Counsel:

J.C. Murray and C.M. Mitchell, for the applicants.

Dennis W. Brown, Q.C. and Malliha Wilson, for the respondent.

The judgment of the Court was delivered by

[para1] SOUTHEY J.:-- The 3 applicants apply for judicial review of Orders-in-Council purporting to revoke in mid-term their appointments by Order-in-Council as full-time vice-chairs of the Ontario Labour Relations Board. Each of the applicants had been appointed for a period of 3 years.

[para2] Dale Hewat ("Hewat") was appointed by Order-in-Council 597/95, dated May 4, 1995, which ordered that she "be appointed a full-time Vice-Chair of the Ontario Labour Relations Board for a period of three years, effective from the date of the Order-in-Council". Jerry Kovacs ("Kovacs") was appointed by Order-in-Council 1186/94, dated May 11, 1994, which was in the same terms as the appointment of Hewat. Roman Stoykewych was re-appointed after a 3-year term by Order-in-Council 236/96, dated February 8, 1996, which provided that he was "hereby re-appointed a full-time vice-chair of the Ontario Labour Relations Board for a period of three years effective from February 3, 1996 to February 2, 1999."

[para3] The appointment of Hewat as a full-time Vice-Chair was revoked by Order-in-Council 1838/96, dated October 2, 1996, which read as follows:

Whereas because of fiscal constraints, the Ontario Labour Relations Board is reorganizing its operations, requiring changes in appointments to the Board, And whereas she was appointed a full-time vice-chair by Order in Council numbered O.C. 597/95 made May 4, 1995, And whereas certain matters are continuing of which she is seized, pursuant to the provisions of the Labour Relations Act, 1995

DALE L. HEWAT, TORONTO

is appointed at pleasure as a part-time vice-chair of the Board for the purposes of hearing those matters of which she is seized,

And further, that Order in Council numbered O.C. 597/95 is amended to reflect this part-time appointment and revoke the full-time appointment effective December 13, 1996.

[para5] Both Hewat and Kovacs were lawyers with established practices at the time of their appointments as vice-chairs. There had been no suggestion to either of them that the employment might be terminated without cause before the end of the 3-year term, and both were informed of and relied upon the past practice of re-appointing vice-chairs in virtually every case, as long as the vice-chair wished to remain in the public service. Security of tenure was important to both of them, and both swore that they would not have accepted the appointment if they had known it would be terminated at will before the end of the term and in the absence of cause.

[para6] Stoykewych had specialized in the field of labour law after his call to the bar in 1987 and had taken post-graduate studies at Cambridge. At the time of his first appointment as a vice-chair of the Board in 1993, he had a secure position as a senior associate with a leading labour law firm. He had been informed at that time by the then Chair that there was no guarantee of re-appointment at the end of the 3-year term, but that vice-chairs had been re-appointed in the past, almost without exception. He took this history of re-appointment into account. He swore that he would not have accepted the appointment of Vice-Chair, had he known his appointment could be terminated at will before the end of the term and in the absence of cause.

[para7] By the time of his re-appointment in February 1996, Stoykewych had been warned that there would be no guarantee of 3 years' tenure in the event of the need to "downsize". Shortly after his re-appointment, he received a letter from the Chair of the Board, dated February 15, 1996, referring to the possible effect of financial constraints. The letter read as follows:

Attached herewith please find a copy of the Order-in-Council appointing you as a Vice-Chair of the Ontario Labour Relations Board for a further 3-year term. I am pleased that the Cabinet Office accepted my recommendation in this regard. I should however add the caveat set out below, which I've already mentioned both to you and to the other Vice-Chairs. As you know, the Board currently faces the prospect of further financial constraints, and at least some possibility of structural reorganization; moreover, it is a little too early to assess what impact Bill 7 will have on the Board's overall workload, or the mix of adjudicators and administrative staff that will be required. Quite frankly, at this point, we simply cannot determine either the Board's needs, or the resources that will be made available to us from our funding agency. It may be that recent legislative changes or possible organizational changes will actually increase the Board's adjudicative workload. But the reverse is also possible. One cannot predict at this point. In the circumstances, the renewal of your appointment should not be considered an undertaking or a guarantee of continued employment for the duration of your new term. In the present somewhat uncertain environment, we have decided that it is prudent to communicate this caveat to all Vice-Chairs and Board Members as their terms come up for renewal, even if they are renewed.

[para8] Stoykewych swore that he at no time consented to an appointment that could be terminated during the term on account of downsizing.

[para9] All 3 applicants received about 2 weeks' notice of the termination of their full-time appointments. All were told that such termination was not for cause.

[para10] Mr. Brown argued before us that the imposition of financial restraints by the Provincial Government or "downsizing" constituted cause. Government policy may have been the reason for the terminations, but it did not provide just cause for termination of employment. "Just cause", as the expression is used in defences to claims for wrongful dismissal, requires conduct on the part of the employee which justifies repudiation of the contract of employment. There was no such conduct on the part of any of the applicants.

[para11] The principal defence of the Crown was that all 3 applicants held office at pleasure, because they were appointed by Order-in-Council. The issue is almost identical with that raised in Dewar v. Ontario (1996), 137 D.L.R. (4th) 273, a case decided last July by this Court, differently constituted. Leave to appeal to the Court of Appeal has been granted in the Dewar case, but, until the disposition of the appeal, it remains authority which we should follow unless persuaded that it is clearly wrong. The only material difference between the case at bar and Dewar is that there the Order-in-Council appointing Ms Dewar for a 2-year term was stated to be replacing her existing appointment for an indefinite period, because it had been determined that appointments to the public body in question should be for a definite period. Although the terminated employees in Dewar had a somewhat stronger case, I am satisfied that we should follow Dewar and hold that the appointment of the applicants for a period of 3 years in each case was an appointment for a definite period of 3 years and not one during pleasure.

[para12] The claimants in Dewar were prepared to accept declaratory relief without reinstatement. The Court accordingly declared in that case that the Orders-in-Council revoking their appointments were invalid; that the claimants were entitled to serve the balance of the terms of their appointments; and that they were entitled to full reimbursement for any loss suffered as a result of the unlawful termination of their appointments. That relief is consistent with the decision of the British Columbia Court of Appeal in Preston v. British Columbia (1994), 116 D.L.R. 258, an authority relied on in Dewar, in which McEachern CJBC said at p. 261:

In keeping with the modern view of the prerogatives of the Crown as disclosed in the authorities, I believe the provisions of the Interpretation Act I have quoted authorized the Lieutenant-Governor in Council to commit the Crown to pay the plaintiff for the term of the appointment without impairing the Crown's right to declare the office vacant at any time.

[para14] The applicants, in my judgment, are entitled to declaratory relief similar to that granted in Dewar. Each of the applicants is entitled to a declaration that the applicable Order-in-Council is invalid to the extend that it purports to revoke his or her appointment as Vice-Chair, and to a declaration that he or she was entitled to serve the

balance of the 3-year term as Vice-Chair of the Board. There will also be a declaration that each of the applicants is entitled to full reimbursement for any loss suffered as a result of the unlawful termination of his or her appointment.

[para15] The applicants are entitled to their costs. The parties may speak to us as to the scale and amount of costs, if they are unable to reach agreement.

SOUTHEY J.

BOLAND J.

KEENAN J.