Weber and Judicial Review:
What Deference Does It Make?
Arbitration, Expertise, Deference and the Conundrum of
Human Rights
“One Law For All”: Weber v. Ontario Hydro
Queen’s University
30-31 October 2015
Professor Michael Lynk, Faculty of Law, Western University
Shannon Webb, Lawrence Kinlin School of Business, Fanshawe College
Conundrum
- What degree of judicial deference for labour arbitrators deciding human rights issues?
- Weber contributed to the deference issue because of SCC endorsement of expanded arbitral
jurisprudence. But other factors in 1990s as well:
◦ Statutory grant of human rights jurisdiction to arbitrators: i.e.: Section 48(12)(j) of OLRA
◦ Frequency of no-discrimination clauses in collective agreements
◦ Human rights law had/has strong workplace law nexus
- Difficulties at human rights commissions/tribunals
-Ongoing difficulty: No clear direction from SCC, and confusion in the lower courts
Labour Arbitration, Human Rights &
Deference
- Before Weber: McLeod v. Egan (SCC, 1975), St. Anne Nackawic (SCC, 1986) + Douglas College
(SCC, 1990) – on arbitral jurisdiction
- Before Weber: Chambly (SCC, 1992) + Mossop (SCC, 1992) + Berg (1993) – on deference &
human rights
- Question: Are human rights so central to the rule of law in Canada that tribunals can never
expect deference, or has human rights expertise been sufficiently acquired by arbitrators such
that deference is due?
Four SCC Milestone Rulings on Arbitration and
Deference (1 of 4)
Weber (1995):
McLachlin J:
“…the appellant Weber argues that jurisdiction over torts and Charter claims should not be conferred on
arbitrators because they lack expertise on the legal questions such claims raise. The answer to this concern is that
arbitrators are subject to judicial review. Within the parameters of that review, their errors may be corrected by
the courts. The procedural inconvenience of an occasional application for judicial review is outweighed by the
advantages of having a single tribunal deciding all issues arising from the dispute in the first place.”
…………
“[The exclusive jurisdiction model] conforms to a pattern of growing judicial deference for the arbitration and
grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping
litigation in the courts.”
Four SCC Milestone Rulings on Arbitration and
Deference (2 of 4)
Parry Sound (2003)
Iacobucci J.
“A countervailing consideration is the fact that the Human Rights Commission has greater expertise
than grievance arbitrators in the resolution of human rights violations. In my view, any concerns in
respect of this matter are outweighed by the significant benefits associated with the availability of an
accessible and informal forum for the prompt resolution of allegations of human rights violations in
the workplace... “
“Moreover, expertise is not static, but, rather, is something that develops as a tribunal grapples with
issues on a repeated basis…”
“For the foregoing reasons, the Board was correct to conclude that the substantive rights and
obligations of the Human Rights Code are incorporated into each collective agreement over which an
arbitrator has jurisdiction …Accordingly, there is no reason to interfere with the Board’s finding that
the subject matter of Ms. O’Brien’s grievance is arbitrable. The Board’s finding that the
discriminatory discharge of a probationary employee is arbitrable is not patently unreasonable.”
Four SCC Milestone Rulings on Arbitration and
Deference (2 of 4)
Parry Sound (2003)
Iacobucci J.
“Moreover, expertise is not static, but, rather, is something that develops as a tribunal grapples
with issues on a repeated basis…”
“For the foregoing reasons, the Board was correct to conclude that the substantive rights and
obligations of the Human Rights Code are incorporated into each collective agreement over
which an arbitrator has jurisdiction …Accordingly, there is no reason to interfere with the Board’s
finding that the subject matter of Ms. O’Brien’s grievance is arbitrable. The Board’s finding that
the discriminatory discharge of a probationary employee is arbitrable is not patently
unreasonable.”
Four SCC Milestone Rulings on Arbitration and
Deference (3 of 4)
Dunsmuir (2008)
Bastarache & LeBel JJ.
“In judicial review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law.” [47]
Four SCC Milestone Rulings on Arbitration and
Deference (3 of 4 cont’d)
Dunsmuir (2008)
Bastarache & LeBel JJ.
“Deference will usually result where a tribunal is interpreting its own statute or statutes closely
connected to its function, with which it will have particularity familiarity…Adjudication in labour
law remains a good example of the relevance of this approach.” [54]
“A question of law that is of ‘central importance to the legal system…and outside
the…specialized area of expertise’ of the administrative decision maker will always attract a
correctness standard… On the other hand, a question of law that does not rise to this level may
be compatible with a reasonableness standard…” [55]
Four SCC Milestone Rulings on Arbitration and
Deference (3 of 4 cont’d)
Binnie J. (Minority concurring):
“It is sometimes said by judges that an administrator acting within his or her
discretion ‘has the right to be wrong’. This reflects an unduly court-centred view
of the universe. A disagreement between the court and an administrator does
not necessarily mean that the administrator is wrong.”[125]
“Labour arbitrators, as in this case, command deference on legal matters within
their enabling statute or on legal matters intimately connected thereto. “ [147]
Four SCC Milestone Rulings on
Arbitration and Deference (4 of 4)
Irving Pulp and Paper (2013)
Framed as primarily a privacy case
NBQB: Quashed arbitration award as unreasonable
NBCA: Upheld NBQB – correctness on arbitrator’s analytical
framework, + reasonableness on facts
Four SCC Milestone Rulings on
Arbitration and Deference (4 of 4)
Irving Pulp and Paper (2013)
Abella J.
“…the Court of Appeal erred in disregarding this Court’s direction that decisions of
labour arbitrators be reviewed for reasonableness and that deference be paid to their
legal and factual findings when there are interpreting collective agreements.”
“The board’s decision should be approached as an organic whole, without a line-by-line
treasure hunt for error…In the absence of finding that the decision, based on the
record, is outside the range of reasonable outcomes, the decision should not be
disturbed. In this case, the board’s conclusion was reasonable and ought not to have
been disturbed by the reviewing courts.” [54]
Policy Considerations
1. Rule of Law Objection
- Human rights law is ‘quasi-constitutional’, and is of central importance to legal system
- The courts are the only guardians of human rights
- A deference standard higher than correctness leads to potential inconsistency in interpreting human
rights
But
- Privacy is also ‘quasi-constitutional’, and now judged on reasonableness (Irving Pulp + Paper)
- Fundamental legal questions different from constitutional questions; depends on expertise
Policy Considerations
2. Labour Arbitrators Lack Expertise in Human Rights
- Common argument in the 1990s
- Arbitrators focused on “narrowly restricted field” (LaForest J. in Mossop)
- Human rights tribunals more expert than arbitrators, and they are subject to correctness
But
- Large volume of arbitral decisions on human rights
- Specific assignment of human rights jurisdiction by legislatures
- Specific assignment of human rights jurisdiction by consensual industrial relations parties in CAs
Table 1: Case Sample Pre-Dunsmuir and
Post-Dunsmuir Issues
Pre-Dunsmuir
Number of Cases 11
Total
Number of Issues 15
Post-Dunsmuir
36
38
Table 2: Labour Arbitrations Decisions
Upheld
Decision
Upheld
(Cases)
Decision
Upheld
(Issues)
Pre-Dunsmuir Percentage
PostDunsmuir
Percentage
7/11
63.6%
28/36
77.8%
9/15
60%
30/38
78.9%
Table 3: Standard Examined (PreDunsmuir and Post-Dunsmuir)
Correctness
Reasonableness
Patent
Unreasonableness
Unstated/Unclear
Total
Pre-Dunsmuir
Issues
7
6
2
Post-Dunsmuir Issues
15
2
38
8
28
-
Table 4: Pre-Dunsmuir Employer and
Union Success (Issues)
Correctness
Reasonableness/
Patent
Unreasonableness
Total
Successful
%
Successful
Employer
Union
Applications
Applications
2/3
66.7%
2/4
%
50%
Total
%
Successful
Applications
4/7
57.1%
1/4
25%
1/4
25%
2/8
25%
3/7
42.9%
3/8
37.5%
6/15
40%
Table 5: Post-Dunsmuir Employer and
Union Success (Issues)
Correctness
Successful
Employer
Applications
1/3
Reasonableness
%
%
Total
%
33.3%
Successful
Union
Applications
1/5
20%
2/8
20%
6/15
40%
3/13
23.1%
9/28
32.1%
Unstated
1/1
100%
0/1
0%
1/2
50%
Total
8/19
42.1%
4/19
21.1%
12/38
31.5%
Case Examples: Pre-Dunsmuir
(Correctness)
Hamilton Police Ass’n v Hamilton Police Services Board (2005, Ont.
Div. Ct.)
- “With respect to the issue of expertise, the Supreme Court of Canada has held that the
standard of review of labour arbitrators’ decisions interpreting and applying collective
agreements is either reasonableness simpliciter (Voice Construction Ltd. (2004, SCC) or patently
unreasonableness (Newfoundland Association of Public Employees (1996, SCC). However, an
arbitrator’s decision in relation to questions of general law and the interpretation of human
rights legislation is subject to a standard of correctness, given that the arbitrator has no greater
expertise in this regard than the courts (NAPE, supra at para. 14).” [20]
Case Examples: Pre-Dunsmuir
(Correctness)
Hamilton Police Ass’n v Hamilton Police Services Board (2005, Ont.
Div. Ct.)
- “Ultimately, the question of the standard of review in this case turns on the issue that the
arbitrator was determining…As in the NAPE case above, the arbitrator was required to be
correct in his legal interpretation of the duty to accommodate, but his decision applying that
duty to the facts of the case warrants some deference and is subject to review on a standard of
reasonableness.” [23]
Case Examples: Post-Dunsmuir
(Correctness)
Lethbridge Regional Police Service v Lethbridge Police Association
(2013 Alberta CA)
- “Labour arbitrators are sometimes required to consider human rights and
discrimination issues, and in this case the human rights issues were specifically
referred to the arbitrator…Where a number of tribunals have concurrent
jurisdiction over an issue, consistency requires that review be for correctness:
Rogers Communications (SCC, 2012)… Likewise, the nature of human rights
issues are that they are questions of law of general importance to the legal
system. In the circumstances, the appropriate standard of review is correctness
(even when such issues are decided by human rights panels): Irving Pulp &
Paper Ltd. v Communications Energy and Paperworkers Union …However, the
underlying factual findings of the arbitrator are still entitled to deference.” [28]
Case Example: Post-Dunsmuir
Reasonableness
County of Brant v OPSEU (2013, Ont. Div. Ct.)
- “No issue of jurisdiction or procedural fairness is raised. The parties submit,
and I agree, that the applicable standard of review is reasonableness. This
standard requires deference to findings of fact made by the Arbitrator and to
the Arbitrator’s interpretation of the provisions of the Collective
Agreement. Further, labour arbitrators have particular expertise in applying
human rights principles to issues in the workplace and their conclusions on such
issues are therefore entitled to deference.” [29]
Questions & Comments
Table 4: Upheld Issues (Pre and PostDunsmuir)
Pre-Dunsmuir Pre-Dunsmuir
Percentages
Correctness
Reasonableness/
Patent
Unreasonableness
Unstated/Unclear
Total
PostDunsmuir
Post-Dunsmuir
Percentages
4/7
5/8
57.1%
62.5%
7/8
22/28
87.5%
78.6%
7/15
46.7%
1/2
30/38
50%
78.9%