November 10, 2015

Courts have long pointed to labour boards as the classic example of a specialized tribunal to which they should show deference on judicial review. How much deference are courts actually giving to labour board decisions? In which types of decisions are courts likely to show less deference? In this panel, senior counsel will discuss recent developments in judicial review of labour board decisions while suggesting strategies for parties pursuing or contesting review and for boards seeking to comply with changing judicial standards. Specific topics to be addressed include:

  • Adequacy of decisions: What role does the adequacy of reasons play in judicial review following the Supreme Court of Canada’s decisions in Dunsmuir, Newfoundland Nurses, and Alberta Teachers’ Association? What factors will reviewing courts consider to determine the adequacy of a labour board’s decision? In what circumstances must reviewing courts look for “implicit reasons” to supplement express reasons? How will courts determine what a board’s “implicit reasons” were?
  • Deference to factual findings: How much deference are reviewing courts giving to findings of fact made by labour boards? Are the courts changing their approach to labour boards’ findings of fact in light of the emphasis on reasonableness in Dunsmuir?
  • Impartiality and independence: What principles have reviewing courts established to determine whether a labour board adjudicator should recuse himself or herself on the basis of reasonable apprehension of bias? Is it consistent for courts to apply the judicial standard for reasonable apprehension of bias to labour board adjudicators while, at the same time, holding that labour boards are not protected by a guarantee of judicial or quasi-judicial independence? Might courts be persuaded to stop applying the deferential reasonableness standard of review to labour boards because labour boards lack independence?
  • Inconsistent decisions: What is the proper role of a reviewing court when it is confronted with conflicting decisions from the same board regarding the interpretation of the board’s home statute? Do such inconsistent decisions raise an issue of “central importance to the legal system,” allowing the court to review the decision on the correctness standard and act as a type of “tiebreaker”?
  • Trends and tactics: When is it appropriate to apply for judicial review? How likely is it that an application for judicial review will be successful? Is there a discernable trend regarding courts showing more or less deference to labour boards in recent decisions? What grounds for review often lead to a decision of the board being overturned? What are helpful considerations to keep in mind when applying for judicial review?