Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General v. Ontario Public Service Employees Union; Ontario Labour Relations Board, intervenor [Indexed as: Ontario (Attorney General) v. Ontario Public Service Employees Union]

52 O.R. (3d) 77

[2000] O.J. No. 4602

Docket No. C33567

Court of Appeal for Ontario

McMurtry C.J.O., Abella and Moldaver JJ.A.

December 7, 2000

Employment--Labour relations--Labour Relations Board --Standard of review--Ontario Labour Relations Board found that duties and responsibilities of judges' secretaries not constituting conflict of interest with their membership in bargaining unit--Crown brought application for judicial review --Divisional Court erred in characterizing key issue before Board as constitutional issue of judicial independence and in applying standard of review of correctness to Board's decision --Crown Employees Collective Bargaining Act clearly assigning to Board exclusive determination of whether membership in bargaining unit constituting conflict of interest for employee--Matter squarely within jurisdiction of Board --Applicable standard of review that of patent unreasonableness--Decision not patently unreasonable--Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, s. 1.1(3).

Section 1.1(3) para. 15 of the Crown Employees Collective Bargaining Act, 1993, provides that the Act does not apply to ". . . persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board (OLRB), constitute a conflict of interest with their being members of a bargaining unit". The OLRB held that the duties and responsibilities of judges' secretaries did not constitute a conflict of interest with their membership in a bargaining unit. The Crown brought an application for judicial review of this decision, arguing that bargaining unit membership of judges' secretaries represented a conflict of interest with the principles of judicial independence. The application was allowed. The majority in the Divisional Court took the position that the core issue before the OLRB was whether unionization of judges' secretaries violated the principle of judicial independence. Because this was a constitutional issue, with respect to which the OLRB had no expertise, they concluded that the appropriate standard of review was that of correctness. The decision of the OLRB was quashed primarily on the grounds that since secretaries work so closely with the judges, they should be seen as extensions of the judges. The union appealed.

Held, the appeal should be allowed.

Per Abella J.A. (McMurtry C.J.O. concurring): The Divisional Court erred in characterizing the issue before it as constitutional. The core determination before the OLRB was not whether judicial independence was violated by certain employees' union membership, but whether under s. 1.1(3) para. 15, these employees' bargaining unit membership conflicted with their duties and responsibilities, including their duties to the judiciary. That the employees in question were judges' secretaries did not change the nature of the question under s. 1.1(3) para. 15, an exercise for which the OLRB has specialized expertise. The matter was squarely within the jurisdiction of the OLRB. In addition to the emphatic language used in s. 1.1(3) para. 15, two privative clauses protect the OLRB's institutional role as final arbiter of matters within its jurisdiction. The applicable standard of review was that of patent unreasonableness.

The mere assertion by a party that a tribunal's analysis involved consideration of collateral issues does not subvert that tribunal's statutory right to render an authoritative opinion into one vulnerable to court intervention. A court cannot substitute its own views for those of the tribunal by purporting to change the true nature of the question and designating as "jurisdictional" a matter otherwise properly within the tribunal's mandate.

The reliance by judges on their secretaries does not, in itself, necessarily impair the concept of judicial independence. There was no evidence before the OLRB of any conflict between a judge's ability to perform his or her judicial role independently and a secretary's bargaining unit membership. Judges' secretaries are employed by the Crown, not the judiciary. The Crown has ultimate authority over issues such as the hiring, firing, salary or classification levels of its employees, including judges' secretaries. Unionization does not interfere with judicial independence by depriving judges of any pre-existing independent authority over their secretaries. Instead, unionization offers to judges' secretaries the right to collectively bargain their working conditions, rather than having them imposed by fiat by the Crown. There is nothing inherent in the concept of judicial independence which entitles the judiciary presumptively to deprive employees with whom it works of the right to union membership. The decision of the OLRB was not patently unreasonable.

Per Moldaver J.A. (concurring): The Divisional Court mischaracterized the core issue and applied the wrong standard of review to the OLRB's ultimate decision. Properly characterized, the dispute between the parties involved a labour relations issue, albeit one with a constitutional dimension. Because the principle of judicial independence involves a matter of constitutional law, over which the OLRB has no special expertise, deference did not have to be shown on judicial review to the OLRB's understanding of the principle. Rather, this aspect of the OLRB's decision was reviewable on a standard of correctness.

As a matter of administrative law, the standard of review applicable to questions of law falling outside the scope of a board's area of special expertise should not be confused with the standard of review against which the ultimate decision is to be measured. In determining the standard of review applicable to the ultimate decision, there is no single bright line test which can be applied. Rather, the determination must be made on a case by case basis in accordance with a pragmatic and functional analysis. Applying the functional and pragmatic analysis to this case, the OLRB's ultimate decision was entitled to curial deference. The essence of the dispute involved a labour relations issue, a subject over which the OLRB has special expertise. The question before the OLRB fell squarely within the Board's area of expertise. The OLRB's decision was protected by two strong privative clauses. Taken cumulatively, these factors supported the conclusion that the standard of review against which the ultimate decision of the OLRB had to be measured was patent unreasonableness.

It was not patently unreasonable for the OLRB to conclude that unionization did not constitute a conflict of interest with the duties and responsibilities of judges' secretaries.

APPEAL from a judgment of the Divisional Court (Farley and Coo JJ.; Cameron J. dissenting) (1999), 1999 CanLII 14882 (ON SCDC), 180 D.L.R. (4th) 549 allowing an application for judicial review of a decision of the Ontario Labour Relations Board.

OPSEU v. The Crown, [1999] O.L.R.B. Rep. January/February 21, consd Other cases referred to Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673, 150 N.R. 161, 93 C.L.L.C. 14,022; Canada Post Corp. v. Smith (1998), 1998 CanLII 1947 (ON CA), 40 O.R. (3d) 97, 159 D.L.R. (4th) 283 (C.A.) [Leave to appeal to S.C.C. refused (1998), 236 N.R. 386n, [1998] S.C.C.A. No. 329]; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, 25 N.B.R. (2d) 237, 97 D.L.R. (3d) 417, 26 N.R. 341, 51 A.P.R. 237; Manitoba Provincial Court Judges Assn. v. Manitoba (Minister of Justice), 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, 121 Man. R. (2d) 1, 156 Nfld. & P.E.I.R. 1, 150 D.L.R. (4th) 577, 217 N.R. 1, 483 A.P.R. 1, 158 W.A.C. 1, [1997] 10 W.W.R. 417, 46 C.R.R. (2d) 1, 118 C.C.C. (3d) 193, 11 C.P.C. (4th) 1 (sub nom. Judges of the Provincial Court (Manitoba) v. Manitoba, Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice)); Pasiechnyk v. Procrane Inc., 1997 CanLII 316 (SCC), [1997] 2 S.C.R. 890, 158 Sask. R. 81, 149 D.L.R. (4th) 577, 216 N.R. 1, 153 W.A.C. 81, [1997] 8 W.W.R. 517, 30 C.C.E.L. (2d) 149, 37 C.C.L.T. (2d) 1 (sub nom. Pasiechnyk v. Saskatchewan (Workers' Compensation Board)); Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, 226 N.R. 201, amended 1998 CanLII 787 (SCC), [1998] 1 S.C.R. 1222; Valente v. R., 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, 14 O.A.C. 79, 24 D.L.R. (4th) 161, 64 N.R. 1, 19 C.R.R. 354, 23 C.C.C. (3d) 193, 49 C.R. (3d) 97, 37 M.V.R. 9; Westcoast Energy Inc. v. Canada (National Energy Board), 1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322, 156 D.L.R. (4th) 456, 223 N.R. 241 Statutes referred to Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, s. 1.1(3) para. 15, as am. by S.O. 1995, c. 1, s. 13 Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 114, 116

Donald K. Eady, for appellant Ontario Public Service Employees Union. Malliha Wilson and Ben Ratelband, for respondent Ministry of the Attorney General. Ronald N. Lebi, for the Ontario Labour Relations Board.

[1] ABELLA J.A. (MCMURTRY C.J.O. concurring):--This is an appeal by the Ontario Public Service Employees Union ("OPSEU") from a decision of the Divisional Court quashing a decision of the Ontario Labour Relations Board ("OLRB"). The OLRB, in a decision written by Vice-Chair Mary Ellen Cummings, had found that the duties and responsibilities of 33 judges' secretaries did not constitute a conflict of interest with their membership in a bargaining unit ([1998] O.L.R.B. Rep. May/June 400). Although more than 250 judges' secretaries have been members of OPSEU's bargaining units since the 1970s, the Crown argued before the OLRB that they were there in error.

[2] The Crown sought judicial review of the OLRB's decision, arguing that bargaining unit membership of judges' secretaries represented a conflict of interest with the principles of judicial independence. The majority in the Divisional Court agreed with the Crown's submission, Cameron J. dissenting. Characterizing the issue as judicial independence, a constitutional issue, the majority applied the "correctness" standard of review. It quashed the OLRB's decision primarily on the grounds that since they work so closely with their judges, secretaries should be seen as their extensions.

[3] OPSEU sought and was granted leave by this court to appeal the decision of the Divisional Court.

[4] At issue in this appeal is the interpretation by the OLRB of s. 1.1(3) para. 15 of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, which states:

1.1(3) This Act does not apply with respect to the following:

15. Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit.

(Emphasis added)

[5] Fourteen categories of employees are excluded by s. 1.1(3) of the legislation. The complete list of excluded employees in s. 1.1(3) is attached as an Appendix to this judgment. Despite its strenuous submission that the inclusion of judges' secretaries in the bargaining unit is demonstrably inappropriate and that the great majority of them have been wrongly unionized for more than 20 years, no explanation was offered by the Crown for failing to exclude them by statute.

[6] The majority in the Divisional Court was of the view that the key issue before the OLRB was judicial independence, a constitutional principle for which the OLRB had no expertise. The OLRB's decision, therefore, was not entitled to deference, and the appropriate standard of review was "correctness".

[7] In his dissent, Cameron J. saw no conflict of interest and would have dismissed the Crown's application for judicial review. Except for his characterization of the question before the OLRB as constitutional and his apparent use of "correctness" as the applicable standard of review, I agree with the reasons and conclusion of Cameron J.

[8] In concluding that membership in the bargaining unit would cause no serious disruption to the judiciary, Cameron J. relied particularly on the OLRB's decision in OPSEU v. The Crown, [1999] O.L.R.B. Rep. January/February 21. That decision held that during a strike or lockout, any "essential services agreement" negotiated between the Crown and OPSEU should recognize that the administration of the courts is an essential service and that judges' secretaries are essential to the courts' administration.

[9] In OPSEU v. The Crown, supra, the Alternate Chair of the OLRB, Robert Herman, clarified what he considered should be protected as "essential" during a strike or lockout at pp. 22 and 23 as follows:

By "administration of the courts", the Board means all the services necessary in order to allow the courts to administer themselves with respect to the operation of the courts themselves, on a day-to-day basis. More specifically, this would include the courts' ability to continue to administer itself as it did previously with respect to the scheduling of hearings or proceedings, the preparation by the courts themselves for those hearings or proceedings, and the conducting of those hearing (sic) or those proceedings, and the preparation for and the issuing of any decisions that flow therefrom.

In terms of providing further assistance to the parties, the following services or positions would fall within "the administration of the courts":

With respect to [judicial support], this would include the judges' secretaries, law clerks, and Crown Co-ordinators, and library services insofar as they are being utilized by the judiciary, or other court officers, to assist with the performance of their duties.

(Emphasis added)

As a result of this decision, therefore, the services of judges' secretaries would be considered essential during a strike or lockout.

Standard of Review

[10] In my view, the characterization of the question before the OLRB as constitutional was erroneous. The core determination before the OLRB was whether under s. 1.1(3) para. 15, certain employees' bargaining unit membership conflicted with their duties and responsibilities, including their duties to the judiciary, not whether judicial independence was violated by their union membership. That the employees in question are judges' secretaries does not change the nature of the question under s. 1.1(3) para. 15, an exercise for which the OLRB has specialized expertise.

[11] The wording of s. 1.1(3) para. 15 clearly assigns to the OLRB the exclusive determination whether membership in a bargaining unit constitutes a conflict of interest for an employee. The matter is therefore squarely within the jurisdiction of the OLRB. In addition to the emphatic language used in s. 1.1(3) para. 15, two privative clauses protect the OLRB's institutional role as final arbiter of matters within its jurisdiction (Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 114, 116). The applicable standard of review, therefore, is "patent unreasonableness" (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, 25 N.B.R. (2d) 237; and Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673).

[12] The mere assertion by a party that a tribunal's analysis involves consideration of collateral issues does not thereby subvert that tribunal's statutory right to render an authoritative opinion into one vulnerable to court intervention. (Pasiechnyk v. Procrane Inc., 1997 CanLII 316 (SCC), [1997] 2 S.C.R. 890, 158 Sask. R. 81; and Canada Post Corp. v. Smith (1998), 1998 CanLII 1947 (ON CA), 40 O.R. (3d) 97, 159 D.L.R. (4th) 283 (C.A.), leave to appeal to S.C.C. refused (1998), 236 N.R. 386n, [1998] S.C.C.A. No. 329). The interpretations by a tribunal of its constituent statutes are entitled to deference. A court cannot substitute its own views for those of the tribunal by purporting to change the true nature of the question, designating as "jurisdictional" a matter otherwise properly within the tribunal's mandate.

Application of the Standard

[13] The Crown had argued before the OLRB that the duties of judges' secretaries are ". . . not just the traditional skills of a secretary but also the qualities of an executive assistant to assist the respective judges in the carrying out of their functions and responsibilities". Ms. Cummings summarized the Crown's argument at p. 402 of her OLRB reasons in the following way:

. . . It is this link between the judges and the secretaries on which the respondent party most heavily relies in support of its view that the judges' secretaries should be excluded from the bargaining unit. Counsel [for the government] noted that although the secretaries are employees of the Ministry of the Attorney General, they take direction from the judge to whom they are assigned. The judges are constitutionally and functionally independent from the Crown and the Ministry of the Attorney General and because of the close relationship between the judge and his or her secretary ". . . the relationship between them becomes one of a position of quasi or de facto employer-employee".

[14] There can be no question that judges' secretaries perform vital and essential tasks with respect to the administration of justice. It is difficult to imagine the performance of the judicial role without their invaluable support. It was therefore manifestly appropriate that in OPSEU v. The Crown, supra, the OLRB described their services as essential to the proper administration of the courts.

[15] However, the undisputed reliance by judges on their secretaries is not, with respect, the issue. This closeness does not, in itself, necessarily impair the concept of judicial independence. The fact remains that despite this dependency, there was no evidence before the OLRB of any conflict between a judge's ability to perform his or her judicial role independently and a secretary's bargaining unit membership.

[16] The most serious potential for interference with judicial independence alleged was in the event of a strike or lockout. However, as Cameron J. observed in his dissent, the OLRB's 1999 OPSEU v. The Crown decision referred to above, protects judges' secretaries as essential in the event of a strike or lockout. It is highly unlikely that OPSEU and the Crown would negotiate a future "essential services agreement" in violation of that ruling.

[17] This does not mean that the concept of judicial independence was an irrelevant factor for the OLRB to consider. It was, in my view, an aspect of the issue the OLRB could--and did--take into account. There is no doubt that the independence of the judiciary is a cornerstone in the administration of justice, and that the concept is entitled to scrupulous protection. But its conceptual presence in a case does not automatically transform what is in essence a labour relations issue, into a constitutional one.

[18] There is, however, no doubt that a tribunal's formulation and application of the principle of judicial independence could potentially affect whether its decision on the existence of a conflict was patently unreasonable. The OLRB did in fact err when, at p. 404 of the reasons, it interpreted judicial independence as a concept restricted to "independence from government". But in my view this error, which was part of the obiter, did not so severely taint the ultimate determination as to render it patently unreasonable.

[19] The employer of judges' secretaries is the Crown, not the judiciary. Legally, the Crown as employer, not the judiciary, has ultimate authority over issues such as the hiring, firing, salary or classification levels of its employees, including judges' secretaries. Occasional and even frequent consultation by the Crown with the judiciary does not change who the employer is. As the OLRB pointed out in its decision at p. 404:

. . . First, I note that the job description of all the secretaries indicate[s] that they do not report to the judge they serve: the secretaries report to a Regional Coordinator; Finance and Administration Manager; Executive Legal Officer; Manager/Office and Administration support; or an Administrative Assistant to Regional Senior Judge, suggesting that the "de facto employer" concept may not be factually (much less legally) sustainable. Second, the concerns the responding party has outlined, that is that the loyalty of the secretaries to the judges would be compromised if the secretaries were included in a bargaining unit, has not been substantiated.

[20] What unionization does not do, therefore, is interfere with judicial independence by depriving judges of any pre- existing independent authority over their secretaries. Instead, unionization offers to their secretaries the right to collectively bargain their working conditions, rather than having them imposed by fiat by the Crown. Understandably, the Crown was not prepared to acknowledge, as some do, that its role as employer of judges' secretaries itself represents a potential threat to judicial independence. Yet logically, if the Crown's unilateral capacity to interfere with the working conditions of judges' secretaries represents no such threat, it is difficult to see how unionization creates one.

[21] I see nothing inherent in the concept of judicial independence which entitles the judiciary presumptively to deprive employees with whom it works of the right to union membership. There may be rare instances where such membership collides with judicial independence, but this case falls far short of any of the principles set out in Manitoba Provincial Court Judges Assn. v. Manitoba (Minister of Justice), 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 and Valente v. R., 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, 14 O.A.C. 79. Accordingly, it cannot be said that the OLRB decision was patently unreasonable.

[22] The appeal is allowed, the order of the Divisional Court is set aside, and the application by the Crown for judicial review of the decision of the Ontario Labour Relations Board dated June 4, 1998, is dismissed. There will be no order for costs.

APPENDIX

Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, as am. by 1995, c. 1, s. 13

1.1(3) This Act does not apply with respect to the following:

1. Members of the Ontario Provincial Police Force.

2. Employees of a college of applied arts and technology.

3. Architects employed in their professional capacity.

4. Dentists employed in their professional capacity.

5. Lawyers employed in their professional capacity.

6. Physicians employed in their professional capacity.

7. Provincial judges.

8. Persons employed as a labour mediator or labour conciliator.

9. Employees exercising managerial functions or employed in a confidential capacity in relation to labour relations.

10. Persons employed in a minister's office in a position confidential to a minister of the Crown.

11. Persons employed in the Office of the Premier or in Cabinet Office.

12. Persons who provide advice to Cabinet, a board or committee composed of ministers of the Crown, a minister or a deputy minister about employment-related legislation that directly affects the terms and conditions of employment of employees in the public sector as it is defined in subsection 1(1) of the Pay Equity Act.

13. Persons who provide advice to Cabinet, a board or committee composed of ministers of the Crown, the Minister of Finance, the Chair of Management Board of Cabinet, a deputy minister in the Ministry of Finance or the Secretary of the Management Board of Cabinet on any matter within the powers or duties of Treasury Board under sections 6, 7, 8 or 9 of the Treasury Board Act, 1991.

14. Persons employed in the Ontario Financing Authority or in the Ministry of Finance who spend a significant portion of their time at work in borrowing or investing money for the Province or in managing the assets and liabilities of the Consolidated Revenue Fund, including persons employed in the Authority or the Ministry to provide technical, specialized or clerical services necessary to those activities.

15. Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit.

[23] MOLDAVER J.A. (concurring):--I have had the benefit of reading the reasons of my colleague Abella J.A. and I agree with her conclusion that the order of the Divisional Court, allowing the Crown's application for judicial review and quashing the decision of the Ontario Labour Relations Board (the "Board"), cannot stand. Accordingly, for reasons that follow, I too would allow the appeal and dismiss the Crown's application for judicial review.

Standard of Review

[24] The Crown took the position before the Board that the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 as amended by S.O. 1995, c. 1, s. 13 (the "Act") did not apply to judges' secretaries because of the exclusionary provision in para. 15 of s. 1.1(3) of the Act, which reads as follows:

1.1(3) This Act does not apply with respect to the following:

15. Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit.

[25] In support of its position that this provision applied to judges' secretaries, the Crown submitted that it would be wrong to divorce the duties and responsibilities of judges' secretaries from the duties and responsibilities of the judges for whom they work. Rather, the two should be considered in unison, with the role of judges' secretaries being treated as an extension of the role performed by the judges themselves.

[26] Building on this submission, the Crown maintained that because judges' secretaries are effectively an extension of the judges for whom they work, the issue of conflict of interest arising from their membership in a bargaining unit must be assessed in context, having due regard to the principle of judicial independence and the minimum requirements needed to achieve it.

[27] According to the Crown, in order to achieve what the Supreme Court of Canada in Valente v. R., 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, 24 D.L.R. (4th) 161 identified as "administrative judicial independence", it was essential that judges be able to define the terms and conditions of employment governing their secretaries. Unionization, the Crown maintained, deprived judges of this ability, leaving them instead at the mercy of the terms and conditions of employment spelled out in the collective agreement. As a result, the Crown submitted that unionization was inimical to the principle of judicial independence because it was capable, depending upon the terms and conditions of the collective agreement governing the employment of judges' secretaries, of compromising or even nullifying the ability of judges to carry out their judicial function.

[28] The case was argued on this basis before the Board, the Divisional Court and this court and the issue, as framed by the Crown, forms an integral part of the reasons of the Board and the majority and minority opinions of the Divisional Court.

[29] The question that arises from this, for standard of review purposes, is whether the approach taken by the Crown had the effect of converting what, on its face, appeared to be a labour relations issue, for which the Board would be entitled to curial deference, into a constitutional issue, for which it would not.

[30] On behalf of the majority, Coo and Farley JJ. took the position that the core issue before the Board was whether unionization of judges' secretaries violated the principle of judicial independence. Because this was a constitutional issue, they concluded [at p. 554 D.L.R.] that the decision of the Board must be assessed against a standard of correctness:

The Board decided that the principle of independence of the judiciary, while one of fundamental importance, did not stand in the way of judicial secretaries being union members. A large number of judges' secretaries are presently members. The applicant says that is a mistake and that they ought not to be included. The real issues here are whether the interpretation of the provisions of the relevant statute and the perception of the Board as to the true reach and impact of the principle of judicial independence are correct. The two are inextricably intertwined, and in both the Board must be correct. It is not a matter of whether the Board's view of the way in which the independence of the judiciary can or should be constitutionally viewed is patently unreasonable.

The Board has no special expertise in this area. No legislative provision can licence diminution of the fundamental requirement under consideration. The Board is entitled to consider whatever it wants, but may not ignore or misinterpret principles of judicial independence and be protected by a privative clause or deference for its expertise.

(Emphasis added--citations omitted)

[31] With respect, I am of the view that Coo and Farley JJ. mischaracterized the core issue and applied the wrong standard of review to the Board's ultimate decision. Properly characterized, the dispute between the parties involved a labour relations issue, albeit one with a constitutional dimension. The Board was called upon to determine whether, in its opinion, unionization gave rise to a conflict of interest with the duties and responsibilities of judges' secretaries. In assessing that issue, the Board was clearly required to take the principle of judicial independence into account. Unlike the majority, however, I am not persuaded that this had the effect of transforming the core issue into a constitutional issue. Rather, in my view, it simply added a constitutional dimension to an otherwise clear-cut labour relations issue.

[32] I am further of the view that because the principle of judicial independence involves a matter of constitutional law, over which the Board has no special expertise, on judicial review, deference need not be shown to the Board's understanding of the principle. Rather, this aspect of the Board's decision is reviewable on a standard of correctness.

[33] That said, it must be emphasized that as a matter of administrative law, the standard of review applicable to questions of law falling outside the scope of a Board's area of special expertise should not be confused with the standard of review against which the ultimate decision is to be measured. The two are not necessarily related, although they may be in a particular case, depending on a number of factors, including the nature of the issue to be determined. (See for example Westcoast Energy Inc. v. Canada (National Energy Board), 1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322, 156 D.L.R. (4th) 456.) What is important to understand is that in determining the standard of review applicable to the ultimate decision, there is no single bright line test that can be applied. Rather, the determination must be made on a case-by-case basis in accordance with the pragmatic and functional analysis endorsed by the Supreme Court of Canada in its most recent jurisprudence. (See for example Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982 at pp. 1003-12, 160 D.L.R. (4th) 193 at pp. 208-15.

[34] Applying the functional and pragmatic analysis to the case at hand, I am satisfied that the Board's ultimate decision is entitled to curial deference. The essence of the dispute between the parties involved a labour relations issue, a subject over which the Board has special expertise. The Board was presented with an agreed statement of fact[s] and asked to determine whether, in its opinion, those facts triggered the exclusionary provision in s. 1.1(3) para. 15 of the Act. The Act itself is one which the Board is required to consider on a regular basis and it deals exclusively with the subject of labour relations. As such, it falls squarely within the Board's area of special expertise. Added to this is the fact that the Board's decision is protected by two strong privative clauses. Taken cumulatively, these factors lead me to conclude that the standard of review against which the ultimate decision of the Board must be measured is patent unreasonableness.

[35] It follows, in my view, that this is the framework within which the Board's treatment of the principle of judicial independence must be assessed. As indicated, this aspect of the Board's decision is not entitled to curial deference. The Board had to be right in its understanding of the principle of judicial independence. It must be emphasized however, that the Board's failure in this regard does not mean that its ultimate decision must inevitably be found to be patently unreasonable. The function of the court, in these circumstances, is to consider the impact of the error on the Board's ultimate decision, having regard to the applicable standard of review.

Was the Board's Decision Patently Unreasonable?

[36] I see no need to dwell on the merits of the appeal. Suffice it to say that I would allow the appeal and restore the decision of the Board for the reasons given by Cameron J., with which I substantially agree.

[37] Cameron J. concluded, correctly in my view, that the Board was justified in finding that the Crown had failed to establish that membership in a bargaining unit constituted a conflict of interest with the duties and responsibilities of judges' secretaries. In coming to this conclusion, he recognized that the Board misconstrued the principle of judicial independence [See Note 1 at end of document] and he applied the correct principles in assessing the hypothetical concerns identified by the Crown, namely that:

-- The bumping rights available to a more senior employee could result in the displacement of a secretary despite the capabilities and long-standing relationship of that secretary with the judiciary.

-- The negotiation of an essential services agreement between the Crown and bargaining agent may not provide for the continued provision of necessary secretarial services during a legal strike or lockout.

-- An agreement between the Crown and the bargaining agent may require mandatory leave by all bargaining unit staff to the detriment of court operations.

[38] Of the various concerns raised by the Crown, Cameron J. considered that strikes and lockouts posed the most serious potential threat to judicial independence. In his view, however, the OLRB's decision in OPSEU v. The Crown, [1999] O.L.R.B. Rep. January/February 21, went a long way towards alleviating the threat posed by these events. The Board, in that decision, held that in the event of a strike or lockout, any essential service agreement negotiated between the Crown and OPSEU should recognize that the administration of the courts is an essential service and that judges' secretaries are essential to the court's administration. The relevant passages from the decision, found at pp. 22-23, bear repetition:

By "administration of the courts", the Board means all the services necessary in order to allow the courts to administer themselves with respect to the operation of the courts themselves, on a day-to-day basis. More specifically, this would include the courts' ability to continue to administer itself as it did previously with respect to the scheduling of hearings or proceedings, the preparation by the courts themselves for those hearings or proceedings, and the conducting of those hearings or those proceedings, and the preparation for and the issuing of any decisions that flow therefrom. . . .

In terms of providing further assistance to the parties, the following services or positions would fall within "the administration of the courts".

1. Courtroom personnel as referred to in paragraphs 15 and 19 of the Crown's brief;

2. Court Officers, referred to in paragraphs 26 and 27 of the Crown's Brief;

3. Judicial Support, as referred to in paragraphs 28 to 32 of the Crown's brief.

With respect to 3., this would include the judges' secretaries, law clerks, and Crown Co-ordinators, and library services insofar as they are being utilized by the judiciary, or other court officers, to assist with the performance of their duties.

[39] In Cameron J.'s view, OPSEU v. The Crown, supra, was an important decision because it shed light on the means chosen by the provincial legislature "to provide services sufficient to ensure the independence of the judiciary" in accordance with its common-law obligation. With respect to strikes and lockouts in particular, he read the decision as an indication that the legislature had "determined to treat any problem respecting judicial independence that may arise on a strike or lock-out as an issue of provision of an essential service rather than as a conflict of interest".

[40] In the final analysis, Cameron J. refused [at p. 564 D.L.R.] to give effect to the Crown's argument because in his view, the concerns raised by the Crown were more speculative than real:

In the absence of evidence that an essential services agreement will not preserve the independence of the judiciary, I see no reason to assume that membership in the union will constitute a conflict of interest. This court is not entitled to presume that a negotiated essential services agreement will not ensure the independence of the judiciary. Such a presumption assumes that one or more of the parties to the agreement will seek to interfere with the independence of the judiciary.

It is premature to interfere with the manner in which the provincial legislature has chosen to comply with its constitutional obligation to ensure the independence of the judiciary. If the legislation or a particular agreement can be shown to be inadequate to the task, the court may then consider intervening.

[41] I agree with Cameron J.'s analysis of this issue and I am satisfied that he was correct in upholding the decision of the Board, despite the Board's failure to properly comprehend the principle of judicial independence. In the circumstances of this case, for the reasons given by Cameron J., the error was harmless and it did not render the Board's ultimate decision patently unreasonable.

[42] In sum, having due regard to the principle of judicial independence, I have not been persuaded that it was patently unreasonable for the Board to conclude that unionization did not constitute a conflict of interest with the duties and responsibilities of judges' secretaries. That said, I do not wish to be taken as minimizing the concerns raised by the Crown in support of its position to the contrary.

[43] The fact that to date, the problems envisaged by the Crown have only arisen in a few isolated instances does not mean this will always be the case. They may well occur with greater frequency in the future. That prospect, no doubt, is what prompted the Crown in the first instance to seek a ruling from the Board immunizing judges' secretaries from unionization.

[44] The Agreed Statement of Facts in this case makes it clear that most judges' secretaries have been unionized since the 1970s. Throughout these proceedings, the Crown has maintained that they were unionized in error.

[45] Accepting as I do, that the Crown honestly believes that unionization of judges' secretaries poses a serious threat to the administration of justice in this province, and that the great bulk of judges' secretaries have been wrongly unionized for more than 20 years, there is nothing to prevent the Crown from remedying the situation. As my colleague Abella J.A. points out, 14 categories of employees have already been excluded from the purview of the Act under s. 1.1(3), including:

-- persons employed in a Minister's office in a position confidential to a Minister of the Crown;

-- persons employed in the Office of the Premier or in Cabinet Office.

[46] Manifestly, it is not for this or any other court to say whether the legislature should amend s. 1.1(3) to include the many men and women who serve in a position confidential to the judges of this province and who play a vital role in enabling judges to carry out their judicial function. That decision lies strictly with the legislature. It is an option, however, that has always been available to the Crown and it remains available, should the Crown see fit to eliminate the potential problems it envisages and rectify the error that it claims has existed in this province for over two decades.

Conclusion

[47] For these reasons, I would allow the appeal and dismiss the Crown's application for judicial review. Like my colleague, I am of the view that the parties should bear their own costs.

Appeal allowed.

Notes

Note 1: The Board was wrong in holding that the principle of judicial independence was limited to "independence from Government" and it was also wrong in holding that the terms of the collective agreement were off limits in assessing the impact of unionizations, if any, on the minimum requirements needed to achieve administrative judicial independence.