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Judge Says Federal Minister of Labour’s Position Lacks “Common Sense”

A Federal Court judge admonished the Federal Minister of Labour, Lisa Raitt, this week in a strongly worded rebuke.  The Judge found that the Minister’s position that she can appoint someone with no labour relations experience to decide the terms of a collective agreement of a national employer lacks “common sense”, and her process “lacked transparency”!

The decision involved a challenge by the postal union (CUPW) to the appointment by Raitt of an Anglophone judge with no labour relations expertise to sit an arbitrator in the legislated interest arbitration flowing from the government’s back to work legislation last summer.

Here is the  Decision, issued last week.

Background:  Recall that last summer the Feds legislated an end Canada Post’s lockout of its employees. I summarized that event at the time. The back-to-work legislation, like that which the government passed in the Air Canada situation, included a number of unusual features aimed at slanting the interest arbitration process it substituted for the right to strike or lockout in favour of the employer.  [Here is the legislation (Bill C-6 Restoring Mail Delivery for Canadians Act)]   One unusual feature was that it gave the sole authority for appointing the interest arbitrator to the Minister, with no requirement to even consult with the parties about this.  Section 8 said this:

8. The Minister must appoint as arbitrator for final offer selection a person that the Minister considers appropriate.

The Minister interpreted this language to mean that she could appoint anyone she likes, even someone who knows nothing about labour relations, Canada Post, the postal industry, who cannot speak a word of French, the language spoken by a large percentage of both management and staff, and who lacks the support of either of the parties to the collective agreement.  The Court disagreed.  Strongly disagreed.

The Decision

This is an important decision, because it shows once again that the Courts will create an obstacle to conservative governments that want to interfere with the interest arbitration system in ways that tarnish the neutrality and objectivity of the system.  Conservatives want someone who is outside of the labour relations community in the hopes that that person will not be concerned about pissing off the unions and the workers, and will therefore be prepared to impose significant concessions on behalf of employers.  The Mike Harris Conservatives in Ontario tried the same tactic back in the 1990s, and were met by an unimpressed Supreme Court.

The most interesting part of the decision is the strongly worded rebuke of the Minister’s position.  The judge wrote that the Minister:

…would like the exercise of ministerial power… to be unobstructed, unguided or not subject to any criteria of qualification or competence for the arbitrator.  In other words, the Minister would merely have to act in good faith and deem the person qualified for it to end the Court’s judiciary review exercise.

The judge soundly rejects this argument, saying that it is not what is indicated by common sense, case law, the economy of the Act, or the specific labour relations context that govern the parties to the collective agreement.” Ouch.   The Judge continues:

In the case at hand, the lack of transparency inherent in the appointment process followed by the Minister, the little evidence or rationale provided by the Minister and the laconic nature of her communications raise serious questions and indicate that the Minister appears to have excluded, as relevant criteria, the person’s previous labour relations experience and the bilingualism requirement stemming from the specific context under which the final offer arbitrator would have to make his or her final decision.

The Judge rules that the Act requires the Minister to appoint someone with labour relations expertise and who is bilingual.  Both sides expect this much, and failure to do so threatens the work environment.
In the Canada Post case, the arbitrator would be operating under a Final Offer Selection process, which requires the arbitrator to choose either the union’s proposed agreement or the employer’s.  The Judge said, therefore, “the weight of responsibilities is enormous”, and the process is more about “legitimacy” than legality.  Interestingly, the Judge also noted that given the political nature of the process created by the Tory legislation, which contrains the arbitrator’s discretion, “it will be easy to turn the final offer arbitrator into a scape goat.” Therefore, in the “extraordinary process” created by the government for resolving collective bargaining, it is essential that the arbitrator have the initial confidence of both parties.  Otherwise, the result may be “the deterioration of the working environment for years to come.”

Do you think  that elected governments should be entitled to appoint whomever they like to arbitrate collective bargaining disputes?  Or do you agree with courts intervening to require the appointment of people respected in the labour relations community?

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2 Responses to Judge Says Federal Minister of Labour’s Position Lacks “Common Sense”

  1. Sharon Maclise Reply

    February 10, 2012 at 4:27 pm

    The Minister can appoint whoever she wants to arbitrate bargaining disputes. The courts need to stop interferring with the role of our elected officials and start doing a better job of reading and interpreting the law. Our courts are fsr too interferrign nowadays ~ activist judges think they can insert their personal political or social biases into the law while remaining above it and totally unaccountable. Until judges are “elected” by voters they need to stick to doing what they are paid to do and expected to do ~ judge, and let elected politicians reflect the standards of the community. Lisa Raitt is doing exactly what she is elected to do in deciding who acts to represent the interests of all Canadians, not just someone who labour decides is apporpriate. That would be highly prejudicial, in favor of labour over the taxpayer and/or employer.

    • Doorey Reply

      February 10, 2012 at 5:53 pm

      Thanks for the comment Sharon. I don’t agree with you, but that’s fine. The Minister would have been well aware of the administrative law rules that govern the exercise of discretion by governments; they are not new. If a government appoints an arbitrator that has no credibility to one side or the other, the process is doomed and is likely to cause more problems than it solves. I assume that you will have no problem if an NDP government begins appointing, say, leaders of the Canadian labour movement to arbitrate all contentious labour disputes over the objection of employers? That too would be a recipe for disaster, just as Raitt’s appointment of an Anglophone with no expertise in the industry or labour relations principles would be. The appearance of objectivity and neutrality is important in legal proceedings, for all sorts of very good reasons. There is no “interest of the taxpayer’, although politicians often talk as if there is, and amazingly, the ‘taxpayer’s’ view somehow always seems to be the same as the politician’s. There’s many taxpayer interests, and I’m not sure which of those interests you are referring. I assume it is whatever you think it is. I’m a taxpayer, and I don’t want politicians appointing people to solve complex problems who have no expertise in the underlying issues that cause the problems. That’s just silly, and I expect most ‘taxpayers’ would agree that it is, as did the judge, who is also a taxpayer.

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