CITATION: Ontario Catholic Schools Trustees’ Association v. Ontario English Catholic Teachers’ Association, 2022 ONSC 3112

DIVISIONAL COURT FILE NO.: 645/21and 650/21

DATE: 2022/05/26

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ontario Catholic schools Trustees’ Association (OCSTA) and the crown in the right of ontario (Ministry of education), Applicants

AND:

Ontario English catholic teachers’ association (OECta) and Ontario Labour relations board (OLRb) Respondents

BEFORE: Warkentin RSJ and Sachs and Davies JJ.

COUNSEL: Eric Roher, Christine Muir and Morgan Westgate, for the Applicant, OCSTA

Ferina Murji and Dimitrios Molos, for the Respondent, the Crown in the Right of Ontario (Ministry of Education)

Bernard A. Hanson, for the Respondent, OECTA

Andrea Bowker and Aaron Hart, for the Respondent, OLRB

HEARD at Toronto by videoconference: May 24, 2022

ENDORSEMENT

H. Sachs J. (orally)

[1] There are two applications for judicial review before this court, one filed by the OCSTA and one filed by the Crown. Both are in respect of a decision of the OLRB dated July 9, 2021 (the “Decision”). The applications were ordered to be heard together by an earlier order of this court.

[2] The Decision concerns an application by the Respondent, OECTA, under s. 28(5) of the School Boards Collective Bargaining Act, S.O. 2014, c. 5 (the “Act”) against OCSTA and the Crown for a determination by the OLRB as to whether certain proposals placed on the local negotiating table by three Catholic District School Boards were items that had been agreed upon as being central items, pursuant to the Memorandum of Settlement of the Central Agreement of Central Terms signed by OECTA, OCSTA and the Crown.

[3] Section 28(5) of the Act provides:

If the parties at a central table and the Crown do not agree upon the interpretation or application of an agreement or order determining the matters that are included within the scope of central or local bargaining, either party or the Crown may apply to the Ontario Labour Relations Board to determine the issue.

[4] Following the filing of OECTA’s application, the three school boards withdrew the disputed bargaining proposals from their respective bargaining tables, but provided notices to OECTA that existing contractual rights would be reasserted upon the effective date of the replacement collective agreements. In their responses to the to OECTA’s application, the Crown and OCSTA relied on the withdrawal of the bargaining proposals to argue that there was no longer a dispute for the Board to determine and, therefore, the matter was moot.

[5] In the Decision (which was an interim decision) the Board determined that the matter was not moot as neither OCSTA nor the Crown had met its obligation to provide OECTA with its position on whether the bargaining proposals at issue were within the scope of central or local bargaining. The Board then required the parties to meet and determine whether these items were central or local and to do so by September 3, 2021. Whatever matters could not be agreed upon would be placed before the Board for a hearing.

[6] The parties did not reach an agreement by September 3, 2021 and asked for an extension to do so. A hearing date was set for November 19, 2021. On October 25, 2021, the OCSTA sent a letter to the Board advising it that the hearing date was no longer required because the central parties and the Crown had agreed that the four issues in dispute were within the scope of central bargaining.

[7] On November 4, 2021, the Board issued a decision confirming that the central parties and the Crown had agreed that the four disputed matters were within the scope of central bargaining and, thus, a hearing was no longer required.

[8] OCSTA and the Crown brought their applications for judicial review arguing primarily that in the Decision the Board unreasonably concluded that there was still a live dispute and that the Board exceeded its jurisdiction under the Act in finding that they had not fulfilled their statutory obligation and were required to meet again with OECTA to determine what issues they agreed were central and what issues they maintained were local. Before us, neither Applicant disputed that the Board did have jurisdiction to determine OECTA’s application when it was filed. Their position was that once the three local boards withdrew the impugned bargaining proposals that jurisdiction ended.

[9] OECTA and the Board submitted that the applications were moot. I agree. In the first place the live issue between the parties giving rise to OECTA’s application before the Board has disappeared. After the Decision was issued, the central parties and the Crown reached an agreement that the four issues in dispute were central, not local. Given that there was no longer a dispute about this there was and is no longer any basis for the Board to exercise its jurisdiction to hold a hearing pursuant to s. 28(5) of the Act.

[10] Secondly, applying the principles set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General) 1989 123, I do not accept the Applicants’ position that we should exercise our discretion to hear the application in spite of the fact that the live issue between the parties has disappeared. I recognize that the parties continue to be in an adversarial relationship and that further disagreements could arise as to what the role of the Board is if the central parties and the Crown do not agree as to whether an issue is local or central. However, we disagree that the Decision sets a dangerous precedent that could continue to affect the development of the law in this regard. In my view, the Board made a decision that, on the facts of the case before it, the OCSTA and the Crown had not indicated to OECTA what their position was on whether the disputed provisions were central or local. In view of this the Board took steps to ensure that the central parties and the Crown met to decide whether there was or was not a dispute that it had to determine. Whether the Board exercised its discretion to order the parties to clarify what was or was not in dispute under s. 28(3) of the Act or under its broad jurisdiction to control its own process is not a matter that is of such public importance that this court should use its judicial resources to intervene to quash what is essentially an interim procedural decision by an administrative tribunal such as the Ontario Labour Relations Board.

[11] For these reasons the application is dismissed. Pursuant to the agreement of the parties there shall be no order as to costs.

H. Sachs J.

I agree _______________________________

Warkentin RSJ.

I agree _______________________________

Davies J.

Date: May 26, 2022