Many administrative tribunals throughout Canada are called upon to hear appeals or otherwise review the decisions of other expert administrative decision-makers. I like to refer to this as "administrative review", to distinguish it from judicial review of administrative decisions. As of yet, however, no consensus has emerged over whether tribunals are expected to give deference to other administrative decision-makers when undertaking administrative review.
The Federal Court of Appeal in has recently rendered a decision in Air Canada Pilots Association v. Air Line Pilots Association,  F.C.J. No. 488 (C.A.) indicating that the Canada Industrial Relations Board may interfere with or overturn a decision of an arbitrator where that arbitrator has committed an "error of law or policy." In the language of judicial review, the Board may review the decision of an arbitrator on the "correctness standard." Decision in Air Canada Pilots Association The dispute in Air Canada Pilots Association began when Air Canada acquired ownership and control of Canadian Airlines. At that time, the Air Canada Pilots Association ("ACPA") represented pilots at Air Canada, and the Air Line Pilots Association ("ALPA") represented pilots at Canadian Airlines. As a result of the merger, ACPA brought an application to the Canada Industrial Relations Board for a declaration that Air Canada and Canadian Airlines constituted a single employer under the Canada Labour Code.
Before the Board was required to rule on this application, ACPA and ALPA negotiated a protocol to handle the merger of two bargaining units. One of the key points of contention between ACPA and ALPA was over the creation of a new seniority list that would cover all pilots of the newly merged airline. ACPA and ALPA therefore agreed that the dispute over the new seniority list would be resolved by an arbitrator (Morton Mitchnick). Similar agreements were reached by other groups of workers affected by the merger.
When Mr. Mitchnick issued his decision about the merged seniority list, ALPA considered the result to be unfavourable towards its members. Therefore, it asked the Board to reconsider the seniority award.
There is some dispute over the Board's jurisdiction to reconsider the Mitchnick seniority award. As a result of recommendations contained in the Sims Report in 1997, the Canada Labour Code was amended to allow the Board to review the structure of bargaining units and make consequential orders as a result of any change to a bargaining unit – including amending any seniority provisions. However, section 18.1(2) of the Code states that the Board must first allow the parties to come to an agreement on these consequential issues. ACPA took the position that the protocol represented an agreement between the parties, and that the Board therefore only had such jurisdiction as granted to it by the protocol. (The protocol stated that Mitchnick's decision would be "final and binding" on the parties, but also stated that it could be subject to "reconsideration" by the Board.) ALPA took the position – and the Board agreed – that the Board had the statutory jurisdiction to review the Mitchnick award independent of any agreement by the parties.
The Board therefore reviewed the Mitchnick award as if it were reconsidering its own decision. Section 44 of the Canada Industrial Relations Board Regulations, 2001 states that the Board may reconsider its own decisions if there are new facts, an error of law or policy, or a failure of natural justice in the first hearing. The Board concluded that Mitchnick made several errors of law or policy, and ordered the parties to create a new seniority list.
On judicial review, the Federal Court of Appeal concluded that the Board applied the proper standard of review in this case. The Supreme Court of Canada recently dismissed ACPA's application for leave to appeal.
So what's the big deal with administrative review?
The Canada Industrial Relations Board is by no means the only administrative tribunal that reviews decisions of other expert administrative decision-makers. There are several examples of administrative review, particularly in the labour relations field. The most obvious example is in British Columbia. Parties dissatisfied with the decision of a labour arbitration board in British Columbia must appeal to the British Columbia Labour Relations Board instead of applying for judicial review. The British Columbia Board has adopted a very deferential standard: the arbitrator must only have made a "genuine effort", in that there is no error manifest on the face of his or her reasons.
Other administrative tribunals have adopted less deferential standards. The federal Public Service Appeal Board applies the "reasonableness" standard of review when reviewing decisions by a Selection Board. The Ontario Labour Relations Board, in reviewing decisions of Employment Standards Officers and Occupational Health and Safety Officers, shows deference by shifting the onus of proof from the complainant to whichever party is challenging the decision below. Finally, the Financial Services Tribunal has stated that "we ought to give some degree of deference to the Superintendent's views" when reviewing a Superintendent's decision to order a pension wind-up.
Over a series of cases, the Supreme Court of Canada adopted the pragmatic and functional approach as the one courts should use to determine the appropriate standard of judicial review. However, the same principles behind the pragmatic and functional approach are not necessarily applicable in administrative review.
The Supreme Court of Canada has stated that the pragmatic and functional approach to determining the standard of judicial review balances three principles. The first principle is that Courts should ensure the highest possible quality of decision-making. The greater the level of expertise of the original decisionmaker, the better chance it will make the best decision as between it and the reviewing court. As Wilson J. stated in National Corn Growers Association v. Canada (Import Tribunal),  2 S.C.R. 1324, "courts must accept that they might not be as well qualified as a given agency to provide interpretations of that agency's constitutive statute that make sense given the broad policy context within which the agency works."
The second principle behind the pragmatic and functional approach is that courts should adhere to legislative intent. Where the legislature clearly intended that a tribunal's decision be final and binding on the parties, then courts should respect this legislative will. It is for this reason that the pragmatic and functional approach examines the wording of any privative clause as well as the purpose of the legislative provision at issue and the legislation as a whole.
Finally, courts are concerned with their primary constitutional purpose: to protect the rule of law. TheSupreme Court has stated that – at least with respect to provincial tribunals – a privative clause cannot prevent a court from determining the limits of a tribunal's jurisdiction and quashing any decision made beyond that jurisdiction. Therefore, decisions that are patently unreasonable or otherwise made beyond the tribunal's jurisdiction are still quashed by courts on judicial review no matter how expert the tribunal that made them.
When it comes to administrative review, however, this third principle does not apply. Administrative tribunals are not responsible – constitutionally, historically, or otherwise – for preserving the rule of law. Therefore, there is no constitutional reason why administrative tribunals should not be treated with the utmost deference.
Further, the legislature does not often indicate whether administrative decision-makers should be treated with deference by other tribunals on administrative review. Any appeal to another administrative tribunal must be set out by statute. There would therefore always be an appeal clause instead of a privative clause. Since an explicit right of appeal is an indication of less deference, under the pragmatic and functional approach the legislative intent would always be a factor in favour of less deference.
Therefore, most tribunals when faced with this issue either rely upon the strict wording of some statutory provision, or assert that deference should be shown as a matter of policy because of the expertise of the administrative decision-maker being reviewed. The adoption of diverse standards of review by administrative tribunals indicates that different tribunals have vastly different opinions about similar statutory language and policy concerns. The Supreme Court will, in the near future, hopefully be in a position to reconcile these competing views and determine what factors an administrative tribunal should consider when assessing the standard of administrative review.
Christopher Rootham is an associate with Nelligan O'Brien Payne LLP in Ottawa, practising in Labour and Employment Law.