Court File and Parties

CITATION: Windsor Police Services Board v. Windsor Police Association, 2021 ONSC 7718

DIVISIONAL COURT FILE NO.: 1/21

DATE: 2021-11-22

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Windsor Police Services Board, Applicant AND: Windsor Police Association Unit A and B, Respondent

BEFORE: Hackland, Kristjanson and Nishikawa JJ.

COUNSEL: Michael A. Wills and Darwin Harasym, for the Applicant Caroline V. Jones and Catherine Fan, for the Respondent

HEARD: at London November 22, 2021 by videoconference

Reasons for Decision

Kristjanson J. (Orally)

[1] This is a judicial review application brought by the Windsor Police Services Board with respect to the arbitrator’s interpretation of schedules to two collective agreements, Uniform and Civilian. Those collective agreements expired on December 31, 2019. The parties engaged in collective bargaining pursuant to s. 119 of the Police Services Act, R.S.O. 1990, c. P.15. The parties had a duty to engage in good faith bargaining.

[2] At the outset of the hearing we were informed that the parties had reached new collective agreements which were ratified in full on August 27, 2021. Those collective agreements cover the period Jan 1, 2020 to December 31, 2022.

[3] Judicial review is discretionary. We decline to exercise our discretion to hear this matter since we are of the opinion that the matter is moot.

[4] Courts may refuse to determine an application for judicial review because there is no longer a live controversy between the parties. The leading case continues to be Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 1989 123. Borowski sets out a two-step analysis. First, a court must decide whether there is still a live controversy between the parties. If there is no live issue, the court may, nevertheless, exercise its discretion to hear the matter.

[5] In exercising the discretion to hear a moot case, the court should bear in mind the three basic rationales for the mootness doctrine: the absence of an adversarial relationship, the need to promote judicial economy, and the need for the court to demonstrate an awareness of its proper law-making function.

[6] The Board argued that it was of the view that the arbitrator’s decision was unreasonable and it chose not to bargain a new schedule, instead waiting for the Divisional Court’s decision. This Court does not provide advisory legal opinions. The obligation was on the Board to bargain issues relating to scheduling, not await a decision from this court on an expired collective agreement. Both the need to promote judicial economy and the need for the court to demonstrate an awareness of its proper law-making function indicate that the Court should not exercise its discretion where the relevant collective agreements have expired and the parties have collectively bargained new agreements. Any decision under the new collective agreements would require an examination of the factual matrix surrounding these agreements, as well as the new collective agreement language.

[7] Judicial review is a discretionary remedy. For the reasons outlined above, we decline to judicially review the arbitrator’s decision and dismiss this application.

[8] Costs are awarded to the respondent Association in the agreed amount of $7,500 inclusive.

Justice F. Kristjanson

I agree _______________________________ Justice C. Hackland

I agree _______________________________ Justice S. Nishikawa

Date: November 22, 2021