JUDICIAL REVIEW IN LABOUR LAW

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3 INDEX BIAS continued labour arbitration tribunal decisions continued personal animus continued racial comments, referral of matter to other arbitrator, preliminary views, generally, interest arbitrations, previous influences, chair feminist inclinations, involved in separate proceedings, previously acting as bargaining agent for employer, test for, tentative point of view, test, reasonable apprehension of bias, , two broad categories of, labour relations board decisions individual member, bias of early case law, general standard, reasonable apprehension test, , reasonable likelihood of bias test, specific and clear basis, tripartite panels, views, holding of, raising of issue, timing of, recent case law, disciplinary hearings, law firm representation, objective test, Supreme Court of Canada jurisprudence, administrative vs. elected officials, duty of fairness, reasonable apprehension test, institutional bias, conferring among board members, consultation process, avoidance of fact discussions, formal vs. informal, extradition procedures, fairness in labour relations context, fettering of discretion, I-3 December 2015

4 JUDICIAL REVIEW IN LABOUR LAW BIAS continued labour relations board decisions continued institutional bias continued labour boards, unique circumstances of, policy discussions, res judicata, application of, securities commissions, statutory adjudicator decisions, CAUSATION, EVIDENCE OF, CERTIFICATION CASES exceeding jurisdiction reasonableness of decision, , rules of procedure, subject matter jurisdiction, natural justice, offending rules of, CERTIORARI availability of, court s remedial power, s-1950s, privative clauses and. See PRIVATIVE CLAUSES CLASSIFICATION. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions, job postings and classifications COLLECTIVE AGREEMENT ARBITRATORS inferior tribunals, as, origins of, COLLECTIVE AGREEMENTS arbitration clauses, binding nature of, existence of, , , expiration of, , failure to consider, federal arbitrators and, grievance arbitration clothing industry, printing industry, railway industry, legal enforceability of, provisions of contrary to statute, I-4

5 INDEX COLLECTIVE AGREEMENTS continued rectification of, remedy contemplated by, status of, subject matter jurisdiction. See SUBJECT MATTER JURISDICTION, labour arbitration tribunals COMMON EMPLOYER DECISIONS in the 1980s, in the 1990s and following, CONSTITUTIONAL JURISDICTION Constitution Act, 1867, s. 96 judges, employers, inferior tribunals, labour relations boards, privative clauses, , 8.120, statutory adjudicators, of, subject matter jurisdiction, 6.160, 6.760, CONSTRUCTION INDUSTRY award of damages to unemployed non-employees, certification, judicial deference, reasonableness decisions in the 1980s, decisions in the 1990s and following, whether construction, wrong question asked. See WRONG QUESTION TEST, labour relations board decisions CONTINUUM OF REVIEW. See STANDARDS OF REVIEW CONTRACTING OUT. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions CORRECTNESS STANDARD application of, , , evidence, fairness in use of, s-1950s, preliminary or collateral matters, 4.520, privative clauses and, reasonableness, review for, , , I-5 December 2015

6 JUDICIAL REVIEW IN LABOUR LAW CORRECTNESS STANDARD continued remedy, no authority to give, standard of review analysis, statutory adjudicators and, 14.60, , , , subject matter jurisdiction, 6.760, DAMAGES. See REASONABLENESS, labour arbitration tribunal decisions DECLINING JURISDICTION labour arbitration tribunal decisions penalty, substitution of, post-new Brunswick Liquor, deference adjournments, bargaining unit, exclusion from, collective agreement, existence of, disciplinary action, discrimination claims, grievance procedure, failure to follow, production of documents, severance packages, time limits, intervention adjournments, classification grievances, collective agreement, expiry of, court decisions, application of, damages, discharge, failure to consider penalty of, estoppel, failure to consider, evidence, admissibility of, external statute, interest arbitrations, management rights, mootness, overtime, reinstatement, remedy, failure to award, return to work, temporary positions, jurisdiction, declining of, and legal right or obligation, I-6

7 INDEX DECLINING JURISDICTION continued labour arbitration tribunal decisions continued post-new Brunswick Liquor continued jurisdiction, declining of, and continued standard of review, wrong question test vs. failure to exercise jurisdiction test, pre-new Brunswick Liquor, deference collective agreement, expiry of, discharge, grievance, failure to raise argument in, irrelevant facts, jurisdictional disputes, statute, matters excluded by, time limits, failure to deliver award within, intervention arbitration, public attendance at, collective agreement determination of existence, failure of arbitration board to consider, factual misapprehension, functus officio, grievance, failure to answer question asked therein, job classifications, time limits, wage increases, refusal to hear relevant evidence, labour relations board decisions post-new Brunswick Liquor, deference, admission of certain evidence, certification provisions of Canada Labour Code, discretion, conflict of interest, law firm and lawyer, Crown immunity, decertification of union, failure to consider complaint beyond tribunal s powers, formal ratification vote, amendment to a clause, former and current versions, internal union matter, ratification, labour relations statutes, interplay between obligation to reasonably accommodate, I-7 December 2015

8 JUDICIAL REVIEW IN LABOUR LAW DECLINING JURISDICTION continued labour relations board decisions continued post-new Brunswick Liquor continued deference continued obligations under human rights legislation, petition accorded no weight, professional status of certain employees, reconsideration of own decisions, regulations, consideration of, remedy, order of particular, room and board allowance improperly received, unfair labour practice complaint, delay, increase in prevalence of applications, intervention, anti-certification petition, inquiry into, application by raiding union, failure to consider relevant provisions of statute, hearing, failure to hold, membership requirements, examination of, reliance on irrelevant consideration, mandamus issued, standard of review, pre-anisminic, , deference, certification application, union s second, certification order, declining to amend, decertifying previous union, declining to, functus officio, jurisdiction dispute, refusal to consider, representation vote, fraud and perjury disclosed, frequency of applications, intervention, , disclosure to employer of issues raised, employees, recently laid-off, wishes of, employer to, final offer, determination of, membership date determination, statutory membership in good standing, inquiry into, refusal to consider second union s application, requirement, pre-new Brunswick Liquor, deference, ballot, I-8

9 DECLINING JURISDICTION continued labour relations board decisions continued pre-new Brunswick Liquor continued deference continued based on evidence, constitutional jurisdiction, lack of, employee status determination, insufficient evidence to determine, refusal to file board order with court, intervention, application by second union, submissions but no evidence allowed, status as ground for review, Supreme Court of Canada jurisprudence, declining jurisdiction vs. refusal to hear evidence, deference discretionary power, untimely unfair labour practice complaint, intervention certification, statutory requirements met, finding of fact, no evidence for, interpretation of constituent statute, interpretation of jurisdiction, refusal to certify, when power is discretionary, refusal to hear evidence, distinguishing, remedy of mandamus, size of workforce, change in, consideration of, refusal to grant remedy, refusal to exercise discretionary power, DISCIPLINE, , INDEX DISCRIMINATION. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions DISMISSAL, DEFINITION OF. See STATUTORY ADJUDICATOR DECISIONS, exceeding jurisdiction DUTY OF FAIR REPRESENTATION DECISIONS, EMPLOYEE probationary, , status, I-9 December 2015

10 JUDICIAL REVIEW IN LABOUR LAW EMPLOYER constitutional status of, duty of fairness, non-constitutional status-of-employers issues, ESTOPPEL. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions EVIDENCE, ABSENCE OF labour arbitration tribunal decisions affidavit evidence, admissibility, causation evidence, complete absence of evidence, evidence absence of, , additional, evidentiary requirement for finding of fact, correctness standard, evidence absence of, , quality of, perjured evidence, interpretation vs. findings of fact, no evidence vs. sufficient evidence, quality of evidence, standard of review, reasonableness, sufficient evidence, deference circumstantial evidence, intervention evidence, absence of, summary, labour relations board decisions affidavits, early jurisprudence, absence of evidence, allegations vs. real evidence, findings in previous case, ignoring relevant evidence, insufficient constitutional facts, onus on applicant, insufficient evidence, , , majority support, determination of, I-10

11 INDEX EVIDENCE, ABSENCE OF continued labour relations board decisions continued early jurisprudence continued jurisdiction, requirement of facts to prove, misinterpretation of evidence, onus of challenging board inference, privative clause protection, requirement of some evidence to support, revision of evidence by courts, severable findings, recent jurisprudence, deference revision of evidence by courts, some evidence, findings based on, , intervention no evidence, findings based on, , no evidence objection, , reasonable inferences, drawing of, some evidence requirement, , natural justice, as a right to, patent unreasonableness test, as a subdivision of, reference to evidence adduced, summary, EVIDENCE, EXTRINSIC. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions EVIDENCE, FAIRNESS IN USE OF, see also EVIDENCE, USE OF RULES OF labour arbitration tribunal decisions basic rules, broad jurisdiction of arbitrators, degree of proof required, documentary evidence, fairness concern, hearsay evidence, lack of rules, refusal to hear evidence, relevant evidence, labour relations board decisions cross-examination, right to, onus misplacement of, I-11 December 2015

12 JUDICIAL REVIEW IN LABOUR LAW EVIDENCE, FAIRNESS IN USE OF continued labour relations board decisions continued onus continued reverse, paucity of jurisprudence, presentation of evidence and submissions, correctness requirement, discretion type of evidence, whether to apply rules, fairness requirement, formalism and inflexibility, avoidance of, reasonable approach requirement, relevant evidence, refusal to admit, rebuttal evidence, refusal to admit, 7.740, response to submissions, source of board rules, summary, EVIDENCE OR CRITERIA, IGNORING RELEVANT labour arbitration tribunal decisions collective agreement duty, failing to consider, , excluding relevant evidence as denial of natural justice, extrinsic evidence, ignoring relevant evidence as patent unreasonableness, intervention admission against interest, criminal proceedings, dismissals, evidence failure to admit, newly obtained, lay-offs, legislation, failure to consider, probationary employees, reinstatements, time limits, miscellaneous cases, duty to accommodate, grievance, dismissal before all evidence heard, weighing of vs. complete disregard, , I-12

13 INDEX EVIDENCE OR CRITERIA, IGNORING RELEVANT continued labour relations board decisions basis for review, board s guidelines, discretionary jurisdiction, where, disregarding vs. unworthy of credit, examples of matters ignored, natural justice, relationship to, patent unreasonableness standard, relationship to, post-new Brunswick Liquor cases, consideration of evidence adduced, irrelevant factors/evidence, deference, criteria or factors considered, bargaining unit, determination of appropriate, certification, employee support, unfair labour practice, evidence to the contrary, finding despite, evidence on critical points, failure to mention, relevance, determination of, statement of objection from opposing employees, successorship, unanimous employee opposition, pre-new Brunswick Liquor cases, certificate revocation, wishes of employees, compensation, quantum of, constituent statute, considering sections of, ignoring express provision in statute, mitigation of damages, resignation from union at certification, EVIDENCE, SUFFICIENT, EVIDENCE, USE OF RULES OF, see also EVIDENCE, FAIRNESS IN USE OF labour arbitration tribunal decisions arbitration boards vs. courts, deliberation, failure to, documentary evidence, evidence, failure to admit, extrinsic evidence, admission of, fact, findings of, , fairness, I-13 December 2015

14 EVIDENCE, USE OF RULES OF continued labour arbitration tribunal decisions continued labour relations boards vs. labour arbitrators, labour relations legislation, post discharge evidence, privileged evidence, proof, standard of, summary, labour relations board decisions. See EVIDENCE, FAIRNESS IN USE OF statutory adjudicator decisions, EXTERNAL STATUTES labour arbitration tribunals. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions labour relations boards decisions in the 1980s, decisions in the 1990s and following, subject matter jurisdiction, absence of, FAIRNESS, DUTY OF, see also NATURAL JUSTICE, RULES OF bias, employer s duty, evidence, re use of, 7.740, see also EVIDENCE, FAIRNESS IN USE OF labour relations context, procedural fairness requirement, 9.600, reasonableness and fairness. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions right to be heard, timeliness, FETTERING OF DISCRETION absolute rules and, institutional bias and, JUDICIAL REVIEW IN LABOUR LAW FINAL RELIEF quashing entire decision for bias, animus, personal, favouritism, errors of law, collective agreement, interpretation of, facts, findings of contrary to the evidence, I-14

15 INDEX FINAL RELIEF continued quashing entire decision for continued errors of law continued generally, labour relations statute, interpretation of, patent unreasonableness standard, natural justice, breach of, , , award, arbitrator issuing interpretation of, evidence, board s failure to hear all, notice of hearing, failure to give, , reply, failure to provide copy to other side, representation vote, refusal to permit scrutineer to attend, submissions, failure to provide opportunity to respond, remitting to differently constituted tribunal, bias, evidence extrinsic evidence, failure to hear, hearsay evidence, , key evidence, absence of, generally, memorandum of understanding, failure to address, natural justice, breach of, , original arbitrator, remittance to, patent unreasonableness standard, prejudging, procedural fairness, breach of, proper question, failure to answer, reasonably bear test, standard of proof, failure to understand, quashing in part, scope of court s remedial power, appeal vs. judicial review, certiorari, clarification, costs orders, discretionary nature of relief, mandamus, monetary damages, court s power to award, patent unreasonableness standard, prohibition, reconsideration, variety of remedies available, summary, I-15 December 2015

16 JUDICIAL REVIEW IN LABOUR LAW FORUM CONVENIENS, HEARING, RIGHT TO. See RIGHT TO BE HEARD IMPLIED DOCTRINES absence of subject matter jurisdiction, INFERENCES, EVIDENTIARY, INTERIM RELIEF breaches of natural justice, for, chair consult, failure to, familiar with employer s view of matter pre-hearing, former secretary-treasurer of employer, union nominee, employee of local, cross-examination, failure to allow generally, union nominee employee of local, local president, other forms of, interlocutory relief, mandamus, production orders, prohibition, , stays board level, at the, Alberta Labour Relations Board, , Canada Labour Relations Board, , generally, court, by the, automatic stays, balance of convenience, determination of, British Columbia courts, Federal courts, interim relief, court s jurisdiction to grant, 16.40, irreparable harm, determination of, serious question test, strict prima facie case test, test for granting, three part, summary, I-16

17 INDEX INTERIM RULINGS, see also PREMATURITY reasons for review, review of, JUDICIALREVIEW, see also LABOUR ARBITRATION TRIBUNAL DECISIONS; LABOUR RELATIONS BOARD DECISIONS procedure. See JUDICIAL REVIEW PROCEDURE standards historical development. See JUDICIAL REVIEW STANDARDS, HISTORICAL EVOLUTION modern evolution. See JUDICIAL REVIEW STANDARDS, MODERN EVOLUTION theoretical basis for, JUDICIAL REVIEW, FORUMS AND TIME FOR BRINGING interim rulings, review of. See prematurity, infra jurisdiction, geographical, British Columbia, Federal, , Ontario, Saskatchewan, mootness, bankruptcy, effect of, discretion, exercise of, examples of, factors to be considered, , , labour relations tribunals, applications of doctrine to, , legislation, change in, , picketing, , , test for, prematurity, interim rulings, review of, Alberta courts, British Columbia courts, denial of application, policy reasons for, factors, Federal courts, Manitoba courts, Newfoundland courts, Nova Scotia courts, Ontario courts, Prince Edward Island courts, Quebec courts, I-17 December 2015

18 JUDICIAL REVIEW IN LABOUR LAW JUDICIAL REVIEW, FORUMS AND TIME FOR BRINGING continued prematurity continued interim rulings, review of continued Saskatchewan courts, remedy, existence of adequate alternative, British Columbia courts, labour relations board, policy reasons for, reconsideration, power to, Federal courts, , Nova Scotia labour relations board, reconsideration, power to, Quebec labour commissioners, Supreme Court of Canada, , , , , test for, , summary, standing, individual standing generally, grievor, , individual employees, laid-off employees, non-bargaining unit members, replacement workers, union non-party to collective agreement, JUDICIAL REVIEW PROCEDURE Alberta, affidavits, originating notice of motion, powers of the Court of Queen s Bench, , Rules of Court of Queen s Bench, service, special chambers vs. trial list, time limits, written briefs, British Columbia, affidavits, Form 67 (response), I-18

19 INDEX JUDICIAL REVIEW PROCEDURE continued British Columbia continued Judicial Review Procedure Act, notice of hearing, , originating process, petition for judicial review, federal, affidavits and exhibits, time for service and filing, application procedure, application record, arbitrators collective agreement, unjust dismissal, boards and tribunals, court, jurisdiction of, cross-examinations, time for completing (Rules 84-86), Federal Court Rules, 18.40, form of application, Labour Relations Board, labour relations officials, notice of appearance, notice of application (Form 301), pre-hearing conference, requisition for a hearing (Form 314), service, time for bringing application, time limits, 18.60, tribunal materials, production of, final dispositions, final relief. See FINAL RELIEF geographical jurisdiction, federal arbitrators, federal boards, forum conveniens issues, interim relief. See INTERIM RELIEF interim rulings, generally, introduction, Manitoba, affidavits, applicant s brief, application for prerogative relief, arbitration award vs. labour relations board decision, Labour Relations Act, I-19 December 2015

20 JUDICIAL REVIEW IN LABOUR LAW JUDICIAL REVIEW PROCEDURE continued Manitoba continued notice, of application, requirement to give, Queen s Bench Rules, respondent s brief, review request prerequisite, service, time for bringing application, mootness application to review of labour relations tribunals, discretion of court to hear moot cases, general principles, New Brunswick, affidavits, appellant s submissions (Rule 62.14), application record, Court of Appeal, direct referral to, cross-examination, hearing date, establishment of, , interim order for stay, powers to make, notice of application, pre-hearing briefs, time for filing and serving, production, respondent s brief, respondent s submissions, return date, Rules of Court, service, time for bringing application, Newfoundland, application, , , notice of application, Rules of Supreme Court, service requirements, time for bringing application (Rule 54.06), Northwest Territories, affidavits, , briefs, hearing date, interim orders, I-20

21 INDEX JUDICIAL REVIEW PROCEDURE continued Northwest Territories continued originating notice, service requirements, pre-hearing conference, private sector arbitration, procedural steps, record for the court, relief available, time for bringing application, tribunal as respondent, Nova Scotia, notice of participation, originating notice requirements, procedural steps, record for the court, time for bringing application, Nunavut Territory, briefs, originating notice, , service requirements, procedural steps, relief available, time for bringing application, Ontario, affidavits and exhibits, appearance, filing of, application record and factum, , certificate of perfection, date of hearing, setting, Divisional Court jurisdiction, Judicial Review Procedure Act, notice of appearance, notice of application, provincial court jurisdiction, respondent s record, , Rules of Civil Procedure, time limits, , timing for bringing applications, premature applications, basis for finding prematurity, Federal Court position, interim rulings, policy against review of, I-21 December 2015

22 JUDICIAL REVIEW IN LABOUR LAW JUDICIAL REVIEW PROCEDURE continued premature applications continued privative clause, Quebec position, substantive vs. purely procedural rulings, Prince Edward Island, affidavits, , application record and factum (Rule 68.04(1)), , certificate of perfection, date of hearing, setting, extension of time, Judicial Review Act, jurisdiction of the Supreme Court of Prince Edward Island, notice of appearance, notice of application, respondent s record, Rules of Civil Procedure, timing for bringing applications, , , , , Quebec, affidavits, evocation, forum, originating process, service requirements, procedural steps, time for bringing application, Saskatchewan, affidavits, briefs, forum, hearing dates, (The next page is I-23) I-22

23 INDEX JUDICIAL REVIEW PROCEDURE continued Saskatchewan continued originating process, , service requirements, parties, record for the court, time for bringing application, standing limited to parties to collective agreement, where granted to individual employees, Yukon Territories, affidavits, hearing, originating petition, service requirements, parties, private sector labour arbitration, procedural steps, record for the court, JUDICIAL REVIEW STANDARDS, HISTORICAL EVOLUTION generally, Metropolitan Life case criticism of, discussed, s-1950s arbitration boards correctness standard, excess of jurisdiction, subjection to certiorari, confusion of approach, deference to board matter within board s discretion, minor role of, wrong conclusion, error re preliminary matter, exclusion of persons by union, interpretation of labour relations statute, jurisdictional excess, natural justice breach of causing loss of jurisdiction, 4.260, rules of, preliminary or collateral matters, reviewable for correctness, I-23 November 2013

24 JUDICIAL REVIEW IN LABOUR LAW JUDICIAL REVIEW STANDARDS, HISTORICAL EVOLUTION continued 1940s-1950s continued privative clauses, 4.80, interpretation of, Supreme Court of Canada s interpretation of, weak, quasi-judicial vs. administrative decisions, s lower court decisions decision within board s jurisdiction, deference to board s expertise, error in determining collateral question, preliminary issue, standard of correctness re, s-1990s decisions acceptance of collective bargaining in legal system, cases demonstrating, clear irrationality test, deferral to board s decisions, excess of jurisdiction, test for, legal academic opinion, New Brunswick Liquor case, patently unreasonable standard of review emergence of, expression of, preliminary or collateral question doctrine, privative clause, meaning of, Supreme Court of Canada expertise of tribunal, judicial non-intervention principle, scope of judicial review, establishment of, standards of review set by, post-new Brunswick Liquor, American vs. British approach, backsliding, board s interpretation of constitutional questions, its own statute, interpretation, error of, reading into statute absent provision, other statutes, , correctness standard, application of, , , , interpretation, employee, error of, I-24

25 INDEX JUDICIAL REVIEW STANDARDS, HISTORICAL EVOLUTION continued post-new Brunswick Liquor continued correctness standard, application of continued jurisdiction, determination of, arbitrarily, vs., truly jurisdictional questions, inconsistency, review for, judicial deference, , , administrative tribunal, (The next page is I-25) I-24.1 November 2013

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34 INDEX NATURAL JUSTICE, BREACH OF continued labour relations boards continued submissions, responding and making continued general continued Supreme Court of Canada continued procedural matters, post-new Brunswick Liquor access to medical information, application for a declaration, audi alteram partem, bias, certification proceedings, 7.420, 7.480, consent order, contentious issues, cross-examination, deference, 7.580, delay, effect of, displacement application, evidence, 7.440, 7.500, 7.520, expert evidence, hearing, failure to hold, 7.420, 7.480, notice, 7.600, 7.610, 7.620, status, interested parties, pre-anisminic adjournment, certification procedure, 7.220, cross-examination, jurisdiction, 7.220, notice, pre-new Brunswick Liquor adjournment, certification hearing, certiorari, 7.260, clarification of a decision, cross-examination, 7.320, evidence, failure to attend a hearing, 7.260, intervenor, status of, jurisdiction, notification, panel members private notes, reconsideration, 7.260, 7.280, written submissions, I-33 December 2015

35 JUDICIAL REVIEW IN LABOUR LAW NATURAL JUSTICE, BREACH OF continued statutory adjudicators bias Federal courts, adjudicator, unfavourable, comments by, adverse inference, failure to draw, premature application, racial bias, allegations of, settlement, adjudicator s attempt to mediate before merits heard, settlement proposals, one side s referral to, Quebec courts pre-judging, evidence, uses of rules of wide discretion to admit, general Federal courts adjournment, failure to grant, production, failure to allow, Quebec courts cross-examination, failure to provide opportunity to, production, failure to allow, standard of review, transcript, failure to provide, submissions, responding and making Federal courts prima facie case, failure to disclose, remedy, failure to allow submissions on, Quebec courts, evidence absence of, admissibility of, remedy, failure to allow submissions on, standard of review, wrong question, summary, NATURAL JUSTICE, RULES OF bias as breach of, certification cases breaching, excluding relevant evidence, interim relief for breaching of. See INTERIM RELIEF judicial review standards and, , 4.260, I-34

36 INDEX NATURAL JUSTICE, RULES OF continued labour arbitration tribunal decisions and. See LABOUR ARBITRATION TRIBUNAL DECISIONS labour relations board decisions and. See LABOUR RELATIONS BOARD DECISIONS privative clauses and, 8.60 quashing tribunal decision for. See FINAL RELIEF rules of evidence, use of, statutory adjudicator decisions and. See STATUTORY ADJUDICATOR DECISIONS PATENT UNREASONABLENESS STANDARD acceptance of, application of, , , , correctness standard, vs., , declining jurisdiction and, embrace of, emergence of, , 9.380, 9.440, 9.560, exceptions to, ignoring relevant evidence, , patently unreasonable defined, , post-dunsmuir, , prevalence of, privative clauses and, 9.900, 9.912, , reaffirmation of, reasonableness and, , , , , , refinement of, remedy, no authority to give, 6.980, , scope of court s remedial power, standard of review analysis, statutory adjudicator decisions and, 14.20, , , subject matter jurisdiction and, 6.620, , successor rights, PAY AND BENEFITS ISSUES. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions PENALTIES. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions I-35 December 2015

37 POSTING, JOB. See REASONABLENESS OF THE DECISION, labour arbitration tribunal decisions, job postings and classifications PREMATURITY adequate alternative remedy origin of doctrine, where statutory right of appeal, review of interim rulings Alberta, British Columbia, Federal Court, Nova Scotia, Ontario, policy reasons to discourage, Prince Edward Island, Quebec, rulings within vs. outside jurisdiction, Saskatchewan, PREROGATIVE WRITS certiorari. See CERTIORARI historical uses of, mandamus. See MANDAMUS origins of, 3.60 prohibition. See PROHIBITION rule of law and, superior court power re, theoretical justification for, JUDICIAL REVIEW IN LABOUR LAW PRIVATIVE CLAUSES labour arbitration tribunals, of no certiorari clause, standard, ad hoc vs. panel arbitrators, administrative bodies, incompatible orders from, Canada Labour Code, correctness standard, expertise of arbitrators, final, meaning of, final and binding clause, 12.80, interpretation of Bradco, external statutes, judicial deference, factors affecting, I-36

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42 PROCEDURE, RULES OF continued labour relations board decisions continued judicial review affidavits, notices, panels, change in,members, functus officio, as, number constituting, redeterminations, res judicata, application of, parties exclusion, status, reasons, statutory preconditions, time limits, transcripts, witnesses exclusion, summonses, PROHIBITION court s remedial power, interim relief, INDEX QUASHING A DECISION. See FINAL RELIEF RAILWAY BOARDS OF ADJUSTMENT, REASONABLENESS OF THE DECISION labour arbitration tribunal decisions arbitrability issues, arbitrability vs. jurisdiction, jurisdiction, standard of review applied, standard of review, collective agreement, status of, expiry at the time of grievance, previous collective agreement, grievances under, standard of review, tripartite agreements, contracting out, bargaining unit work, assignment outside of, collective agreement, restrictions, absence of, I-41 December 2015

43 JUDICIAL REVIEW IN LABOUR LAW REASONABLENESS OF THE DECISION continued labour arbitration tribunal decisions continued contracting out continued demotions, lay-off and recall rights, , standard of review, damages, illegal strikes and generally, deference after expiration of contract, blanket award, caused by strike, , interest, power to award, legal costs, mitigation, non-union contracting (subcontracting), for, related employers, supplementary award, intervention general damages, punitive damages, , standard of review, discipline, sexual harassment investigation interview, standard of review, discrimination, deference adverse effect discrimination, arbitrator s right to consider, duty to accommodate, mild disability, intervention duty to accommodate, human rights complaint, jurisdiction over, human rights legislation, consideration of, incapacity, release for, last chance agreements, mandatory retirement, marital status religious absence, standard of review patent unreasonableness standard, reasonableness, worker s compensation, deemed termination while on, I-42

44 INDEX REASONABLENESS OF THE DECISION continued labour arbitration tribunal decisions continued early jurisprudence, historical origins, collective agreement, disregarding or changing, consensual vs. statutory arbitrators, error on face of record, , failure to give notice, intervention, , judicial deference re rational decision, restrictions on, , trend toward, question of law, , restrictions on intervention, employer s duty to act reasonably and fairly. See reasonableness and fairness, infra estoppel, deference, intervention court decision, reliance on, misapplication of estoppel, representations, settlements, standard of review, jurisdiction of arbitrator, external statutes and general legal principles, benefit plan, collective agreement interpretation of, silence, vs. statute, Quebec Civil Code, day of rest legislation, education legislation, employment standards legislation, health and safety legislation, , human rights legislation, , legal principles, interpretation of, motor vehicle legislation, municipal legislation, Quebec Charter, registration of professional legislation, standard of review, unemployment insurance legislation, I-43 December 2015

45 JUDICIAL REVIEW IN LABOUR LAW REASONABLENESS OF THE DECISION continued labour arbitration tribunal decisions continued external statutes and general legal principles continued workers compensation legislation, extrinsic and other evidence, admissibility of, ambiguity, deference additional evidence, arbitration board s request for, admissions and denials, employment files, letters of reprimand, relevant evidence, failure to consider, intervention criminal court proceedings, different collective agreement practice, facts, failure to consider, past practice, post-discharge rehabilitation, work history, procedural fairness, standard of review, interest arbitration, standards of review, , job postings and classifications, deference additional duties, employer s ability to assign, apprenticeship program, grievance, right to file ( unclassified employees ), part-time employees, assignment to full-time positions, posting, requirement of, reclassification, rules, employer s ability to unilaterally establish, transfers, intervention collective agreement, re-writing of, grievance, refusal to hear, higher classification, performing work of, improper classification, jurisdiction, new classification, posting, exception to, qualifications, reclassification, I-44

46 INDEX REASONABLENESS OF THE DECISION continued labour arbitration tribunal decisions continued job postings and classifications continued intervention continued surplus position, existence of, vacancy, filing with less qualified employee, lay-offs, bumping rights, existence of, recall, patently unreasonable test, pay and benefits issues, deference acting pay, bereavement pay, right to when on vacation, bumping, collective agreement, incorporation of right in, drug coverage, entitlement, floating holiday benefits, hours of work determination of, reduction in, leave with pay, long-term disability benefits, denial of other collective agreement benefits while on, disentitlement to, meals, mileage allowance, overtime, , salary grid determinations, salary increment, salary payment, severance pay, , , service accrual, termination of, sick leave credit, termination pay, union fund, unauthorized deductions from, vacation entitlements, seniority vs. continuous service, vacation pay, accrual while on leave, vacation pay, generally, working conditions, change in, years of service, determination of, I-45 December 2015

47 JUDICIAL REVIEW IN LABOUR LAW REASONABLENESS OF THE DECISION continued labour arbitration tribunal decisions continued pay and benefits issues continued intervention association fees, benefits, decrease in, collective agreement, modification of, holiday, failure to report for work on, human rights legislation, insurance, obligations of employer vs. insurer, laser eye surgery, lieu days, meals, overtime entitlement, patent unreasonableness standard, pay increments, pension fund, salary red-circling, scale, severance pay, travelling time, pension plan, penalties, , deference balance of probabilities, standard, culminating event, excessive absenteeism, illegal drugs, progressive discipline, arbitration board s refusal to apply, reinstatement conditions, contract employees, generally, pay in lieu, refusal to award, , substitution of, , suspension, intervention absences without leave, assaults, burden of proof, I-46

48 INDEX REASONABLENESS OF THE DECISION continued labour arbitration tribunal decisions continued penalties continued intervention continued criminal court conviction, dismissal without cause, grievor, competency of, illegal drugs, possession of, penalties, substitution of, , , reinstatement, , , suspensions, time limits, standard of review, , , post-new Brunswick Liquor lower court decisions, judicial deference, language could reasonably bear test, patent unreasonableness test, reasonableness test, statutory vs. consensual arbitrators, Supreme Court of Canada decisions, ad hoc arbitrators vs. labour relations boards, correctness standard, judicial deference, jurisdictional questions, genuine, , patent unreasonableness standard, exceptions to, pre-new Brunswick Liquor decade judicial deference, , arrive at a wrong result test, , correctness standard, collective agreement, amendment to, doctrines, application of, employment standards legislation, frustration, inaccurate reasons, interest arbitrations, laches, application of, Ontario Division Court, privative clause, public service adjudicators, reasonably bear test, , , , I-47 December 2015

49 JUDICIAL REVIEW IN LABOUR LAW REASONABLENESS OF THE DECISION continued labour arbitration tribunal decisions continued pre-new Brunswick Liquor decade continued judicial intervention, arbitration awards, collective agreement in conflict with public statute, interpretation of, discharge, error on the face of the record, external statutes, extrinsic evidence, grievance procedure, failure to abide by, health insurance benefits, holiday pay, interest arbitration, job classifications, Ontario Labour Relations Act, penalty, substitution of, public service adjudicators, probationary employee, dismissal grievance of, reasonably bear test, supplemental unemployment benefits, time limits, wage rate, workers compensation legislation, language could reasonably bear test, , reasonableness standard, Supreme Court of Canada decisions, judicial deference, judicial intervention, probationary and casual employees, arbitrary or bad faith employer conduct, Charter violation, collective agreement amendment to, silent on status of probationary employees, grievance rights, casual employee rights, discharge, , , probationary employee rights, jurisdiction over, I-48

50 INDEX REASONABLENESS OF THE DECISION continued labour arbitration tribunal decisions continued probationary and casual employees continued labour relations statutes, application to probationary employees, other statutes, probationary vs. permanent status, reasonableness and fairness, deference collective agreement, implying term in, management rights clause, obligation to act reasonably, , rules, reasonableness of, , intervention bargaining unit work, assignment of, , implying duty on management , leave of absence, denial of, standard of review, , reinstatement, , remedial issues (other), authority to award position to grievor, deference certification application, job selection, performance reviews, intervention transfer to lower paying position, standard of review, seniority, deference bargaining unit, return to after promotion, bumping, job selection, lay-off, seniority, calculation of, intervention employee, definition of, seasonal employee, interpretation of, standard of review, , standard of review generally (lower courts), collective agreement, modification or addition to, consensual arbitrators and statutory arbitrators, I-49 December 2015