Arbitral Standards of Review

Posted by Johannes Schenk on September 18th, 2005 — Posted in Labour Law

The Supreme Court of Canada spoke recently on the standard of review to be applied to a labour arbitrator. In two Alberta cases, Voice Construction and Lethbridge Community College, the Supreme Court held that the standard of review was reasonableness as opposed to a patently unreasonable threshold.

This position outlined in Voice and Lethbridge has been considered by the Ontario Court of Appeal in, Lakeport Brewing Corp.v. Teamsters Local Union 938, 2005 CanLII 29339 (ON. C.A.). Justice Laskin distiguishes the Alberta cases and finds that the standard of review to be applied to a labour arbitrator in Ontario remains as patently unreasonable.

Justice Laskin distinguished the Alberta cases on the language in the Alberta Labour Code providing a weaker privitive clause than the equivalent Ontario provisions. In addition, the Alberta statute provided a more direct route to judicial review than would occur in Ontario.

B.C. stands in a unique position having legislated standards of review under the Administrative Tribunals Act. That Act has blunted the B.C. debate concerning standards of review to be applied to B.C. administrative tribunals including labour arbitrators. Having said that, it can be expected that the arguments outlined in Lakeport will continue to be made by B.C. lawyers dealing with Federal labour matters and administrative bodies.

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