THE REMEDIAL AUTHORITY OF THE LABOUR ARBITRATOR: REVISED JUDICIAL VERSION

Abstract

In analysing recent cases of judicial review of labour arbitration decisions, the author discovered a recurring theme: many decisions quashed by judges involved the exercise of remedial power by arbitration boards. In light of that observation, this article canvasses two Supreme Court of Canada cases, one which expands the remedial function of labour arbitration, and the other which relies on a lack of remedial jurisdiction to reverse this trend and embrace restrictions on arbitrators’ remedial authority in the areas of rectification, estoppel and laches. Regarding the question of whether arbitrators have the authority to apply supplementary legal doctrines in adjudicating grievances brought under the express terms of a collective agreement, the author cannot support the Court’s negative conclusion. Instead, he argues that the labour arbitrator should be seen not just as a reader of agreements, but also as an adjudicator.