Canadian Labour Law after Vavilov

(2021) Canadian Journal of Labour and Employment Law (Forthcoming)

Ottawa Faculty of Law Working Paper No. 2021-11

12 Pages Posted: 11 Feb 2021

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Date Written: December 7, 2020

Abstract

Canada’s doctrine of deference to administrative decision-makers was built on foundations provided by labour relations arbitrators and tribunals.

With Vavilov, however, those foundations have shifted. In the formative years of the Canadian law of deference, front-line labour relations decision-makers could rely on their expertise and privative clauses to provide shelter from judicial oversight.

Post Vavilov, expertise must be demonstrated – it cannot be presumed – and privative clauses give no special protection to administrative decision-makers, not even in the labour relations area.

This foundational shift has serious implications for the Canadian labour relations community: there is now a de facto requirement to provide reasons for decisions; these reasons must be justified in respect of the facts and law, demonstrate the application of expertise and be responsive to the central arguments and evidence; and counsel defending decisions on judicial review cannot invoke background context which is not laid out in the reasons.

In this short article, I lay out the origin story of contemporary Canadian administrative law, briefly describe its evolution in the late 20th and early 21st centuries, describe the key features of Vavilov and a post-Vavilov decision which illustrates the brave new world of labour relations decision-making.

Keywords: judicial review, administrative law, labour law, Vavilov, deference, justification

Suggested Citation

Daly, Paul, Canadian Labour Law after Vavilov (December 7, 2020). (2021) Canadian Journal of Labour and Employment Law (Forthcoming), Ottawa Faculty of Law Working Paper No. 2021-11, Available at SSRN: https://ssrn.com/abstract=3744301

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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