What is the effect of a weak privative clause in legislation that prohibits judicial review of a tribunal decision?

New Brunswick, Canada


The following excerpt is from New Brunswick Human Rights Commission v. Potash Corporation of Saskatchewan, Inc., 2006 NBCA 74 (CanLII):

The weak privative clause is to be contrasted with a full privative clause. The latter prohibits judicial review of tribunal decisions, except perhaps on limited grounds such as excess of jurisdiction. However, as a matter of constitutional law, legislative bodies cannot totally immunize tribunal decisions from judicial review: see Crevier v. Attorney General of Quebec et al., 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220. That is why judicial review is available despite the clear intention of the legislature to oust all forms and manner of review. In the end, however, both types of privative clause indicate an intention that a tribunal’s decisions are owed deference. The final and binding clause signifies that less deference is owed than in cases where the legislation provides for a full privative clause.

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