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Labour (Ont) - Privative Clauses [LRA 114/116]. Mulmer Services Ltd. v. LIUNA, Local 183
In Mulmer Services Ltd. v. LIUNA, Local 183 (Div Court, 2023) the Divisional Court considered the LRA's privative provisions [s.114(1) and s.116] and how that is interpreted in modern JR 'standard of review' doctrine:[31] Moreover, in the context of labour relations, the courts have a longstanding jurisprudential commitment to affording labour relations tribunals the highest degree of deference.[30] Indeed, as the Ontario Court of Appeal said in a 2020 decision, “[f]ew tribunals have received more judicial deference than labour tribunals and nothing in Vavilov detracts from this posture.”[31] Our Court of Appeal recently emphasized, in the context of a decision of the OLRB, that the “relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review.”[32] The Court of Appeal went on to hold that the Board “is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute.”[33]
[32] Having regard for the governing statutory scheme here, it is to be noted that the LRA conveys exclusive jurisdiction on the Board to determine disputes under the Act. The Act contains two strong privative clauses. Subsection 114(1) mandates the Board’s jurisdiction and provides, inter alia, that the Board’s decisions are “final and conclusive for all purposes,” as follows:The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. [33] In a similar vein, s. 116 of the Act reflects the legislative intent that judicial review of the Board’s decisions must afford great deference to the Board, as follows:No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings. [34] Consistent with the courts’ jurisprudence on the reasonableness standard of review, these statutory provisions underscore the importance of judicial restraint and respect for the Board’s interpretation of the LRA, its home statute.
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