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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Labour - Standard of Review

. Strasser & Lang v. Carpenters’ District Council of Ontario et al. [for numbered case cites see the link]

In Strasser & Lang v. Carpenters’ District Council of Ontario et al. (Div Court, 2023) the Divisional Court considers the 'expertise' deference owed to the OLRB:
[25] The test for evaluating procedural fairness was set out in Baker v. Canada (Minister of Citizenship and Immigration)[7]. Baker identified and described five factors to be considered: the nature of the decision being made, and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency.

[26] Contrary to the submission of the seven employees, the Baker factors are to be considered with deference to the Board, a highly specialized tribunal protected by strong privative clauses.[8] This court held in International Brotherhood of Electrical Workers Local 1739 v. International Brotherhood of Electrical Workers[9]:
“The privative clauses that the Legislature saw fit to include in the Act protecting decisions of the Board from judicial review make it clear that the Legislature intended that decisions of the Board would be afforded substantial deference, including choices of procedure. More importantly, the control of procedure and express power granted to the Board not to hold a hearing are key.”
[27] In making the decisions that are under review by this court, as was the case before this court in International Brotherhood of Electrical Workers Local 1739, the Board was acting not only in its area of general expertise, but also “in a doubly specialized capacity relating to the construction sector, an area of responsibility it was entrusted to regulate in accordance with industry specific legislative rules.” (International Brotherhood of Electrical Workers Local 1739, at para. 47.)

[28] The legislated combination of exclusive jurisdiction and the broad ability to self-regulate process has resulted in long-standing judicial recognition of the Board as “master of its own house”.[10] Courts will not generally interfere with a tribunal’s procedural decisions, provided they are made fairly and within the tribunal’s jurisdiction.[11]


[43] The Board is a highly specialized tribunal with considerable expertise and its own procedures, including procedures that apply specifically to the construction industry. The Board’s procedural decisions are entitled to significant deference. In my view, the Vice-Chair was entitled to decide the application on the basis of the material that was before him in this case, without a hearing.
. Toronto District School Board v. Canadian Union of Public Employees [see full case for numbered case cites]

In Toronto District School Board v. Canadian Union of Public Employees (Div Court, 2023) the Divisional Court considers the deferential (SOR) approach to labour boards (OLRB):
[23] In reviewing labour relations decisions, the Divisional Court[3] has observed:
[14] Labour relations is a complex and sensitive field of law. The Ontario Court of Appeal has observed that "the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction" (Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, [2008] O.J. No. 1353, at para. 42).

[15] The interpretation of collective agreements is at the very heart of the Board's jurisdiction. In line with Vavilov, labour arbitrators and boards should be afforded the highest degree of deference in their interpretation of these agreements: see Ottawa Hospital v. OPSEU, 2017 ONSC 5501, at para. 2.


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