Saturday, January 3, 2009

And while I am at it

This from the Ontario Court of Appeal from the above case:

"...[26] I agree with Mr. Riggs’ position. The “pragmatic and functional approach”, called for by the Supreme Court of Canada, demonstrates that the standard of review is patent unreasonableness. And I cannot say that the Board’s decision was patently unreasonable. Even if the Board’s decision was incorrect – and I pass no judgment on that question – it had the right to be wrong without interference from a reviewing court.

b. The legislature’s intent and the four contextual factors

[27] Seneca College’s position is that the question of the Board of Arbitration’s authority to award aggravated or punitive damages was a question of arbitrability, to which a reviewing court should show deference. OPSEU’s position is that the Board was not deciding “an issue of arbitrability within jurisdiction,” but instead, was deciding “an issue of jurisdiction in the formal sense”, by applying the common law principle in Weber. The Board’s decision was therefore not entitled to deference; the Board was required to be correct.

[28] Although outlining their positions in these general terms, both sides recognized that the standard of review must be determined by applying the four contextual factors underlying the pragmatic and functional analysis:

(1) the presence or absence of a privative clause or statutory right of appeal;

(2) the purposes of the legislation and the provision in particular;

(3) the nature of the question – law, fact or mixed fact and law; and

(4) the expertise of the tribunal compared to the reviewing court on the question in issue. See Pushpanathan v. Canada (Minister of Cizitenship and Immigration), 1998 CanLII 778 (S.C.C.), [1998] 1 S.C.R. 982; and Voice Construction Ltd. v. Construction and General Workers’ Union, Local 192, 2004 SCC 23 (CanLII), [2004] 1 S.C.R. 609 at para. 16.[3]

[29] Unfortunately, in its decision, the Divisional Court did not undertake this pragmatic and functional analysis. Instead, it seemed to take the view that because the question in issue was, in its opinion, a question of jurisdiction and a question of law, the standard of review must be correctness.

[30] That is not a sound view. Simply because the court labels an issue “jurisdictional” does not automatically mean that the standard of review of a tribunal’s decision on that issue is correctness. As Evans J.A. pointed out in Via Rail Canada Inc. v. Cairns 2004 FCA 194 (CanLII), (2004), 241 D.L.R. (4th) 700 at para. 33 (F.C.A.), “Conceptual abstractions, such as ‘jurisdictional question’, now play a much reduced role in determining the standard of review applicable to the impugned aspect of a tribunal’s decision.”

[31] In other words, a court’s finding that an issue has a jurisdictional aspect does not obviate the court’s obligation to do a pragmatic and functional analysis. See Voice Construction, supra at paras. 20-22; Dr. Q v. College of Physicians and Surgeons of
British Columbia, [2003] 1 S.C.R 236 at para. 21; ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] S.C.C. 4 at paras. 22-23. The “jurisdictional” nature of the issue is but a factor in that analysis, or more often, the characterization of the outcome of that analysis. See Via Rail, supra at para. 36 and Pushpanathan, supra at para. 28.

[32] The purpose of the pragmatic and functional analysis – of considering the four contextual factors – is to ascertain the legislature’s intent. See Dr. Q, supra at para 26. Did the legislature intend that a reviewing court give deference to the Board’s decision, and if so, what level of deference? Or, put in terms of jurisdiction, did the legislator intend this issue to be exclusively within the Board’s jurisdiction to resolve? See U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (S.C.C.), [1988] 2 S.C.R. 1048 at 1089-1091.

[33] In my opinion, the interplay of the four contextual factors points to a high degree of deference to the Board of Arbitration’s decision. The question of the Board’s remedial authority to award aggravated and punitive damages is a question that the legislature intended the arbitrators to decide. Their decision must stand unless it is patently unreasonable"...

Itzik Basman

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