Judicial Review, Judicial Revisionism and Judicial Responsibility

Abstract

Judicial review of the decisions of labour relations boards has been a nagging problem for the Supreme Court of Canada for decades. The decision of the Court in Le Syndicat des Employés de Production du Québec et de L’Acadie v. Canada Labour Relations Board et al. provides an opportunity for and indeed provokes review of the work of the Court in dealing with this recurring problem. This essay begins by placing in perspective the concrete issue posed in the L’Acadie decision. But the particular facts of that case are used only as a vehicle to explore the nature of the problem of judicial review of labour decisionmakers and the history of the Court's handling of it. A fundamental thesis of this essay is that the Court's work can be best understood as comprising two distinct periods, the early years (pre-1979) and the new era (1979-1984?). This essay articulates the view that during the early years the Court developed a law of judicial review which was wholly inadequate both in functional and doctrinal terms. In the new era the Court simplified and reformed the law of judicial review of labour boards and labour arbitrators. It is only from the perspective of the Court's previous handling of the issue that the decision in L’Acadie can be truly understood. When so viewed the decision is perfectly inadequate. The case creates a new distinction based upon the old confusion of “jurisdiction”. This essay then develops the view that no theory of judicial review which revolves around the notion of “jurisdiction” can ever satisfactorily deal with the issues presented. In this respect the Court's own cases from the “new era” represent a much more sensible, if still a second best approach. Finally, suggestions for a legislative solution to the problem posed by L’Acadie are briefly explored.