Judicial Review of Labour Relations Board and Labour Arbitration Decisions in the Post-Dunsmuir Period in Ontario

In its groundbreaking decision in Dunsmuir, issued in 2008, the Supreme Court of Canada reduced the number of judicial review standards to two - correctness and reasonableness - and directed courts to afford a high degree of deference to administrative decisions dealing with findings of fact, matters of inextricably intertwined law and fact, and exercises of discretion. Nonetheless, since Dunsmuir, there has been growing concern that the courts' intervention in labour board and labour arbitration decisions has increased. This empirical study examines the frequency and outcomes of judicial review applications from decisions of the Ontario Labour Relations Board and Ontario labour arbitra- tors, and concludes that the courts' interference in those decisions has in fact increased in the post-Dunsmuir period as compared to the pre-Dunsmuir period. Based on a total of 249 judicial review decisions for the period from 2003 to 2013, the research results reveal that the number of OLRB decisions quashed on judicial review increased from 7% in the pre-Dunsmuir period to 21% in the post-Dunsmuir period, while the number of labour arbitration awards quashed on review increased from 18% to 30%. In the majority of those decisions, the courts conducted an intrusive analysis of the tribunal's reasoning, reconsidered the weight accorded to evidence, and made their own findings of fact. Furthermore, there is a high degree of inconsistency among courts in the selection of the stan- dard of review applicable to decisions involving an award of damages or the interpretation of "external" legislation or common law doctrines.