ADMINISTRATIVE LAW - library.lawsociety.sk.calibrary.lawsociety.sk.ca/.../CPLED200506CivProAdministrative.pdf · ADMINISTRATIVE LAW Melanie Baldwin Registrar and James Seibel Chairperson

ADMINISTRATIVE LAW

Melanie Baldwin Registrar

and James Seibel Chairperson

Saskatchewan Labour Relations Board

1600 – 1920 Broad Street Regina, Saskatchewan S4P 3V7

Revised May 2004 Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.

Saskatchewan: Bar Admission Program i Civil Procedure - Administrative Law

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. NATURE OF THE TRIBUNAL .........................................................................................2 A. GENERAL CHARACTERISTICS................................................................................2 B. TYPES OF TRIBUNALS..............................................................................................2 1. Statutory Tribunals ..................................................................................................3 2. Consensual Tribunals...............................................................................................3 (a) The Arbitration Act, 1992 ..................................................................................3 (b) The Trade Union Act .........................................................................................4

III. CHOICE OF FORUM .........................................................................................................5

IV. MAKING THE APPLICATION .........................................................................................7

V. PRE-HEARING CONSIDERATIONS ...............................................................................8 A. DETERMINING PROCEDURE AND POLICY OF THE TRIBUNAL......................8 B. PROCEDURE AND FORMALITY..............................................................................9 1. Hearsay Evidence ....................................................................................................9 2. Opinion Evidence ..................................................................................................10 3. Authority to Establish Procedure...........................................................................10 4. In Camera or Public Hearing .................................................................................10 C. SUBPOENAS AND TESTIMONY.............................................................................11 1. Statutory Tribunals ................................................................................................11 2. Consensual Tribunals.............................................................................................12 D. DISCLOSURE AND PARTICULARS.......................................................................13 E. AGREED STATEMENTS OF FACT AND ISSUE ...................................................15

Revised 1999 Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.

ii Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law

F. PREPARATION OF WITNESSES.............................................................................16 G. PRE-HEARINGS.........................................................................................................16

VI. THE HEARING.................................................................................................................16 A. PRELIMINARY OBJECTIONS .................................................................................17 1. Generally......................................................................................................................17 2 Denial of Natural Justice / Bias ..................................................................................19 (a) Making the objection .............................................................................................19 (b) The nature of bias ..................................................................................................19 3. The Charter of Rights and Freedoms ..........................................................................22 (a) Section 24(1) of the Charter and Section 52(1) of the Constitution Act, 1982 .....22 (b) Procedure for Charter Objection ...........................................................................24 B. THE HEARING PROPER...........................................................................................25 1. Procedure ...............................................................................................................25 2. Opening Statements ...............................................................................................25 3. Adjournments.........................................................................................................26 4. Burden and Standard of Proof................................................................................26 5. Merits and Remedy................................................................................................27 C. ARGUMENT...............................................................................................................27 D. COSTS .........................................................................................................................28 E. ENFORCEMENT OF THE DECISION......................................................................28 F. THE DECISION ..........................................................................................................29 1. Functus Officio ......................................................................................................29 2. Reasons ..................................................................................................................29

VII. JUDICIAL REVIEW.........................................................................................................30 A. STATUTORY RIGHTS OF APPEAL AND REVIEW ..............................................30 B. THE INHERENT SUPERVISORY JURISDICTION OF THE COURT OF QUEEN'S BENCH ................................................................................................31


Saskatchewan: Bar Admission Program iii Civil Procedure - Administrative Law

C. THE RULES OF THE COURT OF QUEEN'S BENCH - PART 52 ..........................32 1. Remedies - Rule 664..............................................................................................32 2. Standing - Rules 665 and 672 ................................................................................33 3. Service - Rule 667..................................................................................................33 4. Interim Stay/Order - Rule 668 ...............................................................................34 5. The Record - Rules 669 and 671 ...........................................................................34 6. Remission - Rule 674.............................................................................................35 7. Time Limits and Delay - Rule 675 ........................................................................36 D. PREROGATIVE REMEDIES.....................................................................................36 1. Generally................................................................................................................36 2. Certiorari and Prohibition .....................................................................................37 3. Mandamus..............................................................................................................37 E. PRIVATE LAW REMEDIES......................................................................................38 1. Damages.................................................................................................................38 2. Injunctions .............................................................................................................38 3. Declarations ...........................................................................................................39 4. Charter Applications ..............................................................................................39 F. SCOPE OF JUDICIAL REVIEW................................................................................39 1. Introduction............................................................................................................39 2. The Pragmatic and Functional Analysis ................................................................41 (a) The effect of a privative clause........................................................................42 (b) The expertise of the tribunal ............................................................................45 (c) The purpose of the Act as a whole and the provision in particular .................47 (d) The nature of the problem - a question of law or fact......................................49 3. Jurisdictional Error ................................................................................................50 (a) it is a jurisdictional error when a tribunal fails to provide procedural fairness to a party before it ............................................................................................52 (b) it is a jurisdictional error for a tribunal to err in interpreting a legislative provision which limits its powers ....................................................................55 (c) it is a jurisdictional error for a tribunal to make a patently unreasonable error on a question of law which is within its jurisdiction .......................................54 4. Conclusion .............................................................................................................56


iv Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law

PRECEDENTS: Writ of Subpoena Ad Testificandum - Labour Relations Board ................................................... P1 Writ of Subpoena Duces Tecum - Labour Relations Board.......................................................... P3 Notice of Motion and supporting Affidavit for a Stay of a decision of the Labour Relations Board pending disposition of an application for judicial review.................................. P5 Notice of Motion to set aside portions of arbitration award pursuant to s. 46 of the Arbitration Act, 1992, and for error of law ................................................................ P9 Notice of Motion to quash a decision of the Labour Relations Board pursuant to the Health Labour Relations Reorganization Act for error of law or jurisdiction error................... P13 Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of excess of jurisdiction and/or error of law ........................................................... P17 Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of error of law and/or excess of jurisdiction ........................................................... P21


Saskatchewan: Bar Admission Program 1 Civil Procedure - Administrative Law

I. INTRODUCTION

Administrative law is a rapidly expanding area. A number of years ago it was estimated

that there were over 1500 statutory tribunals in Canada -- this number has almost certainly

increased. In addition, there are a varying, but large, number of temporary and permanent

consensual boards set up to resolve all manner of private disputes.

Growth in the administrative law area is due, in large part, to congestion in the court

system. Administrative tribunals are created to provide an alternative process for the resolution

of certain disputes. The alternative process provided by administrative tribunals is intended to

be more efficient and more effective than the court system for the following reasons:

(a) Administrative tribunals generally resolve disputes more expeditiously than

the court system.

(b) Administrative tribunals are generally composed of persons who are expert in

the particular field over which the tribunal has jurisdiction.

(c) Unlike the courts, administrative tribunals implement government and

public policy in their decisions.

Although many administrative tribunals are largely invisible to the general public, they,

and not the courts, are far more likely to affect an average citizen or corporation. As a result, it

is common for lawyers to be involved in administrative proceedings.


2 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law

II. NATURE OF THE TRIBUNAL

A. GENERAL CHARACTERISTICS

Hearings before administrative tribunals are generally less formal than court proceedings.

Administrative tribunals generally have wide latitude in setting their own procedures and in

choosing how strictly they will observe the rules of evidence. For example, many tribunals will

admit hearsay evidence, unless it goes to the ultimate issue to be determined, and will simply

determine the weight to be given to such evidence.

In varying degrees, administrative tribunals tend to have less political independence than

the courts. For example, the Saskatchewan Labour Relations Board has the capability to be very

independent and only the courts may review its decisions. On the other hand, CRTC rulings may

be reviewed by Cabinet. Further, while some tribunals' rulings are virtually “review-proof” (e.g.,

the Workers' Compensation Board), others only have the power to make recommendations (e.g.,

an investigative committee of the Saskatchewan Pharmaceutical Association or of the College of

Physicians and Surgeons of Saskatchewan).

While proceedings before an administrative tribunal are generally resolved more quickly

than proceedings before the courts, the former process is not necessarily less expensive. An

administrative hearing may take as long as a trial and some tribunals are composed of members

who are paid by the parties to the proceedings. However, an expeditious disposition will often

be very important to the person affected such as a discharged employee waiting to see if he or

she will be reinstated or an injured worker awaiting compensation.

B. TYPES OF TRIBUNALS

Administrative tribunals may be given jurisdiction over disputes by statute (statutory

tribunals) or by contract (consensual tribunals).



1. Statutory Tribunals

Most administrative tribunals are creatures of statute. Dispute resolution in an area of

law that would ordinarily be dealt with by the courts is delegated by statute to a statutory

tribunal. The statute will also define the parameters of the tribunal's jurisdiction, set out the

manner in which the tribunal may exercise that jurisdiction and describe the circumstances under

which the tribunal's exercise of jurisdiction may be reviewed by or appealed to another tribunal

or the courts.

2. Consensual Tribunals

Parties to contracts may agree to resolve disputes by submitting those disputes to a

consensual tribunal. The most common form of consensual tribunal is a board of arbitration.

However, there are many other consensual tribunals in existence -- from a golf club membership

committee to an athletic league commission to the international congress of a trade union --

which affect, sometimes in very serious ways, the lives of ordinary citizens.

The issues of jurisdiction, exercise of jurisdiction and review of the exercise of

jurisdiction of a consensual tribunal are normally embodied in the contract between the parties.

In addition, consensual tribunals may be affected in varying degrees by legislation such as the

Arbitration Act, 1992, S.S. 1992, c. A-24.1 or the Trade Union Act, R.S.S. 1978, c. T-17.

(a) The Arbitration Act, 1992

This statute applies to any arbitration conducted pursuant to an arbitration agreement

unless its application is excluded by law. Pursuant to s. 4 of the Arbitration Act, 1992, parties

may agree in their arbitration agreement to exclude or vary any provision of the Act, except

certain listed provisions which cannot be excluded or varied (e.g., the requirement that an

arbitral tribunal treat the parties before it equally and fairly and the circumstances under which

the court may set aside, declare invalid and enforce an award of an arbitral tribunal).



An arbitration agreement may contain no further specifics beyond a provision that all

disputes between the parties shall be submitted to arbitration. In this case, the scheme provided

in the Act would be applicable in its entirety. Conversely, the parties may choose a “hybrid”

procedure in which the arbitration agreement provides for certain specific requirements and

leaves other matters to be determined pursuant to the Act.

Where an arbitration clause in a contract provides that disputes shall be submitted to

arbitration on the request of either party, arbitration will not be a condition precedent to a court

action unless and until such a request is made. An agreement which purports to oust the

jurisdiction of the courts will be void as against public policy, but parties may agree that any

disputes will be resolved through arbitration. If one party then brings an action in court, the

other party may make a Chambers application seeking a stay of the court action. The party who

commenced the court action bears the burden of proving that an arbitrator could not give

effective relief under the circumstances.

(b) The Trade Union Act

One of the most common consensual tribunals is a grievance arbitration board constituted

pursuant to a collective bargaining agreement. Section 25 of the Trade Union Act applies to all

such arbitrations.

Section 25 of the Act contains, inter alia, a description of the powers of an arbitrator or

board of arbitration and deals with some procedural aspects of grievance arbitration such as time

limits for a decision and payment of the costs associated with the arbitrator or arbitration board.

Section 25(4) provides that the Arbitration Act, 1992 does not apply to a grievance arbitration

pursuant to a collective bargaining agreement.

In most cases, the collective bargaining agreement sets out a grievance and arbitration

procedure. Where a collective bargaining agreement provides for grievance arbitration but fails

to specify a procedure, the procedure to be followed is found in s. 26 or s. 26.1 of the Trade



Union Act. In addition, s. 26.2 of the Act provides for arbitration in the case of a dismissal in a

unionized workplace where no collective agreement is in force and s. 26.3 of the Act provides for

an expedited arbitration process which may be accessed under certain circumstances.

III. CHOICE OF FORUM

The first question which must be asked by an administrative lawyer is whether the matter

at issue is one which must be dealt with by a certain tribunal rather than by another tribunal or by

the courts. Legislation often requires that the only tribunal empowered to consider certain legal

problems is the statutory tribunal created by the legislation (e.g., the Workers' Compensation

Board). In other cases, particularly in the labour and employment sphere, the choice of forum

may not be so clear.

For example, suppose you are confronted with an employee who has been terminated by

his or her employer. Your first inclination might be to demand compensation from the employer

and/or to commence a civil suit for wrongful dismissal. In many cases, this course of action

would be entirely appropriate. However, if your client's workplace was unionized and he or she

was a member of the union, the courts would not be the appropriate forum in which to proceed.

In St. Anne Nackawic Pulp and Paper Co. Ltd. v. Canadian Paperworkers' Union, Local

219, [1986] 1 S.C.R. 704 (S.C.C.), the court upheld the notion that the labour relations statute

(the Trade Union Act in Saskatchewan) provided the exclusive recourse open to the parties to a

collective agreement for its enforcement -- submission to arbitration. Subsequently, in Weber v.

Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.) the court held that the jurisdiction of the courts

over tort claims of an employee against an employer had been ousted by binding arbitration and

in O'Leary v. The Queen, [1995] 2 S.C.R. 967 (S.C.C.) the court made the same finding vis a vis

tort claims of an employer against an employee.



If you had followed your first inclination and commenced a civil suit for your unionized

client, you would have eventually found yourself in the wrong forum. In addition, by the time

you realized that an error had been made, the time limit for filing a grievance may have expired -

- potentially destroying your client's chances of proceeding in the proper forum. Clearly, the

choice of the proper forum is crucial.

There are other examples of choice of forum problems encountered when dealing with

unionized clients in the labour and employment sphere. If your client was dismissed because of

his or her union activity, the appropriate forum might be the Saskatchewan Labour Relations

Board on the basis that the employer had committed an unfair labour practice. If your client was

employed in a federal undertaking covered by the Canada Labour Code, R.S.C. 1985, c. L-2, the

proper forum might be the Canada Labour Relations Board.

If the dismissal involved discrimination on prohibited grounds, your client may have a

grievance and/or a complaint under the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (see:

Cadillac Fairview Corporation Limited v. Saskatchewan Human Rights Commission, (1999), 173

D.L.R. (4th) 609 (Sask. C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 492 (S.C.C.) and

Parry Sound (District) Social Services Administrative Board v. Ontario Public Service Employees

Union, Local 324 (2003), 230 D. L. R. (4th) 257 (S.C.C.)). If the dismissal was due to your client's

refusal to undertake unsafe work, your client may have a grievance and/or a complaint under the

Occupational Health and Safety Act, 1993, S.S. 1993, c. O-1.1 (see: Prince Albert District Health

Board v. Saskatchewan (Occupational Health and Safety, Executive Director), (1999), 173 D.L.R.

(4th) 588 (Sask. C.A.)). If the dismissal breached the Labour Standards Act, R.S.S. 1978, c. L-1, your

client may be able to file a grievance and/or seek assistance from Labour Standards Branch (see:

Dominion Bridge Inc. v. James Routledge, Daren Keller and The Director Labour Standards Branch

(1999), 173 D.L.R. (4th) 624 (Sask. C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 305

(S.C.C.)). For a comprehensive analysis of the state of the law in Saskatchewan relating to choice of

forum for a dispute in a unionized workplace, see Brown v. Westfair Foods Ltd. (2002), 213 D.L.R.

(4th) 715 (Sask. Q.B.).



IV. MAKING THE APPLICATION

Once you have determined the issue of the appropriate forum or forums in which to seek

redress for your client, you must then determine how to make the application. Generally, one

should:

i) for a statutory tribunal review the particular statute which creates the tribunal,

including all regulations;

ii) for a consensual tribunal obtain and review the contract, agreement,

constitution or bylaws establishing the tribunal;

iii) determine the nature and extent of the jurisdiction of the tribunal by reviewing

the statute or contract;

iv) determine whether the provision of the statute or contract at issue has been

previously considered by the tribunal and review any previous decisions;

v) determine the procedural requirements under the statute or contract to make

the application, including any limitation period considerations or alternative

methods of proceeding in the event that the limitation period has expired;

vi) determine who should be served with, and the manner of service of, the

initiating material; and

vii) determine the frequency of regular sittings of the tribunal or when a hearing

would likely be held after the application is made.



If your client is a respondent to an application, you should determine the time limit for

the response and the form and content of the response. A party in the position of respondent

must also give special consideration to the issue of jurisdiction of the tribunal and must

determine whether the applicant has chosen the proper forum and fulfilled all conditions

precedent to making the application.

V. PRE-HEARING CONSIDERATIONS

A. DETERMINING PROCEDURE AND POLICY OF THE TRIBUNAL

The first place to look for pronouncements on procedure and policy is the enabling

statute and regulations governing a statutory tribunal, or the agreement, constitution or bylaws of

a consensual tribunal. For example, the Regulations to the Trade Union Act contain the forms to

be used for applications under that legislation. However, it is rare for a statute or agreement to

contain a comprehensive procedural code.

Most statutory administrative tribunals have support staff who are responsible for the day

to day administration of the tribunal's business. These individuals are often the main source of

information on the tribunal's procedure and policy. The tribunal's administrative staff can

generally provide parties with precedent material and, in some cases, even precedent decisions

arising from analogous fact situations. It is therefore prudent to make contact with the tribunal's

staff at an early date to obtain as much information and material as possible before appearing

before the tribunal.

In terms of the merits of your application, if a great deal of doubt is expressed by the

tribunal's administrative staff a party may wish to obtain a second opinion to determine whether

it is advisable to proceed before the tribunal. However, regardless of the comments made by

administrative staff on the merits of an application, each party must make an independent

decision about whether to appear and make representation.



B. PROCEDURE AND FORMALITY

Another consideration in preparing for a hearing is to determine the degree of formality

of a hearing before the particular tribunal and the type of evidence that may be allowed.

The degree of formality adopted by administrative tribunals ranges from “near court” to

highly informal. It is necessary for a party to determine in advance of the hearing what evidence

and what forms of evidence are likely to be accepted. Questions to be addressed at this juncture

include:

i) will the tribunal accept agreed statements of fact?

ii) will the tribunal accept affidavit evidence or is viva voce evidence

required?

iii) will the tribunal accept uncertified documents or photocopies?

iv) will the tribunal accept hearsay evidence?

1. Hearsay Evidence

Many tribunals will admit hearsay evidence subject to ascribing the weight to be given to

that evidence, so long as the hearsay evidence is not the principal basis upon which the board is

asked to decide a crucial factual issue in favour of the party upon whom the burden of proof lies.

This is particularly true where the consequences for the other party are serious (e.g., loss of

employment). Generally, a tribunal will hear the hearsay evidence before ruling on its

admissibility. If the tribunal refuses to admit the hearsay evidence it will disregard it when it

makes its decision.



The admission of hearsay evidence may be a ground for a judicial review of the tribunal's

decision by the other party. However, in order to use this ground of judicial review the other

party likely must object to the admission of the hearsay evidence before the tribunal.

2. Opinion Evidence

The common law rule applied by the courts to the admission of opinion evidence is

generally also applied by tribunals. As a condition precedent to giving such evidence, an expert

must testify to his or her qualifications and skills in order to lay a foundation for his or her

opinion evidence.

3. Authority to Establish Procedure

Generally, administrative tribunals have the inherent authority to determine the procedure

of the hearing and to make all necessary decisions in that regard both prior to and during the

hearing. Note, however, that the statutorily prescribed procedures of many professional

discipline tribunals use language akin to criminal proceedings and may be construed strictly by

the courts in reviewing for “procedural fairness”.

4. In Camera or Public Hearing

Generally, consensual proceedings have been viewed as a private process and closed to

the public except with the consent of the parties. Where the process is a statutory one, however,

the decision to admit the public generally lies within the discretion of the tribunal. For the most

part, statutory tribunals operate on the premise that the hearing should be open to the public

unless a party requests privacy and can demonstrate good reasons for this request.



C. SUBPOENAS AND TESTIMONY

If the particular administrative tribunal is empowered to hear viva voce evidence, it will

often be necessary to compel attendance of witnesses by the use of a writ of subpoena. Where an

administrative tribunal has the power to subpoena witnesses, the subpoena may take the form of

either a Subpoena Ad Testificandum or a Subpoena Duces Tecum.

Generally, the form of subpoena to be used will not be prescribed and the practice is to

mold an ordinary subpoena from the Court of Queen's Bench to fit the circumstances. It is

advisable to serve conduct money with the subpoena in accordance with the tribunal's statute or

regulations (e.g., the Regulations to the Trade Union Act) or with the Rules of the Court of

Queen's Bench.

Where a tribunal has more than one member, any member may generally issue a

subpoena. In practice, it is best to obtain the subpoena from the tribunal chairperson as he or she

is more likely than other tribunal members to have experience in reviewing and issuing

subpoenas and this should lessen the likelihood of subsequently having the subpoena quashed by

the tribunal. A tribunal, like a court, may quash a subpoena if it finds that the subpoena is being

used not to support a party's case but to see if that party has a case.

1. Statutory Tribunals

Generally, statutory tribunals have the power to compel attendance of witnesses by virtue

of their enabling legislation. In some cases, the legislation will specifically provide for the

power to subpoena witnesses, hear viva voce evidence under oath and specify all manner of

procedure with respect to the conduct of the hearing and the taking of evidence. In other cases

(such as in the Trade Union Act), the statute will simply refer to the fact that the tribunal has all

the powers conferred upon “commissioners” appointed under the Public Inquiries Act, R.S.S.

1978, c. P-38.



Section 18 of the Trade Union Act says:

18. The board and each member thereof and its duly appointed agents have the power of a commissioner under the Public Inquiries Act and may receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion it may deem fit and proper whether admissible as evidence in a court of law or not.

Section 3 of the Public Inquiries Act reads as follows:

3. The commissioners shall have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to inquire.

Pursuant to s. 4 of the Public Inquiries Act, the commissioners have the same power to enforce

the attendance of witnesses and to compel them to give evidence as is vested in a court of record

in a civil case.

Ordinarily, where an enabling statute makes reference to the Public Inquiries Act, it will

also go on to confer powers on the tribunal beyond those found in the Act. An example is a

board of arbitration pursuant to the Surface Rights Acquisition and Compensation Act, R.S.S.

1978, c. S-65.

2. Consensual Tribunals

A consensual arbitration board constituted pursuant to a collective bargaining agreement

in accordance with the Trade Union Act is provided with, inter alia, the following powers in s.

25(2) of that Act:



25(2) An arbitrator or the chairperson of an arbitration board, as the case may be, may:

(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases;

(b) administer oaths;

(c) accept such oral or written evidence as the arbitrator or the arbitration board, as the case may be, in his or its discretion considers proper, whether admissible in a court of law or not;

. . . .

A consensual arbitration board to which the Arbitration Act, 1992 applies may determine

the procedure to be followed in the arbitration, is not bound by the rules of evidence and may

determine the manner in which evidence is to be admitted (ss. 21 and 22). The board must hold

a hearing if a party requests it (s. 27) and the board has the power to direct a party to submit to

examination on oath and produce documents (s. 26). The board may issue a “notice” with “the

same effect as a subpoena” requiring a person to attend to give evidence or produce documents

and may administer an oath and “require a witness to testify under oath” (s. 30).

D. DISCLOSURE AND PARTICULARS

In general, there is no formal process for pre-hearing disclosure or discovery when

dealing with administrative tribunals. However, fairness requires that a party to be affected by a

decision must have an opportunity to make representations. To do so, that party must know the

case to be met. As such, depending upon the degree of fairness required of a particular tribunal,

a duty exists to provide the other party with sufficient information to outline the case to be met.

Often, the only way to determine the case to be met is to obtain particulars and/or documents

from the opposite party.



For example, in the collective bargaining context, the meetings which generally follow

each step of the grievance process operate as a informal form of discovery permitting each party

to learn about the case of the other. However, unless the contract provides otherwise, there is no

specific right to additional particulars.

Regardless of whether there is a right to particulars prior to a hearing, a party who does

not provide particulars at that point runs the risk of having the tribunal dismiss its claim at the

hearing or order an adjournment of the hearing pending provision of particulars. If a party

intends to argue for dismissal or adjournment due to insufficient particulars at the hearing, it

must ensure that it has given the other party and the tribunal notice of that intention.

Some tribunals will order provision of particulars or disclosure of documents during the

pre-hearing stage. Those that do generally argue that this type of order is authorized by their

enabling statute or contract or is part of their inherent right to control and establish procedure. In

the case of a statutory tribunal, absent an express statutory authority to order pre-hearing

disclosure, the tribunal may only have the ability to order disclosure at the hearing stage: C.P.

Airlines v. CALPA, [1993] 3 S.C.R. 724 (S.C.C.).

The following is a general description of a process to follow relating to provision of

particulars or disclosure:

i) send a letter to the other party specifying the information required;

ii) send a copy of this letter to the executive officer or chairperson of the

tribunal that will hear the case;



iii) if the information is not provided, determine if the tribunal has the ability

to order pre-hearing disclosure -- if so, proceed to apply for such an order

as directed by the tribunal;

iv) if the information is not provided and the tribunal does not have the ability to

order pre-hearing disclosure, the issue should be raised at the commencement of

the hearing;

v) if the tribunal determines that the particulars are required, it will request or

order the appropriate party to provide the particulars on the penalty of

having its case dismissed;

vi) if the tribunal elects to proceed without the particulars, the party seeking

particulars should raise an objection and ask that the objection be noted in

the tribunal's decision -- this may then be used as a basis for a judicial

review.

While disclosure or particulars may be ordered, there is generally no duty to disclose the

identity of witnesses or to set out the evidence upon which a party will rely.

E. AGREED STATEMENTS OF FACT AND ISSUE

In many cases, particularly where the parties regularly appear before a tribunal, it is

possible to proceed by way of an Agreed Statement of Facts and Issues. If it appears that it

might be possible for the parties to reach such an agreement, the tribunal should be contacted

and asked about its policy in this regard.



F. PREPARATION OF WITNESSES

Due to the expedited nature of administrative proceedings, there may be less time for the

preparation of witnesses in the administrative sphere than in the court process. However, the

two forums require the same level of preparation of witnesses and the same importance is placed

on viva voce evidence. In particular, when dealing with a witness who is inexperienced at

appearing before a specific tribunal, counsel should make sure to fully explain the powers and

procedures of the tribunal to the witness.

G. PRE-HEARINGS

Some administrative tribunals utilize pre-hearings for management and/or settlement

purposes. In the case of statutory tribunals, some legislation expressly provides for pre-hearings.

Other statutory and consensual tribunals may have the ability to hold pre-hearings as an incident

of their right to control their procedure.

Pre-hearings are particularly useful where the matter before the tribunal is likely to

require a protracted hearing involving numerous parties. Pre-hearings may be used to narrow the

issues, to address disclosure, particulars or order of evidence, to discuss available dates for the

hearing and/or to facilitate settlement of the matter before the tribunal.

VI. THE HEARING

Administrative hearings are similar to the judicial process in most respects apart from

certain legal formalities and procedures that attend a civil suit. Specific facets of the hearing

procedure may be set out in the tribunal's enabling statute or agreement, however, administrative

hearings are usually conducted as an adversarial process in which the tribunal decides the issues

after hearing the evidence and argument presented by each party.



A. PRELIMINARY OBJECTIONS

1. Generally

Unless the tribunal at issue has the ability to order relief prior to the hearing, an objection

to the propriety of proceedings will be raised as a preliminary matter prior to the commencement

of the hearing. Courtesy and fairness ordinarily demand that written notice of the nature of

preliminary objections should be provided to the party adverse in interest and to the tribunal

prior to the hearing date.

Two general examples of preliminary objections are an objection to the jurisdiction of the

tribunal to hear the application or an objection alleging a defect in the constitution of the panel.

An objection which goes to the merits of the matters in issue should not be heard as a

preliminary objection.

Preliminary objections are often made on the basis of agreed facts between the parties but

on occasion evidence will be required to prove the facts necessary to sustain the objection. The

party raising the objection is ordinarily required to call evidence on it. The other party then has

the opportunity, if necessary to call its own evidence.

The tribunal will consider the following factors before rendering a decision on a

preliminary objection:

i) whether the objection may be simply and expeditiously decided;

ii) whether the decision on the objection would likely dispose of the entire

case; and



iii) whether the hearing on the merits of the case itself is likely to take many

days or entail considerable expense.

After reviewing these factors, the tribunal will proceed in one of the following ways:

i) adjourn the hearing, pending a decision on the preliminary objection,

thereafter reconvening the hearing at a later date to continue with the

merits, if necessary;

ii) render an immediate decision and continue with the merits; or

iii) reserve decision with respect to the preliminary objection and continue

with the hearing on the merits.

The first course is usually chosen where the preliminary objection is complicated and the

hearing on the merits would take a great deal of time or the decision on the preliminary issue

would likely dispose of the entire matter. The latter course is usually pursued if the preliminary

objection is complicated, but the hearing on the merits may be accomplished quickly or delay

would unduly prejudice one party or the other.

In the event that the tribunal decides against the party making a preliminary objection and

elects to proceed, the party must decide whether prohibition is available and advisable to restrain

the tribunal from proceeding prior to determination of the issue by a court. This subject will be

canvassed further in the Judicial Review section of this paper.



2. Denial of Natural Justice / Bias

(a) Making the objection

In the event that, prior to or part way through a hearing, the issue of bias or the

apprehension of bias on the part of one or more members of the tribunal arises, a decision must

be made. The party alleging bias can choose to raise the issue before the tribunal, proceed with

the hearing if the tribunal rules against it and raise the issue again on judicial review after the

tribunal renders a final decision. Alternatively, the party alleging bias may proceed immediately

to court on a prohibition application. Whatever course of action is chosen must be done quickly

and correctly -- bias or denial of natural justice can be waived by words, conduct or omission.

The first option described above may be a dangerous one. Most tribunals will refuse to

determine the issue of bias of one of their members unless the parties agree that the tribunal is to

make the determination. If a party does not object to the tribunal deciding the issue then that

party can likely not review the tribunal's decision in court: McDonald's Consolidated Ltd. v.

S.J.B.R.W.D.S.U. (1988), 65 Sask. R. 224 (Sask. Q.B.).

The cautious approach is not to proceed before the tribunal until a court has decided the

matter. The usual procedure is to request the tribunal to adjourn to a specified date allowing

sufficient time for the appropriate court application to be made.

(b) The nature of bias

The standard of proof in an application involving an allegation of bias is on a balance of

probabilities and the case may be established by affidavit evidence. It is not necessary to show

actual bias -- a reasonable apprehension of bias is sufficient. A reasonable apprehension of bias

is shown where a reasonable person, knowing the facts concerning the panel member, would

suspect that the member or tribunal may be influenced, albeit unintentionally, by improper

considerations to favour one side in the matter to be decided.



Allegations of bias generally take two forms:

i) institutional bias which can be shown only if a fully-informed person would

have a reasonable apprehension of bias in a substantial number of cases

decided by the tribunal: Canadian Pacific Ltd. v. Matsqui Indian Band,

[1995] 1 S.C.R. 3 (S.C.C.); and

ii) bias on the part of a specific decision maker as a result of that decision maker's

conduct in or connection to a specific case.

The latter form of bias may be found in the following situations:

i) a tribunal member is a relative, friend or business associate of a party or

witness;

ii) a tribunal member is associated with a competitor of a party and there is a

possibility that the competitor could benefit if the tribunal decides against the

party;

iii) a tribunal member has met privately with one party in the absence of other

parties;

iv) the tribunal's decision is written by one party;

v) a tribunal member has a pecuniary interest in the matter which he or she is

called to decide;

vi) a tribunal member is a witness in the matter which he or she is called to

decide; and

vii) a tribunal member makes improper comments or acts inappropriately during

the hearing.



In Newfoundland Telephone Co. v. Public Utilities Board, [1992] 1 S.C.R. 623 (S.C.C.),

the court took a “functional” approach to the issue of when actions that may be perceived to be

biased are, in fact, biased. The test for bias identified above would be applied differently

depending upon the nature of the tribunal and the stage in the hearing process at which the

tribunal is engaged when the impugned behaviour occurs.

In the Newfoundland Telephone decision, the court held that if the primary function of a

tribunal was to act like a court then the standard to be applied was rigid -- no reasonable

apprehension of bias on the part of any of its members would be tolerated. On the other hand, if

the tribunal's primary function was to make political or policy decisions, the standard to be

applied was less rigid -- the tribunal's members merely had to have a reasonably “open mind”.

The court also held that while a tribunal was engaged in the “investigation stage” prior to

hearing the standard applied would be less rigid than when the tribunal moved into its “hearing

and adjudicative” stage.

These tenets were applied by the Saskatchewan Court of Appeal in Saskatchewan Human

Rights Commission v. Reimer (1992), 98 D.L.R. (4th) 51 (Sask. C.A.) when that court held that

the bias test for “investigative bodies” was that of “open-mindedness” while the test for

adjudicative bodies was that of a “reasonable apprehension” of bias.

Recent decisions from the Supreme Court of Canada on institutional bias have revived

the functional analysis identified in Newfoundland Telephone, supra but have also arguably

complicated the inquiry by making it necessary to apply the functional approach to multi-

functional tribunals in order to determine if institutional bias exists: Matsqui, supra, Ruffo v.

Quebec (Conseil de la Magistrature), [1995] 4 S.C.R. 267 (S.C.C.) and A.G. Quebec v. 2747-

3174 Quebec Inc., [1996] 3 S.C.R. 919 (S.C.C.).

The Arbitration Act, 1992 provides for special procedures to be followed to remove a

tribunal member as a result of perceived bias in arbitrations conducted pursuant to that Act.



3. The Charter of Rights and Freedoms

In the case of a statutory tribunal, a preliminary objection may be made to the effect that

the enabling statute or portions thereof violate the Charter. Section 32 of the Charter provides

for its application to the provinces as follows:

32(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.

Because statutory tribunals derive their authority from the legislature, they are subject to

the restrictions contained in the Charter. Conversely, consensual tribunals which derive their

authority from an agreement between two or more non-governmental parties are not subject to

the Charter.

The issue of the application of the Charter to subordinate bodies created and supported

by Parliament or the legislature (e.g., universities, hospitals, community colleges, crown

corporations) is somewhat less clear. The courts apply a “degree of control” test enunciated in

McKinney v. University of Guelph, [1990] 3 S.C.R. 229 (S.C.C.) to determine if these

organizations are subject to scrutiny under the Charter.

If a party intends to raise a preliminary objection based upon the violation of the Charter,

the question which must be examined is whether to raise this objection before the tribunal itself

or whether to make a court application. In order to determine the appropriate response to this

question, it is necessary to look at the ways in which the Charter can be invoked by a party to

administrative proceedings.

(a) Section 24(1) of the Charter and Section 52(1) of the Constitution Act, 1982

Section 24(1) of the Charter reads as follows:



24(1) Anyone whose rights or freedoms, as guaranteed by this Charter have been

infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.

Section 52(1) of the Constitution Act, 1982 reads as follows:

52(1) The Constitution of Canada is the supreme law of Canada, and any law that is

inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

The Supreme Court of Canada, in R. v. Mills, [1986] 1 S.C.R. 863 (S.C.C.), has promulgated a

three pronged test to determine whether a tribunal has the authority to determine a Charter

claim:

i) the tribunal must have jurisdiction over the parties;

ii) the tribunal must have jurisdiction over the subject matter of the dispute; and

iii) the tribunal must have jurisdiction over the remedy sought.

The use of the Mills test was confirmed by the Court in its trilogy of decisions in

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570 (S.C.C.),

Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 (S.C.C.) and

Tetreault-Gadoury v. Canada (Employment & Immigration Commission), [1991] 2 S.C.R. 22

(S.C.C.). More recently, the Mills test was applied in Mooring v. Canada (National Parole

Board), [1996] 1 S.C.R. 75 (S.C.C.) and the rules set out in Mills were “reappraised and

restated” as a set of guidelines in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova

Scotia (Workers’ Compensation Board) v. Laseur (2003), 310 N.R. 22 (S.C.C.) as follows, at

paragraph 48:

The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to Charter scrutiny can be summarized as follows: (1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. (2)(a) Explicit



jurisdiction must be found in the terms of the statutory grant of authority. (b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. (3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision of the Charter. (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter; or (b) convincing the court than an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations.

(b) Procedure for Charter Objection

The onus of proof required to show a breach of a Charter provision is on the party

seeking a declaration that the statutory provision at issue violates the Charter. The onus of proof

of justification under s. 1 of the Charter applying the test from R. v. Oakes, [1986] 1 S.C.R. 103

(S.C.C.). is on the party who seeks to uphold the legislation.

It is recommended that an objection under the Charter be made in the first instance to the

tribunal. Only if the Charter objection is unsuccessful before the tribunal should a party proceed

to the court by way of appeal or judicial review. Courts will generally decline to hear Charter

arguments not raised before the tribunal on the basis that until the matter is heard by the tribunal

no proper record exists upon which to base a determination of a violation of the Charter and/or a

justification under s. 1. A secondary reason for the courts’ deference under these circumstances

is the tribunal's expertise relating to its own enabling statute.

Finally, as a condition precedent to raising a Charter objection, a party must remember to

serve the requisite notice(s) under the Constitutional Questions Act, R.S.S. 1978, c. C-29.



B. THE HEARING PROPER

1. Procedure

Ordinarily, the party bearing the onus of proof will proceed first with the presentation of

its evidence. The party that calls a witness examines first and then has a right to re-examine

after cross examination by the adverse party. Unlike the court process, many tribunal members

ask their own questions of the witnesses called by the parties. Counsel should ensure that

witnesses are aware of this possibility.

Most administrative tribunals follow the usual rules of evidence, including those

governing hearsay and expert evidence, but with much less strictness than in the court process.

It is generally not useful to present objections on such issues as the use of hearsay evidence or of

uncertified documents, unless the evidence goes to a crucial issue or there are serious reasons for

the objection.

As in civil cases, tribunals, on the request of either party, will order the exclusion of all

witnesses except the individual who is instructing counsel.

2. Opening Statements

Most tribunals will allow counsel to make opening statements. Without an opening

statement, the members of the tribunal may have little information about the specific issues

before them due to the lack of formal pleadings. By making an opening statement, counsel can

focus the tribunal's attention on those specific issues and can provide a context for the evidence

which follows. Further, if the parties have agreed to certain facts or issues, the tribunal should

be advised of this agreement at this point in the hearing.



3. Adjournments

The main situations in which an adjournment may be sought and granted are:

i) pending a decision on a preliminary objection or to permit judicial review of a

decision;

ii) to permit an examination of documents or to otherwise prevent unfair surprise;

iii) because counsel and/or witnesses are unavailable; or

iv) because the hearing goes beyond the original time allotted.

Where an adjournment may be prejudicial to a party's interests, the tribunal should be

alerted to this fact. In particular, where an adjournment sought by one party will mean that

damages are increasing for the other party, this fact should be raised at the time of the request for

the adjournment and an argument should be made that the party not seeking the adjournment

should not have damages occasioned by the adjournment assessed against it.

4. Burden and Standard of Proof

As in civil cases, the onus of proof rests primarily on the party asserting a claim.

Hearings often involve more than one issue and the burden of proof may rest on one party or the

other depending upon the particular issue. Where the subject matter of an allegation lies

particularly within the knowledge of one of the parties, that party must prove it.

Usually it is the applicant that will be called upon first to present evidence. However,

this rule is not universal. For example, in the case of a labour arbitration respecting discipline or

discharge, the burden of proof will lie upon the employer although it will be the employee or

union that is the applicant.



Generally, the standard of proof in administrative hearings is that of the “balance of

probabilities”. Again, however, it should be noted that this rule is not universal. A higher

standard is often required in labour arbitrations respecting discipline or dismissal, particularly in

cases where allegations of fraud or other criminal conduct are made. In those cases, the evidence

of the employer must be “clear and cogent”. In addition, the enabling legislation of some

statutory tribunals also sometimes contains provisions as to which party has the onus of proof

and on what standard.

5. Merits and Remedy

It is common for tribunals, particularly arbitration boards, to split the hearing of a case

between liability and remedy. If a hearing is split, evidence as to remedy will not be called until

after the tribunal has ruled on the issue of liability.

At the conclusion of the hearing on liability and if liability is found, the tribunal will

obtain the agreement of the parties that it retains jurisdiction to hear evidence and determine

remedies. Absent such agreement, the tribunal must proceed to hear evidence and arguments

relating to remedies or it will be functus officio and unable to award the remedies sought at a

later date.

C. ARGUMENT

As in a civil case, the party that first led evidence will be the first to argue and will be

allowed rebuttal argument after the other party has argued the case. The importance of a concise

and persuasive oral argument cannot be over-emphasized, particularly where the tribunal

members are not legally trained. Additionally, in complicated cases where the tribunal is likely

to reserve its decision, it is advisable to file a written argument at the close of oral arguments or

to seek leave to file a written argument by a specific later date.



D. COSTS

Collective bargaining agreements and submissions to arbitration customarily provide that

the costs of the arbitration board are to be borne equally by the parties. However, legal fees are

the responsibility of the respective parties. In the absence of an express agreement, it is

generally considered that a consensual tribunal has no jurisdiction to award costs.

In the case of statutory tribunals, sometimes the empowering legislation will contain

provisions regarding orders for the payment of costs. This is not uncommon in cases of

professional discipline proceedings.

In the case of proceedings pursuant to the Arbitration Act, 1992, under s. 54 the tribunal

may award the costs of an arbitration and may take into account an offer to settle with more

favourable terms than the award eventually made.

The Trade Union Act contains no express provision for an award of costs to be made by

the Saskatchewan Labour Relations Board.

E. ENFORCEMENT OF THE DECISION

The constitutive statute of most statutory tribunals provides for either an express scheme

of enforcement of the orders or decisions of the tribunal or incorporates a method of enforcement

by reference.

For example, the Trade Union Act specifies in s. 13 that a certified copy of any order or

decision of the Saskatchewan Labour Relations Board shall be filed in the office of a Local

Registrar of the Court of Queen's Bench within 14 days and “shall thereupon be enforceable as a

judgment or order of the court and in the same manner as any other judgment or order of the

court . . .”



Decisions of consensual arbitrators pursuant to collective bargaining agreements which

meet the requirements of s. 25 of the Trade Union Act may also be filed and enforced pursuant to

s. 13.

The Arbitration Act, 1992 provides in s. 50 that a person entitled to enforce an award

may apply to the Court of Queen's Bench for a judgment enforcing the award but requires the

application to be made within two years from the receipt of the award or the day upon which the

appeal period expires, whichever is later.

F. THE DECISION

1. Functus Officio

Once a tribunal has rendered a final decision it is functus officio and has no power to

permit an application to adduce new or additional evidence or to alter the decision except to

correct clerical mistakes, errors arising from accidental slips or omissions or errors of a technical

nature. A tribunal has no power (except any power expressly created by its enabling statute or

contract) to provide clarification of or reconsider its decisions.

2. Reasons

There is no overriding legal obligation on a tribunal to give reasons for its decisions and

the failure to do so in and of itself is not always regarded as a breach of natural justice.

However, fairness dictates that a person affected by a decision should know why it was made

and in most cases, this will require reasons (Padfield v. Minister of Agriculture, [1968] 2 W.L.R.

924 (H.L.)). Further, some enabling statutes and contracts expressly require the tribunal to give

reasons for its decisions. Where reasons must be provided, they must be proper, adequate and

intelligible (Dome Petroleum Ltd. v. Public Utilities Board, [1977] 2 S.C.R. 822 (S.C.C.)).



VII. JUDICIAL REVIEW

A. STATUTORY RIGHTS OF APPEAL AND REVIEW

A right to appeal the decision of a statutory tribunal only exists if it is specifically

provided by the tribunal's constitutive statute. For example, s. 45 of the Arbitration Act, 1992

provides for a right of appeal to the Court of Queen's Bench within 30 days of receiving an

arbitration award. However, the scope and availability of appeal depends upon the wording of

the arbitration agreement. Section 45 reads, in part, as follows:

45(1) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law, on a question of fact or on a question of mixed law and fact by notice of motion that briefly states the grounds of the appeal.

(2) If the arbitration agreement does not provide that the parties may appeal an

award to the court on a question of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that:

(a) the importance to the parties of the matters at stake in the arbitration justifies

an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

. . . .

Pursuant to s. 4 of the Arbitration Act, 1992 the parties may also expressly exclude any right of

appeal in their arbitration agreement. On an appeal under s. 45, the court may confirm, vary or

set aside the award or may remit the award to the arbitral tribunal (s. 45(5)).

Statutes sometimes also contain a right to review in addition to or instead of a right to

appeal. For example, s. 46 of the Arbitration Act, 1992 specifies a number of grounds upon



which the court may review and “set aside an award”. A 30 day time limit applies and the

parties may not contract out of this provision.

In the event that a statute contains a right of appeal, judicial review will generally not be

allowed, absent special circumstances. However, the decision of a tribunal made under a statute

which contains an express right to review may also be subject to judicial review pursuant to the

inherent jurisdiction of the Court of Queen's Bench and/or Part 52 of the Rules of the Court of

Queen's Bench.

B. THE INHERENT SUPERVISORY JURISDICTION OF THE COURT OF

QUEEN'S BENCH

Unlike a superior court, a statutory tribunal has no inherent powers and is limited to the

jurisdiction and powers conferred by its empowering legislation. Similarly, a consensual

tribunal gains its powers solely from the agreement between the parties and any additional

jurisdiction conferred by a collateral statute (e.g. the additional jurisdiction granted to a labour

arbitration board by the Trade Union Act).

Most administrative tribunals are intended to make final decisions in their defined areas

of jurisdiction. The power of the court to review these decisions may be limited by a statutory

privative clause or the terms of the agreement constituting the tribunal. An example of a

privative clause is found in s. 21 of the Trade Union Act:

21. There is no appeal from an order or decision of the board under this Act, the board may determine any question of fact necessary to its jurisdiction, and its proceedings, orders and decisions shall not be reviewable by any court of law or by any certiorari, mandamus, prohibition, injunction or other proceeding whatever.

An example of a privative clause found in a contract is as follows:



The parties agree that the resolution of a dispute in accordance with this article, shall be final and binding on both parties and shall not be the subject of appeal or review by way of judicial review, judicial declaration or otherwise by any court or tribunal whatsoever.

The concept of “judicial review” is part of the inherent supervisory jurisdiction of a

superior court to review decisions of administrative tribunals for jurisdictional errors. This

inherent supervisory jurisdiction cannot be ousted by agreement or, in practice, even by clear

statutory language. Privative clauses such as those set out above which refer to a tribunal's

decision as being “final” or “not subject to appeal or review” have been read as meaning only

that there is no appeal from that decision -- the courts have not found these clauses to affect their

traditional powers to review for jurisdictional error.

C. THE RULES OF THE COURT OF QUEEN'S BENCH - PART 52

Part 52 of the Rules of the Court of Queen's Bench was introduced in 1983. Before the

introduction of Part 52 of the Rules of the Court of Queen's Bench, a different procedure was

followed depending upon the nature of the tribunal involved and on the nature of the relief being

sought. Part 52 prescribes a single procedure for application for judicial review.

1. Remedies - Rule 664

An application for judicial review by way of prerogative remedy or to quash proceedings

is by Notice of Motion. The request for an order in the nature of a prerogative remedy or to

quash proceedings may be coupled with an application for a declaration either in the alternative

or as additional relief. The private law remedies of injunction or damages may be sought as

additional, but not alternative relief.



2. Standing - Rules 665 and 672

Pursuant to Rule 665, any person having a sufficient interest may make an application

under Part 52. If not deemed to have a sufficient personal interest an applicant may continue the

application with the consent of the Attorney General.

In order to determine if a person has a sufficient interest to bring an application for

judicial review, the following tests, from Minister of Justice of Canada v. Borowski, [1981] 2

S.C.R. 575 (S.C.C.), will be applied:

i) there must be a serious issue to be tried as to the invalidity of the decision or

the legislation pursuant to which it was made;

ii) the individual seeking standing must be affected directly by the decision or

legislation or have a serious interest as a citizen in the validity of the decision

or the legislation; and

iii) there must be no other reasonable and effective manner in which to bring the

matter before the court.

3. Service - Rule 667

Each person interested or “likely to be affected” by an application for judicial review

must be served with the Notice of Motion and all supporting material. The tribunal which made

the impugned decision is included in this group as is the Attorney General where his or her

office has an interest (e.g., in an application for judicial review of the decision of a statutory

tribunal). A list of lawyers employed by Saskatchewan Justice who may accept service of

documents on behalf of the Attorney General is published in the Saskatchewan Gazette from

time to time.



4. Interim Stay/Order - Rule 668

The Court may make interim orders such as an injunction to preserve the status quo or

may grant a stay of the proceedings to which the application for judicial review relates. The

application for judicial review does not itself constitute a stay of those proceedings.

The leading case relevant to an application for a stay of the decision of an administrative

tribunal is Manitoba (A.G.) v. Metropolitan Stores, [1987] 1 S.C.R. 110 (S.C.C.). The

application of the Metropolitan Stores case to an application for a stay of a decision of the

Saskatchewan Labour Relations Board was confirmed by Laing J. in Calgarian Retirement

Group Ltd. v. Service Employees International Union, Local 333 and The Saskatchewan Labour

Relations Board, [1998] Sask. L.R.B.R. c-19 (Sask. Q.B.).

5. The Record - Rules 669 and 671

Rule 669 provides that where an application is made for an order by way of certiorari or

to quash proceedings, the Notice of Motion must contain the following endorsement addressed to

the tribunal which made the impugned decision:

You are required by the rules of court forthwith to return to the local registrar of this court at the Court House (address in full) Saskatchewan, the conviction, order, decision, (or as the case may be) and the reasons therefor, together with the process commencing the proceeding, and the warrant, if any, issued thereon.

The record described by this Rule contains the same documents as the record at common

law. The case which is most often cited as authority for what constitutes the record at common

law is R. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw, [1952] 1 All E.R.

122 (C.A.) where Lord Denning stated, at 131:

Following these cases, I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them.



Where the majority decision of the tribunal includes the reasons, these are delivered to the Court,

but neither the dissent of the minority or the written arguments of the parties form part of the

“record”.

Pursuant to Rule 671, the Court ostensibly has the power to order production of the

record or evidence. Although this Rule has not received judicial consideration, it seems likely

that it could only be used in a case where an allegation of no evidence supporting the decision is

being made.

Lord Denning also dealt with the issue of the use of affidavit evidence in the

Northumberland Compensation Appeal Tribunal case, supra at 131 as follows:

The next question which arises is whether affidavit evidence is admissible on an application for certiorari, when certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. When it is granted on the ground of error of law on the face of the record, affidavit evidence is not, as a rule, admissible, for the simple reason that the error must appear on the record itself . . .

As such, extrinsic evidence by affidavit is admissible where the application is based on

jurisdictional defect but is not admissible to prove error of law on the face of the record. If

affidavit evidence is admissible, the affidavit filed must be based on personal knowledge and

cannot contain averments on information and belief. The affidavit might simply exhibit the

transcript of the proceedings, if the proceedings were recorded. Alternatively, the affidavit

would contain the personal knowledge of an individual present at the hearing before the tribunal

as to what transpired at that hearing.

6. Remission - Rule 674

This rule allows the Court to remit matters back to the statutory or consensual tribunal for

"re-determination according to law". Prior to this Rule, such remission could only be

accomplished through a writ of mandamus.



7. Time Limits and Delay - Rule 675

Rule 675 reads as follows:

675. Subject to any statutory provision limiting the time in which an application for judicial review may be made, where there has been undue delay in making an application, the court may refuse to grant any relief sought if the order would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.

In the event that no statutory provision limits the time for judicial review, Rule 675 will

come into play. It is clear from the words of Rule 675 that every application for judicial review

should be made as quickly as possible. Any delay may be seen as “undue delay” -- no arbitrary

time limit is prescribed. If undue delay is found, the Court must then determine if the relief

sought, if granted, would cause substantial hardship or prejudice. If so, the Court may refuse to

grant the relief.

D. PREROGATIVE REMEDIES

1. Generally

All prerogative remedies are discretionary. They can be refused at the discretion of the

court. Some common bases for refusal to grant a prerogative remedy are:

i) an alternative remedy exists;

ii) there has been undue delay;

iii) the application is premature (see for example Saskatchewan Union of Nurses

v. Sherbrooke Community Centre et al. (1996), 144 Sask. R. 15 (Sask. C.A.);

iv) the applicant has waived its right to object to a defect in the tribunal's

jurisdiction or has acquiesced in the defect;



v) the applicant does not have “clean hands” -- its conduct disentitles it to the

remedy sought; and

vi) the granting of the remedy would be futile.

2. Certiorari and Prohibition

Certiorari is used to quash decisions of tribunals which have acted without jurisdiction or

which have made errors on the face of the record which are within jurisdiction. Prohibition is

used to prevent a tribunal from embarking upon an inquiry for which it lacks jurisdiction.

Certiorari and prohibition are available in respect of judicial, quasi-judicial and administrative

action. For certiorari to lie, there must be a decision of some sort -- a recommendation or report

not constituting a decision will not suffice.

Certiorari and prohibition are available only to control the exercise of statutory authority.

They do not lie against the Crown and cannot be used to review legislative decisions.

Generally, certiorari and prohibition are not available in the case of a decision by a consensual

tribunal.

3. MANDAMUS

Mandamus is used to compel statutory tribunals to perform statutory duties where they

have refused to do so. Failure to obey an order of mandamus is contempt of court. Mandamus,

like certiorari and prohibition, only operates against public or statutory tribunals, cannot be used

to enforce private rights and does not lie against the Crown.

The existence of a statutory duty, the performance of which can be compelled by

mandamus, depends upon the language of the statute. The court must determine if the statute

imposes a duty or merely grants a power. If a duty exists, it must have been owed to the

particular applicant before the court and there must have been a prior express demand made to

the tribunal that it perform the duty.



E. PRIVATE LAW REMEDIES

As stated above, Part 52 of the Rules of the Court of Queen's Bench provides for

collateral or alternative relief in the form of damages, injunctions and declarations.

1. Damages

Theoretically, damages are available against public and private tribunals so long as their

actions fall within a recognizable common law cause of action which falls outside of any

statutory or common law immunity. Pursuant to Rule 664 of the Rules of the Court of Queen's

Bench, an applicant making an application for judicial review may claim damages as collateral

relief.

2. Injunctions

Like the prerogative remedies, an injunction is an equitable remedy and is discretionary

in nature. All of the reasons for which a court may refuse to grant a prerogative writ also apply

to an application for an injunction. An injunction will issue against statutory and consensual

tribunals, whether judicial, quasi-judicial or administrative but will not lie against the Crown.

Pursuant to Rule 664 of the Rules of the Court of Queen's Bench, an applicant seeking judicial

review may also seek an injunction as collateral relief.

There are strict rules relating to an application for an injunction which are essentially the

same as those applicable to an application for a stay (as set out in Manitoba (A.G.) v.

Metropolitan Stores, [1987] 1 S.C.R. 110 (S.C.C.)). An injunction will not be granted if

damages are an adequate remedy. The applicant must show a serious issue to be tried,

irreparable harm and that the balance of convenience is in its favour. Affidavits on information

and belief are not permitted. The applicant must show a personal interest and must come to the

Court with clean hands.



3. Declarations

Declarations are another discretionary remedy available against statutory and consensual

tribunals and against the Crown. A declaration declares the rights as between the parties but

grants no consequential relief. Pursuant to Rule 664 of the Rules of the Court of Queen's Bench,

a declaration can be requested as alternate or collateral relief to an application for judicial

review. 4. Charter Applications

Pursuant to s. 24 of the Charter anyone whose rights are infringed has standing to bring a

Charter application before a court of competent jurisdiction. This substantive standing provision

will have precedence over the procedural standing provision in Rule 665 of the Rules of the

Court of Queen's Bench. A Charter application may be made by Notice of Motion seeking

judicial review and a declaration of a Charter violation as collateral relief.

F. SCOPE OF JUDICIAL REVIEW

1. Introduction

Perhaps the most difficult part of an application for judicial review is the argument

surrounding the appropriate scope of that review. Where no statutory right of appeal or

mandatory process of review exists, the parties must determine how much deference the Court

should show to the tribunal which made the decision which is the subject of the application. The appropriate scope or standard of review is now generally seen as a spectrum with the

patently unreasonable standard of review at one end and the correctness standard of review at the

other. If an administrative tribunal's decision is subject to the patently unreasonable standard of

review, it may only be reviewed if it is patently unreasonable -- in other words, the tribunal has the

right to be wrong. However, if an administrative tribunal's decision is subject to the correctness

standard of review, it may be reviewed if it is incorrect -- the tribunal does not have the right to be

wrong.



In Law Society of New Brunswick v. Ryan (2003), 223 D.L.R. (4th) 577 (S.C.C.), a

unanimous Supreme Court of Canada recently clarified that the spectrum which exists in judicial

review applications is, in fact, a spectrum of deference and not a spectrum of standards of

review. The court held that there are only three standards for judicial review of the decisions of

administrative tribunals – correctness, reasonableness simpliciter and patent unreasonableness –

and indicated that additional standards should not be developed unless there are future questions

of judicial review to which the three existing standards of review are obviously unsuited.

In the Ryan case, Mr. Justice Iacobucci, speaking for the court, discussed the differences

between the three identified standards of review as follows, at paragraphs 50 through 53

inclusive:

50. At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the fundamentally different process of reviewing a decision for correctness. When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct. In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision maker is merely afforded a “margin of error” around what the court believes is the correct result.

51 There is a further reason that courts testing for unreasonableness must avoid asking the question of whether the decision is correct. Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. For example, when a decision must be taken according to a set of objectives that exist in tension with each other, there may be no particular trade-off that is superior to all others. Even if there could be, notionally, a single best answer, it is not the court’s role to seek this out when deciding if the decision was unreasonable.

52 The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam, supra, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted “in the immediacy or obviousness of the defect”. Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective.



A patently unreasonable decision has been described as “clearly irrational” or “evidently not in accordance with reason” (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at pp. 963-64, per Cory J.; Centre Communautaire Juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84 at paras. 9-12, per Gonthier J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.

53 A decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might only be discovered after “significant searching or testing” (Southam, supra, at para. 57). Explaining the defect may require a detailed exposition to show that there are no lines of reasoning supporting the decision which could reasonably lead that tribunal to reach the decision it did.

2. The Pragmatic and Functional Analysis

The Supreme Court of Canada has espoused the use of a pragmatic and functional

analysis in determining the standard of review to be applied to a decision of an administrative

tribunal and has recently confirmed that the pragmatic and functional analysis must be utilized in

each and every judicial review case to address the applicable standard of review (see: Dr. Q. v.

College of Physicians and Surgeons of British Columbia (2003) 223 D.L.R. (4th) 599 (S.C.C.)).

The pragmatic and functional analysis was first described by Beetz J. in Syndicat National des

Employes de la Commission Scolaire Regionale de l'Outaouais v. Real Bibeault et al., [1988] 2

S.C.R. 1048 (S.C.C.) at 1088:

. . . the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.

More recently, in Pushpanathan v. Canada (Minister of Citizenship and Immigration),

[1998] 1 S.C.R. 982 (S.C.C.), Bastarache, J., speaking for the majority of the Court, summarized

the Court's approach to scope and standard of review since Bibeault, supra at 1004 and 1005:



Since U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, this Court has determined that the task of statutory interpretation requires a weighing of several different factors, none of which are alone dispositive, and each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision in question. This has been dubbed the “pragmatic and functional” approach. This more nuanced approach in determining a legislative intent is also reflected in the range of possible standards of review.

. . .

. . . it is still appropriate and helpful to speak of “jurisdictional questions” which must be answered correctly by the tribunal in order to be acting intra vires. But it should be understood that a question which “goes to jurisdiction” is simply descriptive of a provision for which the proper standard of review of correctness, based upon the outcome of the pragmatic and functional analysis. In other words, “jurisdictional error” is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown.

In Pushpanathan, supra, the majority of the Court identified four factors to be taken into

account by a court in determining the standard of review as canvassed in post-Bibeault decisions

of the Supreme Court of Canada: the existence of a privative clause, the expertise of the

administrative tribunal, the purpose of the legislation as a whole and the purpose of the provision

in particular and the nature of the problem -- is it a question of law or fact.

(a) The effect of a privative clause

In the Pushpanathan case supra, Bastarache J. made the following comment on the effect

of a privative clause at 1006:

. . . the presence of a "full" privative clause is compelling evidence that the court ought to show deference to the tribunal's decision, unless other factors strongly indicate the contrary as regards the particular determination in question. A full privative clause is "one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded".



Culliton, C.J.S. (as he then was) stated in Burt, Davis et al. v. Armadale Publishers

Limited, Saskatchewan Newspaper Guild, Local 234 and Saskatchewan Labour Relations Board,

[1976] 1 W.W.R. 350 (Sask. C.A.) at 353:

In an application to quash the order of a statutory tribunal, the decisions of which are protected by a privative clause, the court is not concerned with whether the decision is right in fact or law, but is concerned only with the question of jurisdiction. The law is well settled that when the legislation contains a privative clause, that in the determination of questions within its jurisdiction, such determination is not subject to review even if it be wrong in law or in fact . . . .

In Re CSP Foods Ltd. and Grain Services Union (1992), 89 D.L.R. (4th) 542 (Sask.

C.A.), the Court addressed the effect of a privative clause at 549-550 as follows:

The effect of a privative clause has been considered in a number of recent judgments of the Supreme Court of Canada. In C.A.I.M.A.W., Local 14 v. Paccar of Canada Ltd. (1989), 62 D.L.R. (4th) 437, LaForest J. said at p. 453:

‘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 CUPE Local 963 v. NB Liquor Corp. (1979), 97 D.L.R. (3d) 417, [1979] 2 S.C.R. 227, 25 N.B.R. (2d) 237. 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. 425). The test for review is a 'severe test': see Blanchard v. Control Data Canada Ltd. (1984), 14 D.L.R. (4th) 289 at p. 302, [1984] 2 S.C.R. 476, 84 C.L.L.C. para 14070. This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial 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 not be 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 ss. 31-34 of the Code are permissible 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.’



The Saskatchewan Court of Appeal described the effect of a privative clause more

succinctly, as follows, in Sebastian v. Workers Compensation Board (1994), 119 D.L.R. (4th)

528 (Sask. C.A.) at 546:

If a tribunal is a specialized tribunal, or its decisions are protected by a privative clause, it has the right to be wrong in its interpretation of its constitutive legislation provided, in being wrong, it is not patently unreasonable.

The Supreme Court of Canada commented on the effect of a privative clause in its recent

decision in Royal Oak Mines Ltd. v. Canada Labour Relations Board and Canadian Association

of Smelter and Allied Workers, Local 4, [1996] 1 S.C.R. 369 (S.C.C.) at 394:

. . . the importance and significance that should be attached to the Board's expertise has been recognized by Parliament in the wording of the strong privative clause set out in s. 22. Ever since the decision was rendered in Canadian Union of Public Employees, Local 962 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, it has been recognized that the existence of a privative clause serves as a clear indication to the courts that decisions of a labour relations board made within its jurisdiction are protected and sheltered from strict judicial scrutiny.

According to the analysis of the majority in Pushpanathan, the stronger a privative clause

protecting an administrative tribunal is, the more deferential a court should be to the decision of

that tribunal. A full privative clause suggests that review should approach the patently

unreasonable end of the spectrum of review. No privative clause suggests that review should

approach the correctness end of the spectrum of review.

The strength of a privative clause will depend on the language of the clause itself. There

are typically three types of privative clauses found in legislation governing administrative

tribunals which can be ranked from weakest to strongest as follows:

i) clauses that provide that the tribunal's decision is final and binding or conclusive;

ii) clauses that grant the tribunal exclusive jurisdiction over the issue which it

decided; and

iii) clauses that attempt to prevent judicial review proceedings altogether.



Counsel should always check for the existence and extent of a privative clause before

making or responding to an application for judicial review.

(b) The expertise of the tribunal

In Pushpanathan, supra, Bastarache J. made the following comment about a tribunal's

expertise, at 1006 and 1007:

Described by Iacobucci J. in Southam, supra, at para. 50, as “the most important of the factors that a court must consider in settling on a standard of review”, this category includes several considerations. If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded.

. . .

In short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum.

In British Columbia Telephone Co. v. Telecommunication Workers' Union, [1988] 2

S.C.R. 564 (S.C.C.), L'Heureux-Dube J. described this basis for curial deference as follows, at

584:

Over the past number of years, this court has developed a non-interventionist approach to judicial review of administrative bodies. The rationale for this approach has to do with the court's deference to the “expertise” of statutorily established and administered tribunals. In the field of labour law, the concentration of decision making power among labour tribunals and arbitrators is designed for efficiency, and is tailored to the development of coherent labour law policy. The general idea is that courts should decline to review decisions of administrative tribunals unless such a body has rendered a decision in excess of jurisdiction. (cited with approval in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298 (S.C.C.) at 1325).



In Attorney General of Canada v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 (S.C.C.), Cory J., with Lamer C.J.C., Sopinka J. and Iacobucci J. concurring, discussed the expertise of the Canada Labour Relations Board as follows at 962:

. . . recognition must be given to the fact that the Board is composed of experts who are representatives of both labour and management. They are aware of the intricacy of labour relations and the delicate balance that must be preserved between the parties for the benefit of society. These experts will often have earned by their merit the confidence of the parties. Each time the court interferes with the decision of such a tribunal confidence is lost not only by the parties which must appear before the Board but by the community at large. Further, one of the greatest advantages of the Board is the speed in which it can hold a hearing and render a decision. If courts were to interfere with decisions of the Board on a routine basis, victory would always go to the party better able to afford the delay and to fund the endless litigation. The court system itself would suffer unacceptable delays resulting from the increased case-load if it were to attempt to undertake a routine review.

The Supreme Court of Canada again touched on the issue of judicial deference due to the

expertise of an administrative tribunal in Prince Rupert Grain Ltd. v. International

Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514, [1996] 2

S.C.R. 432 (S.C.C.) at 446 and 447:

It has often been very properly recognized that labour relations boards exemplify a highly specialized type of administrative tribunal. Their members are experts in administrating comprehensive labour statutes which regulate the difficult and often volatile field of labour relations. Through their constant work in this sensitive area, labour boards develop the special experience, skill and understanding needed to resolve the complex problems of labour relations. There were very sound reasons for the establishment of labour boards and the protection of their decisions by broad privative clauses. Parliament and provincial legislatures have clearly indicated that decisions of these boards on matters within their jurisdiction should be final and binding. The courts could all too easily usurp the role of these boards by characterizing the empowering legislation according them authority as jurisdiction limiting provisions which would require their decisions to be correct in the opinion of the court. Quite simply, courts should exercise deferential caution in their assessment of the jurisdiction of labour boards and be slow to find an absence or excess of jurisdiction.

More recently, the Supreme Court of Canada summarized its position on deference to an

expert tribunal in Toronto Board of Education v. Ontario Secondary School Teachers'

Federation et al., [1997] 1 S.C.R. 487 (S.C.C.) at 504 and 505:



There are a great many reasons why curial deference must be observed in such decisions. The field of labour relations is sensitive and volatile. It is essential that there be a means of providing speedy decisions by experts in the field who are sensitive to the situation, and which can be considered by both sides to be final and binding. . . .

It was for these reasons that PSAC No. 2 stressed that decisions of labour relations tribunals acting within their jurisdiction can only be set aside if they are patently unreasonable. That is very properly an extremely high standard, and there must not be any retreat from this position. Anything else would give rise to the endless protraction of labour disputes resulting in unrest and discontent. . . .

(emphasis added)

According to the analysis of the majority in Pushpanathan, the more expertise a tribunal

has, the more deferential a court should be to the decision of that tribunal. A high level of

expertise suggests review at the patently unreasonable end of the spectrum of review. No

expertise suggests review at the correctness end of the spectrum.

There are myriad decisions from all levels of courts exploring the expertise of different types of

administrative tribunals. Counsel should ensure that they are aware of what position the courts

have taken in the past on the expertise of the administrative tribunal whose decision is under

review. In addition, counsel should review the qualifications of each administrative tribunal to

determine whether it has more expertise than the court in the particular situation at hand.

(c) The purpose of the Act as a whole and the provision in particular

In this portion of Pushpanathan, Bastarache indicated that a tribunal considering

polycentric issues will be accorded more deference on the standard of review spectrum. In order

to determine whether the statute and provision are polycentric, one must look at their purpose.

At 1008 and 1009, Bastarache says:



Where the purposes of the statute and the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes.

. . .

A “polycentric issue is one which involve a large number of interlocking and interacting interests and considerations” (P. Cane, An Introduction to Administrative Law (3rd ed. 1996), at p. 35) While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. Where an administrative structure more closely resembles this model, courts will exercise restraint.

If the legislation at issue in an application for judicial review is bipolar in nature, less

deference will be accorded to the decision made by an administrative tribunal under that

legislation and the standard of review will approach the correctness end of the spectrum.

Conversely, if the legislation at issue is polycentric, more deference will be accorded and the

standard of review will approach the patently unreasonable end of the spectrum.

The fact that the provision at issue is a remedial provision does not change this analysis. While

courts traditionally tended to brand every remedial provision as justifying review at the

correctness end of the spectrum, the Supreme Court of Canada has made it clear that remedial

provisions should be subjected to the same pragmatic and functional analysis as all other

provisions in order to determine the appropriate standard of review.

In the Royal Oak case, supra, Cory J., speaking for the majority of the Supreme Court of

Canada, made the following express finding at 404 and 405:

In my view remedies are a matter which fall directly within the specialized competence of labour boards. It is this aspect perhaps more than any other function which requires the board to call upon its expert knowledge and wide experience to fashion an appropriate remedy. No other body will have the



requisite skill and experience in labour relations to construct a fair and workable solution which will enable the parties to arrive at a final resolution of their dispute . . .

. . . the question as to whether the Board may or may not impose remedies on the parties is jurisdictional in nature. If the Board concluded that it could not impose a remedy to counteract a breach by one of the parties, the aggrieved party would have the right to argue before a reviewing court that the Board had incorrectly interpreted its enabling statute. The court in addressing this jurisdictional question would then be entitled to review the Board's decision, on a correctness standard to determine whether in fact the Board did have the power it claimed to lack. However, once it has been established by the provisions of the empowering legislation that the Board does, in fact, have the jurisdiction to order certain remedies, the question of which of these remedies the Board chooses to impose in a given situation is a question within the Board's jurisdiction. Since the Board's order falls within its jurisdiction, it should be assessed on a patently unreasonable basis.

(emphasis added)

Gerwing, J.A., speaking for the Saskatchewan Court of Appeal cited this aspect of the

Royal Oak decision, supra with approval in Regina Police Association Inc. v. Regina Board of

Police Commissioners and The Saskatchewan Labour Relations Board (1996), 134 D.L.R. (4th)

313 (Sask. C.A.), leave to appeal to S.C.C. refused on December 5, 1996).

(d) The nature of the problem - a question of law or fact

In Pushpanathan, Bastarache J. noted that this factor only comes into play when the three

other factors discussed above leave the legislature's intention ambiguous. If there is no

ambiguity in what standard of review should be applied, the court should not consider this factor.

If there is ambiguity (i.e., there is a full privative clause but the tribunal is not expert and the

issue is bipolar), the court should determine whether the tribunal was considering a question of

law or fact. A pure question of law will suggest a standard of review approaching the

correctness end of the spectrum while a pure question of fact will suggest a standard of review

approaching the patently unreasonable end of the spectrum.



3. Jurisdictional Error

While the Supreme Court of Canada, since Bibeault, has espoused the pragmatic and

functional analysis (now distilled in Pushpanathan), you will still find the language of

jurisdictional vs. non jurisdictional error to be pervasive in judicial review cases. It is important

to keep in mind that, when lawyers and judges speak of jurisdictional error, they are speaking of

error on an issue which, according to the pragmatic and functional approach is subject to the

correctness standard of review. Non-jurisdictional error is error which, according to the

pragmatic and functional analysis is subject to the patently unreasonable standard of review.

The Supreme Court of Canada's first attempt to define jurisdictional error is found in its

unanimous decision in CUPE Local 963 v. New Brunswick Liquor Corp, [1979] 2 S.C.R. 227

(S.C.C.). In that case, Dickson J., speaking for the Court, held as follows at 233:

The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional and therefore subject to broader curial review that which may doubtfully be so.

The Supreme Court of Canada recently confirmed that the New Brunswick Liquor case, supra is

still the leading decision on the standard of review and has been consistently applied in

subsequent cases in City of Pointe-Claire v. Syndicat des Employes Professionelles-les et de

Bureau, [1997] 1 S.C.R. 1015 (S.C.C.).

In Bibeault, supra, Beetz J., at 1086 summarized jurisdictional error as follows:

It is, I think possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:

1. If the question of law at issue is within the tribunal's jurisdiction it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;



2. If, however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.

In United Food and Commercial Workers Local 1400 v. Labour Relations Board (Sask.)

and Westfair Foods Ltd. (1994), 117 Sask. R. 308 (Sask. Q.B.), Baynton J. canvassed case law

on the issue of jurisdictional error at 310-311:

Cory J., in Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1994] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1 at p. 307, describes the standard of judicial review:

“. . . In broad terms the review can be founded on any one of the following bases:

(1) if, during the course of its proceedings, the tribunal has failed to provide procedural fairness the court may intervene;

(2) if the tribunal exceeded the bounds of the jurisdiction conferred upon it by the enabling legislation intervention by the court will be appropriate;

(3) if the tribunal acted within the purview of its enabling legislation but rendered a decision that is patently unreasonable the court may intervene.”

Sopinka J., in United Brotherhood or Carpenters and Joiners of America, Local 579 v. Bradco Construction, [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld & P.E.I.R. 140; 334 A.P.R. 140 at pp. 332-333 describes the standard in these terms:

“. . . judicial review is limited to errors of jurisdiction resulting from an error in interpreting a legislative provision limiting the tribunal's powers or a patently unreasonable error on a question of law otherwise within the tribunal's jurisdiction . . .”

There therefore appear to be three distinct types of jurisdictional errors which will allow

judicial review of a tribunal's decision:



(a) it is a jurisdictional error when a tribunal fails to provide fairness to a party

before it

All administrative tribunals are under a duty to act fairly, although the degree of

procedural fairness required may vary. The following list may be used as a starting point to

determine if the tribunal provided procedural fairness to the parties before it:

i) was the tribunal required to hold a hearing and did it do so?

ii) if the tribunal has established its own rules of procedure, has it done so

without bias?

iii) has each party been given an opportunity to present its case?

iv) has each party had an opportunity to contradict prejudicial evidence?

v) did each party know the case to be met?

vi) were all statutory requirements met?

vii) if a hearing was held, was each party given the right to call witnesses and

cross-examine opposition witnesses?

viii) in the case of a decision based solely on written submissions, was each

party given the opportunity to know the case of the other party and to

respond in written form?

ix) has there been a serious violation of the ordinary rules of evidence?

x) did the parties have the right to counsel?



xi) has the tribunal unfairly granted or refused an adjournment?

xii) was the tribunal required to give reasons for its decision and, if so, did it do so?

xiii) do the reasons for decision disclose a lack of procedural fairness?

xiv) was the tribunal or any of its members biased or was there a reasonable

apprehension of bias?

The leading case on procedural fairness is still Nicholson v. Haldimand-Norfolk Board of

Police Commissioners, [1979] 1 S.C.R. 311 (S.C.C.). That decision and the numerous

subsequent decisions which have applied, expanded and refined the principles espoused in that

decision remain the best place to start when researching whether a particular act or omission on

the part of a tribunal constitutes a denial of procedural fairness.

(b) it is a jurisdictional error for a tribunal to err in interpreting a legislative

provision which limits its powers

A tribunal must be correct when it interprets a legislative provision which limits its

powers. It is a jurisdictional error for a tribunal to undertake activity falling outside the

jurisdiction authorized by its empowering legislation (e.g., for the Saskatchewan Labour

Relations Board to grant a divorce) or to delegate its powers in a way not permitted by the

statute.

It is also a jurisdictional error for a tribunal to fail to fulfil duties which are mandatory

under its constitutive statute or to err in its interpretation of a statute other than its constitutive

statute. Finally, if a tribunal errs on a preliminary finding which it must make in order to acquire

jurisdiction (e.g., a finding that a grievance is arbitrable before the arbitration board will have

jurisdiction to entertain the grievance), this will constitute a jurisdictional error.



(c) it is a jurisdictional error for a tribunal to make a patently unreasonable

error on a question of law which is within its jurisdiction

A tribunal loses jurisdiction if it makes a patently unreasonable decision on a matter

which was initially within its jurisdiction. A tribunal is generally entitled to be wrong in

deciding a matter within its jurisdiction but its decision cannot be patently unreasonable.

The test of what constitutes a “patently unreasonable” error has been described as a

severe one. In Re Syndicat des Employes du Production du Quebec et de L'Acadie and Canada

Labour Relations Board et al., [1984] 2 S.C.R. 412 (S.C.C.), Beetz J., speaking for the Court,

described a “patently unreasonable” error as follows, at 420:

A mere error of law is to be distinguished from one resulting from a patently unreasonable interpretation of a provision which an administrative tribunal is required to apply within the limits of its jurisdiction. This kind of error amounts to a fraud on the law or a deliberate refusal to comply with it. As Dickson, J., (as he then was) described it, speaking for the whole court in Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp. (1979), 97 D.L.R. (3d) 417 at p. 425, it is:

“. . . so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review.”

An error of this kind is treated as an act which is done arbitrarily or in bad faith and is contrary to the principles of natural justice.

The Saskatchewan Court of Appeal in Re Welk and Saskatchewan Social Services Appeal

Board et al. (1986), 28 D.L.R. (4th) 475 (Sask. C.A.) (leave to appeal to Supreme Court of

Canada refused May 20, 1986) dealt with the meaning of the phrase “patently unreasonable”. At

477, Cameron J.A., speaking for the Court, said:



It was not outrageous, absurd, or ridiculous, and so beyond the bounds of reason as to amount to “a fraud on the law or a deliberate refusal to comply with it”, and thus subject to being set aside by the courts on an application for judicial review: see Re Syndicat des Employees du Production du Quebec et de L'Acadie and Canada Labour Relations Board et al. (1985), 14 D.L.R. (4th) 457 at p. 463 (sub nom. Canadian Broadcasting Corp. v. Syndicat des Employes du Production du Quebec et de L'Acadie at p. 329 per Beetz, J.; Re Sollars and Canadian Union of Public Employees et al (1984), 9 D.L.R. (4th) 145, [1984] 4 W.W.R. 44, 32 Sask. R. 188.

Another interpretation of the phrase “patently unreasonable” was suggested by the

Supreme Court of Canada in Attorney General of Canada v. Public Service Alliance of Canada,

supra at 963 and 964:

It is said that it is difficult to know what “patently unreasonable” means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary “patently”, an adverb, is defined as “openly, evidently, clearly”. “Unreasonable” is defined as “not having the faculty of reason, irrational, not acting in accordance with reason or good sense”. Thus, based on the dictionary definition of the words “patently unreasonable”, it is apparent that if the decision the board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction.

One of the most recent pronouncements made by the Supreme Court of Canada on the

interpretation of “patently unreasonable” appears in its unanimous decision in Southam Inc. et al.

v. Director of Investigation and Research, [1997] 1 S.C.R. 748 (S.C.C.). In that decision,

Iacobucci J., speaking for the Court made the following observation at 777:

The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.



The Southam characterization of patent unreasonableness was cited with approval in the

recent decision of the Saskatchewan Court of Appeal in Saskatchewan Joint Board, Retail,

Wholesale and Department Store Union v. Loraas Disposal Services Ltd. et al. (1998), 172 Sask.

R. 227 (Sask. C.A.).

4. Conclusion

The practical effect of the case law cited above is that the courts place tribunal decisions

on questions of law on a spectrum. At one end of the spectrum the decisions must be correct and

receive no judicial deference -- at the other end, the decisions will be deferred to unless they are

patently unreasonable. Where a particular decision falls on the spectrum will depend on the

subject matter of the decision, the nature of the tribunal and the provisions of the legislation or

contract empowering the tribunal.


PRECEDENTS


Saskatchewan: Bar Admission Program P - 1 Civil Procedure - Administrative Law Precedents - Writ of Subpoena Ad Testificandum - Labour Relations Board

LRB File No. ______

LABOUR RELATIONS BOARD OF SASKATCHEWAN Between:

_______________________________________ Applicant

- and -

_______________________________________

Respondent

SUBPOENA TO: We command you to attend before the Labour Relations Board at 1600 – 1920 Broad

Street, Regina, SK., on __________day, the ____________ day of ______________________,

20______, at the hour of ______________ o’clock in the __________ noon and so from day to

day until the above action is tried and in case the said trial is adjourned to attend on the date to

which it is adjourned and so from day to day until such action is tried, to give evidence on behalf

of _______________________.

(Applicant or Respondent) Issued at Regina, Saskatchewan, this ____ day of ________________, 20__. __________________________________________ (Chairperson, Vice Chairperson or Board Member)


P - 2 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Writ of Subpoena Ad Testificandum - Labour Relations Board

(This page has been intentionally left blank.)


Saskatchewan: Bar Admission Program P - 3 Civil Procedure - Administrative Law Precedents - Subpoena Duces Tecum - Labour Relations Board

LRB File No. ______

LABOUR RELATIONS BOARD OF SASKATCHEWAN Between:

_____________________________________ Applicant

- and -

______________________________________ Respondent

SUBPOENA DUCES TECUM

TO:

We command you to attend before the Labour Relations Board at the Chateau Tower,

1920 Broad Street, 16th Floor, Regina, SK., on __________day, the ____________ day of

______________________, 20______, at the hour of ______________ o’clock in the

__________ noon and so from day to day until the above action is tried and in case the said trial

is adjourned to attend on the date to which it is adjourned and so from day to day until such

action is tried, to give evidence on behalf of the ____________________________, and also

(Applicant or Respondent)

to bring with you and produce at the time and place aforesaid, the following documents (specify

documents to be produced).

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Issued at _______________, Saskatchewan, this ____ day of ______________, 20__.

_____________________________ (Chairperson or Vice Chairperson)


P - 4 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Writ of Subpoena Duce Tecum - Labour Relations Board



Saskatchewan: Bar Admission Program P - 5 Civil Procedure - Administrative Law Precedents - Notice of Motion and supporting Affidavit for a Stay of a decision of the Labour Relations Board pending disposition of an application for judicial review

Q.B. No. _______ of 1998

IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN

JUDICIAL CENTRE OF SASKATOON BETWEEN:

________________________________ APPLICANT

- and - ___________________________________________

and THE SASKATCHEWAN LABOUR RELATIONS BOARD

RESPONDENTS

NOTICE OF MOTION TAKE NOTICE THAT an application will be made to the Presiding Judge in

Chambers at the Court House, at 520 Spadina Crescent East, in the City of Saskatoon, in the

Province of Saskatchewan, on day, the day of April, 1998, at 10:00 o’clock in the forenoon

or as soon thereafter as Counsel can be heard on behalf of the Applicant, pursuant to Rule 668(2)

of the Rules of the Court of Queen’s Bench, for an Order:

1. Staying the Order of the Respondent, THE SASKATCHEWAN LABOUR

RELATIONS BOARD (the “Board’), dated the day of March, 1998, in LRB

File No. , reinstating the employment of until such time as this

Honourable Court has had an opportunity to consider the application of for

an Order in the nature of certiorari quashing and setting aside the Order made by

the Board.


P - 6 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion and supporting Affidavit for a Stay of a decision of the Labour Relations Board pending disposition of an application for judicial review

AND FURTHER TAKE NOTICE THAT the grounds upon which this application

is made are as follows:

1. On January 1, 1997, terminated the employment of ;

2. On January 22, 1997, the Union filed an unfair labour practice which alleged,

inter alia, that had been terminated contrary to the Trade Union Act (the

“Act”);

3. The application was heard by the Board on July 28 and 30, 1997;

4. On March 30, 1998, the Board found a violation of section 11(1)(e) of the Act and

ordered to reinstate within 48 hours;

5. The effective date of the reinstatement has been adjourned to May 1, 1998 in

order to allow this application to be brought;

6. has applied to this Honourable Court for an order of certiorari quashing and

setting aside the said order;

7. It is in the best interests of and the current employees of that the status

quo be maintained and reinstatement of be stayed pending the application

for an order of certiorari; and

8. will not be prejudiced by the granting of the stay.

AND FURTHER TAKE NOTICE THAT the material filed in support of this

application is:


Saskatchewan: Bar Admission Program P - 7 Civil Procedure - Administrative Law Precedents - Notice of Motion and supporting Affidavit for a Stay of a decision of the Labour Relations Board pending disposition of an application for judicial review

1. This Notice of Motion, with proof of service thereon;

2. The Affidavit of ; and

3. Such further and other material as counsel may advise and this Honourable Court

may allow.

DATED at the City of Saskatoon, in the Province of Saskatchewan, this day of

April, 1998.

Per: ______________________ Solicitor for the Applicant TO: AND TO: This document was delivered by:


P - 8 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion and supporting Affidavit for a Stay of a decision of the Labour Relations Board pending disposition of an application for judicial review



Saskatchewan: Bar Admission Program P - 9 Civil Procedure - Administrative Law Precedents - Notice of Motion to set aside portions of arbitration award pursuant to s. 46 of the Arbitrations Act, 1992, and for error or law

Q.B. No. of 1998

IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN

JUDICIAL CENTRE OF SASKATOON

BETWEEN

_____________________________________ APPLICANT

-and-

___________________________________________

and THE SASKATCHEWAN LABOUR RELATIONS BOARD RESPONDENTS

AFFIDAVIT OF I, , of the City of Saskatoon, in the Province of Saskatchewan, Manager, MAKE

OATH AND SAY THAT:

1. I am the current manager at , a retirement home for seniors owned by the Applicant,

, and, as such, have personal knowledge of the matters deposed to in this my Affidavit,

except where stated on information and belief, and whereso stated, I do verily believe the same

to be true.

2. On October 12, 1996, commenced employment at . She was employed as a

server working between 16 to 20 hours every two weeks.

3. On January 1, 1997, , without notice or warning, failed to attend for her shift.

She was still on probation. Her employment was terminated that same day.


P - 10 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion to set aside portions of arbitration award pursuant to s. 46 of the Arbitrations Act, 1992, and for error of law

4. On January 22, 1997, the (the “Union”) filed an unfair labour practice with the

Saskatchewan Labour Relations Board (the “Board”) respecting, inter alia, the termination of

.

5. The unfair labour practice application was heard by the Board on July 28 and 30, 1997.

6. On March 30, 1998, the Board issued its Order. In the Order, the Board ordered that

reinstate to her previous position within 48 hours. A true copy of the Order is

attached as Exhibit “A”.

7. I was not able to contact with respect to the Order and to discuss her intentions

respecting a return to until April 7, 1998. At that time, advised me that:

(a) she had obtained another position since leaving ; and

(b) she would have to quit that job to return to .

8. On or about February 1, 1997, hired a server to replace and is presently at

full staff. Upon reinstatement, a server will have to be released, or everyone’s hours

reduced. I expect the latter will result in one or more employees quitting because of a shortage

of hours.

9. I am advised by , solicitor , that an application has been made by to

have the Order of the Board reinstating set aside. I understand that the application will be

heard within the next month to six weeks.

10. If the reinstatement order is not stayed pending that application, and the application is

granted, the following will occur:

(a) will have to quit her other position in order to be reinstated at ;

(b) will have terminated employees, or had staff quit, to make room for ;

(c) upon the application being granted will be re-terminated, will

re-hire the employee(s) terminated due to the reinstatement.


Saskatchewan: Bar Admission Program P - 11 Civil Procedure - Administrative Law Precedents - Notice of Motion to set aside portions of arbitration award pursuant to s. 46 of the Arbitrations Act, 1992, and for error or law

11. In the circumstances, I believe it is in the best interests of , current employees, and

to maintain the status quo and delay the reinstatement of until the application to

review the decision of the Board is determined.

12. In light of her other position and the compensation order made by the Board, I do not

believe will suffer any loss or prejudice by staying her reinstatement for a further short

period of time.

13. I make this Affidavit in support of application to have the Order of the Board

stayed until such time as this Honourable Court has an opportunity to review the application of

to set aside the Order of the Board.

SWORN BEFORE ME at the City of Saskatoon, ) in the Province of Saskatchewan, ) this day of April, 1998. ) ) ) ) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My commission expires ____________________


P - 12 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion to set aside portions of arbitration award pursuant to s. 46 of the Arbitrations Act, 1992, and for error of law



Saskatchewan: Bar Admission Program P - 13 Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a decision of the Labour Relations Board pursuant to the Health Labour Relations Reorganization Act for error of law or jurisdiction error

Q.B. No. of 1996

IN THE COURT OF QUEEN’S BENCH

JUDICIAL CENTRE OF SWIFT CURRENT

IN THE MATTER OF AN APPLICATION PURSUANT To SECTION 46 OF THE ARBITRATION ACT, 1992, S.S. 1992, c. A-24.1

AND IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52

OF THE RULES OF THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN

AND IN THE MATTER OF AN APPLICATION BY

TO SET ASIDE AN ARBITRATION AWARD DATED THE 10TH DAY OF APRIL, 1996, IN RESPECT OF

AND BETWEEN:

________________________________________ APPLICANT

AND:

________________________________________

________________________________________ RESPONDENTS

NOTICE OF MOTION TAKE NOTICE that an application will be made to the Presiding Judge in Chambers at

the Court House, 121 Lorne Street West, Swift Current, Saskatchewan on Monday the 10th day

of June, 1996 at 2:00 o’clock in the afternoon, or so soon thereafter as counsel can be heard on

behalf of the Applicant, , for an Order for the following reIief:


P - 14 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a decision of the Labour Relations Board pursuant to the Health Labour Relations Reorganization Act for error of law or jurisdiction error

1. Pursuant to sections 46(1)(c) and 46(2) of the Arbitration Act, 1992, an Order setting

aside certain portions of the arbitration Award dated April 10, 1996, on the following

grounds:

(a) The Award deals with a matter in dispute that the arbitration agreement does not

cover or contains a decision on a matter in dispute that is beyond the scope of the agreement in

that

(i) the issue described In the arbitration agreement dated April 2, 1996 was “the terms and conditions of an “equitable arrangement” pursuant to the ‘Western Grain Transition Payments Act’ in respect of the specified farmlands”;

(ii) the definition of “equitable arrangement” in section 2 of the Western Grain Transition Payments Regulations is “an agreement between an owner of farmland that is the subject of an application for a transition payment and the lessee of that farmland in respect of the transition payment” (emphasis added);

(iii) pursuant to the Western Grain Transition Payments Act and the Western Grain Transition Payments Regulations, the Applicant was the owner of the specified farmland eligible to apply for transition payments and the Respondent, was lessee of the specified farmland;

(iv) the Award of the Respondent, dated April 10, 1996 purported to give a portion of the Western Grain Transition Payment for the specified land to an individual or individuals, not owner(s) or lessee(s) under the Western Grain Transition Payments Act and the Western Grain Transition Payments Regulations and not a party to the arbitration; and

(b) The Applicant seeks to set aside those portions of the Award dated April 10, 1996

which purported to give a portion of the Western Grain Transition Payments for the specified

land to an individual or individuals other than the Applicant or the Respondent, , on the

terms set out in the Draft Order filed herein; and

(c) Such further and other grounds as Counsel may advise and this Honourable Court

may allow.


Saskatchewan: Bar Admission Program P - 15 Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a decision of the Labour Relations Board pursuant to the Health Labour Relations Reorganization Act for error of law or jurisdiction error

2. Pursuant to the inherent jurisdiction of this Honourable Court and Part 52 of the Rules of

the Court of Queen’s Bench for Saskatchewan, an Order quashing and/or setting aside

certain portions of the arbitration Award dated April 10, 1996, on the following grounds:

(a) The arbitrator erred in law on the face of the record and/or exceeded his

jurisdiction and/or improperly assumed jurisdiction and/or ost his jurisdiction in that:

(i) the Award of the Respondent, , dated April 11, 1996 purported to give a portion of the Western Grain Transition Payments for the specified land to an individual or individuals, not owner(s) or lessee(s) under the Western Grain Transition Payments Act and the Western Grain Transition Payments Regulations and not a party to the arbitration.

(b) The Applicant seeks to set aside those portions of the Award dated April 10, 1996

which purported to give a portion of the Western Grain Transition Payments for the specified

land to an individual or individuals other than the Applicant or the Respondent, , on the

terms set out in the Draft Order filed herein; and

(c) Such further and other grounds as Counsel may advise and this Honourable Court

may allow.

AND FURTHER TAKE NOTICE that in support of this application will be read this

Notice of Motion, Affidavit of and Draft Order with proof of service thereof on the

Respondents and the return of the Respondent, , all filed, and such further and other

material as counsel may advise and this Honourable Court may permit.

DATED at the City of Regina, in the Province of Saskatchewan, this _______ day of May, 1996. Per: _____________________ Solicitors for the Applicant


P - 16 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a decision of the Labour Relations Board pursuant to the Health Labour Relations Reorganization Act for error of law or jurisdiction error



Saskatchewan: Bar Admission Program P - 17 Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of excess of jurisdiction and/or error of law

Q.B. No. of 1998

IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PURSUANT TO

PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH.

AND IN THE MATTER OF AN APPLICATION TO SET ASIDE AN ORDER OF THE LABOUR RELATIONS BOARD OF SASKATCHEWAN DATED SEPTEMBER 22, 1998.

BETWEEN:

________________________________________ APPLICANTS

and

_______________________________________ RESPONDENTS

NOTICE OF MOTION TAKE NOTICE that an application will be made to the presiding judge in chambers at

the court house, 2425 Victoria Avenue, Regina, Saskatchewan, on Tuesday, November 24, 1998

at ten o’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the

applicant for the following relief:

(a) An order quashing the September 22, 1998 Order of the Labour Relations

Board whereby the collective agreement in place between the Applicant and in

relation to Care Centre was imposed on the Applicant with respect to health

services providers at .

(b) Costs.


P - 18 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of excess of jurisdiction and/or error of law

AND TAKE NOTICE that this application is brought on the following grounds:

(a) The Labour Relations Board erred in law in interpreting section 10(2) of the

Health Labour Relations Reorganization Act as giving it jurisdiction to impose a

collective agreement with respect to workers who, prior to the implementation of that

Act;

were not represented by a trade union;

(b) In the alternative, the Labour Relations Board made a patently unreasonable

decision, and thereby committed a reviewable error, by determining that it should impose

a collective agreement in the circumstances of this application.

(c) In the further alternative, the Labour Relations Board made a patently

unreasonable decision, and thereby committed a reviewable error, by determining that, if

a collective agreement should be imposed in the circumstances of this application, the

Care Centre agreement should be imposed.

(d) Such further or other grounds as counsel may advise and this Court allow.

AND FURTHER TAKE NOTICE that in support of this application will be read:

(a) This Notice of Motion

(b) The Return filed pursuant to Rule 669, including the originating documents filed

by Union, the Order of the Labour Relations Board dated September 22, 1998 and

the Reasons for Decision of the Board dated September 22, 1998

(c) Such further and other material as counsel may advise this Court allow.


Saskatchewan: Bar Admission Program P - 19 Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of excess of jurisdiction and/or error of law

DATED at the City of Regina in the Province of Saskatchewan this ____ day of November 1998. Per: __________________________ Solicitors for the Applicants NOTICE TO THE LABOUR RELATIONS BOARD PURSUANT TO RULE 669: You are required by the Rules of Court forthwith to return to the Local Registrar of this Court at the Court House, 2425 Victoria Avenue, Regina, Saskatchewan, the order referred to above, and the reasons therefore, together with the process commencing the relevant proceedings.


P - 20 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of excess of jurisdiction and/or error of law



Saskatchewan: Bar Admission Program P - 21 Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of error of law and/or excess of jurisdiction

Q.B. ______ of 1998

IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH AND IN THE NATURE OF AN APPLICATION FOR AN ORDER IN THE NATURE OF CERTIORARI TO QUASH AN ORDER AND DECISION OF THE SASKATCHEWAN LABOUR RELATIONS BOARD, DATED JANUARY 19, 1998 AND REAFFIRMED JULY 16, 1998.

BETWEEN:

________________________________________ APPLICANT

- and -

THE SASKATCHEWAN LABOUR RELATIONS BOARD

and _____________________________________ RESPONDENTS

NOTICE OF MOTION TAKE NOTICE that an application will be made to the presiding Judge in Chambers at

the Court House, 520 Spadina Crescent East, in the City of Saskatoon, in the Province of

Saskatchewan, on Thursday, the 1st day of October, 1998 at 10 o’clock in the forenoon or so

soon thereafter as counsel can be heard on behalf of the Applicant for the following relief:

1. An Order, in the nature of certiorari, quashing the Order of the Respondent, The

Saskatchewan Labour Relations Board, in LRB File No. dated the 19th day of

January, 1998 and reaffirmed the 16th day of July, 1998, to the extent that the said Order

imposes the provisions of the Construction Industry Labour Relations Act, 1992, c.C-29

on all of the sheet metal workers and sheet metal welders employed by the Respondent

and who are not engaged in the construction industry.


P - 22 Saskatchewan: Bar Admission Program Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of error of law and/or excess jurisdiction

AND FURTHER TAKE NOTICE that the Applicant shall seek the above-noted Order

without the actual issue of a writ of certiorari nor mandamus;

AND FURTHER TAKE NOTICE that this application is brought upon the following grounds:

1. The Respondent, The Saskatchewan Labour Relations Board, made an incorrect

interpretation of certain jurisdictional provisions of the Construction Industry Labour

Relations Act, and therefore exceeded its jurisdiction, when it decided that the provisions

of the Construction Industry Labour Relations Act applied to those sheet metal workers

and sheet metal welders employed by the Respondent who were not engaged, or

primarily engaged, in activities falling within the definition of the “construction industry”

as defined under s. 2 of the said Act.

2. The Respondent, The Saskatchewan Labour Relations Board, made a patently

unreasonable interpretation of the provisions of the Trade Union Act and the

Construction Industry Labour Relations Act, and therefore exceeded its jurisdiction,

when it decided that the provisions of the Construction Industry Labour Relations Act

applied to those sheet metal workers and sheet metal welders employed by the

Respondent who were not engaged, or primarily engaged, in activities falling within the

definition of the “construction industry”, as defined under s. 2 of the Act.

AND FURTHER TAKE NOTICE that in support of this application will be read this

Notice of Motion, with proof of service thereof together with the Return of the Respondent, The

Saskatchewan Labour Relations Board, made pursuant to Rule 669 of the Rules of the Court of

Queen’s Bench, and such further or other materials as counsel may advise and this Honourable

Court allow.


Saskatchewan: Bar Admission Program P - 23 Civil Procedure - Administrative Law Precedents - Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of error of law and/or excess of jurisdiction

AND FURTHER TAKE NOTICE that the Applicant shall seek its costs of this

application from the Respondent, the , only.

DATED at the City of Saskatoon, in the Province of Saskatchewan, this day of

August, 1998.

Per: __________________________ Solicitors for the Applicant NOTICE TO THE RESPONDENT, THE SASKATCHEWAN LABOUR RELATIONS BOARD: You are required by the Rules of Court forthwith to return to the Local Registrar of this Court at the Court House, 520 Spadina Crescent, in the City of Saskatoon, in the Province of Saskatchewan, the conviction, order, decision, (or as the case may be) and the reasons therefore, together with the process commencing the proceeding, and the warrant, if any, issued thereon. TO: The Respondent, The Saskatchewan Labour Relations Board


Documents

ADMINISTRATIVE LAW - library.lawsociety.sk.calibrary.lawsociety.sk.ca/.../CPLED200506CivProAdministrative.pdf · ADMINISTRATIVE LAW Melanie Baldwin Registrar and James Seibel Chairperson