STILL HAZY AFTER ALL THESE YEARS

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2 ) STILL HAZY AFTER ALL THESE YEARS I. WHERE WE ARE 2 II. III. IV. WHERE WE HAVE BEEN WHERE WE GO FROM HERE A SCEPTICAL EPILOGUE

3 - 2 - For a start I propose to look at where we are. I will then review where we have been, and dare to suggest why. As if that weren't enough I will venture to argue for where we ought to be going. In conclusion a sceptical note by others will explain that the haze is in the air for a reason. WHERE WE ARE Mr. Justice Vancise concludes his thorough analysis of current Supreme court of Canada thinking on this subject, "From The Cornfields of ontario to Double Breasting in Newfoundland - What Does it all Mean: The Standard of Judicial Review Applicable to Labour Tribunals"l by posing the "interesting question" as to how the various courts of appeal will respond. Saskatchewan. well, we don' t have to wait any longer for the answer in The most recent judgment of the Court of Appeal, as at the date of drafting this paper, is CSP Foods Ltd. v. Grain Services Union, 2 which allows an appeal from a judgment of Gerein J. quashing the order of a labour arbitration board. 3 For simplicity I will restrict IIrj discussion to one issue as it nicely serves my purposes. The question before the court which interests me was whether deference was due the arbitration board's decision to admit extrinsic evidence. Gerein J. stood on no fewer than four judgments of the Court of Appeal. 4 1unpublished paper, February 11, Sherstobitoff J.A. for Cameron & Gerwing JJ.A. 3November 28, 1990, reported (1991), 88 Sask. R. 211.

4 - 3 - And he thought not because he took these cases to be settled law, following the lead of the Supreme Court of Canada, 5 imposing a duty on the arbitration board to correctly apply general principles of evidentiary law. Sherstobitoff J.A., for the Court of Appeal, thought otherwise on the ground that the arbitration board was protected by a privative clause in the canada Labour Code. Sherstobitoff J.A. sets down the following excerpt from the majority judgment of La Forest J. in paccar: 6 Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function; see Canadian Union of Public Employees, Local 963 y.=. New Bniii"""swiCk Liquor Corp., [1973J 2 S.C.R The tribunal has the right to make errors, even serious ones, provided it does not act in a manner 'so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review' (p.237). The test for review is a 'severe test'; see Blanchard v. Control Data Canada Ltd., [1984J 2 S.C.R.-476 at p This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. curial ~minion Stores Ltd. v. Retail, Wholesale and Department Store Union and MaIley, (1982 ) 17 Sask. R. 22; Mistikwa Community college y.=. Saskatchewan Government Employees' Association and Kennedy, (1983 ) 22 Sask. R. 121; Saskatchewan Government Employees' union v. Wascana Hospital, (1988 ) 66 Sask. R. 56 ; Saskatchewan Government Employees' Union v. Government of Saskatchewan, (1990) 82 Sask. R McLeod y.=. Egan, [1975J 1 S.C.R CAIMAW v. Paccar, [1989J 2 S.C.R. 983 at pp )

5 - 4 - deference is more than just a fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result 'patently unreasonable'.. The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should be not so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result. Privative clauses, such as those contained in SSe 31 to 34 of the Code, are permdssible exercises 'of legislative authority and, to the extent that they restrict the scope of curial review within their constitutional jurisdiction, the Court should respect that limitation and defer to the Board. as follows: The very next paragraph in Sherstobitoff J.A.'s judgment reads Other recent judgments of the Supreme court dealing with decisions of administrative tribunals protected by privative clauses are National Corn Growers Assn. V. Canada (Import TrIiiinal), [1990]-2-S.C.R. 1324; Lester ~ united Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; and Canada (Attorney General) ~ Public Service Alliance of Canada, [1991] 1 S.C.R In generaltems, these cases were decided along the lines of the principles stated by La Forest J. in Paccar, although the lack of unanimity as to the result in each case shows the difficulty of application of the principles to particular decisions. So, there we have it. It is not only C.U.P.E. business as usual in this province. The Court is prepared to build on C.U.P.E.; to be deferential to arbitration boards, if they are protected by privative clauses, even when they make interpretive rulings on matters of general

6 - 5 - codldon law. And, it may even come to pass that the absence of a privative clause may not produce any different result, at least in areas of general law which pertain to the special role of an arbitration board. That is what I will argue in the final part of this paper. WHERE WE HAVE BEEN There is no better guide on this issue than Madam Justice Wilson's judgment in National Corn Growers.? In her concurring opinion one finds a thorough canvass of all the important cases and of the literature in the field of judicial review of administrative tribunals in Canada. 8 Her discussion under the heading "What C.U.P.E. Sought to Leave Behind,,9walks the reader through the rationale for the adoption of a standard of curial deference in C.U.P.E And then goes further to discuss Brian Langille'S contention that, in the aftermath of C.U.P.E. the Supreme Court of Canada developed a "restrictive and unified" theory of judicial review [1990] 2 S.C.R Professor Langill;'l observes that "[a]fter 12CUPE, Volvo, and Douglas Aircraft, three of the four necessary parts of the theory were in place. Labour board protected by a privative clause, consensual arbitrators, and statutory arbitrators were all to be dealt with in 8some seventeen authors are cited. 9Ibid at 1332 to Ibid at [1980] 1 S.C.R [1980] 1 S.C.R )

7 - 6 - accordance with the new restrictive version of judicial review. The missing part of the puzzle was a labour relations board not protected by a privative clause". see B. Langille, "Judicial Review, Judicial Revisionism and Judicial Responsibility" (1986), 17 R.G.D. 169, at p He suggests that the final element was put in place in Alberta union of Provincial Employees, Branch 63 v. Boardof Governors of aids College, [1982] TS":""c.~ In that case, Laskin C.J. dealt wj.th a board that was not protected by a privative clause and observed that given the extensive powers which The Public Service Employee Relations Act, A.A. 1977, C 40, conferred on the Alberta Public Service Employee Relations Board, certiorari "is a long way from an appeal and is subject to restriction in accordance with a line of decisions of this Court which, to assess them generally, preclude judicial interference with interpretations made by the Board which are not plainly unreasonable" (p. 927). A bit more needs to be said about Professor Langille's "restrictive and unified" theory of judicial review. In his very first article advancing this thesis Langille argued that aids College was the final piece in the puzzle because it said that deference was due a labour board unprotected by a privative clause just as deference was said in Douglas Aircraft to be due to arbitrators who were unprotected by a privative clause. 13 The point being made here by Langille is that the deference is due on the footing of the court having recognized that the arbitrator or the labour board is a "specialized tribunal". And, the Alberta Labour Board is no less specialized, in the opinion of the Court in aids College, just because it does not happen to be protected by a privative clause. 13Brian Langille, "Developments in Labour Law: The Term", (1983) 5 Supreme Court Law Review 225 at 250.

8 - 7 - This brings me to the.point where an explication of the "why" question might be helpful. The theory which drives C.U.P.E. and leads directly to Langille's post-c.u.p.e. conclusion is "liberal pluralism". In short, this theory rejects a simplistic unified "Rule of Law" approach towards judicial review. The unified theory sees all law worth mentioning as being within the realm of the courts and contained within a single pyramid, with the Supreme Court at the apex. The high water mark of this Dicean theory was achieved with the publication of The New Despotism in 1928 by Lord Hewart of Bury. Madam Justice Wilson quotes from The New Despotism the warning that: Between the "Rule of Law" and what is called "administrative law" (happily there is no English name for it) there is the sharpest possible contrast. Qni4is substantially the opposite of the other. The pluralist theory rejects this pyramid-like image. Pluralism's most passionate advocate is Harry Arthurs. Madam Justice Wilson quotes from Arthurs' "Protection against Judicial Review" article 15 in National Corn Growers: 16 There is no reason to believe that a judge who reads a particular regulatory statute once in his life, perhaps in worst-case circumstances, can read it with greater fidelity to legislative purpose than an administrator who is sworn to uphold that purpose, who strives to do so daily, and is well-aware of the effect upon the purpose of the various alternate interpretations. There is no reason' to believe that a legally-trained judge is better qualified to 14supra, note 7 at (1983), 43 R. du B. 277 at p supra, note 7 at )

9 - 8 - determine the existence or sufficiency or appropriateness of evidence on a given point than a trained economist or engineer, an arbitrator selected by the parties, or simply an experienced tribunal member who decides such cases day in and day out. There is no reason to believe that a judge whose entire professional life has been spent dealing with disputes one by one should possess an aptitude for issues which arise often because an admdnistrative system dealing wi th cases in volume has been designed to strike an appropriate balance between efficiency and effective rights of participation. In the cases of labour boards or arbitrators, the specialized nature of their work, which calls for deference from the judiciary, is discussed by Richard Brown in "DevelOPments in Labour Law: The Term".17 He notes that the men and women who act as labour law adjudicators are specialized in industrial relations not just when they are first appointed but their specialization and expertise grows over time. In Brown's words, their skills are "subsequently honed by complete submergence in labour law adjudication". He adds: In addition, most labour relations boards and many arbitration boards are tripartite in nature, comprised of a "neutral" sitting between two "wingers", one drawn from each of the labour and management communities. This range of experience enhances not only the quality of decisions but also their acceptability. finally, these tribunals do not work under the cloud cast over judges by the history of judicial animosity to labour. At labour board and arbitration hearings, the process of adjudication is informal. As the rules of evidence are relaxed and trappings like robes and raised benches absent, employer and trade union representative are more likely to feel comfortable and competerta if they decide to appear without lawyers. 17(1986) 8 Supreme Court Law Review 297 at Ibid at

10 WHERE TO GO FROM HERE It seems to me that the Saskatchewan court of Appeal is generally headed in the right direction. In CSP Foods 19 Sherstobitoff J.A. quotes at length from the dissenting judgment of Lambert J.A. of the Bdtish Columbia court of Appeal, which was adopted by the Supreme Court of Canada in Telecommunication Workers Union v. British Columbia --- Telephone Company20on the subject of the rationale for curial deference to arbitrators: The basis for the principle of curial deference is that there is a dynamdc in the resolution of a labour dispute that requires that the dispute be resolved by a process that commands the respect of all the parties. It is the adherence of the parties to the process that causes them to accept the result. A result that is seen as being forced on one or the other party by the law or by the courts may be perfectly satisfactory for a static relationship, where the parties do not have to live together, day in, day out. But where the parties have been intertwined in the past, are entangled in the present, and are going to be bound together in the future, it is essential that they consent to and trust the process that adjusts their differences. 2 What needs to be noticed in this discussion is the absence of any reference to the presence or absence of a privative clause. The point of deference is the recognition of the arbitration board's specialized function and expertise. This is there whether or not the arbitration board is statutory, consensual, protected by a "full" privative clause, 19supra, note 2 at QL page [1988] 2 S.C.R Ibid at QL pp ) /

11 ). or a "near-privative" clause.22 Why then does Sherstobitoff J.A. give the important role that he does to the presence of a privative clause in the Canada Labour Code? The answer lies in La Forest's flawed judgment in paccar 23. La Forest J. does not even mention Volvo, Douglas Aircraft or Olds College, let alone Langille's article. Basically, he mdsses the point by placing his feet on that portion of C.U.P.E. which discusses the privative clause contained in the New Brunswick Public Service Staff Relations Act. 24 However, one need only look to Dickson J.'s judgment in C.U.P.E. to see that the privative clause is just another sign post pointing in the direction of deference. The main ground for deference is the status of the labour board as a "specialized tribunal": The rationale for protection of a labour board's decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which admdnisters a comprehensive statute regulating labour relations. In the admdnistration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise 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 22This term is coined by Mr. Justice Tallis in Wascana Hospital, Supra, note 4 at 67. At para. 25, Tallis J.A. notes that where a collective bargaining agreement has a clause prohibiting'strikes during the life of the agreement, s. 25(1) of The Trade Union Act is thereby invoked which brings its "near-privative clause into play". If one thinks that the presence of a privative clause makes all the difference in achieving curial deference, in the aftermath of CSP Foods, then there is ample room to argue that an arbitration board under the Saskatchewan Act is protected by a privative clause. 23supra, note 6 at Ibid at 1004.

12 area This tells us all that we need to know about where we ought to be going. I suggest that it can be brought down to one doctrinal sentence. "curial deference is due to specialized tribunal.'s when they are operating on their own ground." CSP FOods is correctly decided by the lights of this doctrine because a lay arbitration board, chosen by the parties, answering evidentiary questions put to it by the parties is surely "on its own ground". If it falls a little short of correctly applying the doctrine of extrinsic evidence it is not to be reviewed on a "correctness standard". Sherstobitoff J.A.' S reasons on this point are as follows: The award, assessed as a piece of legal draftsmanship, was long, rambling and imprecise. The employer said of it that it was "convoluted and internally inconsistent and it is difficult to extract from the Arbitrator's discussion exactly what he perceives to be the essential facts and issues. " None of this is surprising when one considers that none of the board's members were lawyers, that the grievance was put in very general terms, and that the board was required to consider not only the interpretation to be made of the terms of the collective agreement, but was also called upon by the parties to apply rather complex legal doctrines such as patent and latent ambiguity, admissibility of extrinsic evidence as an aid to interpretation, and the applicability of the equitable doctrine of estoppel. These are matters which are often difficult for lawyers and judges. Given that the parties chose the arbitrators and the issues to be decided by them, one should not be quick to criticize - the problem was largely of their own making. Their choice of non-lawyers to decide complex legal questions did not indicate expectations of the highest standard of 25[1973] 2 S.C.R. 227 at pp )

13 legal analysis I note that there is no mention in this "the parties made their bed so should not be heard to complain about lying in it" discussion of the privative clause. The argument would hold whether or not there was a privative clause. Thus, though a clear signal alerting a court to be deferential is the presence of a privative clause, I would insist that, although it is a sufficient signal, it is not a necessary signal. Otherwise, Douglas Aircraft and Olds College make no sense. And one is left with no coherent theoretical explanation for judicial review being sometimes deferential and sometimes not. More needs to be said about what I mean by "the ground". Staying with the forum of arbitration, there is no question but that interpretation of the collective agreement is included. I would argue that process issues are as well. Thus, questions of how the arbitration board went about finding its facts and conducting its hearing are also included. In addition to CSP Foods, we. are in a position in this province where the reviewing court has no transcript of evidence or arbitrator's notes before it for microscopic scrutiny.27 But, as I have elsewhere argued, questions of external law, such as the interpretation of human rights, are not "the ground" of the arbitration board.28 26Ibid at QL p Saskatchewan Insurance Office and Professional Employees' Union v. Saskatchewan Government Insurance;-[1984] 4 W.W.R See now, Q.B. Rule No Note, City of Regina v. Amalgamated Transit union Division No. 588 and Setter, (1977) 41 Sask. L. Rev Note, St. Paul's Roman Catholic Separate School ~ C.li.P.E. and Huber, (1988) 67 Can.-aat Rev. 364 (Where I argued that the Saskatchewan Court of Appeal went astray in (Footnote continued)

14 Though arbitrators should address such interpretive challenges, the standard for judicial review is correctness because the issues involved do not arise from the specialized function of arbitration. Another example would be interpretation of the Charter. A little over a year ago, the Supreme Court published its judgments in Douglas colleg~.29 The facts were that two Douglas College faculty members grieved their forced retirement. Their collective agreement provided for mandatory retirement at age 65. Before arbitrator B.H. McColl, Q.C. the union challenged this clause as violating s. 15(1) of the Charter. In a preliminary award, arbitrator McColl ruled that the Charter applied directly to the collective agreement because Douglas College was an arm of the government 30 and accordingly the collective agreement amounted to "law" for the purposes of s. 52(1) of the Charter. The Supreme Court sustained arbitrator McColl on both points returning the matter to him for consideration of the grievors' Charter challenge to the collective agreement's mandatory retirement clause. In authoring the Court's plurality opinion, La Forest J. notes that there are clear advantages to such an approach as it permits the crucial Charter issue to be raised and ruled upon at the earliest stage ".. in the context in 28 applying the doctrine of curial deference to a consensual arbitrator's interpretation of "marital status" as employed in the collective agreement and as defined by regulation under The Saskatchewan Human Rights Code); "Arbitral workplace Issues in Human Rights" (1991) Proceedings of 9th.Annual Alberta Labour Arbitration Conference. (forthcoming) 29Reported sub nom DouglasjKwantlen Faculty Association v. Douglas College, (1990) 91 C.L.L.C. 17,002, p. 16, s. 32 of the Charter provides that: (1) This Charter applies (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. )

15 which it arises without the citizen having first to resort to another body, a court which will often be more expensive and time-consuming".31 He adds: There are, as well, clear advantages for the decision-making process in allowing the simple speedy, and inexpensive processes of.arbitration and administrative agencies to sift the facts and compile a record for the benefit of the reviewing court. It is important, in this as in other issues, to have the advantage of the expertise of the arbitrator or agency. '1tult specialized competence can be of invaluable 3~sistance in constitutional interpretation. [Emphasis added] La Forest then proceeds to reject the College's argument that the relatively informal arbitration process is not well suited to the volume or nature of evidence that would be entailed in adjudicating Charter issues. He says that he: cannot accept the college's contention that the interpretation and application of the Charter is vastly different from the application of ordinary statutes for which arbitrators are responsible. For example, there is little difference in certain provisions of the Human Rights Codes. which arbitrators may hold to ~~erride provisions in collective agreements.. Finally, La Forest J. asserts that "constitutional determinations by 31Ibid. at p. 16, Ibid. at pp. 16, Ibid. at p. 16,021. one needs to realize that La Forest J. is alluding to his reference in Robichaud v. The Queen, (1988) 40 D.L.R. (4th) 577, to human rights codes enjoying almost constitutional status because they embody "certain basic goals of our society". (It might be noted here that this point was first made in Canada by Vancise J.A. in Huck v. Canadian Odeon Theatres Ltd., (1985) 6 C.H.R.R. 0/2682 (Sask. C.A.)-) -

16 arbitrators or other administrative tribunals or agencies should, of course, receive no curial deference". 34 A SCEPTICAL EPILOOUE Mr. Justice Vancise raises, in his paper, a question about noticing who the applicant for judicial review is. He notes with interest that, in Paccar the unsuccessful applicant was a trade union. Lester and P.S.A.C. were successful applications by employers. The point is brought home by this conunent: I ask the question without answering it as to whether or not the result would have been the same had a trade union moved to set 3~side a decision of the Board in Lester. Brian Etherington argues the sceptical position in "Arbitration, Labour Board and The Courts in the 1980's: Romance Meets Realism".36. y Etherington's case is that the "liberal pluralist" view was never really endorsed by the courts. He takes issue with Langille's "romantic" conclusion that a "unified and restrictive" theory of judicial review was ever endorsed by the Supreme Court. Etherington's conclusion is that judges continue to intervene when faced with decisions by labour boards or arbitrators which do not comport with their own values and strongly held ideological preferences. 37 In qther words, the search for 34Ibid. at p. 16, supra, note 1 at p (1989) 68 Can. Bar Rev He approves of Harry Glasbeek' s radical critique in "Voluntarism, Liberalism and Grievance Arbitration: Holy Grail, Romance and Real (Footnote continued) )

17 clarity in this atmosphere is a fool's errand. In "Real Life" courts serve the interests of capital any which way they can. Period. 37 Life" in G. England (ed.), Essays in Labour Relations Law (1986). In this piece, Glasbeek describes the liberal pluralist explanation of the adoption of collective bargaining as a device to increase worker voluntarism through increased bargaining power as the "tourism theory" of the relationship between liberal aims and collective bargaining. For Glasbeek the structures of collective bargaining came about because the state chose to put a stop to the great confrontations between capital and labour in order to achieve industrial peace. For Glasbeek, to suggest that there is a liberal pluralist theory at the bottom of the institutions of labour and arbitration boards is like saying that the forces which created Niagara Falls did so with the intent to further the objectives of tourism.