Ontario Supreme Court

Ontario (Attorney General) v. O.P.S.E.U.

Date: 1999-10-08

The Queen in right of Ontario

and

Ontario Public Service Employees Union et al.

Court File No. 747/98

Ontario Superior Court of Justice, Divisional Court Farley, Coo and Cameron JJ.

Heard: July 12, 1999

Judgment rendered: October 8, 1999

Counsel: Malliha Wilson and Sunil Kapur, for applicant. Donald K Eady, for respondent, Ontario Public Service Employees Union. Ronald N. Lebi, for respondent, Ontario Labour Relations Board.

[1] FARLEY and Coo JJ.: – This is an application for judicial review of a decision of the Ontario Labour Relations Board in which it was determined that secretaries to the Court of Appeal and to the Superior Court judges should be part of the bargaining unit in dealings with the Provincial government. Those involved are eight secretaries to the Court of Appeal, one for the Chief Justice of what is now the Superior Court and one for each of the Regional Senior Justices, twelve for judges of what is now the Superior Court in Toronto, and one for the Associate Chief Justice of what is now the Ontario Court of Justice and one for each of five Regional Senior Judges of that Court.

[2] The Board decided that the principle of the 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

[3] The Board has no special expertise in this area. No legislative provision can license 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. See Canada (Attorney General) v. Public Service Alliance of Canada (1993), 101 D.L.R. (4th) 673 (S.C.C.) at p. 686; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) (1991), 81 D.L.R. (4th) 121 (S.C.C.) at p. 130.

[4] The pragmatic and functional interpretive approach cannot produce the result that the independence of the judiciary is unquestionably put at risk. This is not the sort of decision referred to in International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432 at pp. 450-51, 135 D.L.R. (4th) 385, in which “the skills and expert knowledge in the field of labour law” make a decision uniquely appropriate for a labour board to make.

[5] The relevant legislative test to be applied by the Board in regard to membership in the bargaining unit is to be found in the 1995 version of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 (“CECB Act”). It directs that there be excluded [at s. 1.1(3), para. 15]:

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.]

It is agreed that it is this provision that should govern the deliberative process in this case.

[6] In our view the Board was not correct in concluding that any risk of loss of independence could be dealt with in the collective agreement. Judicial independence is not legitimately the subject of union-management negotiation, nor is it appropriate that the third and independent arm of government take on trust what might be accomplished at the bargaining table when one is dealing with such a fundamental question which impacts upon the general public interest. The foundations of an existing structure cannot be moved without risking its integrity. There can be no reliance on future possible negotiations. The conflict of interest question must address the aspect of conflict of interest vis-à-vis the judiciary who are the de facto employers in many essential respects and not just the elements of the secretaries’ technical formal employment relationship.

[7] The Board was in error in basing its conclusions on the foundation that independence of the judiciary meant only independence from the other arms of government. LeDain J. in R. v. Valente, [1985] 2 S.C.R 673, 24 D.L.R. (4th) 161, refers to judicial independence as involving more than just the government – making reference, for example, to the world of commerce.

[8] In R. v. Lippé (1991), 64 C.C.C. (3d) 513 (S.C.C.), Gonthier J., writing for the majority, expressed the view that judicial independence was not so limited, at pp. 540, 541 and 542.

[9] The concept of judicial independence as a bulwark of our society is not to be found only in s. 11 of the Canadian Charter of Rights and Freedoms but is based on centuries of tradition – Valente at p. 702; Reference re: Public Sector Pay Reduction Act (P.E.I.), s. 10 (1997), 150 D.L.R. (4th) 577 (S.C.C.) at pp. 617-28. Section 11 is not exhaustive on the subject. The principle includes a “third essential condition” – the “institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function” (Valente at p. 708). It must be noted that the oft-quoted words of then Chief Justice Howland in Valente include the reference to practicality in speaking of [p. 709] the “fine line between interference with adjudication and proper management controls. The heads of the judiciary have to work closely with the representatives of the Executive unless the judiciary is given full responsibility for judicial administration.”

[10] The legislative provision in issue must be read as subject to and consistent with the overarching principle of judicial independence. The authorities of the applicant include Driedger’s reference, at pp. 322-23 of Driedger on the Construction of Statutes (3rd ed., 1994; Butterworths, Markham, Ont.), to interpreting statutory provisions as though they are subject to or a reflection of constitutional provisions The CECB Act provisions should be looked at as though they assumed that they were to be interpreted as reflecting full awareness of the principle of the independence of the judiciary.

[11] The Board did not consider, as in this context it had the obligation to do, the real prospective impact on the individual and corporate activities of the Court of Appeal and leaders and members of the Superior Court of Justice and the Ontario Court of Justice, of the unionization and inclusion in the bargaining unit of judicial support staff such as those described, with unfair and unwarranted simplicity, as secretarial staff. We should go on to add that, in our view, there may be no justification to differentiate in this context between court administrative leaders and the other members of the court staffs.

[12] In a time in which the majority of judicial work is, and on a expanded basis under case management, will involve key and essential activities other than presiding at court hearings, it was wrong of the Board not to take more seriously into account one of the fundamental principles upon which our society is based.

[13] The secretaries to the judges, especially but not only at the level of service to the Chief Justice and Associate Chief Justice, are a key element in team activity concerned routinely and at many stages with the conduct of litigation. The things they do to move case management along in actions brought in the Court are done as the co-ordinated helpmates of the Court and the judges. This staff are not simply glorified typists, or telephone answering personnel. They are relied on to carry out important case, court list, personnel, resource, time management and administrative functions that are essential to the success of the modern court operation. They come to know, and must by the judge be informed about very confidential matters that historically rested solely with the judge, but cannot do so any longer in the era of case or caseflow management of the present volume of ever more complex litigation that the court must face. Information obtained by a person “who types the decision” to use the Board’s phrase, is only a very small part of the picture and it is to demean the work done by both judge and assistant not to recognize this fact. We are of the view that the record before the Board was woefully incomplete and inadequate.

[14] In whatever way they may formally be categorized by those who study or work in the field of human resources, they are, often and routinely, the supervised alter ego of the judges with whom they work and by whom they are inevitably directed. The provincial government has come more and more to recognize this reality and the difficult problem that it presents for hiring, firing, task or job changes and the very sensitive problem of judges and their supporters having to work closely together in an atmosphere of absolute trust. Not to see this as a profound problem for the judiciary and the legislative and executive arms of government is to trivialize it.

[15] Such a relationship not only calls for, but requires, avoidance of the interposition in this sophisticated mix of union representation, with its accompanying limits and rights, quite legitimate and important for bargaining unit employees generally, as part of a union‑negotiated package. Prospective involvement in solidarity action and direction of those who have chosen to provide key services to and with the judiciary would be for them a conflict

[16] Their job is not the same, or even remotely similar to that done for senior government employees, however the Board may have chosen to see it. The confidentiality factor, only one aspect of the matter, touching the employment of those who serve in other arms of government, whatever confidentiality may be seen to be needed there, cannot be compared to what is required of those who work for and with the judiciary on a daily basis in such an essential and integral way.

[17] LeDain J. in Valente at p. 712 indicated that judicial independence must include “judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function”. It must carefully be borne in mind that the concept of “judicial function” has changed dramatically in recent years and very probably will continue so to do. In that context it would, in our view, be an error to miscategorize the tasks, duties and obligations of those who work with judges. Equally, it would be seriously wrong to misinterpret the essential relationships involved, or the consequences of those relationships, not on the concept but the practicality of what must be interpreted to be included in the sometimes ill-understood phrase “independence of the judiciary”.

[18] In our opinion there is an inevitable and important, not just a notional and speculative, conflict in the judges’ secretaries being members of a bargaining unit, and any other view is incorrect. The Board’s award dated June 4, 1998 is therefore quashed.

[1] CAMERON J. (dissenting): – This is an application for judicial review of a decision of Mary Ellen Cummings, Vice Chair of the Ontario Labour Relations Board (“OLRB”) dated June 4, 1998 that 6 secretaries to judges of the Court of Appeal, 8 secretaries to Regional Senior Justices of the Superior Court of Justice (“SCJ”), 12 of the secretaries to judges of the SCJ, 5 secretaries to Regional Senior Justices of the Ontario Court of Justice and 1 secretary to the Associate Chief Justice of the Ontario Court of Justice are not exempt from the application of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 (“CECBA”). In the result the OLRB would permit all judges’ secretaries to be included in the bargaining unit of Crown employees represented by the respondent Ontario Public Service Employees Union (“OPSEU”).

CECBA and PSA

[2] Section 1.1(3) of CECBA excludes from its application various categories of employees of Her Majesty the Queen in Right of Ontario (the “Crown”) including:

15. Other persons who have duties or responsibilities that in the opinion of the [OLRB], constitute a conflict of interest with their being members of a bargaining unit.

Crown employees to whom CECBA does not apply are subject to the Public Services Act, S.O. 1996, c. 1, Sch. A. (“PSA”). They are not members of a union.

Employment and Reporting

[3] Many of the judges to whom the secretaries provide service are appointed by the Governor General of Canada under s. 96 of the Constitution Act, 1867. The secretaries to those judges and to provincially appointed judges are hired and paid by the Crown and provided to the judges in exercise of the power reserved exclusively to the provincial legislature in s. 92(14) of the Constitution Act, 1867 respecting the administration of justice in the province.

[4] Many of the secretaries to judges of the SCJ are already members of OPSEU and are not covered by this application.

[5] The secretaries report to a Regional Coordinator, an Administration Officer, an Administrative Assistant or other administrator who is a Crown Employee.

Job Description

[6] The record before the OLRB indicates that the job description of a judge’s secretary includes typing draft and final decisions and correspondence, managing correspondence, dealing with expense accounts and allowance claims, ordering office supplies and books, maintaining appointment diaries, scheduling meetings, answering and screening telephone calls, filing, taking minutes of meetings and assisting chief and regional senior judges in their responsibilities for directing the workload of other judges. The work requires a high degree of competence, discretion and confidentiality.

[7] This court can add, from its experience, that the secretaries also arrange appointments, meetings in chambers and deal with lawyers and parties directly in the performance of their duties. The secretaries facilitate the efficient and timely performance of judicial functions such as hearings respecting case and trial management, hearings of trials and motions and rendering decisions. They prevent delay. They screen judges from attempted improper contacts by parties and the public. Their function will become even more important with the increased prevalence of case management and of self represented clients.

Conflict of Interest

Definition

[8] The conflict of interest addressed in CECBA is one in which membership in the bargaining unit would influence the employee in the exercise of his or her duty to the employer. See Cox v. College of Optometrists (1988), 52 D.L.R. (4th) 298 (Ont. Div. Ct.) at pp. 306-307.

Decision Under Review

[9] In determining whether membership in a bargaining unit would constitute a conflict of interest the OLRB was patently unreasonable in rejecting the assertion that the secretaries are de facto employees of the judges they serve. The duties and responsibilities of judges’ secretaries must be assessed in light of the functions and responsibilities of the judges they serve. Any conflict of interest arising on being members of a bargaining unit must be assessed against their duties and responsibilities to the judges they serve as well as to the Crown. There do not appear to be any other considerations relevant to the assessment of a conflict of interest in this case.

[10] The OLRB was wrong in law in finding that judicial independence was limited to independence from government. Judicial independence extends to unwarranted interference by the legislature or any interference by the government or any other person, group of persons, corporation or institution. See R. v. Valente, [1985] 2 S.C.R. 673 at p. 687, 24 D.L.R. (4th) 161.

[11] The OLRB’s conclusion that the obligations of loyalty and confidentiality of the secretaries to the judges would not be compromised solely by membership in the bargaining unit and that public perception of the independence of the judiciary would not be affected by membership of the secretaries in the bargaining unit are not unreasonable conclusions. The Crown is frequently a party before the courts without any concern for the loyalty or confidentiality of the secretaries prior to the issue of the decision. Many of the judges’ secretaries are already members of OPSEU because of a narrower exclusion from CECBA prior to the 1995 amendments. There is no evidence that membership in OPSEU would create a breach of an obligation of confidentiality when OPSEU is before the courts.

Judicial Independence

[12] The Applicant argues that membership in OPSEU would constitute a conflict of interest with the fundamental constitutional principle of judicial independence because the secretaries are extensions of the judges for whom they work and must appear to have the same independence and freedom from appearance of bias.

[13] Judicial independence is an unwritten constitutional principle: Reference re: Public Sector Pay Reduction Act (P.E.I.), s. 10 (1997), 150 D.L.R. (4th) 577 (S.C.C.) at 617 and 628. It has been defined as:

…the capacity of the courts to perform their constitutional function free from actual or apparent interference by, and to the extent that it is constitutionally possible, free from actual or apparent dependence upon, any persons or institutions… [Valente, supra, at p. 687.]

[14] One of the essential conditions for judicial independence is the administrative independence of the court: Valente, supra, at p. 708; Reference, supra, at p. 632

[15] Administrative independence is defined as:

…judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. [Valente, supra, at p. 712.]

[16] Administrative independence would include, as a minimum, assignment of judges, sittings of the court and court lists as well as the related matters of allocation of courtrooms and direction of the administrative staff engaged in carrying out these functions: Valente, supra, at p. 709. This would extend to judicial matters dealt with in chambers such as trial scheduling, trial management, fixing of costs and ex parte proceedings.

[17] The Applicant argues that membership in a bargaining unit would interfere with the ability to provide for the administration of justice in accordance with the principles of judicial independence; for example, bumping rights based on seniority could displace a secretary despite a long-standing relationship with a judge.

[18] Long-standing relationships and a judge’s desire to retain the same secretary have nothing to do with judicial independence. Bumping rights could result in a less efficient level of service to a judge or group of judges. However, at least in the short term, there is no evidence that the same result in this area of bumping or in issues of mandatory leave or other matters raised by the Crown would not occur under a regime in which employees are governed by the PSA where the Crown alone assigns the secretaries to their duties, including to the Courts.

Considering Conflicts

[19] Membership in a union has certain consequences, principal among them majority rule and union solidarity. If the members of the bargaining unit, of which the judges’ secretaries would be only a small proportion, vote to strike, the judges’ secretaries would be obliged to go on strike. Union membership alone raises no apprehension of a conflict of interest such as to influence the exercise of the duty of the secretaries to the judges and the Crown. It raises only the potential for a conflict of interest or other problems if a strike is called.

[20] The duties of the secretaries include some of the functions which our courts have held to be essential to the independence of the judiciary. If the secretaries withdraw their services because of a strike called by a majority of the members of the bargaining unit, the efficient functioning of the judiciary would be impaired. There would be an immediate impact on the efficiency of judges in their preparing for, hearing and deciding cases, motions and other issues, such as case and trial management. There would also be an impact on the way chief and senior judges administer their judges and the general operation of their courts.

[21] The decision under review said on this point:

…the responding party (the Crown)… can seek to negotiate terms that would address those concerns. But more fundamentally, I am not satisfied that the legislature intended the Board to consider allegedly onerous collective agreement provisions as a potential conflict of interest. To go down that road is to conclude that only when the terms of the agreement are advantageous to the employer is there no conflict of interest. Furthermore, I am not convinced that concerns about the appropriateness of the collective agreement is encompassed in the statutory definition which relates conflict of interest “to being members of a bargaining unit”.

[22] On this the OLRB was dealing with a question of jurisdiction and the constitutional principle of independence of the judiciary. The Board must be held to a standard of correctness with little deference to the conclusion. It is not an issue which the OLRB often addresses or on which it can be presumed to have any special expertise. See Canada (Attorney General) v. Public Service Alliance of Canada (1993), 101 D.L.R. (4th) 673 (S.C.C.) at p. 686; Cuddy Chicks v. Ontario (Labour Relations Board) (1991), 81 D.L.R. (4th) 121 (S.C.C.) at p. 130.

[23] The duties of the judges’ secretaries include some that are not integral to the independence of the judiciary. However, those duties will not constitute a conflict of interest with membership in a bargaining unit or vice versa. A problem will arise if the secretaries go on strike or if the Crown locks out its employees. There will certainly be a reduced efficiency in the administration of justice which might constitute an interference with the administration of justice.

Essential Services Agreements

[24] In Part IV of CECBA the legislature has recognized as an “essential service” services that are necessary to enable the Crown to prevent “disruption of the administration of the courts or of legislative drafting” (s. 30(d)). Section 31 of CECBA requires the Crown and OPSEU, as the bargaining agent for Crown employees, to negotiate an “essential services agreement” to provide essential services during a strike or lock out.

[25] In O.P.S.E.U. v. Ontario (Management Board Secretariat), O.L.R.B., January 27, 1999 [reported [1999] O.L.R.B. Rep. Jan./Feb. 21], in considering Part IV of CECBA, the OLRB stated that the administration of the courts, without qualification or limitation, is to continue during a strike or lock-out without any disruption. See paragraph 4 of that decision. The OLRB then determined in paragraph 8 that:

“[A]dministration of the courts” …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 hearings or proceedings and the conducting of those hearing [sic] or proceedings and the preparation for and the issuing of any decisions that flow therefrom.

[26] The OLRB then determined in paragraph 10 that judges’ secretaries, among others, would fall within the “administration of the courts”.

Conclusion

[27] The provincial legislature has the exclusive jurisdiction under s. 92(14) of the Constitution Act, 1867 to administer the courts. It has a common law obligation to provide services sufficient to ensure the independence of the judiciary. The legislature has chosen to exercise its jurisdiction by means of the PSA and CECBA. In the absence of a conflict of interest created by membership in the bargaining unit, the legislature has 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. There is no reason at this time to believe, particularly in light of the OLRB’s decision that the services of judges’ secretaries are an essential service as part of the administration of justice, that the result of negotiating an essential services agreement will be a level of service so impaired as to constitute an interference with judicial independence during an OPSEU strike or lock-out.

[28] 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.

[29] 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.

[30] I would dismiss the application.

Application granted; award quashed.