Acquired Expertise of Administrative Tribunals and the Standard of Judicial Review: The Case of Grievance Arbitrators and Human Rights Law

Abstract

Focusing on arbitral decisions on human rights claims arising in the employment context, this paper looks at the nature of the expertise of adminis- trative tribunals and its role in determining the standard of judicial review. The author notes that arbitrators are considered to have expertise in labour rela- tions, and that this has been a key factor in the high level of deference generally shown by courts to their decisions. However, despite the expansion of arbitral jurisdiction over human rights matters in unionized workplaces, the courts, applying a "correctness" standard of review, have refused to grant deference to arbitrators with respect to their interpretation and application of human rights legislation, in part on the basis that they are not expert in the area. The author takes issue with this view, contending that arbitrators have in fact acquired significant expertise in interpreting human rights statutes in the context of the employment relationship, and that recognition of such expertise should lead to a reappraisal of the level of curial deference. In this regard, he argues, it would be open to the courts to deem arbitrators to possess the requisite expertise in human rights, thereby justifying a more deferential "reasonableness" standard of review.