The BC Supreme Court has recently confirmed that patent unreasonableness remains the appropriate standard for judicial review of Labour Relations Board decisions made pursuant to Section 141 of the Labour Relations Code.
The BC Supreme Court ruling follows recent decisions from the Supreme Court of Canada, in which the Court revisited the issue of the appropriate standard of review of a decision made by an administrative tribunal.
The Supreme Court of Canada decisions confirmed that the pragmatic and functional approach is the appropriate test for determining the standard of judicial review of an administrative tribunal’s decision. The Court suggested that using the pragmatic and functional approach to determine the appropriate standard of review involves the consideration of four contextual factors: (1) the presence or absence or a privative clause (which is a mechanism that protects a tribunal’s decisions from review or appeal) (2) the expertise of the tribunal relative to that of the reviewing court on the question in issue; (3) the purposes of the legislation under review; and, (4) the nature of the question – whether it is law, fact or mixed law and fact.
In the BC Supreme Court ruling, the Court examined the Labour Board’s review of an arbitrator’s decision respecting what constituted a “day” for the purposes of entitlement to overtime under the parties’ collective agreement. The Court reviewed the recent Supreme Court of Canada decisions and held that patent unreasonableness was still the appropriate standard of judicial review of a decision from the Labour Relations Board. Although the issues for review involved questions of law as well as fact, the central issue concerned the appropriate interpretation and application of the BC Labour Board’s enabling statute, the Labour Relations Code. Applying the four factors of the pragmatic and functional approach articulated by the Supreme Court of Canada, the BC Supreme Court determined that the standard for review of a decision from the Labour Board was patent unreasonableness. The Court reasoned that the highest level of deference should be shown to the Labour Board’s decision because the Board was a specialized tribunal, protected by a full privative clause, and its decision fell squarely within its expertise of creating and interpreting labour relations policy.
In considering the significance of the BC Court’s ruling in light of recent decisions from the Supreme Court of Canada it is important to note that there is a significant difference between the decision being reviewed by the BC Supreme Court and those being reviewed by the Supreme Court of Canada. The BC Court was reviewing a decision of the Labour Board, while the Supreme Court of Canada was reviewing decisions which came to the Courts directly from arbitration. Decisions of most Canadian labour boards are protected by a full privative clause, which dictates that the highest degree of deference should be given, unlike the decisions of arbitrators which are generally afforded less deference. While the law may be in flux concerning the standard of review for decisions made by specialized tribunals from which there is some right of appeal, the Supreme Court of Canada has not deviated, in its recent decisions, from the principle that tribunals protected by full privative clauses should be afforded the highest level of deference.
Health Employers Association of BC v. Nurses’ Bargaining Association et al, 2004 BCSC 911, July 6, 2004