A Minister’s decision to enter into a contract on specific terms is not a “statutory power of decision” for the purposes of judicial review

Administrative law – Decisions reviewed – Minister of Transportation – Jurisdiction to grant Charter remedies – Judicial review application – Appeals – Jurisdiction – Statutory powers – Remedies – Charter relief – Declaratory relief – Labour law – Collective agreements

Independent Contractors and Business Association v. British Columbia (Transportation and Infrastructure), [2020] B.C.J. No. 1340, 2020 BCCA 243, British Columbia Court of Appeal, August 28, 2020, M.V. Newbury, P.M. Willcock and G.B. Butler JJ.A.

The Minister of Transportation and Infrastructure made a decision in the context of a “project labour agreement,” a model used in British Columbia for the organization and management of labour on large construction projects, that required anyone who wanted to work on a large construction project of the provincial government to be, or to become, a member of one of the Building Trades Unions.

The appellants, a group of unions, business entities and associations, and contractors objected to aspects of a project labour agreement. They sought judicial review of the Minister’s decision. The Minister and the Attorney General applied to strike the petition for judicial review on the basis the requirement in issue was government by private law contracts, rather than administrative law principles, and was within the exclusive jurisdiction of the Labour Relations Board.

On judicial review, the chambers judge found certain of the issues raised on the judicial review were not within the exclusive jurisdiction of the Labour Relations Board.

On appeal, the Court of Appeal confirmed the Supreme Court, rather than the Labour Relations Board, had jurisdiction to determine whether the Minister properly exercise her powers under the Transportation Act. That said, the Minister’s ability to enter into a contract that included the requirement in issue was not an exercise of a “statutory power” or a “statutory power of decision” and was not amenable to judicial review.  The appeal was allowed in part.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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