HEADNOTE

OPSEU File: 84G68

Local: 415

UNION (OPSEU) vs. Algonquin College Brent - April 24, 1985

Several Teaching Masters at Algonquin College, residents of the Province of Quebec, attempted to have their health premium paid under Article 8.1.2 (OHIP) of the Collective Agreement. Grievance dismissed since Charter arguments and discrimination arguments under Ontario Human Rights Code are rejected; therefore, the plain words of the Article must prevail.

PS

,

IN THE MATTER OF AN ARBITRATION

BETWEEN:.

ALGONQUIN•COLLEGE (Hereinafter referred. to as he Collage)

AND

ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (Hereinafter referred to as the Union)

AND IN THE MATTER OF THE GRIEVANCE OF VARIOUS EMPLOYEES CONCERNING THE PAYMENT' OF HEALTH' INSURANCE:PREMIUMS (OPSEU FILE:#84G68)

BOARD OF ARBITRATION: Gail Brent R. J. Gallivan, College Nominee S. R. Hennessey, Union Nominee

Steven L. Moate, Counsel Don Dean, Staff Relations Officer,

Ministry of Colleges and Universities C. Warburton, Personnel Supervisor

APPEARANCES:

FOR THE COLLEGE:

FOR THE UNION: Linda Rothstein, Counsel Louise Barnaby

Hearing held in Ottawa on February 28, 1985.

DECISION

The matter before the board arises out of a group grievance (Ex. 1)

dated June 13, 1984 which sets out the following:

We grieve that we are being discriminated against by the College and the Ministry due to the fact that our residence is in Quebec and thus we cannot benefit from Article 8.1.2 (OHIP).

The remedy requested in the grievance is that the College pay the

grievors the premium which would otherwise be payable to the Ontario

Health Insurance Plan. The remedy was refined in argument by counsel

for the Union; however, we will deal with that later.

1

The College raised preliminary objections to the Board's

jurisdiction to hear the merits of the grievance. The objections were

that the grievance was not arbitrable as it disclosed no violation of

the collective agreement on its face; that the Union was estopped. from

bringing the grievance forward because of the negotiating history

between the parties, including the negotiations for the collective

agreement in question; and that the grievance was.untimely. We will

deal with those preliminary objections in order to determine whether we

can deal with the merits of the grievance. Before doing that we will

set out the articles of the collective agreement which were cited to us

in argument:

2.3 Ontario Human Rights The parties agree that in accordance with the provisions of the Ontario Human Rights Code there shall be no discrimination against any employee by the Union or the Colleges by reason of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin.

8.1.2 Ontario Health Insurance Plan The Colleges agree to pay one hundred (100) percent of the billed premium of the Ontario Health Insurance Plan for employees covered thereby and subject to the eligibility requirements of the Plan.

18.10 Multiple Grievances Where a number of employees in any College have identical grievances and each employee would be entitled to grieve separately, they shall present a group grievance in writing signed by each employee to the Director of Personnel, or as designated by the College, within fifteen (15) days following the occurrence or origination of the common circumstances giving rise to the grievance ...

18.11.1 Time If the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned.

2

I

Preliminary Objections

(a) Is the grievance inarbitrable because it discloses no violation of

the- collective agreement?

The grievance, has been reproduce.d above along with some articles of

the collective agreement. There is no dispute between the parties

concerning the clear meaning of Article 8.1.2 and that the provision, on

its face, does not require the College to pay premiums for any employees

who are not eligible. for- coverage according to the provisions of the

.Ontario Health Insurance Elam. Further, it is not alleged that the

College has breached Article 8.1.2 in failing to pay premiums for any

employee who is eligible for CHIP coverage. Because of the manner in

which the parties agreed to argue this case, most of the submissions on

this issue were intimately connected with the merits of the case;

however, we will try to isolate and deal with those issues which we

consider to be solely jurisdictional.

The essence of the Union's position was that the provision offends

the Human Rights Code, 1981, S.O. 1981 Chap. 53 (hereinafter referred to

as the Code) and/or the Canadian Charter of Rights and Freedoms

(hereinafter referred to as the Charter) as embodied in the

Constitution Act, 1982. This was also the Union's position on the

merits. Naturally enough the College took a contrary position. Much of

the argument on this point really concerns the merits of the grievance.

In McLeod et al. v. Egan (1974), 46 D.L.R.(3d) 150 (Can. S.C.) it

was determined that an arbitrator, when called upon to interpret a

collective agreement, may have to go beyond the collective agreement and

determine the meaning and impact of statutes of general application to

the particular contract in effect between the parties. Insofar as that

3

is done the arbitrator's award is not given the curial deference which

is normally accorded to it. After a review of authorities in Re Denison

Mines Ltd. and United Steelworkers (1982), 5 L.A.C.(3d) 19 (Adams) it

was determined: that the applicability of statutes to the question of

interpreting collective agreements in arbitration proceedings was

dependent upon some provision in the collective agreement being in

conflict with the statute. We agree with that. In the instant case the

Union is asserting that the parties have expressly made their collective

agreement subject to the Code, and that in any event there is a conflict

between Article 8.1.2 and the Code and/or the Charter, and there can be

no interpretation given to the agreement which would be contrary to

either the Code or the Charter. The thrust of the College's position

appears to be that since the Union is alleging violations of either the

. Code or the Charter or both (and specifically inconsistencies between

one or both of those enactments and another piece of legislation) rather

than the collective agreement, this challenge is one which should be

made either before a specialized. human rights tribunal or the courts.

We are not without sympathy to the College's position. We can

appreciate that the issues which are raised are not those which one

would ordinarily consider to be labour relations issues, but rather

broader issues of general importance beyond the particular collective

agreement before us. Be that as it may, we cannot ignore the fact that

the grievance does raise questions regarding the proper interpretation

of Article 8.1.2 and whether or not that provision conflicts with the

Code and/or the Charter. If the Union is correct, then some way of

properly administering Article 8.1.2 would have to be found. We

consider that, as in McLeod et al. v. Egan (supra), we must advert to

4

the Code and the Charter in order to determine whether the College has

been properly interpreting and administering Article 8.1.2 of the

collective agreement in accordande with the law. We therefore do not

uphold the College's preliminary objection on this point.•

Before leaving this issue ve• wish to make the following remarks.

Our analysis of the issues involved in this jurisdictional issue has

proceeded on the assumption that the legislation which sets out the

residence requirement, that is the Health Insurance Act, R.S.O. 1980,

Chap. 197, is not itself under attack, and that the effect of the

Union's position would not be to render that legislation invalid.. If

the Union's argument has the necessary effect of rendering the validity

of that legislation open to question, then we agree wholeheartedly and

without reservation that we do not have the jurisdiction to pronounce on

the validity of any legislative enactment.

(b) Is the Union estopped from bringing the grievance forward because of

the negotiating history between the parties, including the negotiations

for the collective agreement in question?

The Union objected that extrinsic evidence was not admissible in

this case because no ambiguity in the collective agreement was alleged.

The College's position was that it was intending to try to make out an

estoppel, and that the admissibility of that evidence did not depend on

the allegation of any ambiguity. Without determining that estoppel

would be appropriate in this situation, it is our view that the College

is entitled to lead whatever evidence it considers necessary to rely on

to make its estoppel argument. This includes evidence of negotiating

history. We therefore consider that the evidence is admissible in the

context of the estoppel argument.

The parties agreed on the following facts, thus making it

5

unnecessary for the College to call evidence:

1. On February 27, 1984 the Union bargaining demands included a

request for OHIP equivalency in Article 8.1.2 for those

employees who were resident in Quebec.

2. On May 28, 1984 the fact finder appointed by the College

Relations Commission filed a report which referred to this

request but made no recommendations because negotiations were

continuing. The request was still "on the table" then.

3. On or about August 15, 1984, in the course of mediation, the

Union dropped its proposal regarding equivalency payments for

Quebec residents under Article 8.1.2.

4. On August 30, 1984 a memorandum of settlement was signed and

executed by both parties. It did not change Article 8.1.2.

5. This issue or demand had been raised in previous negotiations,

including the 1979 and 1978 negotiations, and not agreed to.

For the purpose of this argument and this case the board also took

notice of the fact that the amount of OHIP premiums is not a negligible

item either for the employee or the employer.

The College's position, put briefly, was that the Union should be

estopped from now raising an issue which was discussed during

negotiations and subsequently dropped as a demand. The Union's

position, put equally briefly, was that this argument is tantamount to

allowing the parties to contract out of the operation of the Code and

the Charter. We were referred specifically to Ontario Human Rights

Commission et al. v. Borough of Etobicoke (1982), 132 D.L.R.(3d) 14

(Can. S.C.) by the Union. The College pointed out that this was a case

which did not involve the parties to the collective agreement but the

individual employee and the employer.

We agree with the College that, as a general rule, parties should

not be allowed to gain through rights arbitration that which they could

not gain at the bargaining table.. Were this matter not complicated by

the issues- of the• possible . applicability of the Code, and/or the. Charter,

we would have no hesitation in dismissing the grievance. In this case,

Leaving aside the question of the Code and the Charter, the grievance

would be dismissed because it could be concluded that the College has

fulfilled its obligations under Article 8.1.2 and no violation has been

made: out. There would be no need for estoppel because there would be no

doubt as to 'what Article 8.1.2. meant.

The concept of estoppel is introduced here only because arguments

based on the Code and the Charter cast some doubt on the .validity of the

bargain. If we were to allow the estoppel argument to succeed, would

that not be the same as acknowledging that the parties could contract

. out of the Code. and/or the: Charter? We consider that it would. In the

Borough of Etobicoke case (supra), at pages 23 and 24, the court said:

The respondent, in para. 38 of its factum, noting that the mandatory retirement had been agreed upon in the collective agreement with the union representing the appellants, submitted:

It is submitted that where the parties engage in the statutorily- required bargaining, and as a result thereof agree, in good faith, on a standard retirement age based in part, on the particular rigours and demands of the job of fire-fighting, then the resulting qualification and requirement must be considered to be 'bona fide' in the absence of evidence that the limitation was inserted for an ulterior purpose.

While this submission is that the condition, being in a collective agreement, should be considered a bona fide occupational qualification and requirement, in my opinion to give it effect

7

would be to permit the parties to contract out of the provisions of the Ontario Human Rights Code.

Although the Code contains no explicit restriction on such contracting out, it is nevertheless a public statute and it constitutes public policy- in Ontario as. appears from a reading of the statute itself and as; declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves . out of the provisions of such enactments and that contracts having such effect are void as contrary to public policy. ...

To give effect to the estoppel argument here would be to hold that

the Union cannot allege that any part of any bargain which it has

entered into contravenes the Code and/or the Charter. In entering into

collective agreements the Union is acting as the bargaining agent of the

employees in the bargaining unit so as to bind them to terms and

conditions of employment. If the principal (the employee) can allege

that the bargain is invalid as infringing the Code and/or the Charter,

then why should the agent not be able to do so on the employee's behalf?

We can see no reason for treating the bargaining agent any differently

than the individual employee in this matter. If the individual

employee, as in the Borough of Etobicoke case (supra), can assert that

the bargain made on his behalf is contrary to the Code even though it

was a freely made bargain between his bargaining agent and his employer,

then the bargaining agent acting for the employees should also be able

to make such a claim. We therefore cannot uphold this preliminary

objection.

(c) Is the grievance untimely?

There is no dispute that the time limits of the collective

agreement are mandatory and that the grievance was filed more than

fifteen days after the matter first arose. It is also not disputed that

8

under the Colleges Collective Bargaining Act we do not have jurisdiction

to relieve against the effects of untimeliness. The College asserted

that in Article 18.10 of the collective agreement the parties

contemplated continuing grievances when they referred to "the occurence

or origination of the common circumstances giving rise to the

grievance". The Union took the position that this is a continuing

grievance which may have originated beyond the time limits but which was

ongoing and continuing at the time of the grievance, and that the normal

situation in such grievances is to consider them timely but to limit the

remedy. The Union also asserted that the language of Article 18.10 of

the collective agreement would have to be much clearer in order to

prohibit the bringing of continuing grievances.

We agree with the characterization of this as a continuing

grievance. We also agree with the Union's position as to the usual

method of dealing with continuing grievances. In looking at the

language used in Article 18•10, if continuing grievances are to be held

to the same timeliness rules as non-continuing grievances, it would be

by use of the word "origination", which would fix attention on the first

time which the event occurred. If continuing grievances can be said to

originate at a particular time and continue thereafter, they can also be

said to occur anew again each time the aggrieving event occurs. In this

case it can be said that each time the benefit of OHIP premiums is not

given to the grievors they are newly aggrieved. Looked at from that

point of view, the latest occurrence within fifteen days of the

grievance can be referred to for fixing time limits. It would therefore

be equally possible to look at the very first occurrence or the very

latest, depending on which word in the article is chosen.

Clearly, the parties intended the words "occurrence or origination"

9

to have some meaning which would not give rise to the confusing

situation which we have set out above. In our view, the use of the word

"origination" does not necessarily imply that there is a continuing

state of affairs, as in a continuing grievance. "Common circumstances"

can originate and end immediately thereafter without continuing and re-

occuring regularly thereafter. The use of the word "origination" could

simply be used to indicate that "common circumstances" may have occurred

only once insofar as each grievor was concerned, but at different times

for all of the individuals grieving. We would want a clearer indication

from the language • of the collective agreement that in the case of group

grievances the parties intended the word "origination" to displace the

usual method of treating continuing grievances before we could accept

the College's argument. We therefore do not allow this preliminary

objection, and find that the grievance is timely but that the remedy, if

any, should be fixed keeping the time limits.of Article 18.10 in mind.

II

Merits

The facts are very simple. The College has some employees who are

resident in Quebec and work in Ottawa. Those employees are not eligible

for coverage by OHIP pursuant to the Health Insurance Act, R.S.O. 1980,

Chap. 197 because they are not residents of Ontario. The College pays

OHIP premiums for all of its employees resident in Ontario pursuant to

Article 8.1.2. It pays no premiums for those who are not resident of

Ontario, and pays those employees no amount equivalent to the OHIP

premium.

Both counsel gave us the benefit of thorough and most interesting

argument. We are most grateful to them for their able presentations,

10

and will try to summarize their primary positions without doing too much

injustice to their arguments.

The Union submitted that the Code clearly was applicable to the

collective agreement because the. parties dealt explicitly with that

issue in Article 2.3. It also said that, even if Article 2.3 were not

in the collective agreement, cases such as McLeod et al. v. Egan (supra)

and Borough of Etobicoke (supra) have recognized that statutes of

general application must be applied to collective agreements in cases of

conflict in order to interpret them properly. The Union referred us to

sections 1 and 10 of the Code, and submitted that those sections

prohibited. the unequal treatment of employees not resident in Ontario as

compared to those who were resident in Ontario. , In particular, the

Union rested its submissions under the Code on the proposition that, in

light of legislative intention, "place of origin" should be interpreted

broadly to include place of residence.

The Union also argued that, although the Charter does not apply to

every employment relationship in Ontario, s. 32 ( 1 ) (b) by referring to

"the legislature and government of each province" necessarily includes

agents of the Crown in Right of Ontario. The College is an agent of the

Crown in Right of Ontario and has been held to be such in proceedings

before the Ontario Labour Relations Board and the courts. The Union

submitted that s. 6 of the Charter applied in this case. It argued that

s. 6(2) prohibited the College from erecting economic barriers against

employees resident outside the province of Ontario, and that s. 6(3) in

setting out limitations refers to practices" as well as to "laws" and

provides that any practice which discriminates on the basis of residence

is contrary to the rights guaranteed in s. 6 of the Charter. The Union

asserted that the only other limitation on those rights is to be found

11

in s. 1 of the Charter, and that cost should not be considered to be

such a "reasonable limit" because cost could always be used to justify

discrimination.

The, Union took the position that the appropriate remedy would be to

excise the word "Ontario" in Article 8.1.2 because it is void in light

of the provisions of the Code and the Charter.

The College argued that the Code proscribed unequal treatment only

on the specific grounds set out in the Code. It submitted that "place

of origin" should be given an independent meaning separate from the

other prohibited grounds, but that it is reasonable to interpret the

phrase as referring to something static, such as place where one

originated, rather than something as fluid as present place of

residence. It also argued that the the provision should be regarded as

bona fide within the meaning of s. 10(a) of the Code because of the fact

that the parties themselves agreed on the provision which incorporates

the residency requirement of OHIP.

Generally in connection with the remedy suggested by counsel for

the Union, the College argued that the word "Ontario" was part of the

proper name of the plan agreed to by the parties and that one would have

to declare void all reference to the plan rather than just remove

"Ontario". It also argued that in order to uphold the Union's position

it would be necessary to hold that the Health Insurance Act, which is

referred to in the collective agreement and which imposes the residency

requirement, offends the Code and that this is something for the courts

to decide.

In relation to the Charter it was conceded that the College is an

agent of the Crown in right of Ontario. For the purpose of the argument

12

it was also conceded that a Crown Agent may have certain dutie4 which

would bring it within the purview of s. 32 of the Charter; however, it.

was argued that a Crown Agent when acting as employer dealing with its

employees -Or when making private contracts is not subject to s. 32.

That is, it was: argued that s. 32 was intended. only to deal with the

legislative or governmental sphere of the. Crown Agent's activities and

not with its actions as ordinary participant in the marketplace.

The College argued that if the Union is correct then the necessary

conclusion is that all or part of the Health Insurance Act contravenes

.the. Charter . and the proper course is to challenge that Act in a court of

competent jurisdiction..

The College also argued. that the Law Society of Upper Canada v.

Skapinker (1984), 9 D.L.R.(4th) 161 (Can. S.C.) made it clear that s. 6

of the Charter does not go as far as saying that any difference in total

remuneration to employees based on province of residence would be a bar

to mobility- The College said that here all the parties have done is to

make it clear how those employees eligible for certain benefits will

receive them. The provision in the collective agreement does not

deprive Quebec residents of health care. Those employees who are

resident in Quebec are not deprived of earning their livelihood or of

their mobility within Canada by anything in the collective agreement.

It was also the College's position that "practices" in s. 6(3)(a)

of the Charter referred to practices flowing from the application of a

law, not of a collective agreement. It also said that if a collective

agreement was included, then it would have to be a collective agreement

of general application in force in the province, and this was not such a

collective agreement. It argued that the wording of the provision

indicated that the concern of the Charter was with legislation of

13

general application and with practices which flow from laws in force in

the province concerned, rather than with individual collective

agreements, even if those collective agreements applied to all employees

of the group of employers, in the province:

The major provisions of the Code and the Charter which were

referred to in argument are set out below:

Code'

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, marital status, family status or handicap.

10. A right of a person under Part I is infringed where a requirement, qualification or consideration is imposed that is not discrimination on a prohibited ground but that would result in the exclusion, qualification or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or consideration is a reasonable and bona fide one in the circumstances; or

(b) it is declared in this Act that to discriminate because of such ground is not an infringement of a right.

[NOTE: s. 1 is in Part I of the Code.)

Charter

1. The Canadian Charter of Rights , and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

6.--(1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

14

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

(3) The rights specified' in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

32..--(1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

We will deal first with the arguments relating to a possible

conflict between the Code and the collective agreement. In order for

the Union to succeed it must establish that distinguishing among

employees based on their current province of residence is discrimination

15

based on "place of origin" as prohibited in s..1 of the Code. Neither

party was able to supply us with any authority concerning the meaning of

"place of origin".

Since the parties, were able to supply us with no authorities, and

since we are obliged to place some meaning on that phrase, it seems wise

to begin by referring to a dictionary to get some sense of how the words

are commonly used. In The Concise Oxford Dictionary of Current English

origin is defined as follows:.

Derivation, beginning or rising from something, • person's extraction, source, starting-point.

The same source defines residence as:

1. Residing (have,. take .12 g one's --, dwell, begin to dwell; honoured the place with her --; -- is required, official etc. must live on the spot for certain periods or altogether; so in --). 2. Place where one resides, abode of; house esp. of considerable pretension, mansion, (desirable family -- for sale).

The dictionary definitions seem to distinguish between words which

signify a fixed historical point which cannot vary, in the case of

origin, and the place where one lives at a given time and which can

vary, in the case of residence. While it is true that one's residence

may also be one's place of origin, they need not be the same.

S. 1 of the Code sets out several prohibited categories of

discrimination. In determining what "place of origin" means we must be

careful not to define it so that it duplicates any other prohibited

ground of discrimination because we must assume that the legislature

intended to set out different and distinct prohibitions. If "place of

origin" were defined in terms of the discreet place of origination, then

it need not conflict with any other prohibited ground because it may not

have anything to do with one's colour, ethnic origin, citizenship, or

16

creed, for example, All of those things, with the exception of

citizenship and creed, are fixed for all time at birth, but all are

fixed by different criteria than those which apply to determine one's

origin.. Of all of those factors only citizenship and creed are capable

of being changed; and those . too are determined using different criteria.

than would be used to determine one's origin. It is therefore quite

possible to determine 'place of origin" using "origin" in its dictionary

sense. and still to have discreet and separate classes of prohibitions in

s. 1 of the Code.

It seems to us that, had the legislature wanted to prohibit

discrimination based on current place of residence, it would have been

quite easy for it to do so clearly and expressly in the Code. To define

"place of origin" as including "current place of residence" would be to

change the essential question that one must ask to determine whether or

not discrimination on the prohibited ground is taking place. That is,

to determine "place of origin" the question to ask is "Where did you

come from originally?", while to determine "place of residence" the

question to ask is "Where do you come from now?". The answer may be the

same in each case, but the information being elicited differs. It is

therefore our view that the Code does not prohibit discrimination based

on place of residence.

In light of that finding, we cannot conclude that there is any

conflict between the Code , and the collective agreement. There is

therefore no need for us to deal with the arguments relating to s. 10 of

the Code. Suffice it to say that if we are wrong concerning the

definition of "place of origin", then the issues regarding s. 10 of the

Code become quite complex in this particular situation, given the role

which the Health Insurance Act plays in the matter.

17

The issue of the applicability of the Charter to the matter before

us also raises some interesting questions. The first one to be

determined concerns the meaning to be assigned to s. 32.

We agree that s. 3:2:(1)(b), in referring to "the legislature and

government of each province in respect of all matters within the

authority of the legislature", is referring to bodies other than the

legislature, as well as to the legislature itself. In order to

determine whether we should define "government" as always including all

agencies of the Crown in Right of Ontario as the Union has argued, it is

necessary to determine what the words "in respect of all matters within

the authority of the legislature" means. That is, dOes the section mean

that all Crown Agencies are subject to the Charter even when they act as

employers, for example, or only when they are acting in a public

capacity? Although there is no authority on point, we consider that the

intent of s. 32 is to bind the government when it is acting as

government. The section states clearly that the "Charter applies ... to

the ... government of each province in respect of all matters within the

authority of the legislature of each province". It could have said

simply that it applied to the government of each province. Had it done

that, then it would have been possible to assert that every time the

government acted, whether in a public capacity affecting the rights of

the citizens generally or in a "private" capacity, such as entering into

contracts for supplies, it would have been subject to the Charter

provisions. By specifying that the governments of the provinces are

subject to the Charter "in respect of all matters within the authority

of the legislature of each province", it would appear that the sphere of

application is being limited to the activities of government as

18

government, or to the government as enactor or administrator of law

rather than as subject of law. In this connection, when s. 6 of the

Charter is examined it would seem to reinforce the view of the Charter

as covering only those public law activities of government. The section

refers to "laws or practices of general application in force in a

province". It would surely not include private contracts which the

government might enter into between itself and its suppliers, for

example, for supplies of a certain article throughout the province.

Private contracts are not of general application to the population of

the province as a whole, even though they may affect individuals in

various parts of the province. If the rights of the grievors guaranteed

by s.6(2) of the Charter are being violated they are either being

violated by a collective agreement between their Union and a Crown Agent

which is not of general application throughout the province, or by a

statute, the Health Insurance Act, which is in force in the province.

In the former case, the Charter does not apply because the

application of the Charter is limited by s.32 to exclude such activities

of the government. In the latter case, the issue is one which involves

the essential validity of the Health Insurance Act and we have no

jurisdiction to consider whether that Act violates s. 6 of the Charter.

The proper forum for dealing with that question is the courts, and the

parties are free to test the issue there should they so desire.

In conclusion, therefore, we must hold that the Charter does not

apply to the situation before us, and that the only cause for upholding

the grievance would be if there was a conflict between the Code and the

collective agreement. For all of the reasons set out above, we do not

consider that there is such a conflict. Therefore, the clear wording of

the collective agreement must prevail and the grievance is dismissed.

19

I _—sue / dissent S. R. Hennessey, Union No nee

DATED AT LONDON, ONTARIO THIS

DAY OF

1985.

Gail Brent..

I concur / dissom0-6- R. J. Gallivan, College Nominee

20