July 22, 2010

Nova Scotia Commercial Arbitration Act ousts Judicial Review (Still)

Filed under: Uncategorized — ruleswatch @ 7:52 pm

Sharecare Homes Inc. v. Cormier, Hfx. No. 308173

The Nova Scotia Supreme Court has confirmed that a consensual arbitration award in an employment termination dispute cannot be attacked by judicial review. The appropriate route was in the limited grounds of appeal available under the Commercial Arbitration Act. The Parties were not bound by statute to proceed with arbitration and the arbitrator that they selected was not appointed pursuant to any legislation.

Citing the Alberta Court of Appeal in Knox v. Conservative Party of Canada at ¶ 14, Smith A.C.J. quoted:

Judicial review is a feature of public law whereby the superior courts under s.96 of
the Constitution Act 1867 engage in surveillance of lower tribunals to ensure that the
fundamentals of legality and jurisdiction are respected by those tribunals.

    The tribunals which are subject to judicial review are, for the most part, those which are
    court-like in their nature, or administer a function for the benefit of the public on
    behalf of a level of government.

Those which are empowered by legislation to supervise and regulate a trade, profession, industry or employment, those which are empowered by legislation to supervise an element of commerce, business, finance,property or legal rights for the benefit of the public generally, or which set standards
for the benefit of the public may also be subject to judicial review. Issues of
contractual or property rights as between individuals or as between individuals and
organizations, are generally addressed through ordinary court processes at common
law, or by statute or through arbitration or alternative dispute resolution as agreed
by the parties.

The Court continued from ¶ 20 – 21 of Knox:

It follows that

    if a tribunal is exercising powers that do not accrue to private

, and that are only vested on the tribunal by statute for the benefit of the
public, then it is subject to judicial review. Otherwise it is a private consensual
tribunal and prima facie subject only to private law remedies.

Smith ACJ went on to cited Ripley v. Investment Dealers
Association of Canada et al. (No. 2)
(1991), 108 N.S.R. (2d) 38 (N.S.S.C. A.D.) where
Freeman J.A. stated at ¶ 31:

While prerogative writs do not lie against the panel as a

    domestic tribunal

, its

    proceedings are reviewable for want of jurisdiction or breaches of natural justice

which would include bias, as Madam Justice Roscoe found. The remedy, as in
Saskatchewan, would be declaratory or injunctive relief.

Interestingly, the Court in Sharecare raised the matter of its own motion when the original argument had concluded and invited additional submissions.


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