Court
Of Appeal Stops Appointment Of Retired Judges As HLDAA Arbitrators
In early 1998, the Minister of Labour began
appointing retired judges to act as interest arbitrators under the
Hospital Labour Disputes Arbitration Act (HLDAA).
Previously, these appointments had usually been made from a roster
of trained, experienced and mutually acceptable arbitrators. CUPE
and SEIU challenged the new appointment process on the basis that
the Minister of Labour had interfered with the independence and
impartiality of interest arbitrators. CUPE and SEIU also
maintained that the Minister had promised to continue the existing
system for the appointment of arbitrators. The Divisional Court
dismissed the application, holding that the Minister's actions
were authorized under HLDAA and could not be challenged.
On Tuesday, November 21, the Ontario Court of
Appeal granted CUPE and SEIU's appeal. The Court held that the
Minister's actions in changing the appointment process was
"an attempt to seize control of the bargaining process and
... to exclude [the unions] from it [and] to replace mutually
acceptable arbitrators with a class of persons seen to be inimical
to the interests of labour, at least in the eyes of the
appellants." The Court also held that the Minister's actions
violated the Unions' legitimate expectations in that the Minister
had promised to continue the existing system for the appointment
of arbitrators and then "proceeded in an entirely different
direction, one that in the circumstances may be regarded as
provocative or defiant."
The Court ordered the Minister of Labour to
immediately stop appointing interest arbitrators who are not on
the longstanding and established roster of experienced labour
relations arbitrators. The Court’s decision is attached.
Click here for decision
