THE CONSTITUTION OF LAW Part 6 pptx

118 constituting the legislature

Deference

The leading case on privative clauses in Canada is CUPE: Canadian Union

of Public Employees, Local 963 v. New Brunswick Liquor Corporation.

112

Here the tribunal was a Public Service Staff Relations Board, constituted

by the Public Service Labour Relations Act 1973 whose decisions were

protected by the following privative clauses: section 101(1) reads ‘Except

as provided in this Act, every order, award, direction, decision, declaration,

or ruling of the Board, the Arbitration Tribunal or an adjudicator is final

and shall not be questioned or reviewed in any court’; section 102(2) reads:

‘No order shall be made or process entered, and no proceedings shall be

taken in any court, whether by way of injunction, certiorari, prohibition,

quo warranto, or otherwise, to question, review, prohibit or restrain the

Board, the Arbitration Tribunal or an adjudicator in any of its or his

proceedings.’

The Board had to interpret a particularly badly worded provision in

its statute on which turned the issue of whether management could do

the work of employees during a strike. The New Brunswick Court of

Appeal had held that the tribunal’s expertise had to do with the application

of the law to the particular facts of the dispute, so that the tribunal’s

interpretation of the provision had to be correct, that is, in accordance

with the reviewing judge’s understanding.

In the Supreme Court, Dickson J made it clear that judges had to take

the privative clause seriously, and hence should not use previously popular

devices in an attempt to read it out of the statute. But he was also careful

to state the view that it was not only the formal expression of legislative

intent in the privative clause that mattered, but also the good reason for

that formal expression – that an administrative agency is expert within

its specialized area of law:

Section 101 constitutes a clear statutory direction on the part of the Legis￾lature that public sector labour matters be promptly and finally decided by

the Board. Privative clauses of this type are usually found in labour rela￾tions legislation. The rationale for protection of a labour board’s decisions

within jurisdiction is straightforward and compelling. The labour board is

a specialized tribunal which administers a comprehensive statute regulat￾ing labour relations. In the administration of that regime, a board is called

upon not only to find facts and decide questions of law, but also to exercise

112 Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation

[1979] 2 SCR 227.

disobeying parliament 119

its understanding of the body of jurisprudence that has developed around

the collective bargaining system, as understood in Canada, and its labour

relations sense acquired from accumulated experience in the area.113

One natural way to understand Dickson J’s judgment in CUPE is as giv￾ing rise to two standards for review: correctness for jurisdictional issues

and patent unreasonableness for issues that fell within jurisdiction. It

seemed to follow from the Supreme Court’s subsequent jurisprudence on

s. 96 of The Constitution Act 1867, the provision which reserves to the

Prime Minister the authority to appoint judges to the superior courts, that

administrative decisions about the interpretation of the Constitution, the

common law, statutes other than the tribunals’ own constitutive statutes,

as well as the jurisdictional limits on delegated authority would all count as

constitutional.114 The last category was to be determined by a ‘pragmatic

and functional’ approach to statutory interpretation, one which sought

to reconcile the privative clause with the rest of the statute by working

out which provisions went to jurisdiction. In short, it might seem the

Canadian approach is reconciliation by another name, and, moreover,

one might expect the same result – the collapse of reconciliation into

evisceration. And, as the Supreme Court developed its jurisprudence on

deference, some of the judges made it clear that the collapse into eviscer￾ation was exactly their fear.

They saw two causes for alarm. First, Dickson J had warned that judges

should be wary of characterizing an error as jurisdictional in order to make

it reviewable on the correctness standard. However, it seemed that this

warning was not being heeded. Second, recall that on Dickson J’s approach

errors of law within jurisdiction are not deemed unreviewable: they will

be reviewed if they are manifestly or patently unreasonable. The same

113 Ibid., at 235–6. 114 The leading case is Crevier v. Qu´ebec (AG) [1981] 2 SCR 220. Laskin CJ, writing for the

Court, reacted adversely to an attempt by the Quebec Legislature to create a ‘Professions

Tribunal’ with exclusive appellate jurisdiction over the discipline committees of most of

the statutory professional bodies in Quebec and to make the decisions of the tribunal

‘final’ or not subject to judicial review. At 237–8, he held that a provincial legislature

is not permitted to create a non-s. 96 court whose main task is to act as a s. 96 court

would in reviewing administrative action (sentence construction). He also held that s. 96

provides a constitutional guarantee of judicial – that is, s. 96 court – review of provincial

statutory authorities for jurisdictional error. In his view, a privative clause in provincial

legislation achieves the right balance between the legislature and the ‘Courts as ultimate

interpreters’ of s. 96 and of the Constitution, as long as ‘issues of jurisdiction which are

not removed from issues of constitutionality’ are not shielded from review.