C.U.P.E. v. Ontario (Minister of Labour)

C.U.P.E. v. Ontario (Minister of Labour)
Collection
Supreme Court Judgments
Date
2003-05-16
Neutral citation
2003 SCC 29
Report
[2003] 1 SCR 539
Case number
28396
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Ontario
Subjects
Administrative law
Labour law
Notes
SCC Case Information: 28396
Decision Content
C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29
Minister of Labour for Ontario Appellant
v.
Canadian Union of Public Employees
and Service Employees International Union Respondents
and
Canadian Bar Association and
National Academy of Arbitrators (Canadian Region) Interveners
Indexed as: C.U.P.E. v. Ontario (Minister of Labour)
Neutral citation: 2003 SCC 29.
File No.: 28396.
2002: October 8; 2003: May 16.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Labour relations — Hospital labour disputes — Appointment of board of arbitration — Legislation requiring disputes over collective agreements in hospitals and nursing homes to be resolved by compulsory arbitration — Minister of Labour appointing retired judges to chair arbitration boards — Whether Minister required to select arbitrators qualified by expertise and acceptance in labour relations community — Whether retired judges, as a class, biased against labour — Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14, s. 6(5).
Administrative law — Judicial review — Appointment of board of arbitration — Legislation requiring disputes over collective agreements in hospitals and nursing homes to be resolved by compulsory arbitration — Minister of Labour appointing retired judges to chair arbitration boards — Whether appointment process for selecting chairs of arbitration boards violates natural justice or infringes institutional independence and impartiality of arbitration boards — Whether appointment process breached legitimate expectations of unions — Whether appointments caused reasonable apprehension of bias — Whether Minister disqualified or required to delegate task of making appointments because of interest in arbitrations — Whether Minister’s appointments patently unreasonable — Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14, s. 6(5).
Since 1965, Ontario’s hospitals, nursing homes and their employees have been required to resolve disputes over collective agreements by compulsory arbitration under the Hospital Labour Disputes Arbitration Act (“HLDAA”). If the parties cannot agree on a mutually acceptable arbitrator, a panel of three members is struck, two designated by the parties and the third chosen by the two designates or, if they fail to agree, appointed by the Minister of Labour. Amendments to the Labour Relations Act in 1979 facilitated the formation and use of a list of arbitrators with expertise acceptable to both management and the unions. A similar register of arbitrators was dropped from the HLDAA in 1980 but a normal practice was for senior officials of the Ministry of Labour, under delegated authority, to identify appropriate arbitrators. Following the 1995 provincial election, a reorganization of public sector institutions, including schools and hospitals, led to Bill 136. The Bill contained the proposed Public Sector Dispute Resolution Act, 1997 which included a Dispute Resolution Commission. Organized labour opposed many aspects of the Bill, including the proposed commission. When the Minister announced a return to the sector‑based system of appointing arbitrators, the unions believed the selection of HLDAA chairpersons would thereafter be limited to mutually agreed candidates.
In early 1998, the Minister appointed four retired judges to chair several arbitration boards. They were not appointed by mutual agreement nor were they on the “agreed” list compiled under s. 49(10) of the Labour Relations Act, 1995. The unions were not consulted. The President of the Ontario Federation of Labour complained to the Minister that the understanding about a return to the status quo had been breached without consultation. The unions objected that retired judges lack expertise, experience, tenure and independence from government. They also complained the Minister had breached procedural fairness by not delegating the task of making appointments to senior officials. The four judges initially appointed declined to act but other retired judges accepted the appointments. The unions sought declarations that the Minister’s actions denied natural justice and lacked institutional independence and impartiality. The Divisional Court dismissed the application for judicial review. The Court of Appeal allowed the unions’ appeal, concluding that the Minister had created a reasonable apprehension of bias and interfered with the independence and impartiality of the arbitrators, as well as defeating the legitimate expectation of the unions contrary to the requirements of natural justice. The Minister was ordered not to make any further appointments “unless such appointments are made from the long‑standing and established roster of experienced labour relations arbitrators” compiled under s. 49(10) of the Labour Relations Act, 1995.
Held (McLachlin C.J. and Major and Bastarache JJ. dissenting): The appeal should be dismissed for reasons that differ somewhat from those of the Court of Appeal. The Minister is required, in the exercise of his power of appointment under s. 6(5) of the HLDAA, to be satisfied that prospective chairpersons are not only independent and impartial but possess appropriate labour relations expertise and are recognized in the labour relations community as generally acceptable to both management and labour.
Per Gonthier, Iacobucci, Binnie, Arbour, LeBel and Deschamps JJ.: The Minister, as a matter of law, was required to exercise his power of appointment in a manner consistent with the purpose and objects of the statute that conferred the power. A fundamental purpose and object of the HLDAA was to provide an adequate substitute for strikes and lock‑outs. To achieve the statutory purpose, as the Minister himself wrote on February 2, 1998, “the parties must perceive the system as neutral and credible”. This view was fully supported by the HLDAA’s legislative history.
The Minister was not required to proceed with the selection of chairpersons by way of “mutual agreement” or from the s. 49(10) roster. Nor were retired judges as a “class” reasonably seen as biased against labour. Nevertheless, the Minister was required by the HLDAA, properly interpreted, to select arbitrators from candidates who were qualified not only by their impartiality, but by their expertise and general acceptance in the labour relations community.
Section 6(5) of the HLDAA contemplates the appointment of “a person who is, in the opinion of the Minister, qualified to act”. The Minister’s discretion is constrained by the scheme and object of the Act as a whole, which is to create a “neutral and credible” substitute for the right to strike and lock‑out. Labour arbitration has traditionally rested on a consensual basis, with the arbitrator chosen by the parties or being acceptable to both parties. Although the s. 6(5) power is expressed in broad terms, the Minister is nevertheless required, in the exercise of that power, to have regard to relevant labour relations expertise, independence, impartiality and general acceptability within the labour relations community. These criteria are neither vague nor uncertain. The livelihood of a significant group of professional labour arbitrators depends on their recognized ability to fulfill them. The result is a perfectly manageable framework within which the legislature intended to give the Minister broad but not unlimited scope within which to make appointments in furtherance of the HLDAA’s object and purposes. The Minister, under the HLDAA, is not given a broad policy function. His narrow role is simply to substitute for the parties in naming a third arbitrator in case of their disagreement and, given the context, background and purpose of the Act, his rejection of labour relations expertise and general acceptability as relevant factors was patently unreasonable.
Although, as a member of Cabinet, the Minister was committed to public sector rationalization and had a perceived interest in the appointment process and the outcome of the arbitrations, the legislature specifically conferred the power of appointment on the Minister and, absent a constitutional challenge, clear and unequivocal statutory language conferring that authority prevailed over the common law rule against bias. The Minister’s power to delegate the appointment process under s. 9.2(1) of the HLDAA was permissive only and to take away his authority to make his own choice would amount to a judicial amendment of the legislation.
The Minister satisfied any duty to consult with the unions about the change in the appointments process. There were extensive meetings during which the Minister signalled that the process was subject to reform and that retired judges were potential candidates for appointments. The unions made clear their opposition. Section 6(5) of the HLDAA did not impose on the Minister a procedural requirement to consult with the parties to each arbitration nor does the evidence establish a firm practice of appointing from a list or by mutual agreement. A general, ambiguous promise to continue an existing system subject to reform does not suffice under the doctrine of legitimate expectation to bind the Minister’s exercise of his or her discretion.
The Court of Appeal had concluded that the Minister’s approach tainted both the independence and impartiality of the HLDAA arbitration boards to which the retired judges had been appointed. This conclusion was not justified. The HLDAA commands the use of ad hoc arbitration boards. Such boards are not characterized by financial security or security of tenure beyond the life of the arbitration itself. The independence of arbitrators is guaranteed by training, experience and mutual acceptability. Since s. 6(5) requires the appointment of individuals qualified by training, experience and mutual acceptability, the proper exercise of the appointment power would lead to a tribunal which would satisfy reasonable concerns about institutional independence.
Impartiality raises different considerations. The Court of Appeal did not suggest that the retired judges were in fact biased or partial but concluded that they might reasonably be seen to be “inimical to the interests of labour, at least in the eyes of the appellants”. The test, however, is not directed to the subjective perspective of one of the parties but to the reasonable, detached and informed observer. Retired judges as a class have no greater interest than other citizens in the outcome of the arbitrations and there are no substantial grounds to think they would do the bidding of the Minister or favour employers so as to improve the prospect of future appointments. A fully informed, reasonable person would not stigmatize retired judges, as a class, with an anti‑labour bias. Allegations of individual bias must be dealt with on a case‑by‑case basis.
The appropriate standard of review is patent unreasonableness. The pragmatic and functional approach applies to the judicial review of the exercise of a ministerial discretion and factors such as the existence of a privative clause, the Minister’s expertise in labour relations, the nature of the question before the Minister and the wording of s. 6(5) all call for considerable deference. A patently unreasonable appointment is one whose defect is immediate, obvious and so flawed in terms of implementing the legislative intent that no amount of curial deference can justify letting it stand.
The appointments were not patently unreasonable simply because the Minister did not restrict himself to the s. 49(10) list of arbitrators. Some arbitrators on the list were unacceptable to the unions and some acceptable arbitrators were not on the list, confirming the reasonableness of the Minister’s view that candidates could qualify without being on the list. However, in assessing whether the appointments were patently unreasonable, the courts are entitled to have regard to the importance of the factors the Minister altogether excluded from his consideration. In this case, the Minister expressly excluded relevant factors that went to the heart of the legislative scheme. The matters before the boards required the familiarity and expertise of a labour arbitrator. Expertise and neutrality foster general acceptability. Appointment of an inexpert and inexperienced chairperson who is not seen as generally acceptable in the labour relations community is a defect in approach that is both immediate and obvious. Having regard to the legislative intent manifested in the HLDAA, the Minister’s approach to the s. 6(5) appointments was patently unreasonable. The qualifications of specific appointees will have to be assessed on a case‑by‑case basis if challenged.
The appeal is thus dismissed on the limited ground that appointments that excluded from consideration labour relations expertise and general acceptability in the labour relations community were patently unreasonable.
Per McLachlin C.J. and Major and Bastarache JJ. (dissenting): The appropriate standard of review for the exercise of the Minister’s appointment power under s. 6(5) of the HLDAA is patent unreasonableness. The pragmatic and functional approach focusses on the particular provision being invoked. The Minister exercised power under a single statute, his enabling legislation, and, absent a constitutional challenge, the patent unreasonableness standard need not make room for a review of statutory interpretation of enabling legislation on a correctness basis. There is no basis for dividing the Minister’s decision into component questions subject to different standards of review, nor should the Minister’s power be viewed as due less deference because it is circumscribed by legislation. Not every administrative action involves a distinct and identifiable exercise of statutory interpretation. Where, as here, the factors indicate that the question raised by the provision is one intended by the legislators to be left to the exclusive decision of the administrative decision maker, it simply is not one for the courts to make. The presence of a privative clause is compelling evidence that deference is due. The Minister knows more about labour relations than the courts and will be taken to have expertise. Deference is owed to expert decision makers designated by the legislature. The fact‑based nature of the question before the Minister also points to deference and empowering the Minister, rather than an apolitical actor, suggests a legislative intent of political accountability.
The Minister did not make appointments that were patently unreasonable. A contextual approach to statutory interpretation of the enabling legislation is necessary for determining the criteria relevant to exercise of the discretion. In some cases, the criteria are spelled out in the legislation, regulations or guidelines or found in the specific purposes of the relevant Act. In others, the relevant factors may be unwritten and derived from the purpose and context of the statute. In this case, there are no relevant regulations, guidelines, or other instruments, and the statute does not say much. The Act stipulates that appointees must be qualified in the opinion of the Minister, expressly contemplating the importance of the Minister’s opinion. Labour relations expertise, independence and impartiality, reflected in broad acceptability, are not necessarily dominant or obvious factors and should not be imposed as specific restrictions on the Minister’s discretion. The Minister developed an opinion and determined that judging experience was a relevant qualification. The Act called for the Minister to reach his own opinion, not to consider a specific determining factor. Given how much work it takes to identify labour relations experience and broad acceptability as factors and to imply them into s. 6(5), weighing them less heavily than another unwritten qualification, namely judicial experience, does not vitiate the appointments as patently unreasonable. It takes significant searching or testing to find the alleged defect or even the factors said to constrain the Minister. It is therefore difficult to characterize the appointments as immediately or obviously defective, not in accordance with reason, clearly irrational, or so flawed that no amount of curial deference could justify letting them stand based on a failure to consider these factors. Recognition of the seriousness of quashing a decision as patently unreasonable is crucial to maintaining the discipline of judicial restraint and deference, and our intervention is not warranted in these circumstances.
Concerns about institutional independence and institutional impartiality do not render the Minister’s appointments patently unreasonable. The Act requires that the tribunals be ad hoc and retired judges as a class cannot reasonably be seen as so partial that appointing them took the Minister outside the bounds of his statutory discretion. The possibility of a successful challenge to a particular board is not foreclosed but the constraints on the Minister’s discretion do not permit a general inquiry into the independence and impartiality of the boards on the basis of the appointment process in the absence of a direct challenge to the boards actually appointed.
Cases Cited
By Binnie J.
Applied: Roncarelli v. Duplessis, [1959] S.C.R. 121; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; distinguished: Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41; Moreau‑Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; referred to: Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R 311; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; MacBain v. Lederman, [1985] 1 F.C. 856; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; McMaster University and McMaster University Faculty Assn., Re (1990), 13 L.A.C. (4th) 199; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; In re Preston, [1985] A.C. 835; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Oakwood Development Ltd. v. Rural Municipality of St. François Xavier, [1985] 2 S.C.R. 164; Reference re Bill 30, an Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; R. v. Généreux, [1992] 1 S.C.R. 259; Valente v. The Queen, [1985] 2 S.C.R. 673; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Katz v. Vancouver Stock Exchange, [1996] 3 S.C.R. 405; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; R. v. Lippé, [1991] 2 S.C.R. 114; R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Parks (1993), 15 O.R. (3d) 324, leave to appeal refused, [1994] 1 S.C.R. x; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; St‑Jean v. Mercier, [2002] 1 S.C.R. 491, 2002 SCC 15.
By Bastarache J. (dissenting)
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997; Roncarelli v. Duplessis, [1959] S.C.R. 121; Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Assn. (Toronto Elementary Unit) (2001), 55 O.R. (3d) 737, leave to appeal refused, [2002] 2 S.C.R. ix; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Ivanhoe inc. v. UFCW, Local 500, [2001] 2 S.C.R. 566, 2001 SCC 47; Ajax (Town) v. CAW, Local 222, [2000] 1 S.C.R. 538, 2000 SCC 23; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Bell Canada v. Canada (Canadian Radio‑Television and Telecommunications Commission), [1989] 1 S.C.R. 1722; Moreau‑Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Katz v. Vancouver Stock Exchange, [1996] 3 S.C.R. 405; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3.
Statutes and Regulations Cited
Back to School Act (Toronto and Windsor) 2001, S.O. 2001, c. 1, s. 11(4), (5).
Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14, ss. 4, 5(1), 6(5), (12), 7, 9.2(1), 11(1).
Labour Relations Act, R.S.O. 1960, c. 202.
Labour Relations Act, R.S.O. 1970, c. 232 [am. 1979, c. 32, s. 1].
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 49(10).
Teachers’ Collective Bargaining Act, R.S.N. 1990, c. T‑3, ss. 17(2), 22(2).
Teachers’ Collective Bargaining Act, R.S.N.S. 1989, c. 460, s. 26(2).
Telecommunications Act, S.C. 1993, c. 38, s. 64(1) .
Universities Act, R.S.A. 2000, c. U‑3, s. 32(e).
Authors Cited
Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose‑leaf updated August 2002).
de Smith, Stanley A. Constitutional and Administrative Law, 4th ed. By Harry Street and Rodney Brazier. Harmondsworth, Eng.: Penguin Books, 1981.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart Publishing, 1997, 279.
Ontario. Department of Labour, Research Branch. “The Impact of the Ontario Hospital Labour Disputes Arbitration Act, 1965: A Statistical Analysis”, report prepared by Keith McLeod, November 1970.
Ontario. Legislative Assembly. Official Report of Debates, No. 218, 1st Sess., 36th Parl., August 25, 1997, pp. 11462, 11464.
Ontario. Legislative Assembly. Official Report of Debates, No. R‑69, Standing Committee on Resources Development, September 23, 1997, p. R‑2577.
Ontario. Legislature of Ontario Debates, No. 35, 3rd Sess., 27th Leg., March 3, 1965, p. 935.
Ontario. Legislature of Ontario Debates, No. 53, 3rd Sess., 27th Leg., March 22, 1965, p. 1497.
Ontario. Legislature of Ontario Debates, No. 134, 2nd Sess., 29th Leg., December 14, 1972, p. 5760.
Ontario. Royal Commission Report on Compulsory Arbitration in Disputes Affecting Hospitals and Their Employees. Toronto: The Commission, 1964.
Pépin, Gilles, et Yves Ouellette. Principes de contentieux administratif, 2e éd. Cowansville, Qué.: Yvon Blais, 1982.
APPEAL from a judgment of the Ontario Court of Appeal (2000), 51 O.R. (3d) 417, 194 D.L.R. (4th) 265, 138 O.A.C. 256, 26 Admin. L.R. (3d) 55, 5 C.C.E.L. (3d) 8, [2000] O.J. No. 4361 (QL), allowing an appeal from a judgment of the Divisional Court (1999), 117 O.A.C. 340, [1999] O.J. No. 358 (QL). Appeal dismissed, McLachlin C.J. and Major and Bastarache JJ. dissenting.
Leslie McIntosh, for the appellant.
Howard Goldblatt, Steven Barrett and Vanessa Payne, for the respondents.
J. Gregory Richards, Jeff G. Cowan and Susan Philpott, for the intervener the Canadian Bar Association.
Michel G. Picher and Barbara A. McIsaac, Q.C., for the intervener the National Academy of Arbitrators (Canadian Region).
The reasons of McLachlin C.J. and Major and Bastarche JJ. were delivered by
1 Bastarache J. (dissenting) — I adopt Binnie J.’s recital of the facts and judicial history. In my view, however, the Minister of Labour (“Minister”) did not make appointments that were patently unreasonable. In reaching that decision, I would adopt a somewhat different approach to that of Binnie J. with regard to judicial review for abuse of discretion. I also object to Binnie J.’s conclusion that the impartiality and independence of boards can be challenged on the sole basis of the appointment process without any direct attack on a board actually constituted.
2 With regard to judicial review for abuse of discretion, as I shall explain, the balance of factors in this case militates unambiguously for the patent unreasonableness standard of review. This deferential standard applies fully to each appointment. In reviewing discretionary appointments, I think it unhelpful and inappropriate, under the pragmatic and functional approach, to separate the Minister’s interpretation of the scope of his power under s. 6(5) of the Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14 (“HLDAA”), from the ultimate appointments. Instead, what that approach requires is to assess the entire discretionary decision against the standard of patent unreasonableness.
3 Moreover, the constraints on the exercise of the Minister’s discretion do not permit a general inquiry into the independence and impartiality of the boards on the basis of the appointment process in the absence of a direct challenge to the independence or impartiality of boards actually appointed. The respondents’ attack on the institutional independence or impartiality of the boards must be levied against a particular board. This attack is not appropriately an argument as to whether the Minister abused his discretion.
4 I do, however, accept Binnie J.’s analysis and conclusion that the Minister satisfied his duty of procedural fairness.
I. What is the Standard of Review for the Appointment Power?
5 I do not share Binnie J.’s appreciation of the potential confusion in determining, as separate exercises, the content of the duty of procedural fairness and the standard of review. Both exercises examine the context of an administrative decision. The same factor may be salient for both exercises. Nevertheless, the two inquiries proceed separately and serve different objectives. The content of the duty of procedural fairness seeks to ensure the appropriate relationship between the citizen and the administrative decision maker. In contrast, the standard of review speaks to the relationship between the administrative decision maker and the judiciary. In the former case, there is no need to determine a degree of deference.
6 Binnie J. and I agree ultimately on the appropriate standard of review. This agreement masks, however, some disagreement on the pragmatic and functional approach adopted by this Court.
7 As this Court recognized in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 28, this approach focusses on “the particular, individual provision being invoked and interpreted by the tribunal”. The result is that some provisions within the same statute may require greater deference than others, depending on the factors. It does not follow, however, that exercise of a discretionary power under a single provision, such as s. 6(5) in this appeal, should be viewed as “the product of a number of issues or determinations” (Binnie J.’s reasons, at para. 97) with the decision maker’s statutory interpretation singled out for closer scrutiny. Binnie J.’s citations to this Court’s decision in Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 (“CBC”), support the impression that a single administrative decision contains within it parts that are independently reviewable on a more or, more likely, less deferential standard. That appeal related to the standard of review for an agency’s decision that required it to interpret a statute other than its enabling legislation. The passage from the plurality, to which Binnie J. refers, concludes that where the standard of review for a decision as a whole is patent unreasonableness, the correctness of the interpretation of an external statute may nevertheless affect the overall reasonableness of that decision. That authority is not apparently relevant to a case such as the present appeal, where the Minister exercises a power under a single statute, his enabling legislation. Given the present context, reference to that authority can only suggest, wrongly, that even in these circumstances a patent unreasonableness standard must make room, within the broader decision, for review of statutory interpretation on a correctness basis. The obvious exception, where a legal question will take a different standard from the global decision, is when an agency’s decision engages constitutional issues. Constitutional questions will necessarily be reviewable on a correctness standard. Special cases like CBC will be dealt with on a case-by-case basis. In this case, however, the main issue is that of deciding whether the Minister failed to consider proper factors when making appointments under s. 6(5). It is a single issue.
8 It is true that some enabling statutes distinguish between the agency’s factual and legal determinations. Such statutes may contemplate an appeal from the agency’s legal determinations while protecting, with a privative clause, findings of fact. See e.g. Telecommunications Act, S.C. 1993, c. 38, s. 64(1) . Yet, where there is no basis for dividing a decision into component questions — here the privative clause in s. 7 of the HLDAA expressly shields the entire appointment —, the single appropriate standard of review, and the deference it dictates, apply to all aspects of the decision. There is no basis for the view that an expert decision maker given due deference with regard to a discretionary appointment power is due less deference because the power is circumscribed by legislation, the suggestion being that there is a statutory interpretation aspect to his or her decision. The authorities that Binnie J. cites for the self-evident proposition that a discretion is never untrammelled and that “there is always a perspective within which a statute is intended to operate” (Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 (H.L.)) do not indicate that each administrative action necessarily involves a distinct and identifiable exercise of statutory interpretation.
9 Indeed, it is worth recalling the basis on which the CBC case that Binnie J. cites, supra, discusses the standard for an agency’s interpretation of an external statute. The key factor in the analysis in that case was the Canada Labour Relations Board’s expertise. The concern was that the Board did not have expertise respecting the interpretation of the external statute. What was lacking was expertise as experience, the kind that a board acquires from applying a statute repeatedly over time. The nature of this expertise as experience is made clear by Iacobucci J.’s caveat: “I would leave open the possibility that, in cases where the external statute is linked to the tribunal’s mandate and is frequently encountered by it, a measure of deference may be appropriate” (CBC, supra, at para. 48; see also Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Assn. (Toronto Elementary Unit) (2001), 55 O.R. (3d) 737 (C.A.), leave to appeal refused June 20, 2002, [2002] 2 S.C.R. ix). Since the Minister has expertise at applying his own statute, it is difficult to see the relevance of discussing the interpretation of the external statute in CBC. Where the standard of review for a decision is patent unreasonableness, there is no reason to scrutinize more closely the decision maker’s interpretation of its own statute.
10 Indeed, this Court developed the patent unreasonableness standard in the context of agencies engaged in interpreting their enabling legislation. The reviewing court’s question will often be whether the statute can bear the agency’s interpretation. This frequently requires of the reviewing court that it defer to the agency’s interpretation of the enabling legislation. As L’Heureux-Dubé J. wrote for this Court in Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 775, the patent unreasonableness standard ensures “that review of the correctness of an administrative interpretation does not serve, as it has in the past, as a screen for intervention based on the merits of a given decision”. See also National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227.
11 Where, as here, the factors indicate that the question raised by the provision is one intended by the legislators to be left to the exclusive decision of the administrative decision maker (Pushpanathan, supra, at para. 26; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 18, per Sopinka J.), it is not one for the courts to make. Assignment of such questions to the decision maker does not serve merely to permit experienced persons to compile the record for the inevitable judicial review proceedings in a superior court. This is particularly clear in the present case, where the decision maker’s — the Minister’s — function is only to name a chairperson so that arbitration may proceed expeditiously. For the statutory scheme to function, the parties must believe, as a general rule, that where their disagreement requires the Minister to name a chairperson, that chairperson is validly chosen and the arbitration must proceed.
12 The difficulty may stem from Binnie J.’s importing a practical sense of how decisions are actually made into the specialized judicial review context. Obviously, one could divide nearly every administrative decision into preliminary determinations. Even a purely legal question of statutory interpretation relies on the prior factual determination that the decision maker was reading the correct version of the Act and not some other document. In the course of selecting a chairperson for an arbitral board, the Minister made choices concerning for instance which officials to consult and determined how many options were open to him. But for judicial review to be workable, courts generally operate on the assumption that they can isolate a single decision to be reviewed. They then determine one standard of review for that decision. For present purposes, it is unworkable to view the Minister’s naming of an individual as comprising multiple determinations.
13 Admittedly, the pragmatic and functional approach may require different standards of review for different questions. This recognizes that the diversity of the contemporary administrative state includes different types of decision makers. Parliament and the provincial legislatures have not structured or qualified every agency to determine finally the same types of question. But judicial review would become grossly unwieldy and complex if each decision was to be viewed as a multiplicity of preliminary determinations.
14 The question, then, is the standard of review for the exercise of the Minister’s appointment power under s. 6(5) of the HLDAA. In my view, Pushpanathan, supra, and this Court’s subsequent jurisprudence indicate unambiguously that the appropriate standard is patent unreasonableness.
15 First, as Binnie J. notes, a privative clause (s. 7) precludes judicial review of a ministerial appointment. As noted in Pushpanathan, supra, at para. 30, the presence of a privative clause “is compelling evidence that the court ought to show deference to the [administrative decision maker’s] decision”.
16 As Iacobucci J. noted in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 50, the second and third factors, expertise and the purpose of the provision and the Act as a whole, often overlap. I will discuss them together. I agree with Binnie J. that the Minister and his officials know more about labour relations than do the courts. This Court has recently confirmed in a labour context that courts owe deference to the expert decision makers designated by the legislature: Ivanhoe inc. v. UFCW, Local 500, [2001] 2 S.C.R. 566, 2001 SCC 47; Ajax (Town) v. CAW, Local 222, [2000] 1 S.C.R. 538, 2000 SCC 23. Although, as Binnie J. notes, the Minister is asked to make an appointment on behalf of the parties, the particular provision at issue does not simply refer to a “qualified” person. Rather, s. 6(5) states that an appointee is to be qualified “in the opinion of the Minister”. I shall return to this important distinction in my discussion below of the relevant considerations. This specific language in the enabling provision demands deference: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, at para. 30, where the legislation at issue referred, as in the present appeal, to the opinion of the Minister. See also Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, at para. 57, per Binnie J.
17 I wish to emphasize the importance of expertise in determining the standard of review.