Tribunal Independence – Ocean Port Rules

Court of Appeal Approves Mid-term Dismissal of Adjudicators

Saskatchewan’s Court of Appeal has dismissed the Unions’ appeal of the Queen’s Bench finding that the independence and impartiality of the Saskatchewan Labour Relations Board’s neutral adjudicators – the Chair and Vice-Chairs – has no constitutional protection.

The Court of Appeal concluded that the doctrine of stare decisis required it to accept the Supreme Court of Canada’s statement in Ocean Port that the “unwritten” constitutional principle of judicial independence identified in the Supreme Court’s 1997 decision in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (PEI Reference) does not apply to protect the independence of any administrative tribunal, even if the tribunal’s  principal role is adjudicative.

(SeeThe Saskatchewan Federation of Labour, The Saskatchewan Government and General Employee’s Union, and the Saskatchewan Joint Board Retail and Department Store Union  v. The Government of Saskatchewan (Attorney General, Department of Advanced Education, Employment and Labour) and The Saskatchewan Labour Relations Board, 2013 SKCA 61, issued June 11, 2013.)

The contra arguments, both policy and doctrinal arguments, the arguments that Unjust by Design claims are bound to be accepted in the end, are to be found in the book at pages 215-222.  (Full disclosure: the author was one of the appellants’ counsel in the Saskatchewan appeal.)

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