Tuesday, February 10, 2015

Saskatchewan Labour Relations Board's New Appellate Authority by Greg

Among many other changes to Saskatchewan's employment and labour law, the Saskatchewan Employment Act, SS 2014, c S-15.1 ("SEA") provided the Saskatchewan Labour Relations Board with the responsibility to hear appeals of adjudicators' decisions in employment standards and occupational health and safety matters. And while most of the new language in the SEA remains to be interpreted, the Board's new appellate authority has been considered in several cases.

Chairperson Love described the standard of review applid by the Board in these matters in Wieler v Saskatoon Convalescent Home, 2014 CanLII 76051 (SK LRB) ("Wieler") at para. 12, a case where the Board upheld an adjudicator's decision that a release signed by an employee barred any further occupational health and safety complaint:

(T)he applicable standard of review of questions of law is correctness, for questions of mixed fact and law, reasonableness, and for questions of fact which may be considered errors of law, reasonableness.  

The Board has also applied a correctness standard to questions of natural justice. In 101193093 Saskatchewan Ltd v Selimos, 2014 CanLII 76054 (SK LRB), Chairperson Love remitted a wage assessment back to the adjudicator on natural justice grounds in a case where it was unclear whether the appellant employer received notice that the hearing would proceed in his absence.

The balance of the cases considered by the Board to date have generally involved little challenge to the conclusions reached by adjudicators. See Prairie Oasis Travel Plaza Inc v Sayed, 2014 CanLII 76052 (SK LRB) and Judy’s Korner Tavern v Samoleski, 2014 CanLII 76055 (SK LRB).

The Saskatchewan Court of Appeal has granted leave to appeal from the Board's decision in Wieler due to the novelty and importance of the Board's new appellate authority, as well as the viability of an argument that OHS rights are of a class of protections which cannot be waived by contract. As a result, the resolution of the case bears watching.

However, the Board's analysis that it should apply well-established standards of review (including deference to an adjudicator's findings) appears to be well-founded, particularly compared to alternatives which might have blurred the lines between the Board's appellate authority under Part IV of the SEA and its policy functions respecting labour relations under Part VI.

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please contact me at gfingas@grj.ca if you require legal advice related to labour, employment or privacy issues.