Broadly speaking, remedial orders made in labour cases are allowed a “wide margin of appreciation”. ¹ Such issues “go to the very heart of the specialized expertise of labour adjudicators”. This general statement of law is more emphatic when considering the impact of an award of Unjust Dismissal as the Code provides a “largely uncircumscribed remedial authority”.

An example of such breadth of adjudicative remedy was seen in a 1989 Supreme Court decision upholding a requirement that the employer provide a positive reference while speaking generally to the wide range of remedial power given to the decision maker. ²

Such an order may not be set aside on review unless it is “punitive, offends the Charter, counteracts the purposes of the Code, or cannot be said to reasonably remedy or counteract the unjust dismissal”. ³

Provided that the statutory discretion has been exercised in good faith and has followed the principles of natural justice and presuming no reliance has been put upon irrelevant or extraneous evidence, then courts will not interfere in the remedy provided, including reinstatement or not. ⁴

The issue will often be whether the standard of review is "reasonableness" or "correctness". The reasonableness standard allows for the possibility of differing results, even conflicting.

The "correctness" standard allows for just one right answer.

The determination of which standard applies is based on the issue before the court, as discussed below.

In the federal system of review of Unjust Dismissal cases, there are frequently two levels of review, by the trial division of the Federal Court initially and subsequently by the Federal Court of Appeal.

The court hearing the judicial review application should not substitute its own view of the proper remedy, where it has been established the original remedy is incorrect.  There may arise exceptional circumstances where it is permitted to do so. ⁵ The Supreme Court of Canada noted the exceptions to this general rule, such as that the outcome is inevitable, there may be a concern of fairness, or urgency to end the dispute, or costs to be incurred, or where the original decision maker had a genuine opportunity to decide the question.

In the case of the hearing before the Court of Appeal from the Federal Court award, the appellate court then stands in the shoes of the first reviewing court. It will determine whether the first court applied the correct test in its review of the adjudicative award and whether it do so correctly. ⁶ In essence, the Court of Appeal steps into the shoes of the first reviewing court and called upon to “reconduct the assessment of the reasonableness of the adjudicator’s decision”. ⁷