CERTIORARI TO LABOUR BOARDS: THE APPARENT FUTILITY OF PRIVATIVE CLAUSES

Abstract

Compulsory collective bargaining legislation in Canada was based in part on a belief that it would dissolve a great deal of industrial strife and promote industrial peace. Reliance on a non-curial tribunal was fortified by the introduction of privative clauses. This article examines the extent to which provincial courts have defied the underlying expression of a legislative policy. The author argues that there is no constitutional principle with which the courts can justify any claim to judicial review, and illustrates that persistence in doing so is an abrogation of the legislative function. He analyses labour cases in provincial courts to show that privative clauses have had no effect on judicial reviewing power, and to determine the grounds on which a court will interfere with a board’s decision.