''Canadian Union of Public Employees v Ontario (Minister of Labour)'', 2003 SCC 29, is a leading

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

decision on

arbitration Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the ' ...

and bias in administrative law. The court held that it was patently unreasonable for the Minister of Labour to appoint retired

judge A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...

s as arbitrators in labour disputes without considering their expertise in labour relations under the ''Hospital Labour Disputes Arbitrations Act''.

Background

In Ontario, labour relations at hospitals and nursing homes are regulated under the ''Hospital Labour Disputes Arbitration Act'', RSO 1990, c H14, s 6(5) (''HLDAA''), which require the parties to resolve labour disputes through collective bargaining with compulsory

. Arbitrators were appointed by mutual agreement between the parties, but in case of a dispute, a panel of three arbitrators is selected with one member selected by each side and a third appointed by the Minister of Labour. A list of approved arbitrators was provided under subsection 49(10) of the ''Labour Relations Act, 1995''. In 1998, the Minister of Labour appointed four retired judges not on the pre-approved list as arbitrators to several labour boards. The unions, represented by the Ontario Federation of Labour and

Canadian Union of Public Employees The Canadian Union of Public Employees (CUPE; french: Syndicat canadien de la fonction publique, links=no; french: SCFP, link=, label=none) is a Canadian trade union serving the public sector – although it has in recent years organized work ...

, protested, arguing that the retired judges lack labour expertise, experience, tenure, and independence from government. They sought an application to declare the minister's appointments invalid on the basis that he breached the principles of natural justice, creating a

reasonable apprehension of bias In Canadian law, a reasonable apprehension of bias is a legal standard for disqualifying judges and administrative decision-makers for bias Bias is a disproportionate weight ''in favor of'' or ''against'' an idea or thing, usually in a way that ...

. The Divisional Court dismissed the application, but was overturned by the Court of Appeal, which ordered the minister to refrain from appointing further arbitrators not from the approved list. The issue before the Supreme Court of Canada was whether the Minister of Labour had created bias in the arbitration proceedings through his appointment of retired judges.

Opinion of the court

The Supreme Court upheld the Court of Appeal decision, finding that the minister's failure to consider appointees' expertise in labour relations was patently unreasonable. Ian Binnie, writing for a majority of the court, invoked the

rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...

principle from ''

Roncarelli v. Duplessis ''Roncarelli v. Duplessis'', 959S.C.R. 121, was a landmark constitutional decision of the Supreme Court of Canada. The court held that in 1946 Maurice Duplessis, both Premier and Attorney General of Quebec, had overstepped his authority by orde ...

'', noting that the minister is not entitled to untrammelled discretion. Although the minister was given broad powers under the provincial legislation and was entitled to a measure of deference, he held that the minister's discretionary powers were constrained to the purpose and object of the act. The purpose of the ''HLDAA'' was interpreted as providing an adequate alternative to

strikes Strike may refer to: People *Strike (surname) Physical confrontation or removal *Strike (attack), attack with an inanimate object or a part of the human body intended to cause harm *Airstrike, military strike by air forces on either a suspected ...

and lock-outs, and that to accomplish the purpose, "the parties must perceive the system as neutral and credible". In this context, for the union to perceive the arbitrators as credible, they must not only be impartial, but they must have specialized knowledge and expertise in labour relations. Given the statutory powers and discretion granted to the minister, the standard of review was that of patent unreasonableness. Nonetheless, Binnie found that the minister's appointments were patently unreasonable because he acted beyond the object of the act in excluding consideration of labour relations expertise and general acceptability to the labour relations community.

Dissenting opinion

Michel Bastarache, in dissent, agreed with Binnie's opinion that the minister was entitled to deference and that the appropriate standard of review was patent unreasonableness. However, Bastarache would have held that the minister's actions were not patently unreasonable, because the powers granted to him under the legislation was broad and set out no criteria for arbitration appointments.''Ibid'' at para 36.

References

External links

* {{lexum-scc, 2003, 29 Supreme Court of Canada cases Canadian administrative case law Canadian labour case law 2003 in Canadian case law Canadian Labour Congress Canadian Union of Public Employees Ontario litigation Appointments Bias

Background

Opinion of the court

Dissenting opinion

See also

References

External links