R. v. CONWAY - British Columbia Review Board

Act, R.S.B.C. 1979, c. 212, and appointed under the parties’ collective agreement, had the
jurisdiction to determine the collective agreement’s constitutionality.
[50] La Forest J., writing for the Court on this issue, concluded that the jurisdiction lay
with the arbitrator. Under the Industrial Relations Act, the arbitrator had express authority to
“provide a final and conclusive settlement of a dispute”. To fulfill this mandate, arbitrators acting
under the Act could interpret and apply any statute that regulated employment. This included the
Charter. La Forest J. noted that arbitrators were bound by the same Constitution as the courts.
Accordingly, if a collective agreement was illegal or unconstitutional, an arbitrator must decline to
apply it just as a court would.
[51] La Forest J. rejected the College’s argument that the informal arbitration process
was unsuited to litigating a Charter issue, concluding that any disadvantages of allowing
administrative tribunals to decide constitutional questions were outweighed by the “clear
advantages” of granting them this jurisdiction. In his view, such jurisdiction promotes respect for
the Constitution because “[t]he citizen, when appearing before decision-making bodies set up to
determine his or her rights and duties, should be entitled to assert the rights and freedoms guaranteed
by the Constitution” (p. 604). Constitutional issues should be raised at an early stage in the context
in which they arise, without the claimant having to first resort to an application in superior court,
which is more expensive and time-consuming than the administrative process. In addition, a
“specialized competence can be of invaluable assistance in constitutional interpretation” (p. 605).
Specialized arbitrators and agencies can sift through the facts and quickly compile a record for the