Friday, November 25, 2016

Divisional Court Overturns Two Decisions as Unreasonable Today

   The Divisional Court overruled two labour arbitrators finding their decisions unreasonable in separate Reasons for Decisions released today - once again calling into question the supposedly new era of deference to decisions of administrative tribunals.

   In Toronto East General Hospital  v.  Ontario Nurses' Association 2016 ONSC 7331 and Canadian Staff Union   v.  C.U.P.E 2016 ONSC 7292 - panels composed of Justices Nordheimer, Dambrot and King found both decisions rendered by arbitrators in those cases to be unreasonable and set aside the decisions.

Dunsmuir  v.  New Brunswick
[2008] 1 S.C.R. 190:

   In each of the decisions issued today finding the decisions unreasonable the Divisional Court clearly relies upon Dunsmuir supra in supporting its decision.  The Toronto East General Hospital decision was six pages long. The Canadian Staff Union decision was five pages long.  In both of the decisions released today the court and the parties were in agreement on the standard of review being reasonableness.  This is consistent with the existing jurisprudence on this issue.

Did the Divisional Court
employ the wrong standard
of review in Massiah supra ?

   This is to be contrasted with the Divisional Court's recent decision in Massiah  v.  Justices of the Peace Review Council 2016 ONSC 6191 where the court upheld as reasonable a hearing panel of the Justices of the Peace Review Council's decision removing a judicial officer from office as reasonable. In Massiah the Divisional Court makes no mention of Dunsmuir supra. Their decision in that case was nineteen pages.

   In Massiah the Divisional Court appears to have employed a reasonableness standard of review to the decisions of the hearing panel. This is a panel composed primarily of ad hoc personnel. In this case the panel consisted of a part-time judge of the Ontario Court of Justice, a Justice of the Peace and a lay person. Indeed, the hearing panel in Re Massiah contained only one member of the Justices of the Peace Review Council. That was the lay person.  Both the judge and the justice of the peace were appointed temporary members by the Chief Justice of the Ontario Court of Justice.  There is no privative clause in the Justices of the Peace Act. Furthermore, the question of whether or not a justice of the peace should be removed from office involves consideration and application of the well established constitutional principle of judicial independence.

   Would not the fact that the court is considering and applying the constitutional principle of judicial independence invite a standard of review of correctness in accordance with Dunsmuir supra ?

NOTE:  This piece is written for the sole purpose of drawing attention to issues of public importance. The standard of review to be applied to decisions of administrative tribunals is an issue of public importance.  So too is the removal of judicial officers. It is not lost on the author that the decisions overturned today were both made by female labour arbitrators. Academics and policy-makers who have the time and the resources to research these issues may wish to look into whether decisions made by female labour arbitrators receive less deference than those made by male arbitrators.

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