London District Catholic School Board v Weilgosh, 2023 ONSC 3857 (March 13, 2024)
**Thank you to a SEAR reader for sending this case**
Category: Concurrent jurisdiction.
Context: This is a decision of the Human Rights Tribunal of Ontario [HRTO]. The HRTO held that it has concurrent jurisdiction to adjudicate a dispute that was ostensibly covered by a collective agreement and labour arbitration under the Labour Relations Act and the Police Services Act. The HRTO relied on the Supreme Court’s decision in NRHA v Horrocks, 2021 SCC 42 (Issue#15), concluding that the legislative history of the Labour Relations Act and the Human Rights Code demonstrated a legislative intention to establish concurrent jurisdiction [7].
Issue: Does the legislative scheme in this case establish concurrent jurisdiction?
Holding: Yes.
Analysis: In my view, this case represents one available reading of Horrocks, although I read Horrocks to require clearer legislative guidance to establish concurrency. Readers will recall that Horrocks prescribes a two-step test for determining whether an exclusive labour arbitral scheme admits of concurrency with a human rights tribunal. First, “the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction, and if so, over what matters” [33]. As the Court notes, here is there is no dispute that the labour arbitrator appointed under the collective agreement has exclusive jurisdiction.
Second, this exclusivity can be derogated from by a “positive expression of the legislature’s will…” (Horrocks, at para 33). That positive expression must be “clearly expressed” (Horrocks, at para 5). Nonetheless, even absent this positive expression, courts can plumb the legislative history. If that legislative history “plainly show[s] that the legislature contemplated concurrency,” then the exclusive arbitral jurisdiction model must give way to concurrency (Horrocks, at para 33).
It is on the “legislative history” prong of Horrocks on which the Court, in this case, hangs its hat. It was common ground that the Ontario human rights legislation did not include an express reference to grievance arbitration in its deferral and dismissal powers. Such a reference was understood in Horrocks to defeat the exclusive labour scheme because the legislation expressly contemplates the a human rights tribunal deferring a complaint in favour of labour arbitration. However, the Court says that the absence of such an express reference is not a hurdle to establishing concurrency.
Horrocks suggests a higher bar, to me. The decision is full of references to a requirement of clarity to displace labour arbitration. This is contrasted with Karakatsanis J’s view in Horrocks. Her view was that the very choice to delegate power to a human rights tribunal was enough to displace exclusive labour arbitration.
This decision, in my view, comes very close to Karakatsanis J’s view, which requires less clarity to establish concurrency.Consider the two bases on which Horrocks concludes that there could be an implied intent to establish concurrency. The legislation could include a specific reference to a deferral or dismissal power in relation to labour arbitration; or the legislative history can plainly demonstrate an intention for concurrency. The first of these options, identified in Horrocks, nonetheless includes a specific, express reference to grievance arbitration (as in the legislative schemes identified in para 33 of Horrocks). As the Court notes, the human rights legislation in Ontario includes no such specific reference, only generally referring to deferral in relation to an unqualfied group of “proceedings.” Even if we are seeking an implicit legislative intent, Horrocks does seem to require more.
The legislative history branch, in my view, should not help. First, as the Supreme Court has warned, legislative history should be viewed with great caution (MediaQMI v Kamel, 2021 SCC 23). It would seem odd for the legislative history to provide for concurrency where the text arguably does not. I am aware that Horrocks leaves open the possibility that legislative history can demonstrate concurrency. But that possibility is significantly tempered by the requirement that the legislative history be pellucidly clear. In this case, as the Court of Appeal for Ontario did, the legislative history could be read to support concurrency: see Ontario (Human Rights Commission) v Naraine, 2001 CanLII 21234 (ONCA). But, on this, I think reasonable minds can disagree, especially in absence of a specific textual signal. I leave it to the reader to review the legislative history, which—as I pointed out—might support the Court’s decision in this case. Perhaps the problem is with allowing legislative history to “supplement” an otherwise unclear text at all. If the Supreme Court is right—and there are reasons to doubt the probative value of legislative history—then it might stand to reason that any conclusion drawn from legislative history is suspect. This might be especially so where the text does not lead to a clear answer.
Eloufy v The Association of Professional Engineers And Geoscientists of Saskatchewan, 2024 SKKB 45 (March 14, 2024)
Category: Adequacy of reasons.
Context and Analysis: This is a decision of a professional association to confirm refusal of an application for professional engineering status in Saskatchewan. One of the issues concerned the adequacy of reasons. I reproduce what the Court says, because I think it is a good encapsulation of how to analyze adequacy of reasons problems (note that this is a statutory appeal).
The Court was faced with an argument by the decision-maker that “Vavilov allows for variable expectations or standards in the duty to give reasons…” [91]. The Court answers this argument as follows:
[91]….While I accept that Vavilov recognizes that the wide-ranging nature of administrative decisions and decision-makers requires variable expectations for reasons, I do not agree that this case is at the lower end. The significance of the interest, being professional credentials, and the nature of the hearing before Council on a statutory right of appeal require better reasons than were provided.
[92] In saying that better reasons were required, what is required is not difficult. The usual guidance to decision-makers is to explain why they decided as they did. The explanation need not be lengthy. Sometimes it simply requires adding the word “because” at the end of the sentence stating the decision and then carrying on to complete the sentence.
[93] Council was supported by both staff and a lawyer. Provided of course that the tribunal makes the decision and communicates its reasons for doing so, there is nothing wrong with the tribunal’s lawyer helping to craft the decision. The value and legitimate use of board counsel in crafting reasons is discussed, in a municipal context, by Thomas W. Wakeling J.A. of the Alberta Court of Appeal in his Frederick A. Laux, Q.C., Memorial Lecture, (2018) 55-3 Alta L Rev 839 at 845-847, 2018 CanLIIDocs 5.
[94] I do find that Council failed in its duty to provide reasons. While a finding of inadequate reasons will usually result in the appeal being allowed, that result is not inevitable if the reasons are readily apparent from the record.
[…]
[97] I considered allowing the appeal for failure to provide adequate reasons and sending the case back for re-hearing, as I did in Otte v Regina (City), 2020 SKQB 182, 4 MPLR (6th) 220. What is different in this case, however, is that the reason for Council’s decision is obvious from the record. While the reasons expressed in the decision are sparse, the reason for the decision is evident from the record. Thus, appellate review remains possible.
Mitanidis v Ontario (Minister of Transportation), 2024 ONSC 1838 (March 27, 2024)
I have included this case conference endorsement because of a nice comment from Myers J:
[5] Kevin Mitanidis submits that his father needs help in the complex world of administrative law and court proceedings. I accept that is true for most of us.
True enough!
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own