application under section 91 of the Labour Relations Act alleging that the responding party has contravened section 69 of the Act. Section 69 deals with a union's duty of fair representation towards employees in the bargaining unit.
The applicant is a teacher as defined in The School Boards and Teachers Collective Negotiations Act. His bargaining agent is the responding party, the Ontario English Catholic Teachers' Association Toronto Secondary Unit.
The applicant alleges that the responding party breached its duty under section 69 of the Labour Relations Act in failing to proceed to arbitration with respect to his compensation grievance.
The responding party and the intervenor, The Metropolitan Separate School Board, took the position at the outset that the Labour Relations Board has no jurisdiction to deal with this application by virtue of section 2(1)(f) of the Labour Relations Act.
Section 2(1)(f) of the Labour Relations Act states that it does not apply to a teacher as defined in The School Boards and Teachers Collective Negotiations Act, except as provided in that Act.
The School Boards and Teachers Collective Negotiations Act does not confer jurisdiction on the Board with respect to an allegation of unfair representation brought by a teacher against his/her bargaining agent. (Franca Giannotta v. Ontario English Catholic Teachers' Association (April 28, 1994 - Board File No. 4521-93-U).
The applicant then took the position that section 2(1)(f) of the Labour Relations Act violates section 7 of the Canadian Charter of Rights and Freedoms by depriving teachers of the right to bring complaints of unfair representation against their bargaining agent.
The applicant was directed to provide the Board, the responding party and the intervenor with detailed written representations on the Charter argument. They were also asked to indicate whether evidence will be required and why an oral hearing on this issue was required. The applicant filed its written representations and indicated that it did not intend to call any evidence with respect to the argument that section 2(1)(f) violates section 7 of the Charter.
Having reviewed the detailed written submissions of the applicant on this issue, the Board has determined that it does not require a response from the responding party or the intervenor and that it is prepared to decide the preliminary issue on the basis of the applicant's written representations. For the reasons set out below, the Board has determined that section 2(1)(f) of the Labour Relations Act does not violate section 7 of the Charter.
Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The applicant argues that the exclusion of teachers from the protection of section 69 of the Labour Relations Act, coupled with the absence of an alternative forum for teachers to resolve issues of fair representation against their unions, violates the rights guaranteed under section 7 of the Charter. The applicant argues that restricting the employee's right to hold its union accountable for a breach of its duty of fair representation "would severely hamper an employee's ability to work at his chosen profession". He also asserts that a common law right to sue for breach of duty of fair representation would be an inadequate alternative to an application under section 69 of the Labour Relations Act.
The applicant states that "the rights of teachers affected by the impugned legislation are not merely economic rights but involve the right to practice a profession and to enjoy the amenities thereof. Such rights attract the protection of section 7 of the Charter." The applicant cites no case law in support of this proposition.
A section 7 analysis involves two steps:
To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that that deprivation is contrary to the principles of fundamental justice. R v. Beare 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387 at 401.
In Ontario, the Courts have rejected an overly broad approach to the rights protected under section 7 of the Charter. Ontario Courts have consistently held that the expression "liberty and security of the person" in section 7 relates to a person's physical and mental integrity and ones control over these. Ontario Courts have held that section 7 does not guarantee economic interests, including the right to carry on a business or earn a livelihood or the right to engage in a particular profession or occupation or in professional activity in any particular regulated economic sector. (Cosyns v. Attorney General of Canada et al (1992) 1992 CanLII 8529 (ON CTGDDC), 7 OR. (3d) 641 (Div. Ct.) at 652-654). The Ontario Courts have specifically rejected the argument that the right to practice a profession or calling falls within the ambit of section 7 (Feldman v. Law Society of Upper Canada (unreported), December 9,1987, (Ont. Div. Ct.); Guthrie v. Ontario Association of Architects (1988) 29 O.A.C. (Div. Ct.) 146 at 148; R v. Quesnel (1985) 1985 CanLII 165 (ON CA), 53 O.R. (2d) 338 (C.A.) at 346. See also Hemlo Gold-mines Inc.,[1993] OLRB Rep. March 158 at paragraph 28).
Based on the case law in Ontario today, this Board finds that section 2(1)(f) of the Labour Relations Act, to the extent that it denies the applicant the right to file a complaint alleging a breach of the duty of fair representation against its bargaining agent pursuant to section 69 of the Labour Relations Act, does not affect the applicant's right to life, liberty or security of the person.
In addition, the applicant argues that section 2(1)(f) is "void for vagueness and lacks the specificity necessary to constitute 'law"'. The applicant cites no authorities for this proposition. The Board does not find section 2(1)(f) of the Labour Relations Act vague nor lacking in specificity. This argument is rejected.
The applicant further argues that the incorporation by reference of The School Boards and Teachers Collective Negotiations Act which in turn incorporates by reference The Education Act, constitutes an unlawful delegation of legislative authority. No authorities are cited for this proposition. The Board rejects this argument as well.
As stated above, the applicant is a teacher as defined in The School Boards and Teachers Collective Negotiations Act. By virtue of section 2(1)(f), the Labour Relations Act does not apply to teachers except to the extent provided in The School Boards and Teachers Collective Negotiations Act. That Act does not confer jurisdiction on the Board with respect to an allegation of unfair representation brought by a teacher against its bargaining agent. Therefore the Labour Relations Board has no jurisdiction to deal with this complaint and it is hereby dismissed.