On November 15, 2018 Doug Ford’s PC Government released Ontario’s Plan for the People. At the same time they introduced Bill 57: Restoring Trust, Transparency and Accountability Act, 2018 in the Legislature. Lots of commentators had plenty to say about the larger changes in this omnibus bill. This is not one of those posts. In this post I will review the changes to established dispute resolution processes and make comment narrowly on the changes as they impact the parties and the DR community.
- Changes to the Ombud’s Responsibilities
- Allows Funding Arrangements for Family Mediation Services
- Changes to Firefighter Arbitration
Changes to the Ombud’s Responsibilities
On whole the legislation expands the scope of Ombud’s responsibilities. While not changing the core function of the ombudsman. Advocacy roles for children and french language are removed.
Ombud Taking Responsibility for French Language Complaints
Schedule 20 of the act moves the function of the French Language Services Commissioner to the Ombudsman. While the response to this from the french community has been universally negative, the former Ombudsman notes that the Ombudsman is better equipped to handle complaints. Importantly, the entire staff for the French Language Services Commissioner has been transferred to the Ombud’s office.
Ombuds Regulation Changes
Schedule 29 changes how the Ombud is appointed. Prior to bill 57 they were appointed as an officer of the Assembly by the Lieutenant Governor in Council on the address of the Assembly. Post 57 they will be appointed directly by the Assembly.
The bill grants the assembly or the Board of Internal Economy authority to remove the Ombudsman for cause and it expands their authority to allow a suspension. It also requires the Ombudsman to designate an individual to act when he or she is not available. A temporary Ombudsman may be appointed by the assembly or BOIE in certain circumstances.
The Ombudsman’s functions are expanded to include responsibilities under the Provincial Advocate for Children and Youth Act and the Child, Youth and Family Services Act. Investigations respecting young people in foster care and under the protection of Children’s Aid will now be the responsibility of the ombud.
The advocate is also required to transfer all files and cases to the Ombud’s office.
Provincial Advocate for Youth Discontinued
The Act transfers the investigative powers of the advocate to the ombuds and removes the advocacy role.
Funding Arrangements for Family Mediation Services
The Courts of Justice Act is amended to allow the Attorney General to enter into agreements to fund family mediation. This is an obvious win for access to justice if appropriate funding can increase access to family mediation services.
Changes to Firefighter Arbitration
From Board to Single Arbitrator
Schedule 18 of the Act changes how firefighters’ associations and employers arbitrate. Prior to assent the parties had the ability to appoint a three person board of arbitration; After it becomes law the parties will need to refer to a single arbitrator. This change will speed up the process of appointing a referee. It will also stop both parties from receiving a minority report that can be used to direct efforts during future rounds.
Less Checks for Final Offer Selection
Final offer selection is a method of arbitration where each party to a dispute proffers its best offer and an arbitrator selects one of them. It is winner take all, and arbitrators do not have the authority to adjust either side’s offer. It is exceedingly rare as a dispute resolution mechanism. It used to be allowable at the discretion of the chair of the board of arbitration on the consent of the minister; post implementation it will be at the direction of the minister.
This is a high risk form of arbitration. Implemented properly, it may reduce the chilling effect arbitration can have on negotiations. If I were a fire association or department I would recommend avoiding interest arbitration until we see how willing the government is to use final offer selection.
Mandates for Arbitrators
The Act requires arbitrators to release their decision within 90 days and also mandates that arbitrators consider and address in their decisions certain factors:
- A comparison, as between the employees and other employees in the public and private sectors, of the terms and conditions of employment.
- A comparison of collective bargaining settlements reached in the same municipality and in comparable municipalities, including those reached by employees in bargaining units to which the Labour Relations Act, 1995 applies, having regard to the relative economic health of the municipalities.
- The economic health of Ontario and the municipality, including, but not limited to changes to labour market characteristics, property tax characteristics and socio-economic characteristics.
- The employer’s ability to attract and retain qualified firefighters.
- The interest and welfare of the community served by the fire department.
- Any local factors affecting the community.
More Changes to Come
Beyond Bill 57 the Ford government has also indicated that they are considering changes to a number of tribunals and LRA changes have already changed negotiation procedures in the public service. The next couple of years are likely to be full of change for dispute resolution professionals and the dispute going public.
What Do You Think?
Do the dispute resolution provisions of Bill 57 make you worried? Do you think parties will think twice before arbitrating if find offer selection may be the dispute resolution mechanism? Is french in danger now? Are kids?
Let me know in the comments.