View cases - Stewart McKelvey

Page: 13[31] In Knox v. Conservative Party of Canada, supra, the Alberta Court of Appealconsidered whether a decision of a political party under its constitution was subjectto the public law remedy of judicial review or whether review by the Court of QueensBench was limited by the provisions of the Alberta Arbitration Act. The Court statedat 14:Judicial review is a feature of public law whereby the superior courts under s.96 ofthe Constitution Act 1867 engage in surveillance of lower tribunals to ensure that thefundamentals of legality and jurisdiction are respected by those tribunals. Thetribunals which are subject to judicial review are, for the most part, those which arecourt-like in their nature, or administer a function for the benefit of the public onbehalf of a level of government. Those which are empowered by legislation tosupervise and regulate a trade, profession, industry or employment, those which areempowered by legislation to supervise an element of commerce, business, finance,property or legal rights for the benefit of the public generally, or which set standardsfor the benefit of the public may also be subject to judicial review. Issues ofcontractual or property rights as between individuals or as between individuals andorganizations, are generally addressed through ordinary court processes at commonlaw, or by statute or through arbitration or alternative dispute resolution as agreedby the parties.2010 NSSC 252 (CanLII)[32] The Court continued at 20 - 21:It follows that if a tribunal is exercising powers that do not accrue to privateorganizations, and that are only vested on the tribunal by statute for the benefit of thepublic, then it is subject to judicial review. Otherwise it is a private consensualtribunal and prima facie subject only to private law remedies.An examination of the Pushpanathan test, which is used to set the standard ofjudicial review, shows that it is largely inapplicable to private consensual tribunals.The first part of the test is the existence of a privative clause, which is purely amatter of statute. The second part of the test is the expertise of the tribunal. However,where the parties have consented to a particular dispute resolution mechanism, ithardly lies in their mouths to say that the tribunal that they have selected themselves