SCC decides “mundane labour relations” not eligible for public authorities’ limitation protection

Under Ontario’s Public Authorities Protection Act, public authorities benefit from a special six-month limitation period, after which they are shielded from potential litigants. By contrast, the normal limitation period for the commencement of litigation is six years. However, as is illustrated in two Supreme Court of Canada decisions issued on September 17, 1999, this special protection may be less than meets the eye, particularly in employment-related disputes.

The Court’s reasoning was more fully explained in Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell, where the plaintiff was a school board superintendent who, following a reorganization that reduced the board’s responsibilities, was transferred to a position of school principal. Considering that he had been downgraded in position contrary to both his contractual entitlement and Regulation 309 of the Education Act, Des Champs sued.

The board sought to block his action on the ground that it had been commenced after the six-month limitation period. It argued that it had exercised its statutory powers under Regulation 309 to declare redundancies in order to implement a “long range organizational plan of operation” and, therefore, was protected by the limitation period. Des Champs countered that his claim did not engage the “public” aspect of the board’s powers and duties. The motions judge agreed with him, but this was reversed by the Ontario Court of Appeal.

In the Supreme Court, a 6-1 majority restored the motions court ruling and allowed Des Champs’ action to proceed. Not everything done by a public authority will qualify for the protection conferred by section 7 of the Public Authorities Protection Act, the Court ruled:

“The reference [in the statute] to the “intended execution of any statutory or other public duty or authority” limits the protection to public duties and powers and confirms inferentially that a public authority may well have other duties and powers that are essentially of a private nature. In drawing the line between the public aspects and private aspects, the general principle is that the wording of s. 7 is to be read narrowly and against the party seeking its special protection.”

In drawing this line, courts must consider not only the nature of the defendant’s statutory power or duty, and the action complained of by the plaintiff, but also the relationship between the two. In this case, while the reorganization of the school board was a public initiative, the plaintiff was not attacking the reorganization itself, but a decision that was subordinate and incidental to the board’s public duty.

Regulation 309 was, despite being a regulation, essentially a “piece of indoor management” with more of a private than a public character. It would be wrong, the Court concluded, to grant the board the special limitation protection in connection with “routine problems of management and mundane labour relations” merely because it happened to be a public, and not a private, employer.

For further information, please contact André Champagne at (613) 563-7660, Extension 229.

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