The Supreme Court of Canada noted that by s. 12 of the Interpretation Act “every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. This passage is often referenced in the interpretation of the Code protections. ¹

The purpose of the unjust dismissal regime is to provide the persons covered with rights similar to those held by unionized employees. ²

For this reason, the interpretation of rights arising under the Code has included the use of arbitral cases. This is so as the Code is based on rights given to union members. ³

Also, administrative cases are not subjected to the same principles of common law stare decisis. ⁴ This being said, there is a concept which has developed known as “arbitral consensus”. When a decision departs from the generally viewed consensus, the decision maker must state their reasons for this departure. Failing to do so, will make the decision unreasonable and reviewable. ⁵

Stare Decisis

It is clear that the adjudicator and now the CIRB are bound to follow the judicial precedents of the Federal Court. ⁶ This being said, a court, however, may depart from precedent where a case has been wrongly decided or where economic, social and political context underlying a decision has changed. ⁷

Underlying the analysis is the theme of inequality of bargaining power and the central importance of work in society. ⁸