Judicial review

There are two standards under which the Federal Courts may review a quasi-judicial decision:

  • Correctness: for a finding of general law that is outside of the decision maker's specialized area of expertise and that raises an issue of central importance to the legal system as a whole; for a finding of statutory interpretation relating to the boundaries between the jurisdiction of different decision makers; for a finding of statutory interpretation relating to the jurisdiction of a decision maker to decide on the constitutionality of the enabling legislation.
  • Reasonableness: for any other finding. This type of review asks the following question: "Is the decision maker's conclusion within a range of possible, acceptable outcomes?"

Labour relations matters usually fall under the "reasonableness" standard. This is because it is considered that labour relations decision makers have special expertise in labour law and that that expertise should not necessarily be questioned (i.e., a judge will not automatically question the law applied by an expert in labour law).

At the end of the day, if the party seeking judicial review cannot present a substantial argument that the logic that led the labour relations decision maker to his or her decision is incorrect or unreasonable, according to the applicable standard for judicial review, the application will be denied.

Understanding the Federal Courts

The Federal Court and the Federal Court of Appeal deal only with matters that fall under federal statutes. Only these two courts have the jurisdiction to review decisions of federal boards, commissions and tribunals (including the Federal Public Sector Labour Relations and Employment Board (FPSLREB)), with the exceptions of the Tax Court of Canada and military courts.

An application for judicial review must be made to the appropriate court. Parties seeking a review of a decision rendered by a panel of the FPSLREB or an adjudicator must make an application to the Federal Court of Appeal. For matters decided by other decision makers (i.e., the Chairperson) an application for review must be made to the Federal Court.

If a decision of the Chairperson is reviewed by the Federal Court, a party may appeal the Federal Court's decision to the Federal Court of Appeal and, ultimately, to the Supreme Court of Canada, if leave to appeal the Federal Court of Appeal's decision is granted.

If a decision of a panel of the FPSLREB or an adjudicator is reviewed by the Federal Court of Appeal, a party may appeal that court's decision to the Supreme Court of Canada, if leave to appeal is granted.

Reasons for which a decision may be reviewed

Subsection 18.1(4) of the Federal Courts Act provides that a decision of the Chairperson or an adjudicator may be judicially reviewed if the decision maker:

  • acted without jurisdiction, acted beyond his or her jurisdiction or refused to exercise his or her jurisdiction;
  • failed to observe a principle of natural justice, procedural fairness or other procedure that he or she was required by law to observe;
  • erred in law in making a decision or an order, whether or not the error appears on the face of the record;
  • based his or her decision or order on an erroneous finding of fact that he or she made in a perverse or capricious manner or without regard for the material before him or her;
  • acted, or failed to act, by reason of fraud or perjured evidence; or
  • acted in any other way that was contrary to law.

However, the interplay between subsections 18.1(4) and 28(2) of the Federal Courts Act and subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act provides that a decision rendered by a panel of the PLSREB may be judicially reviewed if the panel of the PSLREB:

  • acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
  • failed to observe a principle of natural justice, procedural fairness or other procedure that its was required by law to observe; or
  • acted, or failed to act, by reason of fraud or perjured evidence.

The time limit for filing an application for judicial review is normally 30 days. More information can be obtained from the registries of the Federal Court and Federal Court of Appeal.