Standard of Review – No Deference for a Biased Tribunal


If an adjudicative tribunal is not independent and/or demonstrably impartial -i.e., is, in law, biased – surely respect-based deference cannot be justified.


In previous posts on this website (see below), and in Unjust by Design (pages 289-290), I have argued that the courts should not be extending respect-based deference – the reasonableness standard of review – to judicial decisions of tribunals that are known to be – or can be shown to be – in breach of the foundational rule of law that requires bodies exercising adjudicative functions to be, in law, independent and impartial.

I had thought that this was a self-evident but novel argument surprisingly without authoritative support.

But I was wrong

And now I bring to your attention the fact that there is Federal Court of Appeal – and Supreme Court of Canada – jurisprudence that provides a significant measure of support for that argument.

It is jurisprudence that dates back to 2002 and which I am chagrined to have to acknowledge I failed to discover while I was writing Unjust by Design.

It is to be found principally in the federal labour relations jurisprudence concerning those situations in which federal legislation leaves the final interpretation of a federal government employee’s terms and conditions of employment in the hands of an in-house, government tribunal.


This jurisprudence was referenced most recently in Brauer v. Canada (Attorney General), 2014 FC 488 (CanLII), but it is more fully examined in the judgment of Madam Justice Gagné in Renaud v. Canada (Attorney General), 2013 FC 18 (CanLII) at paras. 25-32.

In Renaud, the applicant applied for judicial review of the final level decisions respecting two grievances she had filed against her employer on grounds arising from her employer’s actions following her filing of harassment complaints. The applicant was employed in the Office of the Privacy Commissioner and the statutory grievance procedure stipulated that the grievances were to be determined at the final level by the Privacy Commissioner herself – i.e. effectively by the applicant’s employer.

This in-house procedure was authorized by section 208 of the PSLRA (the Public Service Labour Relations Act) and the final decisions of the Commissioner were protected by the following privative clause (s. 214):

If an individual grievance has been presented up to and including the final level in the grievance process and it is not one that under section 209 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken on it.

The respondent took the position that the standard of review should be reasonableness, but the applicant argued that given the decision-maker’s lack of independence, the standard must be correctness .

On the question of the relevance of the quality of a tribunal’s independence to the standard of review issue, Madam Justice Gagné’s judgment speaks for itself and I quote the pertinent passages here in full.

(In reading these passages you might note particularly Justice Gagnè’s quiet criticism of Justice Binnie’s rejection of concerns about institutional bias in the face of an institutional conflict of interest in the SCC’s 2005 decision in Vaughan, especially in light of the different decision of the SCC on essentially the same issue in 2002 in Macdonell.)

From Madam Justice Gagné’s judgment in Renaud:

[27] In Vaughan v Canada, 2005 SCC 11 (CanLII) …  the Supreme Court warned against accessing the courts to short-circuit the grievance process and avoid having to follow the adjudication provided under it. It also held that absence of recourse to independent adjudication under section 91 of the former scheme (now section 208 of the PSLRA) is not in itself a sufficient reason for the courts to get involved, except on the basis of judicial review. [28] At paragraph 37 of that decision, Justice Binnie, writing on behalf of the majority, rejects the idea that this type of internal procedure could raise concerns regarding the institutional impartiality of the decision maker, in that case, one of the employer’s senior officials:

. . . Efficient labour relations is undermined when the courts set themselves up in competition with the statutory scheme (St. Anne Nackawic, at p. 718; Weber, at para. 41; Regina Police, at para. 26). I do not agree with the appellant’s broad suggestion, however obliquely made, that the departmental procedure reeks of conflict of interest. The appellant’s own success with his 1995 grievance shows this not to be true in practice. The suggestion that departmental officials have an interest in denying ERI benefits to an employee who comes within the applicable policies so as to constitute some sort of institutional bias is simply not credible. If the facts in another case were to disclose a more particular and individualized conflict problem (as in the whistle-blower cases) other considerations will come into play.

[29] The Federal Court of Appeal, too, addressed the issue of impartiality in Canada (Attorney General) v Assh, 2006 FCA 358 (CanLII)… , in which it was asked to identify the criteria to be used to assess potential conflicts of interest under certain Treasury Board Secretariat policies. Writing on behalf of the Federal Court of Appeal, Justice Evans held that a reviewing court must apply a less deferential standard of review to remedy any injustices that could result from having a public servant’s grievance be decided by the employer rather than by a third party:

. . . I said in Vaughan (at paragraph 139) [Vaughan v Canada, 2003 FCA 76 (CanLII) … that the informal nature of the grievance process under section 91 [now section 208 of the PSLRA], and the fact that it is not independent of the employer, suggest that a court should not afford much deference to internal grievance boards’ decisions on questions that are not purely factual in nature. As already noted, Mr. Assh had no right to refer his grievance to an independent Adjudicator under section 92 [now section 209 of the PSLRA].

On balance, this factor suggests that correctness is the appropriate standard of review on the interpretation of the Code’s apparent conflict of interest provisions and, subject to the point made in the previous paragraph, their application to the facts of a particular case.

[30] Author Christopher Rootham’s remarks on this subject are also of some interest. In Labour and Employment Law in the Federal Public Service, Toronto: Irwin Law (2007), at pages 308 9, he notes that in the context of access to information requests, the Supreme Court has already endorsed the approach of Justice Evans of the Federal Court of Appeal, according to which senior officials of federal institutions “are likely to have an institutional predisposition towards restricting the public right of access [under access to documents legislation] and construing the exemptions broadly” (see Macdonell v Quebec (Commission d’accès à l’information), 2002 SCC 71 (CanLII), 2002 SCC 71 at para 8). This raises the question of why such institutional biases would be less likely in an internal grievance procedure where certain relatively considerable institutional interests would come into play.

[31] On this point, I note with respect that I think that the effectiveness and the legitimacy of the internal grievance procedure provided for under section 208 of the PSLRA will only be guaranteed if the reviewing court exercises its residual jurisdiction while bearing in mind the particular features of the statutory scheme, such as the absence of an independent decision maker, for instance, although this could be a relatively conclusive factor, depending on the circumstances (Vaughan, above, at para 22).

[32] Finally, it should be noted that a recent line of authority in this Court and in the Federal Court of Appeal points out that section 214 of the PSLRA is a relatively weak privative clause, and that the absence of an independent decision maker at the final level of the procedure should be interpreted as a factor favouring a lower degree of deference (see Appleby-Ostroff v Canada (Attorney General), 2010 FC 479 (CanLII), 2010 FC 479 at paras 15-16, affirmed on this point in 2011 FCA 84 (CanLII), 2011 FCA 84 at paras 20-23; Backx v Canada (Canadian Food Inspection Agency), 2010 FC 480 (CanLII), 2010 FC 480 at para 22).

Gauthier and Assh

In Renaud, Madam Justice Gagné might also have referenced the equally relevant Federal Court of Appeal decision in Gauthier v. Canada (Attorney General), 2008 FCA 75 (CanLII) at paras. 27-34.

In Gauthier, in a judgment of the Court written by Létourneau J.A., the Court of Appeal affirmed and applied Justice Evan’s Federal Court of Appeal judgment in Assh to the effect that a lack of independence in the tribunal whose decision is under review argues importantly for a correctness standard of review.

At para 34, Létourneau J.A. quotes the following passages from Justice Evans’s judgment in the Federal Court of Appeal decision in Assh (different passages, it should be noted, from the passages quoted from Assh by Madam Justice Gagné in Renaud).

Létourneau J.A., in Gauthier quoting Evans J. A. in Assh:

(v) Conclusion

[50] On the basis of the pragmatic and functional considerations discussed above [the decision was pre Dunsmuir], I am of the opinion that correctness is the appropriate standard for reviewing the final level grievance decision respecting the interpretation of the relevant sections of the Code, and the application of the provision respecting possible influence. [51] In reaching this conclusion, I have attached particular weight to two factors. First, and more important, the Code is effectively incorporated into Mr. Assh’s contract of employment, and the administrative decision-makers responsible for its interpretation and application are not independent of the employer. In my opinion, Parliament should not be taken to have intended that, subject only to judicial review for unreasonableness, the employer may determine unilaterally whether, by accepting this legacy, an employee would be in breach of contract.

[Emphasis added by Létourneau, J.A.]

My Conclusion

The argument that courts ought not to accord respect-based deference to decisions of adjudicative tribunals that are, in law, biased – i.e., not independent or not seen to be impartial – seems not only self-evident in principle but has, it turns out, meaningful authoritative support as well.


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