Nor-Man Regional Health Authority: Labour Arbitration, Questions of General Law and the Challenge of Legal Centrism

Recognizing labour relations as “a discrete and special administrative regime” in which decision-makers have “special expertise”, and giving effect to statutory privative causes, Canadian courts have reviewed on a deferential “reasonableness” standard the decisions of arbitrators relating to the interpretation of collective agreements and their enabling statutes. But is a deferential approach to review appropriate when, in resolving an industrial dispute, an arbitrator has regard to norms articulated by the courts in a context – the law of commercial contracts – unlike that of labour relations? More specifically, does the invocation of principles of promissory estoppel in an arbitral award remove it from the arbitrator’s area of expertise and expose it to correctness review by the courts? In terms of the framework for substantive review set out by the Supreme Court of Canada in Dunsmuir and, in particular, its guidelines with regard to questions that will be reviewed on a correctness standard, does an arbitrator’s reliance on principles of promissory estoppel raise a question of general law that is both of central importance to the legal system as a whole and outside the arbitrator’s specialized area of expertise? This question was the focal point of the Manitoba Court of Appeal’s decision in Manitoba Assn. of Health Care Professionals v. Nor-Man Regional Health Authority Inc. After reviewing the facts of this case, including the arbitrator’s award and the judgments on review, I critically assess the Court of Appeal’s choice of the intrusive correctness standard of review. I argue that the Court unduly extends the concept of “question of law of central importance to the legal system”, overlooks the important influence of labour relations policy in shaping the principles of estoppel applicable in the context of grievance arbitration and undermines the successful operation of labour arbitration as an autonomous legal regime. In an addendum, I briefly discuss the decision of the Supreme Court of Canada overturning the judgment of the Court of Appeal on the question of the standard of review.

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