Labour Tribunals In Canada – Where Are We Headed?

By Larry W.O. Smeets


In a recent article entitled “Labour Tribunals In Canada:  Reflections On A Troubling Trend”, I suggested 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.  I would now like to outline, as a follow-up to what is said in that article, my view on the overall impact of such attempts to circumvent judicial oversight.

To answer such a question, we must begin with a review of the actual power of the courts in Canada.  Canadian courts lack a clear constitutional mandate to check the actions of legislators intent on undermining judicial oversight.  On this particular point, it may come as a surprise to many to learn that Canada lacks a constitution containing a clear separation-of-powers doctrine (see Peter Hogg, Constitutional Law Of Canada 5th Ed. Suppl., Section 8.6(c) for a discussion of this).  The country’s founding document, the Constitution Act, 1867, does not recognize separate legislative, executive, and judicial branches.  The boundaries between the executive and legislative branches are particularly muddied, with the same body of people, the cabinet, directing both branches.

The penchant on the part of many legislators to undermine judicial oversight has given rise to a dilemma in the courts.  The nature of this dilemma was explained by Mr. Justice Rothstein of the Supreme Court of Canada in the leading administrative law case Canada (Citizenship and Immigration) v. Khosa.  Mr. Justice Rothstein drew attention in that case to how such efforts by legislators constituted a veiled attack on the rule of law itself:

“… Strong privative clauses [i.e., in legislation, proscribing judicial review of administrative decisions] reflected the legislature’s intent to make administrative decisions final and thereby beyond the purview of judicial scrutiny.  This conflicts with the rule of law principle of accountability, for which access to courts is necessary….” [ See Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 (CanLII), at paras. 75 and 81]

Mr. Justice Rothstein explained how the constitutional power-grab by legislators (these are my words, not His Lordship’s) led the courts to come up with the notion that courts should defer to the expertise of administrative decision-makers:

“The legislature’s desire to immunize certain administrative decisions from judicial scrutiny conflicted with the constitutional supervisory role of the courts and, as such, required a juridical response that could reconcile these competing requirements.  Deference and standard of review was the result ….” [ See Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 (CanLII), at paras. 75 and 81]

The progressive application by the courts of the doctrine of curial deference to the decisions of administrative tribunals has given rise to the reasonable apprehension that labour tribunals in Canada are more and more immune to judicial intervention.  From where I stand – in the legal trenches, so to speak – since the mid-1990s there has occurred under the leadership of the Supreme Court of Canada a progressive erosion of the power of the Canadian courts to exercise judicial oversight over the decisions of labour tribunals. This development is giving rise, in turn, to the sense that barriers have been erected between workers in collectivized workplaces and the courts of justice; and that administrative labour decision-makers are now essentially a law unto themselves.  This is opening the door in turn to erosion of the fundamental principle that Canada is subject across the board to the rule of law.

In such a legal order there may exist a misconception that so long as the actions of the labour tribunal are authorized by legislation, the Rule of Law is preserved.  However, the fact that someone has legal authority to act in the manner he or she does, does not mean that the law gives him or her power to act arbitrarily.  In such a legal order arbitrary power is attained by constitutional means.  In such a legal order bureaucratic power thrives on ambiguity; and it grows increasingly difficult as the legal order establishes itself for individuals to know precisely how the state will affect their actions.  The fact that the actions of officials are authorized by legislation does not mean that the Rule of Law will be upheld.  The use by the government of its coercive powers is no longer defined by pre-established rules.  Broad powers are conferred on administrative tribunals the actions of which are not subject to fixed rules, and the discretion seems to be unlimited.

Should that occur, then one can do well to heed the warning of R. MacGregor Dawson in his classic study The Government of Canada:

“few can contemplate with equanimity any substantial interference with so fundamental constitutional principle as the rule of law.  For while discretionary power does not necessarily result in arbitrary power in the sinister sense (the officials being subject to a number of very potent restraints of various kinds), it does introduce the possibility of ill-controlled authority; it will always raise a strong suspicion of abuse; and on many occasions the inability of the injured party to appeal to the courts cannot fail to convert suspicions into apparent certainties….”  [5th ed., revised by Norman Ward, University of Toronto Press, 1970, at page 272]

Looking down the road, in my view the long-term danger inherent in such a trend is a return to a legal order in which rule is based on status, as distinct from based on laws that are known and the application of which is predictable.  That is something that should cause all Canadians concern.

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