Labour Tribunals In Canada: Reflections On A Troubling Trend

By Larry W.O. Smeets


In Canada particularly since the First World War of 1914-1918, the role of government in society has expanded considerably.  Such change has involved an increase in the total number of civil servants employed by all levels of government, and assigned with responsibility for managing the vast increase in social and economic regulation.  As the institutions of the Canadian state have grown, increased discretion has been vested in such officials to manage the affairs of state.  In effect the democratically-elected body has relinquished its powers to the civil servant.  Delegation is often resorted to because it is not possible to regulate the matter at hand by means of general rules, but only through the exercise of discretion in the decision of particular cases.

Responsible officials are given power to make with the force of law decisions that at times on their face appear to be arbitrary in nature.  As a response Parliament and several provincial governments have assigned to many officials responsible for regulating labour relations a broad role in adjudication of contested issues involving Canadian citizens and others subject to the power of their particular department or ministry.  Administrative tribunals have been established to review and oversee work of the decision-makers.

In effect, the legislative branch has assigned to the executive branch an expanded role in adjudication.  At the same time such governments, showing their inherent desire to free their decision-making from the shackles of judicial oversight, have passed laws which prevent the courts from reviewing the decisions of administrative decision-makers.  In my view recent trends in the law give cause for concern that the power vested in such labour tribunals is growing to a point where there is almost no effective judicial oversight of their decisions; and I find that trend troubling.

Such administrative tribunals are found at both the Federal and provincial levels of the Canadian state, and include a wide range of government agencies.  At the Federal level the list of such tribunals includes the Public Service Staff Relations Board (which regulates relations between Federally-regulated employers and unions) and the Public Service Staff Staffing Tribunal (which regulates hiring in the Federal public service).  At the provincial level in British Columbia alone, the list of such tribunals includes the Labour Relations Board (which regulates relations between provincially-regulated employers and unions) and the Workers Compensation Board (which regulates the treatment and compensation of persons injured in the workplace).

Such tribunals are staffed by salaried public servants.  Embedded in the government bureaucracy at all levels, such public servants are charged with responsibility for reviewing ground level decisions of arbitrators, unions, and officials.

From a distance, many labour tribunals bear the trappings of a court.  Granted, those who preside over proceedings do not yet wear judicial robes or require that they be addressed as “Your Honour” or “My Lord/My Lady”.  But when you look closely at the procedural rules they follow, often you will find that they enforce many of the same types of procedural rules that are enforced by courts.  People before the tribunal often are subject to many of the same type of obligations as adversaries in a proceeding before a court.  This can include, for example, an obligation to give notice about proceedings as they are commenced and as they proceed; or a requirement to disclose evidence they intend to rely upon as their case proceeds; or a requirement that any hearing of their case take place in a public setting; or their right to be given reasons for a decision made by the tribunal.

But while these tribunals are court-like in appearance, they are not true courts.  So what role is it exactly that they do play?  To answer such a question, it is helpful to begin with a rehearsal of some fundamentals.

As classical political theorists have taught us, there are three separate branches of government: a legislative (or law-making) branch, an executive (or administrative) branch, and a judicial branch.  The rationale underlying a division of powers between politicians, bureaucrats, and judges was explained with particular clarity by the French political philosopher Montesquieu (1689-1775).  He wrote in The Spirit of Laws:

“… there is no liberty, if the judiciary power be not separated from the legislative and executive.  Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator.  Were it joined to the executive power, the judge might behave with violence and oppression.” [See Montesquieu, The Spirit of Laws, trans. by Thomas Nugent (New York, 1900), I, 182-183]

But we do not need to rely on the wisdom of classical political theorists to appreciate this.  An awareness of the distinctive role played by different actors in government is fundamental to our understanding of how our society works; and of what our options are when things do not go well for us.  If we do not like a particular law that has been passed, then we say we will “take it into court” – perhaps under the Canadian Charter of Rights and Freedoms.  If we do not like the way a particular official is applying the law, meanwhile, we will challenge that decision in court.  To be sure, Canadians may be unhappy with the courts at times.  But they continue to hope that judges will be impartial umpires, and will serve as a last time of defence in ensuring that the rule of law is maintained and the country’s democratic freedoms are protected.

The reasons why Canadians feel this way are summed up aptly by R. MacGregor Dawson in his classic study The Government of Canada:

“The function of the judiciary is primarily the settlement of disputes which are brought before the courts for that purpose.  But in the course of performing this function, the judge does more than simply impose a punishment or deliver a judgment.  He must interpret the laws and give them clarity and fuller meaning.  He stands as guardian to see that the rule of law is maintained: to ensure that no one will be punished except for a breach of the law, and to nullify the acts of any government or government official which are not legally authorized.  The citizen therefore looks to the courts for the protection of his rights not only against his fellow-citizen, but against his government and its agent; and … abuses of official discretionary power find their most determined opponent in the courts of law ….”  [See R. MacGregor Dawson, The Government of Canada 5th ed., revised by Norman Ward, University of Toronto Press, 1970, at page 383]

Returning now to consideration of what role exactly is played by labour tribunals, one thing that stands out is the fact that the decisions of many of these tribunals are expressly insulated from judicial review by their enabling legislation.  The Public Service Employment Act S.C., 2003, which regulates relations in the Federal public service, is one illustration.  That statute provides the following in respect of decisions of the Public Service Staffing Tribunal:

“102.(1)Every decision of the Tribunal is final and may not be questioned or reviewed in any court.

(2)               No order may be made, process entered or proceeding taken in any court, whether by way of injuction, certiorari, prohibition, quo warranto or otherwise, to question,      review, prohibit or restrain the Tribunal in relation to a complaint.”

Another example from the Federal level is the Public Service Staff Relations Act, which governs employer-employee relations in the Federal public service.  This statute provides with respect to decisions of the Public Service Staff Relations Board that:

(3)               “51.(1)Subject to this Part, every order or decision of the Board is final and may not be questioned or review in any court, except in accordance with the Federal Courts Act on the ground referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.”

The Labour Relations Code, RSBC 1996, chapter 244, passed into law by the British Columbia legislature, is an illustration from the provincial level.  That statute provides that decisions of the Labour Relations Board are similarly not to be subject to judicial oversight:

“138.   A decision or order of the board under this Code or a collective agreement on a matter is respect of which the board has jurisdiction is final and conclusive and is not open to question or review in a court on any grounds.”

Such provisions demonstrate that legislators in Canada really do not want labour bureaucrats to be held accountable for the way in which they exercise power over the labour force.  What remains to be determined is the long-run impact of such attempts to circumvent judicial oversight.  I will consider that in a future article.

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