View cases - Stewart McKelvey

- 11 -evaluate whether drug and alcohol testing policies are reasonable, even though some ofthe lead cases are the product of the judicial pen? Are we to assume that labour arbitratorsdealing with alcohol and drug testing policies can lay claim to a relative expertise notpossessed by the judiciary? I answer both questions in the negative and raise a third: Howdoes a reviewing court deal with the reality that the arbitral jurisprudence reveals whathave been described as competing analytical frameworks or tests? In my view, therecomes a point where the goal of certainty in the law must overshadow the precepts of thedeference doctrine. This is one of those cases.[22] As a general proposition, this Court has accorded deference to decisions ofthe Labour and Employment Board, individual labour arbitrators and labour arbitrationpanels involving questions of law arising from the interpretation of a collectiveagreement or the enabling legislation. Nothing that was decided in Dunsmuir, save for thenotion of jurisdictional questions, detracts from the earlier jurisprudence of this Court.Thus, I am left with the task of justifying the decision to apply the correctness standard ofreview to the arbitration board’s decision. My reasoning is not complicated. The centralquestions raised on this appeal require the decision maker to strike a proper balancebetween the right of an employer to adopt policies that promote safety in the workplace,and an employee’s right to privacy or to freedom from discrimination in those caseswhere the challenge is brought under human rights legislation. When viewed throughthese prescriptive lenses, it is only natural to ask whether arbitrators possess a relativeexpertise that supports a finding that the Legislature intended that deference would beaccorded to arbitration decisions involving drug and alcohol testing.2011 NBCA 58 (CanLII)[23] Certainly, the Supreme Court has yet to accord deference to anadministrative tribunal with respect to questions of law umbilically tied to human rightsissues: see Jones and de Villars, Principles of Administrative Law, 5 th ed. (Toronto:Carswell, 2009) at 553. Similarly, the Supreme Court has held various privacycommissioners do not have greater expertise about the meaning of certain concepts foundin their respective statutes which limit or define their authority: see Jones and De Villarsat 553, note 223. Accepting that no analogy is perfect, I see no reason why this Court