Prof. L. Garib Saturday, June 16th 2012

MCP013 Labour Relations Sprott School of Business

Carleton University

Judicial Review

What is Judicial Review? When Does It Apply? Grounds for Judicial Review How does It Work?

Definition of Judicial Review Review of an administrative

decision by the courts Reviews the process of the decision It’s a narrow power of the court Court reviews the entire decision-

making process, including the findings of fact and of law

What is Judicial Review?

Court does not concern itself with the wisdom of the arbitrator/adjudicator/decision maker’s decision. Court does not “re-hear” or “re-try” the case on its merits.

Court’s only concern: Did the arbitrator or labour board

properly exercise its authority ? E.g.: Exceed jurisdiction under the statute or

collective agreement? Was the decision unreasonable ? Correct in law (under statute, procedural

fairness)

Judicial Review is NOT an Appeal An appeal is a review of a case on its

merits Merits concern the issues of the case –

the heart of the dispute Merits include assessing the facts and

the arguments in favour or against the parties

Appeals are NOT about the decision making process – Judicial Reviews ARE

When Is Judicial Review Used?

The losing party can seek JR if they believe that the arbitrator or board:

Made an error in FACT - on the record that was before him/her at the time of their decision

Made an error in LAW; interpreted the law incorrectly; went beyond their authority; was biased; didn’t allow one side to be heard

When Is Judicial Review Used?

When a decision involves a vital or novel principle in law that hasn’t been tested yet.

When it involves an important issue of

public policy.

What are Grounds for Judicial Review?

1. Was there a procedural error? Decision makers must be

procedurally fair Was there a “fair” hearing? Were the

parties given a right to be “heard”? Was the decision maker neutral or

unbiased?

What are Grounds for JR?

2.) Did the arbitrator exceed his/her jurisdiction under statute or the terms of the collective agreement?

E.g. made an order or finding not permitted. E.g. Dealt with subject matter not in

jurisdiction – about non-unionized workers, not involving labour relations matters

How Does Judicial Review Work ? Either Party can apply for judicial

review It’s in the form of a Court Application –

before Provincial or Federal Court Set out alleged grounds and desired

remedy Timelines set in statute – usually must

make application within 30 days

How Does Judicial Review Work ? No New Evidence can be introduced. No New Issues can be introduced. *It’s NOT a Re-hearing of the case!* Courts will not impose their decision over

that of the arbitrator unless there is a reviewable error – an unreasonable decision or a decision incorrect in law

Available Remedies

1. Quash or set aside the award in its entirety (commonly where the arbitrator was found to have no jurisdiction)

Remedies continued 2. Remit or send the case back to the

arbitrator or board for a re-hearing

If there is bias – get a new arbitrator or new board (rare)

Can a Judicial Review be Appealed ? Is the Court’s judicial review decision

“Appealable”? Yes – can be appealed to the Supreme Court

of Canada. Supreme Court of Canada can review a

lower court’s judicial review of an arbitrator’s decision or a labour board’s decision on matters of national importance.

Remember: on Judicial Review: The decision must be correct in law A court looking into the qualities that make a

decision reasonable: • the process of making the decision • articulating the reasons for the decision • The overall reasonableness of the outcome

Reasonableness is mostly about: • Justification of the decision, on the facts,

the law and reasoning • Transparency – is it clear how the decision

was reached?

Summary of Judicial Review Procedural errors: bias, party denied

right to be “heard” Errors of fact Errors of law (e.g. jurisdiction) Court doesn’t order the ultimate

outcome of the case on its merits Remedy – usually a re-hearing