ARBITRATION, LABOUR BOARDS AND THE COURTS IN THE 1980S: ROMANCE MEETS REALISM
AbstractIn this article the author analyses recent Supreme Court of Canada jurisprudence on the relationship between courts and labour tribunals onjudicial review of administrative action or as for a of original jurisdiction. The author takes, issue with suggestions by some labour academics that the court's proclamations of deference to labour tribunals have led to a "unified and restrictive" theory of judicial review of arbitration and labour board decisions. By focusing on departures by the court from its avowed stance of deference in the 1980s, both on judicial review and as a forum of original jurisdiction, the author demonstrates that the notion of a uniform deferential approach to expert labour tribunals was never more than a romantic vision which gained favour because it did "fit" well within the liberal pluralist paradigm for our post World War II collective bargaining regime. The author concludes that there is little evidence that the court has become fully reconciled to the normative vision of our legislatures for labour relations, and that judges continue to intervene when confronted with legislative and administrative choices which are quite contrary to their own values and strongly held ideological preferences.
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