Labour Law

Hewat v. Ontario

In October 1996, the Conservative government of Mike Harris revoked the appointments of three full-time vice-chairs of the Ontario Labour Relations Board. The government cited fiscal constraints and reorganization of operations as the reason for the revocations. There was no suggestion that the vice-chairs had been terminated for poor performance. The vice-chairs were given virtually no notice of termination and were paid only two weeks pay in lieu of notice.

All three vice-chairs brought an application for judicial review of the orders-in-council terminating their appointments, seeking reinstatement. They argued that their dismissal was the result of political interference by Conservative cabinet ministers and that their reinstatement was necessary to protect the integrity and independence of the Board. The government maintained that the appointments were "at pleasure" and therefore could be revoked by the government at will.

In February 1997, the Divisional Court held that the government had wrongly terminated the vice-chairs' appointments. It ordered the government to reimburse the vice-chairs for any loss suffered as a result of the terminations, but did not order reinstatement. The government appealed the Divisional Court's decision.
In a unanimous decision released February 27, 1998, the Court of Appeal dismissed the government's appeal.

The Court rejected the government's argument that the appointments were "at pleasure", holding that the government's power to appoint (and therefore to dismiss) at pleasure was superseded by the fact that the appointments were for fixed terms of three years.

In a sharp rebuke to the government, the Court observed that a tribunal:

...must of necessity maintain a public perception of independence from government if the public is to have any respect for its decisions... The image of independence is undermined when government commitments to fixed appointments are breached. The court should not, by its orders, encourage repetition of this conduct.

The Court recognized that reinstatement of an adjudicator whose appointment is revoked mid-term is an important aspect of judicial independence, but declined to reinstate the vice-chairs in this case because one appointment had expired, one was about to expire and the third position had been filled. However, the government's orders-in-council were declared null and void from the date they were issued.

The OLRB vice-chairs were represented by SGM's Michael Mitchell and John Murray, of Genest Murray.

Click here to read the Court of Appeal's decision