CIVE 463 Lecture Notes - Lecture 11: Ouster Clause, Tortious Interference, Inherent Jurisdiction
25 May 2018
School
Department
Course
Professor
Class 11: Standard of Review, plus ça change …
Pre-CUPE 1979
- Class war between progressive legislatures trying to establish welfare state (substantive
equality) and conservative judiciary reading down Statutes
- Dominion Steel, Strike in Winnipeg, industrial war → people said ‘let them bargain
collectively’
o Lord Huat: new despotism: road to serfdom - grant of discretionary power given
to the administrative state are given away to Bolshevik class. Normal because the
courts had been, for a long time, developing torts against workers, ex tortious
interference with contractual relations: if you were striking, employer could sue
you for interfering with his contracts with other employees. It took legislation to
change this: so legislation to give power to administrative bodies, ex working
boards, to adjudicate this issue, to the dissatisfaction of courts.
o Management continued to seek judicial review when board decisions would go
against them - so that is why legislator started to input privative clauses (see also
Crevier)
▪ Final privative clauses: Determinations of particular board are final and
binding and shall not be reviewed by a court
• That did not stop the courts - the legislature did not really mean to
oust us, and only we have inherent jurisdiction, labor boards are
not courts and have limited jurisdiction, and if we do not have the
last say, would jeopardies Rule of Law. If the matter is
jurisdictional - we can review
• Jurisdictional review - interventionist
▪ Full privative clause: Final, binding and subject to review & additional
clauses: in any subsequent judicial review, the decision of Board are not
subject to remedies such as injunction, etc.
• Courts still do not care, and conduct judicial review - it is not that
they did not understand the Final privative clauses.
- This is the type of approach CUPE tries to push back on. At that time: Dickson (friend of
labour law), Laskin (ex-labour arbitrators) - lots of friend of labour law and who had
written that it was incongruous with democratic principle for courts to review labour
Board decisions on jurisdictional basis, as if they were issuing divorces, etc.
o EX. MetLife case 1971: courts: where the review is jurisdictional in nature,
privative clauses cannot apply, otherwise, legislature would be setting s 96
parallel courts, and it was impossible for the legislature to mean that. Mere errors
of law will not pose problem, but all matters of law can be jurisdictional. Ont
labour boards had, since years, determined the potential groups of the union.
Nature of the industry, other unions in the environment, to provide a uniform way
to determine unionization. Union’s Constitution itself was just a factor to take into
account to determine who constitutes the union unit. SCC: to have jurisdiction:
what are the terms of the Constitutions that determine if you are in the union. Pure
Q of statutory interpretation, and SCC says that it is a jurisdictional question.
Once a court comes to a conclusion that a Board has made an error - it is a very
short step to determine that by error of interpretation - and that their exercise of
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Class 11: standard of review, plus a change . Class war between progressive legislatures trying to establish welfare state (substantive equality) and conservative judiciary reading down statutes. Dominion steel, strike in winnipeg, industrial war people said let them bargain collectively": lord huat: new despotism: road to serfdom - grant of discretionary power given to the administrative state are given away to bolshevik class. Normal because the courts had been, for a long time, developing torts against workers, ex tortious interference with contractual relations: if you were striking, employer could sue you for interfering with his contracts with other employees. This is the type of approach cupe tries to push back on. At that time: dickson (friend of labour law), laskin (ex-labour arbitrators) - lots of friend of labour law and who had written that it was incongruous with democratic principle for courts to review labour. Board decisions on jurisdictional basis, as if they were issuing divorces, etc: ex.
