Judicial review allows courts to review administrative decisions like arbitration awards to ensure they were made correctly according to the proper legal process and standards. The court examines the entire decision making process but does not redecide the case merits. Grounds for judicial review include procedural errors, errors of fact or law, and decisions found to be unreasonable. Remedies can include quashing the decision or remitting it back for a rehearing.

1. Prof. L. Garib
Saturday, June 16th 2012
MCP013 Labour Relations
Sprott School of Business
Carleton University

2. Judicial Review
What is Judicial Review?
When Does It Apply?
Grounds for Judicial Review
How does It Work?

3. Definition of Judicial Review
Review of an administrative
decision by the courts
Reviews the process of the decision
It’s a narrow power of the court
 Court reviews the entire decision-
making process, including the
findings of fact and of law

4. What is Judicial Review?
Court does not concern itself
with the wisdom of the
arbitrator/adjudicator/decision
maker’s decision.
Court does not “re-hear” or “re-
try” the case on its merits.

5. Court’s only concern:
Did the arbitrator or labour board
properly exercise its authority ?
E.g.:
 Exceed jurisdiction under the statute or
collective agreement?
 Was the decision unreasonable ?
 Correct in law (under statute, procedural
fairness)

6. Judicial Review is NOT an Appeal
 An appeal is a review of a case on its
merits
 Merits concern the issues of the case –
the heart of the dispute
 Merits include assessing the facts and
the arguments in favour or against the
parties
 Appeals are NOT about the decision
making process – Judicial Reviews ARE

7. When Is Judicial Review Used?
The losing party can seek JR if they believe
that the arbitrator or board:
 Made an error in FACT - on the record that
was before him/her at the time of their
decision
 Made an error in LAW; interpreted the law
incorrectly; went beyond their authority;
was biased; didn’t allow one side to be heard

8. When Is Judicial Review Used?
 When a decision involves a vital or novel
principle in law that hasn’t been tested yet.
 When it involves an important issue of
public policy.

9. What are Grounds for Judicial Review?
1. Was there a procedural error?
 Decision makers must be
procedurally fair
 Was there a “fair” hearing? Were the
parties given a right to be “heard”?
 Was the decision maker neutral or
unbiased?

10. What are Grounds for JR?
2.) Did the arbitrator exceed his/her
jurisdiction under statute or the terms
of the collective agreement?
 E.g. made an order or finding not permitted.
 E.g. Dealt with subject matter not in
jurisdiction – about non-unionized workers,
not involving labour relations matters

11. How Does Judicial Review Work ?
 Either Party can apply for judicial
review
 It’s in the form of a Court Application –
before Provincial or Federal Court
 Set out alleged grounds and desired
remedy
 Timelines set in statute – usually must
make application within 30 days

12. How Does Judicial Review Work ?
 No New Evidence can be introduced.
 No New Issues can be introduced.
*It’s NOT a Re-hearing of the case!*
Courts will not impose their decision over
that of the arbitrator unless there is a
reviewable error – an unreasonable
decision or a decision incorrect in law

13. Available Remedies
1. Quash or set aside the award in its
entirety (commonly where the
arbitrator was found to have no
jurisdiction)

14. Remedies continued
2. Remit or send the case back to the
arbitrator or board for a re-
hearing
 If there is bias – get a new
arbitrator or new board (rare)

15. Can a Judicial Review be Appealed ?
 Is the Court’s judicial review decision
“Appealable”?
 Yes – can be appealed to the Supreme Court
of Canada.
 Supreme Court of Canada can review a
lower court’s judicial review of an
arbitrator’s decision or a labour board’s
decision on matters of national importance.

16. Remember: on Judicial Review:
The decision must be correct in law
A court looking into the qualities that make a
decision reasonable:
• the process of making the decision
• articulating the reasons for the decision
• The overall reasonableness of the outcome
Reasonableness is mostly about:
• Justification of the decision, on the facts,
the law and reasoning
• Transparency – is it clear how the decision
was reached?

17. Summary of Judicial Review
 Procedural errors: bias, party denied
right to be “heard”
 Errors of fact
 Errors of law (e.g. jurisdiction)
 Court doesn’t order the ultimate
outcome of the case on its merits
 Remedy – usually a re-hearing