DATE: 20020222 DOCKET: C36499
COURT OF APPEAL FOR ONTARIO
RE:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Appellant) –and– THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR), M.E. CUMMINGS and ONTARIO LABOUR RELATIONS BOARD (Respondents)
BEFORE:
CATZMAN, LABROSSE and DOHERTY JJ.A.
COUNSEL:
Alan M. Minsky, Q.C. and Ronald B. Davis, for the appellant
Leslie McIntosh and Sonal Gandhi, for the respondent
The Crown in Right of Ontario (Ministry of Labour)
Ronald N. Lebi, for the respondent Ontario Labour Relations Board
HEARD:
February 20, 2002
On appeal from the judgment of the Divisional Court (Justices James B.S. Southey, Patrick R.T. Gravely and Donald J. Taliano) dated March 19, 2001.
E N D O R S E M E N T
- CATZMAN and LABROSSE JJ.A.:
[1] This appeal arises out of a decision of a Ministry of Labour inspector relating to a work refusal by members of the Union that took place in 1998. At the center of the dispute was the failure of the Ministry’s inspector to conduct an investigation “in the presence of” the parties to the dispute as required by s. 43 (7) of the Occupational Health and Safety Act (“the Act”).
[2] The inspector decided the dispute against the Union and the Union appealed the decision of the inspector to the Ontario Labour Relations Board.
[3] Prior to the hearing before the Board, the Union and the employer Ministry entered into a settlement of the work refusal dispute. The remaining legal issue before the Board related to s. 43 (7) of the Act and the Board concluded that it did not have jurisdiction to issue remedies against inspectors or the Ministry of Labour.
[4] The Union sought judicial review of the Board’s decision. The Divisional Court dismissed the application for delay. The Union then appealed, with leave, to this court. The order requested in its factum that is most relevant to this motion seeks a declaration that the Board had jurisdiction in an appeal under the Act to order an inspector or the Ministry of Labour to comply with the Act, including ss. 43(7) and 62(1).
[5] In June 2001, after leave to appeal to this court had been granted, s. 43(7) of the Act was amended and the words in the section “in the presence of” were replaced by the words “in consultation with”.
[6] As stated above, the work refusal issue was settled between the parties. In addition, the recent amendment to s. 43 (7) appears to have altered the practice that, the Union alleged, contravened the Act. There is no “live controversy” left between the parties with respect to the legal issue. Accordingly, there would be no practical effect of an order remitting the matter to the Board. The appeal is moot.
[7] This is not a case in which this court should exercise its discretion to hear a moot appeal. The Union has for the first time raised in this court a Charter issue in respect of which there is no evidentiary record. While the Union takes the position that it seeks only to use the Charter as an interpretative tool, the position of the respondent Ministry is that it wishes to retain the right, if so advised, to lead s. 1 evidence in respect of the Charter issue. The very same issue has now been raised in another proceeding initiated by the Union and presently pending before the Board that engages the amended s. 47(3). In our view, the incomplete record and considerations of judicial economy speak strongly against exercising our discretion to hear an appeal that is moot.
[8] Accordingly, the appeal is quashed. As discussed with counsel, we make no order respecting costs for or against any of the parties to the appeal.
Signed: “M.A. Catzman J.A.”
“J.-M. Labrosse J.A.”
- DOHERTY J.A. (Dissenting):
[9] I agree that the appeal is moot. The settlement between the employer and the appellant eliminated the factual dispute. The amendment to s. 43(7) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the Act) rendered the precise legal issue on which the Board would eventually have had to rule moot. I would, however, hear the appeal for the following reasons.
[10] While the narrow legal issue underlying the dispute between the parties is moot, there is a broader and much more important issue raised by the preliminary motion brought before the Board by the Ministry of Labour. The Ministry asked the Board to decide as a preliminary matter whether the Board had jurisdiction to make orders against inspectors or the Ministry. The Board concluded that it had no such authority and consequently never reached the merits of the appellant’s argument that the inspector had not complied with s. 43(7) of the Act. The question of the scope of the Board’s remedial power is, in my view, directly before the court on this appeal. It remains very much alive and does not turn on the precise wording of the former s. 43(7) of the Act. The question of the Board’s power to make orders against inspectors and the Ministry arises under the wording of the present s. 43(7) and other provisions of the Act.
[11] This court can decide the question of the Board’s power to make the kind of orders in issue here without regard to the specific statutory language of s. 43(7) of the Act.
[12] The remedial power of the Board raises a question of significance and importance to the parties in the context of their ongoing employer/employee relationship. The court has the advantage of full argument on all sides of the issue. It also seems to me that those involved in the ongoing employer/employee relationship and the Board itself would be better off if the question of the Board’s power to make the kinds of orders in issue in this case was resolved by this court sooner rather than later.
[13] I also see no deficiencies in the present record which would impede the determination of the issue I have outlined above. Counsel for the appellant made it clear that he relies on s. 7 of the Charter only to the extent that the values underlying that section inform the interpretation of the relevant sections of the Act. This is not, as I understand it, a “Charter case”.
[14] For the reasons outlined above, I would hear the merits of the appeal even though it is moot.
Signed: “Doherty J.A.”