COURT FILE NO.: 585/03

DATE: 20031009

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MISSISSAUGA OF SCUGOG ISLAND FIRST NATION

and

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) AND ITS LOCAL 444, GREAT BLUE HERON GAMING COMPANY

and

THE ONTARIO LABOUR RELATIONS BOARD

BEFORE: Mr. Justice Ferrier

COUNSEL: Brian T. Daly and Christopher White for the applicants

L.N. Gottheil for Caw-Canada

George Avraam for Great Blue Heron Gaming Company

Voy Stelmaszynski for The Ontario Labour Relations Board

HEARD: October 6 and 7, 2003

E N D O R S E M E N T

[1] The relevant background facts are set out in the factums of the parties filed.

[2] This court has consistently held that, absent extraordinary circumstances, it will not fragment proceedings before administrative tribunals and will refuse to consider the legal issues arising from the proceedings until the proceedings are concluded.

Ontario College of Art et al. v. Ontario Human Rights Commission (1993), 99 D.L.R. (4th) 738 (Div. Ct.), at p.740

Governing Council of the University of Toronto and Canadian Union of Educational Workers, Local 2 (1988), 65 O.R. (2d) 268 (Div. Ct.), at p.282

SEIU v. Delhi Nursing Home et al., April 7, 2000, unreported decision of the Divisional Court

[3] “I find the application to be premature. Tribunals should be left free to consider and complete matters entrusted to them by statutes, particularly in matters such as those under the OLR Act, where labour relations rights are involved. Completion of the process may resolve the matter, may be determined on an entirely different basis, and will provide a complete record for any ultimate judicial review.”: SEIU v. Delhi Nursing Home.

[4] The First Nation has raised no exceptional circumstances which would warrant this court departing from its well-established practice of refusing to fragment the proceedings of an administrative tribunal.

[5] The granting of a stay is an extraordinary remedy. A stay should not be granted as a matter of course. A party seeking to stay an order of the proceedings of the Ontario Labour Relations Board pending judicial review must demonstrate:

(a) that there is a prima facie case for judicial review;

(b) that the moving party will suffer irreparable harm if the stay is not granted; and

(c) that the balance of convenience favours the granting of the stay.

Consolidated Bathurst Packaging Ltd. and IWA Local 2-69 (unreported) January 30, 1984

Westburne Industrial Enterprises Ltd. and Teamsters Local 419 (unreported) (Div. Ct.) May 16, 1995

Ontario Metis and Non Status Indian Association and OPSEU and OLRB (unreported) November 17, 1980

Ellis-Don Limited v. Ontario (Labour Relations Board) (1992), 10 O.R. (3d) 729 (Div. Ct.)

[6] “The Board’s decision is protected by the strong privative clause contained in s.110 of the Labour Relations Act … . On judicial review the court should not interfere with the Board’s decision unless it is patently unreasonable. This is a high standard and on a motion for a stay, a strong prima facie case must be made out that that high threshold can be met before a stay should be granted. The emphasis must be on the word ‘strong’ and it must go beyond simply what may be an arguable case. We agree with the decision in Ellis-Don v. The Ontario Labour Relations Board …”: UFCW v. Sobey’s Inc.

[7] Under s.114(1) of the OLRA, 1995, the Board is empowered “to determine all questions of fact or law that arise in any matter before it”.

[8] Thus the Board has the power to find that a legislative provision is inconsistent with the Charter or any other constitutional provision.

Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; 81 D.L.R. (4th) 121

Tetrault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22

Paul v. British Columbia, [2003] S.C.C. 55.

[9] “The overarching consideration is that labour boards are administrative bodies of a high calibre. The tripartite model which has been adopted almost uniformly across the country combines the values of expertise and broad experience with acceptability and credibility … It must be emphasised the process of Charter decision – process making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters, which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy is critical. Therefore, while Board members need not have formal legal training, it remains that they have a very meaningful role to play in the resolution of constitutional issues. The informed view of the Board as manifested in a sensitivity to relevant facts and an ability to compile a cogent record is also of invaluable assistance … At the end of the day, the legal process will be better served where the Board makes an initial determination of the jurisdictional issue arising from a constitutional challenge. In such circumstances, the Board not only has the authority but the duty to ascertain the constitutional validity of Section 2(b) of the Labour Relations Act.” : Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), supra.

[10] In the case at bar, the structure and wording of the constitutional question posed by the Board is consistent with and correctly adopts the structure and wording of constitutional questions posed by the Supreme Court of Canada in similar cases in which the applicability of an otherwise valid law to the circumstances of an aboriginal person is challenged by that aboriginal person.

R. v. Pamajewon, [1996] 2 S.C.R. 821

R. v. Van de Peet (1996), 137 D.L.R. (4th) 289

R. v. Mitchell, 2001 SCC 33, [2001] 1 S.C.R. 911.

[11] “The essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that question in light of s.35 or any other relevant constitutional provision. Practical considerations will generally not suffice to rebut the presumption that arises from authority to decide questions of law. This is not to say, however, that practical considerations cannot be taken into consideration in determining what is the most appropriate way in handling a particular dispute where more than one option is available.”: Paul v. British Columbia, supra.

[12] Accordingly, it is my view that the moving party cannot establish a strong prima facie case for a determination that the Board is without jurisdiction to decide the constitutional questions.

[13] The moving party submits that, even with such a determination of concomitant jurisdiction, “practical considerations” should persuade this Court in determining that the most appropriate way of handling the issue is to have the matter judicially reviewed at this point in time. I disagree.

[14] I do not accept the submission that there is merely a “neat question of law” to be determined. I am not satisfied that there are, as has been submitted, no questions of fact in dispute. As has been said many times, it is far preferable to have a complete record and fragmentation of proceedings is to be discouraged.

[15] Accordingly the motion is dismissed. If the parties cannot agree on costs, I may be spoken to.

Ferrier J.

DATE: October 9, 2003

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