[80]         A statutory directive that the proceeding be an “appeal” indicates the legislature intended the appellate standard, i.e. correctness for issues of law and palpable and overriding error for issues of fact or mixed issues with no extractable legal error: e.g. Vavilov, paras. 44 and Bell Canada, paras. 4 and 34. In our case, ss. 68 and 69 authorize an “appeal” from the Officer to the Board. But s. 70(2) designates the further proceeding to the Court of Appeal as a “review”, not an appeal. The Legislature’s differing choice of words is advertent and meaningful. A review connotes a more limited judicial intervention: Vavilov, paras. 50-52.

[81]         Section 70(2)(b) directs the Court to recognize that the Board’s panel is an “expert body”. In standard of review etymology, expertise formerly signalled deference. The departure of Dunsmuir’scontextual analysis (Dunsmuir v. New Brunswick, 2008 SCC 9), jettisoned the status of expertise as a nominate marker of reasonableness. Vavilov’s approach replaces the factorial matrix with direct deference to the legislature’s preference (Vavilov, para. 30). Nonetheless, expertise “remains a relevant consideration in conducting reasonableness review” (Vavilov, paras. 30-31), while deference to expertise is incongruent with correctness.

I think Fichaud JA’s analysis is accurate, though he accepted that the parties had proceeded on the basis of a notice of “appeal” and he went on to dismiss the “appeal”. Ordinarily, under the Vavilov framework, appeals attract the appellate standard of review, not the presumption of reasonableness review. It seems to me that the best way to understand s. 70(2)(a) is that it vests the superintending power of judicial review in the Nova Scotia Court of Appeal (as is also done, as it happens, with some regulatory decision-makers in the Federal Courts Act, s. 28). In any event, I do not think this terminological difference made any difference to the outcome (though perhaps the Nova Scotia Court of Appeal needs a form for an application for judicial review rather than the Notice of Appeal (Tribunal) used here: see para. 4).

The reference to “expertise” is intriguing and evidence of how statutory language drafted against the backdrop of common law principles can become outdated when the common law moves on. Here, the legislature’s concern at the time this provision was introduced was evidently to work within a standard of review framework that did not presume expertise in order to ensure that the Labour Board actually received deference from the courts. Now that the presumption of reasonableness review is triggered without any need to identify the decision-maker’s expertise, this statutory language is redundant. Fichaud JA referred to s. 70(2)(a) at only one point in his reasonableness analysis (at para. 101) and it does not seem to have made a material difference to the outcome, as the point was an uncontentious one about the applicability of a prior decision of the Board. I think the cleanest way to deal with a provision like s. 70(2)(a) is to be clear that the evolution of the common law has rendered it redundant, but I appreciate that this runs into the adage/interpretive principle that the legislature is presumed not to use superfluous language. Of course, the much more difficult version of this problem is what to do with the many regulatory statutes across Canada that provide for appeals on a question of law or “jurisdiction”, a term that is increasingly devoid of any analytical content.

Lastly, note that I have managed to write several hundred words on a standard of review issue without saying a word about the facts of the case. For a long time, this was a common feature of Canadian administrative law. It is very rare now, and for that we should be grateful.