ONTARIO LABOUR RELATIONS BOARD 0134-12-U Ontario Secondary School Teachers’ Federation, Applicant v. Crown in Right of Ontario, the Honourable Mr. Dalton McGuinty, Premier of Ontario, the Honourable Ms. Laurel Broten, Minister of Education, the Honourable Mr. Dwight Duncan, Minister of Finance, Dalton McGuinty in his personal capacity, Laurel Broten in her personal capacity and Dwight Duncan in his personal capacity, Responding Parties v. Elementary Teachers’ Federation of Ontario, Ontario Public School Boards’ Association, Ontario Catholic School Trustees’ Association and Canadian Union of Public Employees, Intervenors. BEFORE: Bernard Fishbein, Chair. APPEARANCES: Heather Alden, Pierre Côté, Susan Luft and Vaino Poysa for the Applicant; Sunil Kapur, Robert E. Charney, Daniel Huffaker and Christopher Thompson for the Responding Parties; Michael Hines, Geoff Williams and John-Paul Alexandrowicz for the Ontario Public School Boards’ Association; Howard Goldblatt, Stephanie Hobbs and Carolyn Walker for the Elementary Teachers’ Federation of Ontario; Adam Guy and Eric M. Roher for the Ontario Catholic School Trustees’ Association; Gavin Leeb, Brian Blakely and Monique Drapeau for the Canadian Union of Public Employees. DECISION OF THE BOARD: December 11, 2012 1. This is an application (“the complaint”) under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Labour Relations Act”) brought by the Ontario Secondary School Teachers’ Federation (“OSSTF”) against the Crown in Right of Ontario, the Honourable Mr. Dalton McGuinty, Premier of Ontario, the Honourable Ms. Laurel Broten, Minister of Education, the Honourable Mr. Dwight Duncan, Minister of Finance, Dalton McGuinty in his personal capacity, Laurel Broten in her personal capacity and Dwight Duncan in his personal capacity (hereinafter collectively referred to as “the Responding Parties” or “the Government” or “the Crown”). The OSSTF alleges that the Responding Parties have violated sections 17, 70, 72, 73 and 76 of the Labour Relations Act. The Responding Parties filed a response denying violations of the Labour Relations Act and making the preliminary objection to the Board’s jurisdiction to hear the application at all because:

(a) the Labour Relations Act does not apply to the Responding Parties because of Crown immunity;

(b) the Responding Parties’ alleged actions are not justiciable;

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(c) OSSTF has not made out a prima facie case of violations of the Labour Relations Act.

2. The Government requested that the application therefore be dismissed on a preliminary basis and without a hearing. In the circumstances of this rather unusual application, the Board determined by decision dated May 3, 2012 (and amended by decisions dated May 7 and June 15, 2012) that it would be appropriate to hold a hearing to consider the Government’s preliminary motion. 3. The Elementary Teachers’ Federation of Ontario (“ETFO”), the Ontario English Catholic Teachers Association (“OECTA”), the Association des enseignantes et des enseignants franco-ontariens, (“the Association”) and the Canadian Union of Public Employees (“CUPE”) intervened in support of the position of OSSTF. However, both OECTA and the Association subsequently withdrew their interventions and did not participate in these hearings. As well, the Ontario Public School Boards’ Association (“OPSBA”) and the Ontario Catholic School Trustees’ Association (“OCSTA”) also intervened and participated, if only minimally, in the proceedings. 4. Upon their request and agreement, to accommodate the scheduling difficulties of the parties, a hearing was adjourned but ultimately held on August 21 and 28, 2012. By that time, events were largely overtaking the actions complained of in the complaint, by the Putting Students First Act 2012, S.O. 2012, c.11 (the “Putting Students First Act”) which had been introduced just before the last day of hearing and enacted shortly thereafter. The validity of that statute (constitutional or otherwise) and more importantly, the actions of the Government in both introducing and passing that Bill, explicitly on the part of OSSTF, ETFO or CUPE, formed no part of the conduct complained of in the complaint. This decision in no way addresses the validity of the Putting Students First Act (which appears to prohibit the Board from doing so in any event). Background 5. Teachers’ collective bargaining in Ontario is governed by Part X.1 of the Education Act R.S.O. 1990 c.E.2 (“the Education Act”). In many ways, it imposes a unique system of collective bargaining for teachers in the public education system (It should be noted that since CUPE largely represents educational support workers, and to some extent so does OSSTF, those collective bargaining relationships are not governed by the Education Act). The Education Act creates mandatory bargaining units for all district school boards and statutorily designates the exclusive bargaining agents for all of those bargaining units. For purposes of this case, the OSSTF is the bargaining agent for each of the secondary school teachers’ units at all English-language public school boards, ETFO is for the elementary school teachers’ units at English-language public district school boards. Collective agreements between district school boards and statutory bargaining agents must be for a term of either two or four years and commence on September 1st of the year in which the previous collective agreement expired. As well, section 277.2(3) of the Education Act specifically provides no person is entitled to make an application to the Ontario Labour Relations Board under section 1(4) of the Labour

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Relations Act, 1995 with respect to a school board. The Education Act quite clearly envisages that for collective agreement purposes, the employers of teachers are the district school boards (see also section 171(1)3 of the Education Act). 6. Section 277.2(1) of the Education Act provides that the Labour Relations Act applies with necessary modifications with respect to the district school boards, designated bargaining agents and Part X.1 teachers except as otherwise provided or required by Part X.1 of the Education Act. 7. Notwithstanding the model in the Education Act of collective agreements between district school boards and the designated statutory bargaining agents, commencing at least with the bargaining in 2004, the Government initiated a process whereby discussions took place at a provincial level with various statutory bargaining agents (which since the previous Education Act amendments were now the provincial bodies) and the provincial school board trustees associations (such as OPSBA and OCSTA) which resulted in “framework” agreements or Memorandums of Agreement or Understanding (hereinafter either “MOA” or “MOU”) between those parties (which to the extent that the framework agreements or MOAs went, were used subsequently or formed the basis for the actual collective agreements between the bargaining agents and the district school boards as contemplated and required under the Education Act). This process was referred to as the Provincial Discussion Table (“PDT”). Participation in the PDT was completely voluntary. In fact, OSSTF itself apparently refused to participate as early as the 2004 round. The PDT process existed outside of the statutory framework of the Education Act or the Labour Relations Act for that matter. In fact, the individual district school boards were not even participants in the PDT process – only the trustee associations. 8. In fact, it is probably significant to note at this point the limited submissions of OPSBA and OCSTA. Aside from confirming the view that the PDT was purely voluntary and outside both the Labour Relations Act and the Education Act, they point out that membership in their respective associations is not statutorily required and is purely voluntary (and from time to time certain school boards are actually not members). Neither has the authority or capability to either collectively bargain on behalf of or bind individual school boards – although they certainly can and do give advice and make recommendations to individual school boards. 9. PDT discussions successfully produced framework agreements in 2008 involving, among others, OSSTF, ETFO and CUPE. Unfortunately, the discussions in 2012 were not so successful. The Government found itself in serious financial difficulties and since education is a significant part of the provincial budget, not surprisingly, wished to limit its expenditures in that sector and wished to utilize the PDT process to hopefully obtain agreement (or at least acquiescence) to those objectives. It produced and tabled for the PDT discussions, a document titled the “Government of Ontario Parameters for the 2012 PDT” that set out the Government’s expectations for the collective agreements results it wished in the educational sector (or the Government’s fiscal parameters in the education sector, as it would characterize it). Among other

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things, the Government wished the unions to agree to a wage and grid freeze and changes to the ability to bank and “cash out” sick leave credits upon retirement. Although by the time of the hearings, the Government had reached agreements with OECTA and the Association (and they withdrew from this complaint), the discussions between the OSSTF and the intervenors at their PDTs did not go as well. It is the conduct of the Government with respect to these PDT discussions that formed the basis of this complaint. In particular, OSSTF complains that the actions of the Government in making its public statements with respect to its PDT positions (including the Premier posting a YouTube video) constitute failing to bargain in good faith contrary to section 17 of the Labour Relations Act, threatening or intimidating its members contrary to sections 72 and 76 of the Labour Relations Act, or conduct contrary to sections 73 of the Labour Relations Act. 10. As noted above, the Government sought to have the complaint dismissed preliminarily on various grounds. Although I have tried to deal with each of them separately, to some extent they overlap and some comments on some grounds inevitably are relevant or applicable to other grounds as well. (a) Crown Immunity 11. The Government’s position is relatively straight-forward. Section 71 of the Legislation Act, 2006, S.O. 2006 c.21 Sched. F provides:

“No Act or regulation binds Her Majesty or affects Her Majesty’s rights or prerogatives unless it expressly states an intention to do so.”

12. In other words, the Crown is not bound by legislation unless that legislation expressly states the Crown is bound. Equally, the Government asserts, the Labour Relations Act is even more clear in this regard in section 4:

4. (1) This Act binds agencies of the Crown other than, (a) agencies in which are employed Crown employees as

defined in the Crown Employees Collective Bargaining Act, 1993; and

(b) colleges of applied arts and technology established under

the Ontario Colleges of Applied Arts and Technology Act, 2002.

(2) Except as provided in subsection (1), this Act does not bind the Crown.

[emphasis added] 13. In other words, even aside from section 71 of the Legislation Act which stipulates that statutes do not bind the Crown unless they expressly so provide, the Labour Relations Act goes even further and explicitly states in section 4(2) that the Crown is not bound.

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14. Not only are these statutory provisions explicitly clear, the Government also argues that the Board has clearly and repeatedly so found. In The Honourable Mr. Michael Harris, Premier of Ontario, [2001] OLRB Rep. May/June 767 (“Ontario (Premier)”) (a case which will be discussed throughout this decision on other aspects as well), the Board dealt with two unfair labour practice complaints alleging violations of many of the same sections of the Labour Relations Act by the then Premier of Ontario and the then Minister of Labour. In a lengthy decision written by the then Chair of the Board, the Board concluded:

“V - Does the Labour Relations Act apply to the Crown in this context, and do the unions' allegations, assuming them to be true, fit within any of the unfair labour practice provisions relied upon in the complaint?

150. I will return later to whether the behaviour that the unions are complaining about, actually "fits" within any of the sections of the Labour Relations Act that the unions rely upon. The unions say that it does, and the responding parties say that it does not. However, it seems to me that there is a much more formidable hurdle for the complainants to overcome, namely: whether the Labour Relations Act applies at all in this context. For as noted above, section 4 of the Labour Relations Act reads as follows: 4. (1) This Act binds agencies of the Crown other than, (a) those that employ Crown employees as defined in

the Public Service Act; and (b) those that are designated under clause 29.1(1)(a)

of the Public Service Act. (2) Except as provided in subsection (1), this Act does not

bind the Crown.

151. This formulation may be usefully compared to section 47(1) of the Human Rights Code which provides: This Act binds the Crown and every agency of the Crown. 152. Section 4 of the Labour Relations Act is a restatement of the common law principle of "Crown immunity", which, in turn, is given specific statutory expression in section 11 of the Interpretation Act:

11. No Act affects the rights of Her Majesty, Her heirs or successors unless it is expressly stated therein.

In their text Liability of the Crown, Third Edition, Carswell, Scarborough, 2000) [sic] Professors Hogg & Monahan describe the effect of that section as follows:

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The rule is that the Crown is not bound by statute except by express words or necessary implication. What this means is that general language in a statute, such as "person" or "owner" or "landlord", will be interpreted as not including the Crown, unless the statute expressly states that it applies to the Crown, or unless the context makes it clear beyond doubt that the Crown must be bound.

153. There is nothing in section 4 of the Labour Relations Act that overrides this provision of the Interpretation Act. On the contrary, section 4 of the Labour Relations Act restates and reinforces the principle of Crown immunity. It says, quite unequivocally, that the Labour Relations Act has no application to the Crown. 154. The Courts have consistently recognized that, at common law, a Minister is a "servant" of the Crown (see for example: Rawer v. Rachandran, [1970] A.C. 962 (P.C.) at 973; Bank Voor Handel v. Administrator of Hungarian Property [1954] A.C. 584 (H.L.) at 616; McKenzie-Kennedy v. Air Council [1927] 2 K.B. 517 at 523; and see again: Hogg and Monahan, Liability of the Crown. The Proceedings Against the Crown Act supports the same proposition. Ministers of the Crown are the embodiment of power in the executive branch of government. It is Ministers who direct, and are responsible for, the work of the civil servants in the various Ministries for which the Minster is responsible. 155. When a Minister is addressing legislative issues, crafting policy, and interacting with interest groups in respect of legislation that is currently before the Legislature, it would take very strong evidence to suggest that he was not acting as a Minister of the Crown. And here, of course, there is really no doubt about what the Minister was doing: he and his officials were engaging the union constituency to see what legislative platform might be acceptable and would also achieve the policy objectives that Bill 69 envisaged. The fact that some trade union organizations were opposed to that legislative direction, does not alter the character of what the Minister was doing. 156. Moreover, I do not think that it is open to the unions in this case to claim that the Minister (let alone the Premier) was "off on a frolic of his own", or was not acting in his Ministerial capacity in respect of the ongoing debate on collective bargaining policy or the legislation then pending before the Legislature. Indeed, the thrust of the unions' "intimidation" allegation depends upon the assumption that the Minister was acting in a governmental capacity, "threatening" legislative change of which the unions do not approve. The thrust of their allegation against the Premier is that he was somehow instrumental in crafting offensive (to the complainants) legislation, or piloting that legislation through the Legislature. In this sense, the case is very much "about" the respondents' legislative and governmental role.

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157. Now, as I have indicated earlier: as matter of legal process, neither the Premier nor the Minister alone can effect legislative change; only the full Legislature can do that. And when Ministers are in the Legislature, actually debating or voting on government Bills, they are acting in their "legislative" rather than their "executive" capacity. But it is simply not possible to claim that the behaviour complained about here, is disconnected from Mr. Stockwell's role and responsibilities as a Minister of the Crown and legislator; and it is perhaps indicative of that conclusion, that so much of the material relied upon by the complainants consists of statements by the Minister in respect of the then ongoing legislative process - including statements by the Minister (and other members of the Legislature) made in legislative committee meetings and in the legislative debates. And, of course, the only complaint against the Premier concerns his legislative role as head of government: it is said that he has somehow acted improperly by supporting legislation that favoured a particular interest. 158. Whether or not any of these allegations are "true and provable" in the precise terms found in the complaint, it is the Premier's legislative or governmental role that is in issue. Likewise, the Minister of Labour. 159. In my view, the behaviour attributed to the respondents falls within the scope of their role as Ministers of the Crown, and that brings them squarely within the ambit of section 4 of the Labour Relations Act, read together with section 11 of the Interpretation Act. Thus - to borrow the text writers' explanation - when one encounters the word "person" in the unfair labour practice (or other) provisions of the Labour Relations Act, one must remember that the word "person" does not apply to the Crown or to a Minister of the Crown. Which, as a practical matter, means that these sections do not apply to the respondents in the situation under review. 160. On that basis alone, this complaint must be dismissed. 161. Simply put: the Labour Relations Act does not apply to the responding parties.”

15. Similar results were reached by the Board in Federated Contractors Inc., [2003] OLRB Rep. January/February 54 and Ottawa Community Care Access Centre, [2004] O.L.R.D. No. 2529 at para. 18 where the Minister of Health was removed as a responding party in those proceedings on this same basis. 16. In the Government’s view, this is the beginning and the end of these applications, and they should be dismissed both against the Crown and its Ministers. 17. OSSTF, ETFO and CUPE sought to distinguish the Ontario (Premier) decision and the other cases on various bases. Quite simply, I am not persuaded.

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18. First the OSSTF and the others sought to distinguish the Ontario (Premier) case on the basis that this complaint is substantively different than the allegations made in the Ontario (Premier) case. Unlike the Ontario (Premier) case, OSSTF and the others say they do not complain about any proposed legislation or the threat of any proposed legislation (like the Putting Students First Act) which was what the Ontario (Premier) case was about. Rather, they complain about the Government stepping into the shoes of the district school boards as employers and attempting to dictate the process and contents of school board collective bargaining (or more colourfully, “defeat free collective bargaining in the educational sector”). ETFO characterized it as the Government depriving the unions of the opportunity to negotiate collective agreements even within the Government’s financial parameters. CUPE stated that section 4 of the Labour Relations Act conferred immunity only when the government was acting as government, not as an “interloper”. 19. In some ways, the only real distinction (if it is a distinction at all) between the Ontario (Premier) case and this complaint appears to be simply a matter of timing. The complaint in the Ontario (Premier) case was filed after the relevant legislation was passed although it did relate to conversations, discussions and statements before the legislation was passed – here it was filed before the legislation was introduced. Much of the complaint in the Ontario (Premier) case was about the government using the threat of far worse legislation (at least from those unions’ point of view) to get the unions to do what the Government wished (see paragraphs 95-99 for instance – paragraphs ETFO pointed me to in order to distinguish the Ontario (Premier) decision from this complaint). Here, the unions complain about the Government’s conduct before the Government determined that legislation was necessary. I am not sure this is a particularly salient distinction. 20. In any event, OSSTF and the unions repeatedly argued at the hearing that they were not questioning (here at least) the Government’s authority to legislate (or its authority to communicate its authority to legislate). Although one would not readily discern that from reading the allegations in the complaint as originally filed, taking OSSTF and the others at their word, that does not seem to be particularly significant. Without being trite, immunity is immunity. If the Crown is immune, then the legislation simply does not apply to it for whatever purpose or motive the Crown is acting, whether using the characterization of OSSTF, ETFO or CUPE. As the Government put it, that is the very purpose of Crown immunity. Even if the Crown is not acting as “legislator” that ought not matter to the question of immunity – it may go to the question of “justiciability” (which will be discussed below). In fact, if Crown immunity was only applicable to the notion of the Crown acting as “legislator” (e.g. threatening legislation, passing a budget, legislating), there would be no need for the doctrine of Crown immunity at all because those issues would be addressed by the concept of “justiciability” (again, see discussion below). 21. It is for these reasons that I reject the CUPE argument that section 4(2) of the Labour Relations Act must be narrowly construed and I ought to determine whether the

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Government is acting “in a legitimate Government capacity” as opposed to “an interloper” in determining whether Crown immunity applies. 22. Moreover, even were I persuaded that this is a salient distinction that OSSTF, ETFO, and CUPE seek to draw (and I am not), the actions complained of in the Ontario (Premier) case were with respect to Bill 69 which actually eliminated certain bargaining rights that certain unions held in respect of certain employers in the construction industry. The Government’s actions complained of by OSSTF and the others in this complaint relate to the regulation and/or outcome of bargaining in connection with certain bargaining rights in the educational sector. It is difficult to see why this type of Government action should be put on a higher (or, depending on your point of view, lower) plane than the complete eradication and elimination of bargaining rights, which was what was at stake in the Ontario (Premier) case. 23. OSSTF also argued that since teacher bargaining (it was conceded that this applied only to teachers and not educational support staff for which OSSTF and CUPE also held bargaining rights) was governed by Part X.1 of the Education Act, and that legislation did not expressly grant Crown immunity, Crown immunity did not apply. As I understood the OSSTF argument, even in the absence of statutory words expressly indicating that the Crown was bound, the Crown could still be bound by “necessary implication” because when reading the applicable statute, its purpose would be “wholly frustrated” if the Crown was not bound. I was referred to the Supreme Court of Canada decision in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at paras. 64 and 65 for this proposition as well as Professor Hogg in an earlier edition of Liability of the Crown. Even if I accept this as an accurate statement of the law, I am not persuaded that Part X.1 of the Education Act necessarily implies or requires the waiver of Crown immunity to avoid its frustration (wholly or otherwise). 24. To this end, OSSTF pointed me to the Board decision in Brant Haldimand-Norfolk Catholic District School Board [2001] OLRB Rep. March/April 292 and in particular para. 44:

44. The shifting legislative framework (especially recently) always raises “interesting legal questions” that someone would like answered; and that is especially so when they involve the scope of, or limits to, "government action" that impinges upon collective bargaining - especially collective bargaining in the public sector. Public sector collective bargaining is conducted within a legislative and political context, so that there can sometimes be a tension between the government's role as paymaster or provider of public services, and its role as legislator and regulator in the collective bargaining arena. In this context, the "ghost at the bargaining table issue" is real - as the Board noted in the St. Joseph's Hospital case, mentioned above. Nor is there any doubt about the potential conflict between collective bargaining processes, and other public policy concerns (the continuation of essential services, the wage/price stability, etc.). So in this setting, bargaining or litigation over those limits may have a "political" as well as a legal dimension.

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25. Interestingly enough, these are also the words of Chair MacDowell who only months later wrote the Ontario (Premier) decision. I do not disagree with the words of Chair MacDowell in Brant Haldimand-Norfolk Catholic District School Board, supra. I also note that those remarks were also made in a teacher educational setting in the context of a complaint made then by OECTA alleging that the then Assistant Deputy Minister of Education unlawfully interfered in local collective bargaining. However, ultimately, the Board, in Brant Haldimand-Norfolk Catholic District School Board, supra, dismissed the OECTA complaint because in its view no labour relations purpose would be served by further inquiries since the parties had reached a collective agreement. It may be that for any public sector bargaining where government has both a role as legislator, funder and regulator, the “ghost at the bargaining table issue is real”, but why does that make it necessary to find that Crown immunity is waived to avoid frustration of Part X.1 of the Education Act (which is already a special legislated collective bargaining regime)? 26. In fact, the “ghost at the bargaining table” (or as ETFO would characterize it, “the gorilla”) is nothing new. Even in Brant Haldimand-Norfolk Catholic District School Board, supra, a decision over a decade ago, Chair MacDowell described the even then ever-shifting legislative ground for collective bargaining in the public education sector and the increasing role government was carving out for itself with respect to the collective bargaining between the educational unions and their district school board employers:

11. It is not disputed that in the last few years, the education sector has seen unprecedented legislative and institutional change. The number of school boards has been cut roughly in half. The School Boards and Teachers Collective Negotiations Act has been repealed, and teachers have been brought under the umbrella of the Labour Relations Act. Collective bargaining rights, formerly held by local teacher organisations, have been transferred to the parent bodies. School principals have been excluded from collective bargaining altogether, and have been given more “managerial authority” to run local schools. Funding responsibilities have been transferred from the local level to the province, which, in turn, has initiated a number of changes to the content and delivery of educational programs. And the role of local school boards has been correspondingly modified. 12. For present purposes, it is unnecessary to explore these changes in any detail. It suffices to say that they have all had an impact on collective bargaining, as the bargaining parties adapt to the new institutional setting. 13. School boards and teachers' unions must now bargain in the shadow of a funding regime that is more centrally controlled and directed. There are now provincial standards, imposed by regulation, that prescribe the duties and responsibilities of teachers and circumscribe collective bargaining in areas where school boards and teachers formerly had more flexibility. Among other things, the Legislature has sought to regulate class sizes, increase the number of

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"instructional hours" (i.e. teacher workload), define compulsory programs and standards, bring formerly voluntary "extracurricular activities" within the education program, and establish standards of professional conduct that are monitored by a professional regulatory body. 14. Not to put too fine a point on it: the provincial government has asserted a much more direct and detailed role in the delivery of the educational programs for which it has assumed complete funding responsibility. It has also taken measures to ensure that local collective bargaining or local resistance to change do not undermine these provincial initiatives. 15. These changes have had an impact on employer-employee relations and have made provincial directives and "legal regulation" a much more prominent part of the collective bargaining equation. For example, in 1998 there were a number of strikes over the issue of “instructional time” (i.e. teacher workload) - an issue which had already been the subject of some provincial regulation. These work stoppages were eventually terminated by back-to-work legislation (Bill 62: the Back to School Act, 1998. However, Bill 62 was accompanied by additional legislation specifically stipulating minimum levels of “instructional time” for work scheduling purposes (Bill 63 - Time: Minimum Standards Act, 1998). The Legislature took it upon itself to give explicit directions concerning teacher workload – an issue which, of course, is an important item in collective bargaining. ... 25. However, the introduction of new workload regulations and the subsequent resolution of the collective bargaining dispute, are not the only things that have changed since March 2000. Since the filing of this complaint, there have been other changes to the regulatory framework governing the operation of local school boards. For in June 2000, the Legislature passed Bill 74 ("an Act to amend the Education Act to increase educational quality, to improve the accountability of School Boards to students, parents and taxpayers and to enhance students’ school experience"). Bill 74 further changes the institutional setting within which collective bargaining must now take place. 26. In other words, not only is there now no live issue as between OECTA and the respondent school board, but the framework for any interactions between the Ministry of Education and school boards is also rather different than it was when this case first arose. Bill 74 broadens the scope for interaction between the Ministry and local boards in a whole range of areas which touch directly or indirectly on workplace matters - matters that, in turn, may affect, or be affected by, collective bargaining.

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27. For present purposes, it is not necessary to examine the contents of Bill 74 in any detail. However, because the union’s complaint concerns communications between the Ministry and a local school board, it may be useful to briefly indicate the kinds of communications that may now be triggered, or are at least contemplated, by Bill 74. 28. Bill 74 provides a legal definition for what are commonly referred to as "extracurricular activities" - activities that, heretofore, were not considered part of a teacher’s workload. Such activities may now become part of a teacher's assigned responsibilities; moreover, under Bill 74 it will be the exclusive responsibility of the school board to determine how these “co-instructional activities” will be provided. The Bill further suggests that no matter relating to the provision of these "co-instructional activities" can be the subject of collective bargaining. 29. Under Bill 74, school boards may be obliged to submit “plans” setting out how they intend to achieve compliance with any number of stipulated educational objectives or operational requirements; and where the Minister of Education has concerns about such plans, s/he may direct the board to alter them. Bill 74 also contemplates a broad regulatory authority with respect to class sizes, courses, programs or types of class which might be excluded from stipulated average class sizes; and gives the Lieutenant-Governor-in-Council regulatory authority in a long list of stipulated areas. There are also provisions describing a school principal’s “sole discretion” to allocate course teaching obligations. 30. All of these items affect workload allocation and things like "pupil teacher ratios", that have historically been subjects of collective bargaining. 31. Under Bill 74, the Minister of Education is empowered to give such directions to school boards as s/he considered appropriate respecting the form, content or deadlines for the submission of operational plans, (plans that set out how the boards will comply with prescribed standards). The Minister may also launch investigations where s/he has concerns that a board may have done something or omitted to do something that “contravenes or indicates an intention to contravene, or may result in a contravention” of regulatory requirements. And so on. 32. In summary, there is now a much higher level of (or at least scope for) ministerial direction and control over the workings of local school boards; and consistent with these regulatory changes, there will necessarily be a higher level of day-to-day interaction between the Ministry and school boards, to ensure that school boards adhere to the stipulated requirements. Indeed, one can reasonably anticipate quite a bit of communication between local school boards and the Ministry of Education, as those boards try to understand and apply the

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new requirements. In addition, future rounds of collective bargaining will take place within a much more detailed regulatory framework, prescribing both the content and delivery of educational programs.

The simple fact is that since the Government assumed primary funding of education, which is now well established and has played out through several rounds of collective bargaining, its actions have a very significant impact on collective bargaining in the sector. But in my view, that neither makes it the employer nor “quasi-employer” (and section 277.2(3) of the Education Act makes it clear that no application under section 1(4) of the Labour Relations Act is possible with a district school board) nor means the explicit Crown immunity of section 4(2) of the Labour Relations Act has changed. 27. ETFO complains that the Government’s actions at this round of the PDT are unprecedented – and it is the Crown that is acting without any legislative authority whatsoever. But no one disputes that the PDT process (in every round that it has occurred) has operated outside of the ambit of either the Education Act or the Labour Relations Act. Perhaps that is a criticism that is well-founded – that the Government ought to have filled the legislative gaps in which the PDT has operated and evolved (and part of the Putting Students First Act deals with study and possible implementation of provincial bargaining in the Education Act), but that is for elsewhere. What I am asked to do is impose the statutory obligations of the Labour Relations Act on the Government when it is not the employer and section 4(2) of the Labour Relations Act clearly says that it does not apply. I cannot. 28. Regardless of any parties’ view of the merits of the PDT process, or regardless of any parties’ view of the heavy-handedness of the Government’s position in the PDT process, no one disputed that it was voluntary. Both the Association and OECTA had initially opposed the Government’s position in the PDT process but ultimately reached a framework agreement and withdrew their intervention in this complaint. That is certainly the view of both OPSBA and OCSTA, the alleged “employer” presence in the PDT process (and they both explicitly denied that they could or did represent or bind the relevant school boards in the process – the real employers of Part X.1 teachers – and I cannot help but observe that notwithstanding the passion with which the unions argued that the Government had superseded and rendered local bargaining useless and usurped the role of the district school boards, not a single school board intervened in this complaint to voice the same complaint). In fact, both ETFO and the OSSTF withdrew from the PDT process at different times. Ultimately so did OCSTA (and never signed the OECTA MOU). They were free to do so. The result was the introduction and enactment of the Putting Students First Act which the Government had repeatedly stated was its legislative alternative (or threat) – which OSSTF repeatedly pointed out in the complaint. However, OSSTF and the other intervenors repeatedly and explicitly stated that enacting or threatening to enact the Putting Students First Act was not the basis of their complaint. In other words, whatever the merits of the Putting Students First Act (or its legal validity which will be determined elsewhere) for purposes of alleged unlawful Government action, the OSSTF and the others did not complain about the Government’s right to introduce or threaten to introduce legislation such as the Putting Students First Act. If the

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Putting Students First Act frustrates the efficacy of Part X.1 of the Education Act (at the least in the view of OSSTF and the others), that is not as a result of Crown immunity. 29. Alternatively, OSSTF argued, again relying on Professors Hogg and Monahan:

…Indeed, an incorporation by reference may cause a statute to apply to the Crown even though the incorporated statute expressly exempts the Crown from its provisions. (Liability of the Crown, 4th ed., supra at p. 428)

30. Hogg and Monahan rely on the decision in Re Mar-Lise Industries Ltd., [1969] 2 O.R. 404 (C.A.) for this proposition (although acknowledging that this is not the law in Australia ─ see Liability of the Crown, supra, p. 428 footnote 161). OSSTF concedes that Re Mar-Lise Industries Ltd., supra, is not good authority for this proposition as the case did not actually decide that issue (and the Government submitted that it was not good law at all in any event for many other additional reasons). Rather, OSSTF refers me to the later decision in Investors Group Trust Co. v. Eckhoff, [2008] 9 W.W.R. 306 (Sask. C.A.) for that proposition (see paras. 30 to 33 of Eckhoff, supra). Leaving aside the logical conundrum of how I can rely on the Saskatchewan Court of Appeal decision in Eckhoff, supra, when the Saskatchewan Court of Appeal relies on the passage from Hogg and Monahan quoted above as authority for this assertion and the passage in Hogg and Monahan relies on Re Mar-Lise Industries Ltd., supra, which even the OSSTF says does not support that proposition, the whole discussion seems irrelevant. That is because section 4(2) of the Labour Relations Act is not a section which binds the Crown (and which OSSTF asserts is somehow lost through the process of incorporating the statute by reference) but a provision that explicitly provides for the Crown not being bound – in other words, the opposite kind of provision. As the Government argued, if section 277.2 of the Education Act incorporates the Labour Relations Act except where otherwise provided for in Part X.1 of the Education Act (and there is nothing in Part X.1 of the Education Act which talks about Crown immunity at all), then it ought to make all of the Labour Relations Act applicable including section 4(2) of the Labour Relations Act which explicitly provides not that the Crown is bound, but that the Crown is not bound. What appears to me explicit and clear statutory language cannot be escaped by this kind of contrivance. I accept the Government’s argument that there is no assistance to be gleaned from common law principles of interpretation and certainly not of the magnitude to override the explicit provisions of section 4(2) of the Labour Relations Act. 31. Equally, OSSTF pointed me to the very same Federated Contractors Inc., supra, case that the Government relied on. It is unclear to me how that case is of any assistance to OSSTF. It deals with the Crown Employees Collective Bargaining Act 1993 S.O. 1993 c.38 (“CECBA”). The Crown is bound to CECBA because section 1.1 of CECBA indicates that it binds Crown employees and certain agencies of the Crown. Section 2(1) of CECBA deems the Labour Relations Act to form part of CECBA. The Board in dismissing the applications in Federated Contractors Inc. stated:

...

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The applicant submits that as both a policy matter and as a matter of statutory interpretation, it would be absurd to read section 4 of the LRA and section 2 of CECBA so as to allow the Crown and its employees to engage in conduct that violates the LRA. While the applicant’s argument was both intriguing and ingenious, I do not accept its interpretation of the legislative scheme applicable to these circumstances. The Crown is not subject to the LRA. CECBA incorporates the LRA. The LRA is “deemed to form part of” CECBA. That is, the applicant, in order to obtain relief against the responding parties must seek its remedy under CECBA, but it cannot do so. Simply put, CECBA does not apply to the applicant. It is neither the Crown nor an agency of the Crown. Thus the applicant cannot apply for a remedy under CECBA, which it must do in order to establish that the responding parties violated provisions of the LRA.

32. Similarly here, the OSSTF or the other intervenors have no access (in this capacity) to CECBA. These are complaints under the Labour Relations Act. The Labour Relations Act does not apply to the Crown. 33. OSSTF further argues even if there is immunity to the Crown under the Labour Relations Act, that immunity can be lost by the Crown’s conduct. It refers me to a number of authorities where this has been applied: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at para 141; MacAlpine v. T.H. (B.C.C.A.) (1991), 82 D.L.R. (4th) 609; Boucher v. Milner (1997), 155 D.L.R. (4th) 106 (N.B.C.A.); and Roncarelli v. Duplessis, [1959] S.C.R. 121. 34. The portion of New Brunswick Broadcasting Co., supra, to which I was referred states:

… Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other. (see para. 141)

I do not disagree. However, this does not relate to what OSSTF and the others are complaining about – that the Crown in the PDT process is supplanting the district school boards in their role as employers. 35. Equally, the conduct in the other cases that OSSTF refers me to that supposedly causes otherwise immune actors to be liable for their acts are wildly different

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from the conduct complained of here. In fact, in MacAlpine, supra, the court concluded that the British Columbia Superintendent of Family and Child Services was, pursuant to a statutory provision, immune from a claim of negligence for placing two wards together away from the care of a social worker. Leaving aside that the court in MacAlpine, supra, concluded that there was no negligence in any event, OSSTF argues that the court read the statutory grant of immunity as requiring those granted immunity to act in good faith. However (unlike section 4(2) of the Labour Relations Act), those were explicit words found in the statute and which provided that no person was personally liable for anything done or omitted in good faith in the exercise or purported exercise of the powers conferred by the statute. Even if this is a fair reading of the case, and again leaving aside how heavy-handed the Government’s intervention in the PDT process may be characterized, other than the fact that OSSTF and the others did not agree with it, there is no basis to conclude that the Government was acting in bad faith – in other words, that it was acting in other than its political assessment of what was in the best interest of the Province, regardless of how incorrect OSSTF and the others view such an assessment. 36. Similarly, Boucher v. Milner, supra, restored the immunity granted by a statute and overturned the defamation finding against the Deputy Chief of Police as a result of an investigation. Again, leaving aside how wildly different that conduct is from the conduct complained of here, the statutory grant of immunity in Boucher, supra, was also limited to:

… by reason of any act or thing by him done under and by virtue of such Act.

or provided a “good defence” for anything:

… “in consequence of any matter or thing done under and according to the provisions of any such Act” …

There is absolutely no restricting language of this sort in section 4(2) of the Labour Relations Act. 37. Lastly, OSSTF points me to the famous decision of the Supreme Court of Canada in Roncarelli v. Duplessis, supra, where the then Premier of Quebec was held liable because he had directed the Quebec Liquor Commission to cancel the plaintiff’s liquor licence because he was a Jehovah’s Witness. Whatever the characterization of the Government’s role in the PDT, it is not remotely close to this. 38. As the Government correctly points out, these are not cases about whether the Crown is bound to a statute but rather about the Crown’s qualified immunity from tort claims and how the Crown loses that qualified immunity – or how the Crown might be successfully sued (in tort or otherwise) if it acts in bad faith. The issue of qualified immunity of the Crown at common law or statute and whether the Crown is bound to a statute that explicitly exempts it are two separate and significantly distinct notions. The Government points me to the Supreme Court of Canada decision in R. v. Eldorado

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Nuclear Ltd, [1983] 2 S.C.R. 551; 4 D.L.R. (4th) 193 where Dickson J. (as he then was) wrote for the majority:

Where the only source of the unlawfulness is a statute, however, the analysis is entirely different. … If a person commits an act prohibited by statute, and the Attorney General seeks to prosecute for violation of that statute, the preliminary question that must be asked is whether that person is bound by the statute. If not, the person simply does not commit a violation of the statute. The situation is not that the person is immune from prosecution even though there has been an unlawful act; rather, that there has been no unlawful act under the statute.

[emphasis added] 39. In the words of the Ontario (Premier) case, OSSTF suggests that the Premier and the other Ministers named as responding parties were somehow “off on a frolic of their own” (a possibility which was rejected in the strongest of words in the Ontario (Premier) case). What is this “frolic of their own” that the Government entered into? The Government inserted itself into the collective bargaining process and dictated terms and conditions of employment ─ The Government, as OSSTF repeatedly charged, entered “into the fray”. Again, leaving aside the Government’s role as the primary funder in the education sector and regardless of one’s view of the PDT process and the Government’s role in it, I cannot see how the actions of the Premier or the Minister of Education or the Minister of Finance can be characterized as “a frolic of their own”. 40. But so what? Even if I ignore that the PDT process was completely voluntary (a fact which no one disputes and which in fact the OSSTF and the others ultimately quit), what are the specific actions that OSSTF complains of and which it says caused the Government to lose its immunity:

i) that the Premier issued a statement on March 1, 2012 saying:

“We can protect class sizes and full-day kindergarten and we can also protect jobs, but it does require that we put in place the kind of salary freeze that we have proposed.”

ii) that the Minister of Education issued statements to the effect that:

Ontario can no longer afford to allow teachers to bank sick days and get a large payout on retirement and also needs to freeze their wages for two years. Teachers’ sick days amount to a $1.7-billion liability and can’t be sustained by a government facing a $16-billion deficit.

iii) that Premier McGuinty posted a YouTube video and stated that in order to move forward with full-day kindergarten

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and in keeping class sizes smaller, the Government wanted teachers to take a two-year wage freeze and end a:

. . . generous sick leave plan that allows some teachers to be paid upon retirement for 200 unused sick days.

Of course, to argue this conduct causes the Crown to lose immunity assumes that the Labour Relations Act applies ─ but that is exactly what is being argued and determined at this stage (more about this circular type of reasoning below). 41. It might be that the OSSTF vigorously disputes the accuracy of these characterizations by both the Premier and the Minister of Education. What the OSSTF has done is try to characterize its view of the Government’s conduct in Labour Relations Act terms and in terms of violations of the Labour Relations Act. It does not point to any other alleged statutory violations that cause the loss of the immunity. But as long as education is a provincially public-funded endeavour in Ontario, and a significant portion of the provincial budget, in the words of the Ontario (Premier) decision:

it is simply not possible to claim that the behaviour complained about here, is disconnected from Mr. Stockwell's [the then Minister of Labour] role and responsibilities as a Minister of the Crown and legislator;

42. How can the Premier or the Ministers, when communicating to the electorate (which includes members of the OSSTF and the other unions) about the choices necessary in determining how to allocate scarce public resources in difficult economic times be said to be “off on a frolic of their own”? The argument is simply not credible. 43. Moreover, in its response of May 28, 2012 to the Government’s preliminary objection, OSSTF made other allegations which it pointed to as showing Government conduct causing it to lose immunity. In particular, OSSTF alleged that when it did participate in the PDT process, it repeatedly asked for information from the Government (the targeted savings required for OSSTF support staff) which the Government refused to provide, indicating that it was only “interested in the sector-wide savings”. 44. To some extent, again, this is a “chicken and egg” argument on the part of OSSTF. It assumes an obligation on the Government to bargain in good faith in accordance with the Labour Relations Act, and then uses violations of these assumed obligations to establish that the very explicit immunity of the Crown in section 4(2) of the Labour Relations Act (i.e. that none of those obligations and none of the Labour Relations Act applies to it) is lost. Leaving aside whether in fact any of this actually constitutes bargaining in bad faith under the Labour Relations Act, it is a circular argument – it attempts to use alleged violations of the Labour Relations Act to establish that the immunity granted by the Labour Relations Act (in other words, that it does not apply at all) is waived. That is not credible.

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45. Lastly, OSSTF argued that immunity was lost because the Premier and the Ministers involved were acting in their:

“personal capacity as politicians and therefore acting in their own personal interest to maximize their chance of re-election as a Government and in particular with respect to several imminent by-elections.”

This is the “bad faith” that the OSSTF points to (assuming that it is at all legally relevant or somehow does amount to bad faith). Without wishing to appear too cynical, the distinction that the OSSTF seeks to make is a distinction without a difference. Governments are composed of elected individuals. They advance policies that they assert are in the public interest. How is their success in gauging that public interest measured? ─ by whether the electorate effectively agrees by re-electing that Government. To argue that a government advancing positions to be re-elected is distinct and different from that government’s determination of what is in the public interest, is to fundamentally ignore what representative democracy is supposed to be about, or as the Government put it, that is why there are elections in the first place. 46. The Government pointed me to Ontario Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources) (2002), 211 D.L.R. (4th) 741 (C.A.) where the Court of Appeal overturned a Divisional Court decision allowing the examinations of the then Premier and the then Minister of Natural Resources with respect to the circumstances surrounding the cancellation of the spring bear hunt in Ontario:

50. The majority in the Divisional Court said that the proposed examination was justified by the allegation that the government changed its policy based on political expediency rather than as a response to public concerns. With respect, it seems to me that there is no discernible difference between the two. There is nothing inappropriate, let alone unlawful, about the government consulting with and considering the public's reaction to a policy measure. To be politically expedient is to be politically responsive to selected and discrete public concerns. That is what governments do. 51. In any event, it is irrelevant whether the Premier and/or the Minister were influenced by political expediency, this being a consideration which is an accepted, expected, and legitimate aspect of the political process. Whether one characterizes taking public opinion into account as political expediency or political reality, taking it into account is a valid function of political decision making.

or in yet another decision dealing with the elimination of the spring bear hunt: Ontario Black Bear/Ontario Sportsmen and Resource Users Assn. v. Ontario, [2000] O.J. No. 263 (S.C.) :

40 Policy or planning decisions by governments or municipal councils, being those based on financial, economic, social or political

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factors, and generally made by high ranking government officials, are immune from private claims in tort even if the decisions are ultimately held by a court to be invalid. Governments should not be restricted by the courts in making policy decisions. … ... 43 The plaintiff's statements of claim allege that the decision to cancel the spring bear hunt was made for political reasons, namely to reduce the political opposition at the next election and so improve the government's chances of electoral success. It was a decision made at the highest level of government. It was inherently a policy decision in nature, there being no policy which it might be said to implement. Accordingly O. Reg. 88/99 implementing the policy decision cannot be the foundation for an action in tort. ... 45 The plaintiff suggests in its statements of claim that the Premier and Minister acted for an improper purpose, namely political and electoral concerns, to reduce the campaigning threatened by the Schads against the government's candidates in the upcoming provincial election with a view to persuading voters to vote against the government's candidates. In reacting to such threats the government was doing nothing more than assessing public opinion, or its potential, and reacting to that assessment. Governments frequently amend laws for these reasons. These reasons are the political reasons to which the Supreme Court of Canada has referred in Weldbridge and Just as justifying, in whole or in part, policy decisions which the court has said should be immune from tort liability. As Chief Justice Dickson said in Thornes Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106 at p. 113: It is neither our duty nor our right to investigate the motives which impelled the federal Cabinet to pass the Order in Council ... and at p. 115 ... the government's reasons for expanding the harbour are in the end unknown. Governments do not publish reasons for their decisions; governments may be moved by any number of political, economic, social or partisan considerations. 46 The political history of Canada is replete with government decisions to do, or to refrain from doing, some act within its powers for purely or substantially political reasons. It is not the business of the courts to interfere in such decisions, subject to passing on their validity based on compliance with the Constitution Act and constitutional conventions. The government is answerable directly to

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the voters for politically motivated decisions. The voters render their decision at the ballot box.

I agree with these comments. 47. Alternatively, OSSTF also argues that Crown immunity is lost because the actions of the Government fall within the

“burden linked to benefit exception to Crown immunity”. OSSTF again points me to Liability of the Crown, (4th ed.), supra, where Professors Hogg and Monahan, describe this burden-linked-to-benefit doctrine at pages 420-421:

… authorities all hold that when the Crown claims a statutory right, the Crown must take it as the statute gives it, that is, subject to any restrictions upon it. The restrictions are therefore binding on the Crown even if there are no express words or necessary implications that the Crown is bound. As explained, it is clear that when the Crown asserts a statutory right, it becomes subject to the restrictions on the right.

OSSTF then refers me to Sparling v. Québec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015. Quite frankly, I do not see how this applies. First, the Crown is not trying to assert any statutory right here. It is not the Government that is asserting any rights under the Labour Relations Act. The PDT process is outside of both the Labour Relations Act and the Education Act. In fact, it is OSSTF and the others that assert that the Labour Relations Act somehow applies to the Crown. 48. Moreover, OSSTF’s analysis of the “benefit portion of the burden-linked-benefit equation” also does not seem to apply to these facts. OSSTF argues that the benefit the Crown seeks to achieve is as acting as employer or on behalf of employers it seeks to obtain economically beneficial collective agreements. However, even with the successfully-concluded Memorandums of Agreements or framework agreements with OECTA and the Association, the results are still not collective agreements between the district school boards and the trade unions (the statutory designated bargaining agents) required under the Education Act. These still have to happen. Moreover, and in any event, with respect to OSSTF and the others, no framework agreement or Memorandum of Understanding was ever achieved. They left the PDT process – as they were entitled to do. It is almost as if OSSTF is arguing that it is a burden without benefit exception. 49. As a result, the complaint is dismissed pursuant to section 4(2) of the Labour Relations Act. The Labour Relations Act does not bind the Crown so there is no point to any evidentiary hearing. It was repeatedly argued that it cannot be that there are no limits on the actions of the Crown. It was repeatedly argued that Crown immunity is not absolute – it cannot be without limit. I do not disagree. In these circumstances however, those limits are not found in the Labour Relations Act.

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(b) Justiciability 50. If I am incorrect in my view of the effect of section 4(2) of the Labour Relations Act, and crown immunity, I would still dismiss this complaint because the essence of the complaint is not justiciable. Again, much was written about this in the Ontario (Premier) case:

162. Nevertheless, if I am wrong, and if the Labour Relations Act really does apply in some general sense, does the behaviour complained of actually fall within the ambit of any of the sections of the Act upon which the complainants rely? Were the words of those sections ever intended to capture the kind of activity of which the unions complain in this case? Is that a sensible or probable construction of the legislative intention? 163. I might begin by observing that the focus of the legislation is on the collective bargaining relationship between employers and employees (see the "Purposes" of the Act stipulated in section 2). The Act is designed to facilitate such relationships, and prevent employers from using their superior economic power to frustrate the process of collective bargaining, or penalize employees who choose to join a trade union. The Act does not regulate the independent actions of third parties, however "anti-union" those actions might be. The third parties must be directly linked in some way to an employer or to some employer-employee relationship, and the third party must be acting on behalf of the employer to accomplish an improper end. 164. There is no employer named as a responding party. Nor is it said that the Crown, or the Premier, or the Minister is an "employer" or acting in the capacity of an "employer" (i.e. even if the Labour Relations Act applies to them). Certainly these Ministers of the Crown are not "employees" of an employer, or "agents" of an employer in any commonly accepted legal sense. 165. Accordingly, under the unfair labour practice sections of the Act, the question boils down to whether the behaviour complained of fits within the specific prohibitions (i.e. the words: "coercion", "intimidation", etc.) enumerated in each of those sections, and whether, in each case, the Minister and/or the Premier, by engaging in that behaviour, can be said to be "acting on behalf of an employer". 166. In order to fall within these words, I would have to conclude that by encouraging, supporting or warning of legislation that may benefit a defined employer constituency, individual Ministers are somehow "acting on behalf of" those particular employers - rather than in the "public interest" as they see it; and I would have to conclude that "threatening legislation" (to accept the unions' description for a moment) is "intimidation", "coercion" or "interference" within the meaning of the Labour Relations Act. But, on this construction, any

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legislation or government action which benefits a defined employer group, would meet the test of these unfair labour practice provisions. So would the acceptance of any submission from any employer lobby group: it could be said that the government or the Minister with responsibility for the legislation was "acting on behalf of" those who proposed or might benefit from the change. 167. Yet, when legislating, the Legislature is presumptively acting in the public interest in pursuit of objectives thought to be socially or economically desirable; and it is difficult to see how "threatening" to change the law (which the Legislature is entitled to do), is somehow unlawful under existing law. Nor do I think it matters that the impetus for such legislative change is some action or inaction by persons in the community – that is, that such persons are exercising existing rights, or refusing to exercise existing rights in a particular way. And to repeat: no single parliamentarian or Minister can change the law anyway, so the Minister's "threat" (if that is what it was) amounted to no more than a prediction of a lawful outcome - or perhaps an indication of a legislative direction that he himself would be inclined to support. 168. None of this activity fits, or was ever intended to fit, within the unfair labour practice provisions of the Labour Relations Act; and I do not think that it serves any purpose to parse each sentence and scrutinize each word and comma, (i.e. reading the statute like a Martian with a dictionary) to see whether, on some linguistic construction, the words could be stretched to cover the behaviour under review. In my view, it is perfectly plain that the sections were never intended to cover what the unions are complaining about here; and in this respect the unions' complaint is simply misconceived.

169. In this regard, I think it is useful to recall the comments of the Ontario Court of Appeal in Roman Corporation Ltd. v. Hudson's Bay Oil & Gas Ltd. et al (1971), 23 D.L.R. 292. In that case, the plaintiff complained of a telegram from the government, indicating its intention to prohibit a proposed business deal, and to enact the legislation necessary for that purpose. The plaintiff alleged that this communication (the "threat" of legislation) constituted a variety of torts, including wrongful procurement of breach of contract, conspiracy, intimidation, and unlawful interference with economic interests. The plaintiff complained that the government was unlawfully pressuring him and others to refrain from doing what, as the law then stood, they had every right to do. However, the Court held that the government was protected by parliamentary privilege which was described this way:

The object of the privilege is, of course, not to further the selfish interests of the Member of Parliament but to protect him from harassment in and out of the House in the legitimate activities in carrying on the business of the

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House; consideration of the interest of the public in this regard overbears the usual solicitude in our law for the private individual. Viewed in this manner, and that approach, I think, all of the actions of the respondents complained about, and specifically the sending of the telegram and the issuing of the press release were not more and no less than the legitimate and lawful discharge by the respondents of their duties in the course of parliamentary proceedings as Ministers of the Crown and Members of the house.

170. This case involved the defence of "Parliamentary Privilege" which the Crown here asserts as an independent reason why this complaint cannot proceed. However, in my view, the case is also helpful in determining the content of the words like "threat", "intimidation", "interference" or "coercion" found in the Labour Relations Act. 171. What the case suggests, once again, is that an expression of intent to legislate, or the support for particular legislation, or a warning about pending or possible legislation, should not be construed as "intimidation", "coercion", or "unlawful interference"; and further, that supporting legislation that may benefit some element in the community, cannot be considered to be "acting on behalf" of that element within the meaning of the Labour Relations Act. Government Ministers are presumptively seeking, and acting on behalf of, the public interest; and if the public (or a particular interest group) should disagree, there is a remedy at the ballot box. 172. Having carefully considered this novel situation, I have concluded that the behaviour in question, even if accurately stated in the complaint, does not, and was never intended to, fall within any of the sections upon which the complainants rely. It is political, or legislative, or governmental action, intimately intertwined with the legislative process, which is not justiciable under the Labour Relations Act. To borrow the words of the British Columbia Labour Relations Board in somewhat similar circumstances, the statements in question were "clearly in pursuance of, or an elaboration upon, an established governmental policy". (See: Association of Commercial and Technical Employees, Local 1728 vs. Dr. Patrick McGeer, [1979] 3 Can LRBR 454.)

173. As the Saskatchewan Labour Relations Board said in Re Saskatchewan Power Corporation, [2000] S.L.R.B.D. No.3, file #207-9, "in the role as a legislator, government is able to suspend the [Labour Relations] Act and change the rules of bargaining mid-stream, as it did on this occasion"; and in my view, a government is equally able to announce its intention to do so, if, in the government's opinion, there is a "problem that needs fixing" and it looks like it is not going to be "fixed voluntarily". Indeed, the circumstances of the instant case more strongly favour the respondents' position, because

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the impugned discussion and debate involved pending legislation that was then already proceeding through the Legislature - legislation to which stakeholders were invited to respond, and wanted to respond, both inside and outside the Legislature. 174. Not to put too fine a point on it, a sovereign Legislature is entitled to change the law respecting collective bargaining rights, and government Ministers are entitled to identify the options and their intentions, and none of this constitutes interference or intimidation or coercion or acting on behalf of employers within the meaning of the unfair labour practice provisions of the Labour Relations Act. It is open to a Minister of the Crown to say, in effect, "we expect that rights will be exercised in a particular way so as to produce what we have determined to be a socially desirable outcome, and if existing rights are not exercised in that way, we may change them, or produce that outcome by other legislative means". The Legislature is entitled to change the law; and I think that it is open to a Minister to advise parties about what he intends to urge the Legislature to do. 175. For the foregoing reasons, even if the Labour Relations Act applies to the respondents, I do not think that the words of the statute actually capture the behaviour which the unions are complaining about.

[emphasis added] I agree with these observations and believe they equally apply here. 51. Again, OSSTF and the others seek to distinguish the forceful words of the Ontario (Premier) case by repeatedly asserting that case was about legislation – and here they are not attacking the ability of the Government to legislate (or even threaten legislation) – the validity of the Putting Students First Act will be tested elsewhere. Even if Chair MacDowell’s remarks or those in the cases he refers to were confined only to actual legislation as opposed to Government policy – and I do not think they are – I am not persuaded that is enough of a distinction to change the outcome. (See also my earlier comments at paragraph 19.) 52. Even if I leave aside the legislative aspect of the Government conduct – and the Putting Students First Act is the legislative response that the Government stated from the outset to a failure to reach MOUs or framework agreements in the PDT process – there is no dispute that the Government’s conduct was also part of its fiscal policy and educational policy. The Government not only wished to control how much of its resources were to be allocated but also how those resources would be allocated. Not only does the Province under the constitution have plenary power to enact laws in relation to education (see OECTA v. Ontario (Attorney General), [2001] 1 S.C.R. 470) but as the earlier quote from Brant Haldimand-Norfolk District School Board, supra, demonstrates, for over the last ten years, as the effect of the Government (and no longer the district school boards) being the primary funder of public education permeated through the

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system, Government policies and desired outcomes have impacted on many items previously the subject (primarily if not solely) of local collective bargaining. That does not make this any less governmental policy action. A fundamental aspect of democratic government is still the right (if not obligation) of Government to establish budgets and set fiscal priorities and to determine how to allocate scarce government resources. As the Divisional Court stated in Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation), [1991] O.J. No. 439 at paras. 43 and 47:

…The government has the right to order its priorities and direct its fiscal resources towards those initiatives or programs which are most compatible with the policy conclusions guiding that particular government's action. This was simply a statement of funding policy and priorities and not the exercise of a statutory power of decision attracting judicial review. …The decision in issue represents an exercise of the government's right to allocate its funds as it sees proper. Such a conclusion is essential to the parliamentary system of democracy.

The refrain from the unions is that the Government has gone beyond its policy role in the PDT process ─ they have completely frustrated the statutory bargaining regime by standing in the shoes of the district school boards. For the moment, I will assume that to be an accurate characterization. OSSTF argues that the test for justiciability is relatively clear – see Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 at para. 50:

[50] At the core of the subject matter test is the notion of justiciability. The notion of justiciability is concerned with the appropriateness of courts deciding a particular issue, or instead deferring to other decision-making institutions like Parliament. See Canada (Auditor General) v. Canada (Minister of Energy, Mines & Resources), [1989] 2 S.C.R. 49, 61 D.L.R. (4th) 604; Thorne's Hardware Ltd. v. R., [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577. Only those exercises of the prerogative that are justiciable are reviewable. The court must decide "whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch": Reference re Canada Assistance Plan (British Columbia), [1991] 2 S.C.R. 525 at p. 545, 58 B.C.L.R. (2d) 1.

[emphasis added] 53. OSSTF says the complaint has a clear legal issue – whether the Government has usurped the roles of the district school boards and has bargained in bad faith and committed unfair labour practices under the Labour Relations Act. If the Crown wishes these changes, the legal way to do it is to enact laws and make regulations. However, no one proffered any specific (let alone convincing) authority for this proposition.

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54. Again, even assuming this to be an accurate characterization of the PDT process, and leaving aside that is exactly what the current law (Putting Students First Act) does, I do not see it that way. Again, however heavy-handed the Government may have been, its PDT parameters announced both its fiscal parameters and certain outcomes it wished within those fiscal outcomes in an area (education) where it has plenary power. 55. The Government submits that the unions’ argument assumes that the Labour Relations Act is the entire universe. It is not. In other words, the unions argue that if not authorized by the Labour Relations Act, the Government’s conduct must be unlawful – but the Government says there are other laws and the Government has authority from other sources (like the Constitution). Although perhaps a bit glib, this characterization of the unions’ arguments is not wholly inaccurate. 56. Moreover, the PDT was a voluntary system. Perhaps it may be a little too precious to call the Government’s role in these PDT discussions as merely “facilitating” discussions. However, if OSSTF, ETFO and CUPE did not wish to reach agreement (or be “facilitated”) on these matters in this way (as OECTA and the Association chose to do), they were free to leave the PDT – which they did. In fact so did OCSTA notwithstanding that OECTA concluded a MOU. Then failing to voluntarily (albeit with a “legislative” gun to OSSTF’s and the others’ heads) reach agreement, as the unions conceded it was entitled to do (subject to their legislative challenges elsewhere), the Government was free to legislate the outcome it wished – as it said it would all along and which it now has. 57. Even were the Crown bound to the Labour Relation Act, I do not see how the Ontario Labour Relations Board is in a better position or more qualified to make such determinations than elected politicians – even if they are crassly pursuing their self-interest in being re-elected. This is what I understand to be the exact purpose of “justiciability” – that the question is more political than legal. 58. OSSTF concedes that government policy questions are not justiciable but argues that all government actions cannot be labelled as policy in order to avoid scrutiny as non-justiciable. For the dividing line, OSSTF points to Just v. British Columbia, [1989] 2 S.C.R. 1228. In that completely different context, the Supreme Court of Canada ordered a new trial of a liability claim when a boulder crushed the plaintiff’s car on the highway outside of Whistler, British Columbia, and the trial judge had found that the entire system of highway inspection and the way it was implemented a policy matter that could not give rise to liability. The Court stated at para. 16 and following:

16 The functions of government and government agencies have multiplied enormously in this century. Often government agencies were and continue to be the best suited entities and indeed the only organizations which could protect the public in the diverse and difficult situations arising in so many fields. They may encompass such matters as the manufacture and distribution of food and drug products, energy production, environmental protection, transportation and tourism, fire prevention and building developments. The

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increasing complexities of life involve agencies of government in almost every aspect of daily living. Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of "policy". Thus the dilemma giving rise to the continuing judicial struggle to differentiate between "policy" and "operation". Particularly difficult decisions will arise in situations where governmental inspections may be expected. 17 The dividing line between "policy" and "operation" is difficult to fix, yet it is essential that it be done. The need for drawing the line was expressed with great clarity by Becker J. of the United States District Court, in Blessing v. United States, 447 F.S. 1160. The case required him to deal with a claim under the Federal Tort Claims Act, 28 U.S.C. s. 2680 which provides:

The provisions of this chapter and section 1346(b) of this title shall not apply to --

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

He wrote at p. 1170:

Read as a whole and with an eye to discerning a policy behind this provision, it seems to us only to articulate a policy of preventing tort actions from becoming a vehicle for judicial interference with decision-making that is properly exercised by other branches of the government and of protecting "the Government from liability that would seriously handicap efficient government operations," United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed. 2d 805 (1963). Statutes, regulations, and discretionary functions, the subject matter of s. 2680(a), are, as a rule, manifestations of policy judgments made by the political branches. In our tripartite governmental structure, the courts generally have no substantive part to play in such decisions. Rather, the

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judiciary confines itself -- or, under laws such as the FTCA's discretionary function exception, is confined -- to adjudication of facts based on discernible objective standards of law. In the context of tort actions, with which we are here concerned, these objective standards are notably lacking when the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political or economic decisions.

[emphasis added]

18 The need for distinguishing between a governmental policy decision and its operational implementation is thus clear. True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort. What guidelines are there to assist courts in differentiating between policy and operation? 19 Mason J., speaking for himself and one other member of the Australian High Court in Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1, set out what I find to be most helpful guidelines. He wrote:

Anns decided that a duty of care cannot arise in relation to acts and omissions which reflect the policy-making and discretionary elements involved in the exercise of statutory discretions. It has been said that it is for the authority to strike that balance between the claims of efficiency and thrift to which du Parcq LJ referred in Kent v. East Suffolk Rivers Catchment Board [1940] 1 KP 319 at 338 and that it is not for the court to substitute its decision for the authority's decision on those matters when they were committed by the legislature to the authority for decision (Dorset Yacht Co. v. Home Office, [1970] AC 1004 at 1031, 1067-8; Anns, at p. 754; Barratt v. District of North Vancouver (1980) 114 D.L.R. (3d) 577). Although these injunctions have compelling force in their application to policy-making decisions, their cogency is less obvious when applied to other discretionary matters. The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot be applied to a policy decision, but it can be applied to operational decisions. ...

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints

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which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. [Emphasis added.]

20 The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels although usually at a high level. 21 The decisions in Anns v. Merton London Borough Council and City of Kamloops v. Nielsen, supra, indicate that a government agency in reaching a decision pertaining to inspection must act in a reasonable manner which constitutes a bona fide exercise of discretion. To do so they must specifically consider whether to inspect and if so, the system of inspection must be a reasonable one in all the circumstances. 22 For example, at a high level there may be a policy decision made concerning the inspection of lighthouses. If the policy decision is made that there is such a pressing need to maintain air safety by the construction of additional airport facilities with the result that no funds can be made available for lighthouse inspection, then this would constitute a bona fide exercise of discretion that would be unassailable. Should then a lighthouse beacon be extinguished as a result of the lack of inspection and a shipwreck ensue no liability can be placed upon the government agency. The result would be the same if a policy decision were made to increase the funds for job retraining and reduce the funds for lighthouse inspection so that a beacon could only be inspected every second year and as a result the light was extinguished. Once again this would constitute the bona fide exercise of discretion. Thus a decision either not to inspect at all or to reduce the number of inspections may be an unassailable policy decision. This is so provided it constitutes a reasonable exercise of bona fide discretion based, for example, upon the availability of funds.

[emphasis added] I am prepared to accept that Just, supra (and the American and Australian cases it cites) correctly draws the line. But does the PDT process or the Government’s position in it cross that line? 59. OSSTF says it does – it says the Government inserted itself into the statutory collective bargaining scheme in an effort to implement policy decisions by controlling

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collective bargaining and outcomes. I am simply not persuaded by this characterization. Again, without repeating myself unduly, this ignores that the PDT process was voluntary – OSSTF could and did withdraw from the process. The Government’s PDT parameters certainly did wish to control collective bargaining outcomes – a wage and grid freeze and changes to the ability to bank and cash out sick leave credits upon retirement at a minimum. The Government does not resile from this allegation. However, I do not see this as the equivalent of negligently performing a lighthouse inspection (which is operational and therefore justiciable) but rather more analogous to deciding whether lighthouse inspections, or how many, should occur at all (which is policy and therefore non-justiciable) in terms of the example explained in Just, supra. I view this more consistent with ‘budgetary allocations and the constraints which they entail in terms of allocation of resources” in the words of the Australian High Court in Sutherland Shire Council v. Heyman – quoted in Just, supra, and which, ironically, OSSTF pointed me to. Without putting too fine a point on this, I do not consider a political decision to no longer fund in a publicly-funded education system, for example, the cashing out of sick leave credits, and a process (albeit arguably a blunt and heavy-handed one) to get unions to agree to it, a justiciable issue. And that assumes that the PDT was not a voluntary process (again, albeit, arguably a blunt and heavy-handed process) but some binding process that actually compelled this result – as opposed to the Putting Students First Act which is what may actually legally compel the result. As the Government argued, and as recorded in Brant Haldimand-Norfolk, supra, the PDT process, although perhaps more intrusive this time, is no different in principle than the Government’s previous intrusions (as Government funder, regulator, policy-maker) into educational sector collective bargaining issues – e.g. class size, teacher complement etc., whether in previous PDTs or not. 60. I see the PDT process and the Government’s role in it trying (perhaps crudely and futilely) to build consensus or secure acquiescence on its political agenda – see the comments from both Ontario Black Bear/Ontario Resource Users Assn. and Ontario Federation of Anglers and Hunters, supra – and not justiciable. Moreover, what none of these cases support is the proposition the unions seemed to suggest that for it to be policy or non-justiciable, the Government must proceed by way of legislation or regulation – otherwise it is operational and justiciable. 61. Accordingly, I would dismiss the complaint because at its core, it is not justiciable. (c) No prima facie Case 62. Even were I not dismissing the complaint because the Labour Relations Act does not apply to the Crown or the crux of the complaint is not justiciable, I would dismiss this complaint because it does not make out a prima facie case. 63. The complaint alleges violations of sections 17, 70, 72, 73 and 76 of the Labour Relations Act. In order for there to be violations of these sections of the Labour Relations Act, the Crown would have to be an employer or acting on behalf of an

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employer – See the previously quoted portion of the Ontario (Premier), decision, supra, at para. 163:

163. I might begin by observing that the focus of the legislation is on the collective bargaining relationship between employers and employees (see the "Purposes" of the Act stipulated in section 2). The Act is designed to facilitate such relationships, and prevent employers from using their superior economic power to frustrate the process of collective bargaining, or penalize employees who choose to join a trade union. The Act does not regulate the independent actions of third parties, however "anti-union" those actions might be. The third parties must be directly linked in some way to an employer or to some employer-employee relationship, and the third party must be acting on behalf of the employer to accomplish an improper end.

The Crown is not the employer here. The Education Act makes it clear that the district school boards are the employers of Part X.1 teachers. I do not believe that the unions seriously question that (or did not seriously argue to the contrary at the hearings). 64. Leaving aside, as I have repeatedly stated throughout, that the complaint fundamentally mischaracterizes the PDT process as collective bargaining or its equivalent [it is voluntary and even if successful – and with these complainants and the Government it was not – still requires the negotiation (albeit on a very constrained basis) and conclusion of collective agreements with the actual employer], the district school boards, the actual employers, were not even present. Both trustee associations who were present (at least at the outset) are not the employer either. In fact, they specifically deny (and it is not disputed) that they cannot compel the district school boards to even belong, let alone commit or bind them. In fact, even though OECTA ultimately did reach and sign a MOU, not only did the OCSTA not sign, but quit the PDT process. Neither the OPSBA nor the OCSTA regard the PDT process as collective bargaining or governed by section 17 of the Labour Relations Act. 65. But OSSTF argues that the Crown is acting “on behalf of the employer”. Certainly that cannot be said of the trustee associations and I did not understand anyone to be making that assertion – certainly OCSTA ultimately wished no part of the PDT process and, as noted, refused to sign one of the few MOUs actually concluded. 66. But other than a presumed identity of interest in driving down costs (whether teacher salaries or other benefits), no particular facts are pleaded or alleged that could establish that the Government is acting on behalf of district school boards (and this of course is assuming that the Government or the Crown could constitute “a person acting on behalf” within the meaning of the various sections of the Labour Relations Act pleaded – which this decision about Crown immunity now precludes). In other words, there is nothing alleged to even form a basis to conclude that the Government is acting at the behest of district school boards – and that ignores all the arguable public interest concerns the Government asserts is its motivation (again, see paras. 164-168 of the Ontario (Premier) case quoted earlier). In fact, as the Government pointed out and as

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acknowledged in the complaint, some district school boards and the trustee associations objected to the PDT process. 67. In response, OSSTF pointed me to Canadian Red Cross Society, [1994] OLRB Rep. Jan. 34 and Nepean Roof Truss Limited, [1988] OLRB Rep. January 61. I fail to see how those decisions assist OSSTF. 68. In particular, OSSTF pointed me to para. 52 of Canadian Red Cross Society, supra:

Because the issue of whether a person is "acting on behalf' of another is essentially factual, we think it would be a mistake to overanalyze it or set up some more elaborate test, as some of the parties urged. The plain meaning of the phrase suggests that to come within its ambit, at least part of the reasons for a party's activities must be to provide some benefit to another or at the behest of another. In this connection, we accept that where employers who are normally competitors conduct themselves so as to provide a kind of tacit, mutual aid arrangement during a strike, that may amount to "acting on behalf' of one, whether or not, for example, it would also amount to making them allies for the purposes of picketing. However, those are simply not the facts before us.

In that case, the Board refused to find that other service providers who provided services to home care facilities to replace the services of another struck service provider (the “Red Cross”) were acting on behalf of the Red Cross – the service providers accepted the work to improve their own position without necessarily being interested in or intending to assist the Red Cross (see para. 53 of the decision). What I take from the decision is the mere fact that one party may also benefit from the action of the other (in the sense that the Red Cross benefits that its otherwise struck services still being provided to its customers) is in and of itself not enough to make one acting on behalf of the other. That makes sense and gives some content to the work of “acting on behalf of”. 69. In response to this argument, OSSTF pointed out (in para. 62 of its May 28, 2012 submissions) that the district school boards would benefit from a successful PDT process because some of the more difficult issues in collective bargaining would be resolved and therefore collective bargaining would be easier with the district school boards, to say nothing of the fact that the results would reduce their costs. That may be true, but the Government was acting out of its own financial needs. There is no allegation that the Government was acting on a request by the district school boards, or any alleged desire to alleviate concerns of, or to assist the local school boards. 70. I return again to the words of the Ontario (Premier) decision at para. 166;

166. In order to fall within these words, I would have to conclude that by encouraging, supporting or warning of legislation that may benefit a defined employer constituency, individual Ministers are somehow "acting on behalf of" those particular employers - rather than in the

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"public interest" as they see it; and I would have to conclude that "threatening legislation" (to accept the unions' description for a moment) is "intimidation", "coercion" or "interference" within the meaning of the Labour Relations Act. But, on this construction, any legislation or government action which benefits a defined employer group, would meet the test of these unfair labour practice provisions. So would the acceptance of any submission from any employer lobby group: it could be said that the government or the Minister with responsibility for the legislation was "acting on behalf of" those who proposed or might benefit from the change.

[emphasis added] Equally, in my view, this is the same flaw if I were here to construe the words “on behalf of” to somehow say they encompass the actions of the Government complained of here to be “on behalf of” district school boards. 71. Since I do not find that there is a prima facie case on this basis, I need not deal with whether there is a prima facie case of personal liability on the part of the Premier or the individually named Ministers (which of course there cannot be, pursuant to any earlier finding on Crown immunity and section 4(2) of the Labour Relations Act) which is really all that Nepean Truss, supra, is about (i.e. liability of individual responding parties). Equally, I need not deal with, even if the Crown was an employer or acting on behalf of the employer, whether the unions have made out a prima facie case of violations of these sections of the Labour Relations Act – which the Government asserted they had not. 72. Also, I do not deal with whether there is any labour relations purpose in pursuing this complaint and whether I ought to dismiss it pursuant to my discretion under section 96 of the Labour Relations Act in view of the enactment of the Putting Students First Act. Had the complaint survived the preliminary motions of the Government, that is the first issue I would have requested submissions on. Conclusion 73. Accordingly, for all the foregoing reasons, this complaint is dismissed.

“Bernard Fishbein” for the Board