Canadian Labour Law after Vavilov

I have posted “Canadian Labour Law after Vavilov” to SSRN. It will be published in 2021 in the Canadian Journal of Labour and Employment Law:

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.

Download it here.

This content has been updated on December 7, 2020 at 18:02.