Curial Deference to Administrative Tribunals

• Author: Melanie Aitken, Russell Cohen, and Mariana Silva
• Profession: Davies Ward Phillips & Vineberg LLP
• Pages: 293-308

Curial Deference

to

Administrative Tribunals

Melanie

Aitken*

Russell

Cohen,*

and

Mariana

Silva**

A.

INTRODUCTION

As a

matter

of

principle,

curial

deference

will

be

paid

to

administrative

tribunals within their areas

of

specialized expertise regardless

of

whether there

is a

privative clause protecting

the

decision

from

judicial

review.

The

existence

of a

privative clause will,

of

course,

be

relevant

to

the

standard

of

deference,

but not to the

principle that

some

level

of

def-

erence will

be

paid.

In

this paper,

we

focus

on the

principal Supreme

Court

of

Canada

decisions,

beginning with

C.U.P.E.

v.

N.B.

Liquor

Board

Corporation1

and

leading

up to

Canada

(Director

of

Investigation

and

Research)

v.

Southam.2

The

policy

of

deference

to

administrative tribunals

is

predicated

on

the

view that

a

specialized tribunal

in

rendering

a

decision does

so on

the

basis

of a

greater expertise than that

enjoyed

by the

reviewing court.

Where

the

courts perceive greater expertise

to be

present

in the

admin-

istrative tribunal, they will

defer,

to

varying degrees, depending

on a

number

of

factors.

These include:

*

Partner,

Davies,

Ward,

Phillips

&

Vineberg

LLP.

**

Summer

law

student,

Davies,

Ward,

Phillips

&

Vineberg LLP.

We are

grateful

to

Neil

Finkelstein

for his

input

and

guidance

in

preparing this paper.

1

[1979]

2

S.C.R.

227

[hereinafter

C.U.P.E.].

2

[1997]

1

S.C.R.

748

[hereinafter

Southam].

293

294

Melanie Aitken,

Russell

Cohen,

and

Mariana

Silva

(i)

the

relevant statutory

scheme,

including (but

not

limited

to) the

existence

of a

privative clause;

(ii)

the

complexity

of the

area being regulated,

and the

courts'

view

of

their

own and the

tribunal's relative expertise

in

these

areas,

e.g.,

competition,

securities,

and

labour relations;

and

(iii)

the

expertise

of the

tribunal, determined

by

reference

to the

statuto-

ry

scheme and, most likely (although

not

articulated

in the

cases),

judicial

notice

of the

appointment process

and the

typical qualifica-

tions

of

those appointed.

What

matters

is the

courts' impression

of the

degree

of

expertise

involved

in any

particular decision

and the

courts' assessment about

whether

the

question

in

issue demands

the

sort

of

judgment that courts

are

best equipped

to

provide.

B.

BEFORE

C.U.P.E.

To

understand where

we

are,

we

must

go

back

to the

period

before

C.U.P.E.

At

that time, courts reviewed

the

decisions

of

administrative

tribunals employing traditional judicial review techniques: where there

was

no

privative clause, they assessed whether

the

tribunal

had

exceed-

ed its

jurisdiction

by

going beyond

its

statutory powers

or by

failing

to

apply

the

principles

of

natural justice,

or had

committed

an

error

of law

on the

face

of the

record.

By and

large,

the

focus

was on the

tribunal's

statutory power,

not on its

expertise.

The

latter

may

well have been

assumed

and

taken into account

to

some extent,

but its

importance

as a

factor

was not

generally articulated.

c

C.U.P.E.

In

C.U.P.E.,

the

Supreme Court

of

Canada identified

deference

as a

legal

principle

appropriate

to

consider,

at

least

in the

presence

of a

privative

clause.

In

C.U.P.E.,

during

a

legal strike,

the New

Brunswick Liquor

Corp-oration

sought

to

replace striking workers with management per-

sonnel.

The

issue

before

the

Public Service Labour Relations

Board

was

whether

this replacement

of

workers contravened

the

Public Service

Labour

Relations

Act,3

which included

a

consideration

of

whether

the

3

Public

Service

Labour

Relations Act,

S.N.B.

2001,

c.

P-25.