The Struggle between Boards and Courts over the Interpretation of Labour Relations Acts

By Jovana Zajaredic
Osgoode Hall


Collective Bargaining

In the Oakville Trafalgar and Metropolitan Life cases, supra, section 4:420, and in a number of other well-known cases, reviewing courts overturned the decisions of labour boards, ruling that the boards had adopted interpretations of their statutes ‘which the language would not reasonably bear,’ or that they had ‘asked themselves the wrong questions,’ or that they had ‘exceeded their jurisdiction’ by adopting particular interpretations of the labour relations legislation that, in the courts’ view, they were not entitled to adopt. In some of these cases, the courts’ intervention had the effect of overturning well-established board practices on which many collective bargaining relationships had been established over many years.
The most radical challenge to judicial review was contained in the British Columbia Labour code, R.S.B.C. 1979, c. 212 (now repealed). Section 33 provided:
The board has and shall exercise exclusive jurisdiction to determine the extent of its jurisdiction under this Act, a collective agreement or the regulations, to determine a fact or question of law necessary to establish its jurisdiction and to determine whether or in what manner it shall exercise its jurisdiction.
This was the first time that a Canadian legislature had said explicitly that even on questions of ‘jurisdiction’ the labour board’s decision was to prevail. Comprehensive privative clauses such as the one passed in British Columbia would appear to be doomed to failure after the decision of the Supreme Court of Canada in Crevier v, Quebec (A.G.) (1982), 127 D.L.R. (3d) 1. In delivering the judgment of the court, Chief Justice Laskin made it clear that provincial legislation which immunized a provincial statutory tribunal from judicial review on questions of jurisdiction, as opposed to questions of law, would be unconstitutional because its effect would be to usurp the traditional jurisdiction of the courts. This decision, however, simply precludes a total legislature ban on judicial review and still leaves open the issue of the appropriate extent of judicial review in light of the broad statutory mandate given to specialist labour relations tribunals. An interesting comment on the case’s implications is found in H. Arthurs, ‘Protection Against Judicial Review’ (1983) 43 R. du B. 277 at 289-290:
There is no reason to believe that a legally-trained judge is better qualified to determine the existence or sufficiency or appropriateness of evidence on a given point than a trained economist or engineer, an arbitrator selected by the parties, or simply an experienced tribunal member who decides such cases day in and day out. And there is no reason why one group of individuals, however intelligent and well-intentioned, should project upon the rest of society an image of how things ought to be run.