) ) Association of Professors of the University of Ottawa Applicant (Responding Party) – v. –, 2017 ONSC 125

CITATION : Association of Professors of the University of Ottawa v. University of Ottawa, 2017 ONSC 125 COURT FILE NO.: 15-2168 DATE: 20170106 ONTARIO SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT) BETWEEN: ) ) Association of Professors of the University of Ottawa Applicant (Responding Party) – and – University of Ottawa Respondent (Moving Party) ) ) ) ) ) ) ) ) ) Natasha Udell, for the Applicant (Responding Party) Frank Cesario, for the Respondent (Moving Party) ) ) ) HEARD: November 22, 2016 Toscano Roccamo J.

Introduction [ 1 ] In an age of fiscal restraint, with cutbacks in spending from the public purse affecting all sectors, including universities and colleges, it is hardly surprising that the University of Ottawa’s decision to offer an increased salary to two non-unionized employees would draw the attention of one of the bargaining agents for University staff. [ 2 ] The Applicant, the Association of Professors of the University of Ottawa (the “APUO”), has brought an application for judicial review (the “Application”) of the decision of the Respondent, the University of Ottawa (the “University”), to pay additional compensation to two administrative officers of the Respondent during a “restraint period”, on the grounds that it violates

Part II.1 of the Broader Public Sector Accountability Act, 2010 , S.O. 2010, c. 25 (the “ BPSAA ”) and is ultra vires its statutory authority as set out in s. 11(

c) of the University of Ottawa Act, 1965 , S.O. 1965, C. 137 (the “ uOttawa Act ”). [ 3 ] In its Application, the APUO seeks a declaration that the BPSAA has been breached, an order in the nature of certiorari setting aside the compensation decision, and an order directing the University to “recoup any excess compensation paid to the aforesaid persons and to report the progress made in so doing to this Honourable Court”. [ 4 ] The University moves to quash the APUO’s Application for lack of jurisdiction and lack of standing.

Furthermore, the University argues that the BPSAA bars the enforcement of its provisions by private parties: only the Government of Ontario can bring proceedings to enforce non-compliance of the BPSAA . [ 5 ] The APUO disputes the University’s position and asks this Court to dismiss the motion to quash so that it may proceed with its Application. Background [ 6 ] The University is a statutory body, established pursuant to the uOttawa Act .

The Board of Governors of the University of Ottawa (the “Board”), composed of members of the faculty, members of the student body, and a cross-section of the community, governs the conduct, management, and control of the University and its property, revenues, business, and affairs. [ 7 ] The objects and purposes of the University are described in s. 4 of the uOttawa Act : The objects and purposes of the University are,

a) to promote the advancement of learning and the dissemination of knowledge;

b) to further, in accordance with Christian principles, the intellectual, spiritual, moral, physical and social development of, as well as a community spirit among its undergraduates, graduates and teaching staff, and to promote the betterment of society;

c) to further bilingualism and biculturalism and to preserve and develop French culture in Ontario. [ 8 ]

Section 11 of the uOttawa Act assigns certain powers to the Board in furtherance of its duty to achieve these objects and purposes of the University, one of which is “to fix the number, duties, salaries and other emoluments of officers, members of the teaching staff, agents and servants of the University” (s. 11( c )). [ 9 ] The APUO is the certified bargaining agent of approximately 1,250 professors, language teachers, counselors, librarians, and some research fellows employed with the University. [ 10 ] On April 30, 2015, P.

Marc Joyal, University Vice-President, Resources, sent an email to a number of University staff members on an electronic mailing list, including members of the APUO, with the English heading “Message on Ontario 2015 budget”. The email cites the following passage from Ontario’s statement on the 2015 budget: Compensation costs must be addressed within Ontario’s existing fiscal framework, which does not include additional funding for wage increases.

Any modest wage increases must be offset by other measures to create a net zero agreement, and all public-sector partners must continue to work together to control current and future compensation costs. [ 11 ] Shortly thereafter, the APUO learned, according to data recorded on the Province of Ontario’s “sunshine list”, that Dr. Mona Nemer (Vice-President, Research) and Dr.

Jacques Bradwejn (Dean of the Faculty of Medicine), two senior administrators of the University, neither of whom are members of the APUO’s bargaining unit, had been granted wage increases ranging from $36,000 to $132,000 during the period of a statutory wage freeze imposed by the BPSAA . [ 12 ] Both employees are “designated office holders” under sections 7.7 and 7.8 of the BPSAA , whose compensation is frozen during the “restraint period” imposed by the province. [ 13 ] Sections 7.7 and 7.8 provide the applicable prohibition: 7.7 The salary of a designated executive or designated office holder under the compensation plan that is in effect for the position or office on his or her effective date cannot be increased before the end of the restraint period. 7.8

(1) Subject to subsection (3), a benefit, perquisite or payment provided to a designated executive or designated office holder under the compensation plan that is in effect for the position or office on his or her effective date cannot be increased before the end of the restraint period, and no new or additional benefits, perquisites or payments may be provided to a designated executive or designated office holder before the end of the restraint period.

(2) In this section, “payment” means cash compensation other than salary.

(3) An increase in a payment, or a new or additional payment, may be provided to a designated executive or designated office holder before the end of the restraint period, if the increase or the new or additional payment, (

a) is in recognition of the designated executive’s or designated office holder’s, (

i) successful implementation of measures to reduce costs while protecting front-line service, (ii) achievement of articulated government priorities, or (iii) achievement of performance improvement targets set out in an annual quality improvement plan developed under the Excellent Care for All Act, 2010 , if the designated employer is a public hospital; and (

b) is authorized under the compensation plan that is in effect for the position or office on his or her effective date. [ 14 ] On June 30, 2015, the APUO, along with three other unions at the University of Ottawa, wrote an “open letter” to the Kathryn

Butler-Malette, Chairwoman of the Board’s Executive Committee, inquiring about the increases and asking for justification andtransparency. [15] Having been made aware of this open letter, Allan Rock, the University’s then President and Vice-Chancellor, on July 13,2015, wrote to Ms. Butler-Malette concerning Dr. Nemer’s compensation increases. His letter was subsequently forwarded byMs. Butler-Malette to the APUO, attaching a second letter from Dr. Bradwejn to President Rock.

The essence of both letters was that theincreases were merit-based and that they complied with both provincial law and internal University policies and procedures. [16] Between July 16, 2015 and November 27, 2015, the APUO sent a series of follow-up letters and emails to the University.

OnSeptember 25, 2015, the APUO wrote to the Honourable Reza Moridi, Ontario’s Minister of Training, Colleges and Universities,requesting a public investigation into the salary and other compensation increases of the employees in question. [17] In an email dated October 15, 2015, Anne Bauer, Chief of Staff for the University’s Office of the Vice-President,Governance, indicated that the Board had delegated all compensation decisions concerning non-unionized members to the ExecutiveCommittee of the Board, which holds its meetings in camera. [18] The APUO did not receive a direct response to its inquiries and commenced this Application on December 17, 2015.

Issues [19] The issues on this motion to quash are as follows: • Does this Court have jurisdiction to review the decision of the University to increase compensation to two employees during awage freeze, contrary to the BPSAA, under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1? • Does the APUO have standing to bring its Application? • Does the BPSAA bar the APUO’s Application?

The Test [20] The parties agree that, on a motion to quash, the Court should only grant the motion where it is “plain and obvious” that theApplication cannot succeed. [21] However, this test only applies to a motion to quash a civil proceeding on the ground that is discloses no reasonable cause ofaction or defence. It cannot be applied to determinations of jurisdiction and standing, although these may be questions revisited by a fullpanel of this Court at some later date. [22] In McArthur v.

Canada (A.G.), 2008 ONCA 892, 94 O.R. (3d) 19, at para. 92, aff’d 2010 SCC 62, [2010] 3 S.C.R. 585, and2010 SCC 63, [2010] 3 S.C.R. 626, S. Borins J.A. held that “Morawetz J. [in Telezone] and MacDonald J. in Fielding were incorrect inapplying the plain and obvious test, suitable for a rule 21.01(1)(

b) motion dealing with whether a statement of claim discloses areasonable cause of action. Either the Superior Court has jurisdiction, or it doesn’t have jurisdiction.” [23] The application of the “plain and obvious” test was also described by Justice de Sousa in Certified General AccountantsAssociation of Canada v. Canadian Public Accountability Board (2008), (ON SCDC), 233 O.A.C. 129 (Div. Ct.), atparas. 39–40: The test to be applied on a motion to quash an application for judicial review is not contested.

It is clear that such a motion can succeedonly where it is “plain and obvious that the judicial review application would fail” or where the Court is satisfied that “the case is beyonddoubt.” (See Ofner Essex Resources v. Ontario (Minister of Environment and Energy) (1996), 18 C.E.L.R. (N.S.) 317 at p. 318 (Ont.Div. Ct.); Re Ainsworth Electric and Exhibition Place (1987), (ON SC), 58 O.R. (2d) 432 at 434 (Div. Ct); andOperation Dismantle Inc. v. Canada, (SCC), [1985] 1 S.C.R. 441). While Doherty J. A. explained in the decision of Schreiber v.

Canada (Attorney General) [(2001)], (ON CA), 52O.R. (3d) 577 at para. 15 (C.A.) why the test against the pre-emptive striking of legal actions is set so high, that decision also establishedthat there are certain questions that can only be properly determined on a preliminary basis. On the facts of that case, a claim forsovereign immunity was just one of those questions.

The question of the jurisdiction of a Court to hear a matter, as raised by theRespondent, would clearly be another. [24] As such, the matters of jurisdiction and standing must be determined before the application of the “plain and obvious” test asto whether the BPSAA bars the APUO’s Application. Positions of the Parties The University’s Position

(

a) The Court Lacks Jurisdiction under the Judicial Review Procedure Act [25] The University claims that this Court does not have the jurisdiction to review the decision of the University under eitherbranch of s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”). [26] Subsection 2(1) of the JRPA directs when a court can properly grant relief in an application for judicial review: 2.

(1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may,despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. 2.

Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise orproposed or purported exercise of a statutory power. [27] With respect to s. 2(1)1, Justice Goudge, writing for the Ontario Court of Appeal in Setia v.

Appleby College, 2013 ONCA753, 118 O.R. (3d) 481, held that “the jurisdiction provided by s. 2(1)1 of the JRPA turns on whether the expulsion decision is the kindof decision that is reached by public law and therefore a decision to which a public law remedy can be applied” (at para. 32). [28] In Appleby College, the Court adopted the reasoning of the Federal Court of Appeal in Air Canada v.

Toronto Port Authority,2011 FCA 347, [2013] 3 F.C.R. 605, and identified the relevant factors that should be considered by a court in determining whether amatter is “coloured with a public element, flavour or character sufficient to bring it within the purview of public law” (Appleby College,at para. 33, citing Air Canada, at para. 60). [29] Those factors, set out in Appleby College, at para. 34, are as follows: • the character of the matter for which review is sought; • the nature of the decision-maker and its responsibilities; • the extent to which a decision is founded in and shaped by law as opposed to private discretion; • the body’s relationship to other statutory schemes or other parts of government; • the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a publicentity; • the suitability of public law remedies; • the existence of a compulsory power; • an “exceptional” category of cases where the conduct has attained a serious public dimension. [30] The University argues that the consideration of these factors leads to the conclusion that the University’s decision is not thekind of decision that is reached by public law: the compensation paid to University employees is not a decision that affects the broaderpublic and is not part of the University’s core functions and purposes, as set out in s. 4 of the uOttawa Act. [31] Conversely, under section 2(1)2 of the JRPA, the necessary inquiry is whether the decision-maker was exercising a “statutorypower” within the meaning of that term.

The term “statutory power” denotes a power or right conferred by or under a statute to, interalia, “exercise a statutory power of decision”: JRPA, s. 1 [32] The University submits that, in setting the compensation of its employees, the University is not exercising a “statutory power”or a “statutory power of decision”. Relying on a decision of the Ontario Court of Appeal in Paine v. University of Toronto (1981), (ON CA), 34 O.R. (2d) 770, the University contends that not every decision made by a body created by statute constitutesan exercise of a statutory power of decision.

As Justice Weatherston put it: it is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in theexercise of a “statutory power of decision”; and I think that must be a specific power or right to make the very decision in issue (Paine, atp. 772). [33] The University relies on the demarcation of powers between the Board and the University’s Senate as suggesting merely adivision of responsibilities and not the creation of “statutory” powers of decision.

According to the University, decisions made withregard to compensation of employees are, at best, a by-product of carrying out its purpose of promoting the advancement of learning and,thus, do not engage judicial review or public law remedies. (

b) The APUO has no standing to bring its application

[34] The University submits that the APUO does not have standing to bring its Application. First, the APUO does not have a“direct, personal interest” in the matter, as articulated in Finlay v. Canada (Minister of Finance), (SCC), [1986] 2 S.C.R.607. The APUO is not the bargaining agent for either of the two employees involved and, thus, has no direct interest in the matter. [35] Furthermore, the University relies on

section 19 of the BPSAA to establish that obligations under the BPSAA are obligationsonly as between the University and the Government of Ontario. That

section reads: 19.

Every obligation of a broader public sector organization under this Act is deemed to be an obligation it is required to comply withunder the terms of every agreement or other funding arrangement between the organization and the Government of Ontario or betweenthe organization and an agency of the Government of Ontario. [36] It is the position of the University that the APUO, not a party to such obligations, does not have standing to enforce thoseobligations. [37] I would note that the University did not, in its factum, address the APUO’s alternative assertion of public interest standing.However, in oral argument, the University suggested that the matter is not of broad public importance, but merely a private budgetingmatter between an employer and a collective bargaining unit. (

c) The BPSAA bars the APUO’s application [38] Lastly, the University argues that sections 19 and 22 of the BPSAA express the legislature’s intent that enforcement of itsprovisions will be carried out exclusively by the Government of Ontario, barring any proceeding claiming a remedy or relief in relationto a breach of the BPSAA on behalf of any party other than the Attorney General. [39]

Section 22 of the BPSAA limits the remedies available upon its breach. The relevant provisions of that

section read as follows: 22.

(1) No cause of action arises against the Crown, or any of the Crown’s ministers, agents, appointees and employees, or anorganization subject to this Act, as a direct or indirect result of,

a) the enactment or repeal of any provision of this Act;

b) the making or revocation of any provision of the regulations, directives or guidelines made under this Act; or

c) anything done or not done in accordance with this Act or the regulations or the directives or guidelines.

(2) Without limiting the generality of subsection (1), that subsection applies to an action or other proceeding claiming any remedy orrelief, including specific performance, injunction, declaratory relief, any form of compensation or damages, including loss of revenueand loss of profit, or any other remedy or relief. … (5) Subsections (1), (2), (3) and (4) do not prevent the Attorney General from bringing an application or commencing proceedings torequire an organization subject to this Act to comply with this Act and its regulations and directives. (6) Subsections (1), (2), (3) and (4) do not prevent the enforcement of an agreement or funding arrangement referred to in sections 17, 18and 19. [40] The University maintains that the BPSAA does not grant individuals or organizations the right to bring applications for judicialreview of decisions made by organizations subject to the BPSAA; only the parties themselves or the Attorney General can enforce theprovisions of the BPSAA.

It argues that the APUO is using the Application in lieu of collective bargaining to advance its own views onthe University’s compliance with the BPSAA. The APUO’s Position (

a) The University was Exercising a “statutory power of decision” and the Decision Falls within the Ambit of “Public Law” [41] The APUO contends that setting salaries is a power expressly conferred by statute, namely,

section 11(

c) of the uOttawa Act.In support of its argument, the APUO relies on Attaran v. University of British Columbia (1998), (BC SC), 4 Admin.L.R. (3d) 44, where the Supreme Court of British Columbia held that setting student fees was not a matter of contractual bargainingbetween students and the university but, rather, a power under the university’s enabling statute.

Thus, the university was exercising a“statutory power of decision” within the JRPA. [42] Furthermore, it maintains that the University’s decision to grant additional compensation, in violation of the BPSAA, is clearlya public law matter given that the University’s decision involves the expenditure of funds from the public purse. It also points to thePublic Sector Salary Disclosure Act, 1996, S.O. 1996, c. 1, Sched.

A, which mandates the annual disclosure of salaries greater than$100,000 within the public sector, to demonstrate the provincial legislature’s considerable interest and involvement in ensuring publicawareness and institutional accountability and restraint regarding compensation decisions.

(

b) The APUO has Both a “direct, personal interest” in the Matter and a Broader Public Interest in its Resolution [43] In support of its “direct, personal interest”, the APUO argues that certified bargaining agents have routinely been held to havedirect standing in order to address employment-related legal issues.

As a professional certified organization, the APUO claims to have avested interest in promoting professional standards, monitoring and responding to University government issues, and ensuring that theUniversity be held accountable and remain transparent when making decisions that can affect the entire university community. [44] The APUO also turns to the University’s indirect response to APUO’s “open letter” as evidence that, at that time, theUniversity acknowledged the APUO’s direct, personal interest in the Board’s financial decision. [45] In support of its alternative argument, that it enjoys public interest standing, the APUO submits that it meets all threerequirements of the test for public interest standing, as enunciated by the Supreme Court of Canada in Canadian Council of Churches v.Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236, at p. 253. [46] First, the APUO argues that there is a serious issue to be tried since no complete judicial

interpretation exists for

section 22 ofthe BPSAA. The APUO directed the Court’s attention to the decision of Tranmer J. in 2145850 Ontario Ltd. v. Student Transportation,2012 ONSC 6865.

In that case, the defendant effectively moved to strike an action by attacking the adequacy of the plaintiffs’ amendedstatement of claim and argued, as the University did on this motion, that the BPSAA acted as a complete bar to the plaintiff’s claims.Tranmer J. dismissed the motion, finding that it was not plain and obvious that the BPSAA would bar the plaintiff’s claims: These sections have not been considered judicially and the issues raised are important, novel and complex.

In my view, a determinationof the issues raised in the Amended Statement of Claim require a complete evidentiary record and should not be disposed of at this stageof the proceedings (at para. 30). [47] Under the second requirement, the APUO argues that it has a genuine interest in the subject matter and relies on CertifiedGeneral Accountants, supra, and Canadian Federation of Students v.

Natural Sciences and Engineering Research Council of Canada,2008 FC 493, 329 F.T.R. 31, for the proposition that a certified faculty association has a continued interest in monitoring all mattersaffecting the academic profession. [48] The APUO then argued that the third requirement, that there is no other reasonable and effective way to bring the matter tocourt, is met given that the APUO is generally involved in all matters concerning the University’s accountability.

The Attorney Generalwas provided a copy of the Application and, since it has remained silent on this issue and has not commenced a proceeding against theUniversity requiring compliance with the BPSAA, the Application is the only avenue by which the University’s decision may bescrutinized. (

c) The BPSAA does not bar the APUO’s Application [49] The APUO argues that it is not “plain and obvious” that its Application will fail notwithstanding the language of

section 22 ofthe BPSAA. The APUO posits that

section 22 is a complex provision fraught with ambiguity, which has yet to receive comprehensivejudicial

interpretation. [50] As a general rule, the APUO contends that privative clauses cannot act as a total bar to an action or application and relies onthe Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v. British Columbia (A.G.), 2014 SCC 59,[2014] 3 S.C.R. 31, for the principle that access to justice is fundamental to the the rule of law and that legislation cannot bar access tothe supervisory jurisdiction of superior courts.

Analysis Does this Court have jurisdiction to review the decision of the University under the JRPA? [51] As concerns the application of s. 2(1)2 of the JRPA, and whether the University was exercising a “statutory power ofdecision”, I am not satisfied that the decision to increase the compensation of two of its employees brings it within the ambit of decisionswith respect to which this Court may grant relief. Moreover, following Paine, I accept that not all powers or rights exercised by theUniversity constitute a statutory power of decision. [52] In my opinion, the power or right conferred upon the Board in s. 11(

c) of the uOttawa Act does not decide or prescribe “thelegal rights, power, privileges, immunities, duties or liabilities of any person or party” (JRPA, s. 1). In short, I do not consider the increasein compensation to an employee under s. 11(

c) of the uOttawa Act to be a “privilege”, by which the APUO may identify the exercise of astatutory power of decision. [53] I do not find the decision in Attaran, supra, to be of assistance. In Attaran, Canadian and foreign students enrolled inundergraduate programs at the University of British Columbia applied for judicial review of the university’s fee increases to their tuition,particularly certain “ancillary fees”, despite provincial law freezing the level of tuition fees for the 1997–1998 academic year.

TheBritish Columbia Supreme Court allowed the application and found that, because the ancillary fees were compulsory, the increase inthose fees increased the cost of the applicants’ university education and thus violated the intent of the legislation. [54] Justice Holmes, writing for the Court, found, at paras. 39–40, 43–44, as follows: There clearly exists a contractual relationship between a student and the University. The student at registration is accepting the tuition feecontained in the Calendar and does accept the fees may change without specific notice.

The amount of the fee is however not a matter of contractual bargaining. The fees to be charged, and thereby form part of any contact[sic] between the student and University, arise from exercise of a statutory power vested in the Board under the University Act. Section27(2)(m)(

i) empowers the Board “to set, determine and collect the fees to be paid for instruction, research and all other activities of theUniversity”. … When the Board decides upon the fees to be charged a student, or an increase to those fees, it is imposing upon a student a “liability” forpayment of that fee, and the payment is enforced as a contractual duty in the contract formed upon registration.

In Re Webb and Simon Fraser University (1978), (BC SC), 83 D.L.R. (3d) 244 (B.C.S.C.), Macdonald J. decided thatin setting such fees the Board of a University was exercising a public duty which could be controlled and enforced by the courts.[Emphasis added.] [55] The Attaran decision is clearly distinguishable from the case at bar. Here, while there is a contractual relationship betweenmembers of the APUO and the University as to salaries and compensation, this is a matter of collective bargaining.

Moreover, theAPUO’s allegations toward the University do not concern an increase or decrease to their members’ salaries but, instead, relate to thedecision to increase the salaries of other non-unionized employees of the University. Finally, unlike Attaran, the University’s decisiondid not impose a “liability” for payment on the APUO. [56] In my opinion, the University’s decision is not an “exercise of a statutory power”.

As such, the declaratory relief sought by theAPUO under s. 2(1)2 of the JRPA would not be available. [57] However, with respect to s. 2(1)1 of the JRPA and the factors listed in Appleby College, I find that this matter is sufficiently“coloured with a public element, flavour or character” as to be capable of falling within the ambit of public law. [58] Although the uOttawa Act is a private statute not part of the general law, and thus not a law with wide public effect, theUniversity’s decision to increase compensation during a wage freeze, arguably contrary to the BPSAA, along with the decision’s potentialeffect on the broader public sphere touching the University environment, changes the character of the matter in issue and brings it intothe public light. [59] In an era of legislated fiscal restraint imposed upon the University, the University’s conduct has thus arguably attained aserious public dimension. [60] Despite the lack of a declaratory remedy, should the APUO ultimately be successful on its Application, on the basis that theUniversity breached the BPSAA, an order quashing the University’s decision may potentially provide a suitable and adequate remedyholding the University accountable. [61] Having considered the factors enunciated in Appleby College, I conclude that the University’s decision to increase thecompensation of two employees is the kind of decision that may be capable of being reached by public law and to which a public lawremedy may be applied.

Accordingly, I conclude that this Court has the jurisdiction under s. 2(1)1 of the JRPA to hear the APUO’sApplication and to consider whether relief of the kind available in this provision should be granted.

Does the APUO have standing to bring its Application? [62] I agree with the University that the inquiry begins with the determination of whether the APUO has a direct, personal interestin the matter. [63] In Finlay, supra, Le Dain J., writing on behalf of the Supreme Court of Canada, held, at pp. 622–23, as follows: I am of the opinion, however, that a similar requirement of directness or causal relationship between the alleged prejudice or grievanceand the challenged action is implicit in the notions of interference with private right and special damage.

I note that Thio, op. cit., pp. 5-6,refers to the general requirement for standing in administrative law as being that of a “direct, personal interest”.

In AustralianConservation Foundation, supra, Gibbs J., referring to the general rule, stated the requirement of a personal stake in the outcome of thelitigation as follows at p. 270: A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction ofrighting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense ofgrievance or a debt for costs, if his action fails. [64] In my view, the APUO does not gain an advantage by bringing its Application, other than to uphold the principles ofaccountability and transparency.

In other words, the APUO’s interest is an indirect one. [65] However, I am not convinced that the APUO cannot establish a public interest standing.

[ 66 ] Canadian Council of Churches , supra , as relied upon by the APUO, applies primarily to a party seeking to challenge the constitutional validity of legislation. However, the APUO is not attempting to challenge the constitutional validity of legislation. Instead, the applicable test for when a party may institute proceedings in a non-constitutional challenge of administrative action on the basis of public interest standing is found in Finlay , supra , at pp. 632–33. [ 67 ] As set out in Finlay , the factors upon which a court may recognize public interest standing require that (

a) the issue is appropriate for judicial determination, (

b) is a serious issue in which the individual has a genuine interest, and (

c) there is no other reasonable and effective manner to bring the issue before the Court. [ 68 ] I have already found that the University’s decision may be considered a public law matter that is appropriate for judicial review. [ 69 ] With respect to whether this is a serious issue in which the APUO has a genuine interest, I echo the sentiments of Justice Tranmer in Student Transportation , supra , regarding the lack of judicial

interpretation of the enforcement provisions at

Part VII of the BPSAA , namely sections 19 and 22. [ 70 ] In Student Transportation , the plaintiffs, small- and medium-sized independent school bus operators, brought an action against the defendant, Student Transportation of Eastern Ontario, for breach of various common law duties of care in the issuance of a request for proposal (“RFP”) for the procurement of student transportation services.

The defendants moved to strike the plaintiffs’ amended statement of claim on the basis that sections 22 and 23 of the BPSAA barred the claims. [ 71 ] The plaintiffs argued that the defendant should not be protected by the BPSAA in a situation where it did not comply with the mandatory requirements of the directives in its RFP and, by extension, the BPSAA . [ 72 ] Justice Tranmer agreed with the plaintiffs and, based on the principle that important, legally novel and complex issues should be decided based on a full factual record, found that it was not plain and obvious that sections 22 and 23 of the BPSAA were intended to protect the defendant as such.

Thus, it was not plain and obvious that the plaintiffs’ claims were certain to fail. [ 73 ] Clearly, the matter before me does not deal with a procurement process and, hence, is not strictly speaking on point. However, as in Student Transportation , there is a similar lack of judicial

interpretation of the relevant provisions in the BPSAA such that I am unconvinced that the Application should be barred at first instance. [ 74 ] In Canadian Federation of Students , the Federal Court identified two factors to consider when deciding whether a party has a genuine interest in the outcome of the litigation: “(1) whether the applicant’s interest in the issues are intimately linked to its corporate objectives, and (2) whether the applicant possesses an expertise or track record of general interest in the area of question” (at para. 36). [ 75 ] In that case, the Canadian Federation of Students had successfully argued that its corporate objectives included “advancing students’ interests” and that its members’ interests included “ ensuring the integrity of academic institutions, and protecting those who speak out against research misconduct” (at para. 36). [ 76 ] Similarly, it may be said that the APUO, the certified bargaining agent for approximately 1,250 employees of the University, has a genuine interest in the outcome of the Application.

The APUO’s interest in this matter is intimately linked to its corporate objectives of representing its members in all employment matters, as any union would. Additionally, as evidenced by the continued efforts of the APUO to gain insight into the University’s decision in order to hold it accountable, the APUO has a demonstrated track record of responding to its members concerns and advocating on their behalf. [ 77 ] Overall, the wage freeze legislated by the BPSAA is an imposition that affects all parties.

The APUO, as a bargaining unit for a large number of University’s employees, has an interest in the fair and proper allocation of funds from the public purse. [ 78 ] I note that the freeze was not a private budgeting decision instigated by the University, but instead was driven by provincial laws and public policy. Except as provided for by the exceptions to the prohibition on compensation increases as set out in s. 7.8(3) of the BPSAA , none of which were advanced by counsel for the University, there can be no increase in salaries or benefits until the end of the “restraint period”.

It may be arguable that these “designated broader public sector organizations”, as they are referred to in the BPSAA , ought to be held accountable for decisions that contravene the legislation. [ 79 ] Therefore, I find that this is a serious issue in which the APUO has a genuine interest. [ 80 ] Finally, in order to confer public interest standing on the APUO, I must conclude that there is no other reasonable and effective manner to bring the issue before the Court. [ 81 ] In Downtown Eastside Sex Workers United Against Violence Society v.

Canada (A.G.) , 2012 SCC 45 , [2012] 2 S.C.R. 524, Justice Cromwell, citing Finlay , expanded upon this requirement, at para. 44, as follows: This factor has often been expressed as a strict requirement.… However, this consideration has not always been expressed and rarely applied so restrictively. My view is that we should now make clear that it is one of the three factors which must be assessed and weighed in the exercise of judicial discretion.

It would be better, in my respectful view, to refer to this third factor as requiring consideration of whether the proposed suit is, in all of the circumstances, and in light of a number of considerations I will address shortly, a reasonable and effective means to bring the challenge to court. This approach to the third factor better reflects the flexible, discretionary and purposive approach to public interest standing that underpins all of the Court’s decisions in this area. [ 82 ] The Attorney General of Ontario has remained silent on this issue.

To date, it has not commenced a proceeding against the University requiring compliance with the BPSAA , an issue to which it was alerted back in September of 2015. [ 83 ] In this case, there is no other party, other than a body with a genuine interest in seeking to hold the University accountable,

that would mount a challenge to the University’s decision. [ 84 ] Thus, I find that the APUO’s Application is a reasonable and effective means to advance consideration and adjudication of the matter. Does the BPSAA bar the APUO’s Application? [ 85 ] In order to grant the University’s motion to quash, I must find that it is plain and obvious that the APUO’s Application will not succeed.

That is, I must find that it is plain and obvious that the BPSAA bars the Application. [ 86 ] For the reasons that follow, the University has not met its onus of establishing that the BPSAA bars this Application. [ 87 ] I am not persuaded that the operation and interaction of sections 19 and 22 of the BPSAA clearly evidence the legislature’s intent that enforcement of its provisions will be carried out exclusively by the Government of Ontario. On their face, these sections are not clear and unambiguous in leading to that conclusion. [ 88 ]

Section 19 of the BPSAA provides that: Every obligation of a broader public sector organization under this Act is deemed to be an obligation it is required to comply with under the terms of every agreement or other funding arrangement between the organization and the Government of Ontario or between the organization and an agency of the Government of Ontario. [ 89 ] On a plain reading of this provision, it is not clear that this

section bars a third party from enforcing an obligation that a “broader public sector organization” has toward the Government.

Section 19 simply provides that all University agreements or funding arrangements must comply with its obligations under the BPSAA .

It does not clearly preclude interested third parties from intervening. [ 90 ] In addition, s. 22(6) of the BPSAA provides an exception to the general limitation on remedies within that section: Subsections (1), (2), (3) and (4) do not prevent the enforcement of an agreement or funding arrangement referred to in sections 17, 18 and 19. [ 91 ] However, s. 22(6), on a plain reading of the provision, does not preclude a third party from enforcing an agreement or funding arrangement that, pursuant to s. 19 , must comply with the University’s obligations under the BPSAA . [ 92 ] Without a complete evidentiary record, including the information the University considered in order to meet these obligations in respect of the compensation decisions made, as well as submissions on the intent behind the BPSAA , a full panel of the Divisional Court should not be prevented from addressing the important, novel, and complex issues raised by the APUO’s Application. [ 93 ] In short, at this stage of the proceedings, I cannot find that it is plain and obvious that the Application is certain to fail or should not be considered by a full panel of the Divisional Court.

It is not plain and obvious that sections 19 and 22 of the BPSAA act as a complete bar to the claims being made. Conclusion [ 94 ] The University’s motion to quash the Application is therefore dismissed with costs fixed at $7,500 and payable forthwith by the University to the APUO, in accordance with counsels’ agreement. G. Toscano Roccamo J. Released: January 06, 2017 CITATION : Association of Professors of the University of Ottawa v. University of Ottawa, 2017 ONSC 125 COURT FILE NO.: 15-2168 DATE: 20170106

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Association of Professors of the University of Ottawa Applicant (Responding Party) – and – University of Ottawa Respondent (Moving Party) REASONS FOR JUDGMENT G. Toscano Roccamo J. Released: January 06, 2017