Tuesday, 26 November 2013

Putting the Katz amongst the Pigeons

In Zenner v. Prince Edward Island College of Optometrists, [2005] 3 SCR 645, one of the conditions imposed by his professional body on an optometrist who had lost his licence was that he complete an accredited medical ethics or optometrist course. The problem was that, at the time, the College had not accredited any such course! The condition was impossible to fulfill. There being no rational basis for imposing an impossible condition, it was struck down.

Friday, 22 November 2013

Thursday, 21 November 2013

Chevron Deference in Canada?

The comments of Evans J.A. in Qin v. Canada (Citizenship and Immigration), 2013 FCA 263 are obiter, strictly speaking, but they are comments by Evans J.A. and will carry a great deal of weight.

The Lori Douglas Inquiry

The Lori Douglas affair took a spectacular new turn yesterday, when the entire Inquiry Committee resigned. The Committee, established under the Judges Act, was inquiring into allegations against a Manitoba judge.

The Committee published reasons for its decision. Notably, the Committee felt its function was being frustrated by the resort of various parties to the Federal Court. Allegations of bias have been levelled against the Committee and have led to various applications and motions (see e.g. here).

An eyebrow might be raised at this point. Shouldn't the Committee be allowed to get on with its work and make a decision, after which the bias issue could be addressed? The Supreme Court of Canada recently made it very clear that reviewing courts should not get involved too early in the decision-making process: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR 364. The facts of that case related to jurisdictional issues rather than allegations of bias but there was an argument to be made here that the Federal Court should not intervene so early on.

But this prematurity argument was (it appears) never made before the Federal Court. Nobody spoke up for the Inquiry Committee.

Why? There is a general rule in Canadian administrative law that administrative tribunals cannot defend the merits of their decisions. The relevant principles are described by Stratas J.A. in Canada (Attorney General) v. Quadrini, 2010 FCA 246.

Had the Committee been heard, it would doubtless have strongly argued for a mandate to continue its operations.

In the event, however, the judicial review applications and associated motions continued and looked set to continue for some time. In the circumstances, the Committee chose to resign. In my view, this decision was not unreasonable, though my perspective is coloured by watching Ireland's public inquiries drag on for years due to court challenges and onerous procedural obligations.

At this point, it would be better just to start over. Perhaps Parliament, in between, could think of amending the Judges Act to ensure that someone is there to speak up for a future Inquiry Committee whose conduct is called into question. Otherwise, a cynical litigant (someone other than Justice Douglas) will be able to raise a claim of bias in order to drag the proceedings out for years.

UPDATE: Great post here with more details by Alice Woolley. 

Tuesday, 19 November 2013

Light blogging, heavy writing

I have been quiet for the last couple of weeks, mainly because I have been working on two fairly extensive projects (along with the usual term-time workload) with short deadlines.

One of these is a set of written submissions to the Senate Standing Committee on Legal and Constitutional Affairs, at which I am giving evidence on Thursday. The Committee is considering the proposed amendments to the Supreme Court Act to ensure that federal court judges can be appointed to the "Quebec seats" on the Supreme Court of Canada. It looks like a webcast of the hearing will be available.

I have posted my submissions on SSRN. The (lengthy) abstract is as follows:

The Committee has been asked to consider sections 471 and 472 of Bill C-4, which modify the Supreme Court Act. It has been asked to consider them in the midst of an important controversy. In late September, 2013, Prime Minister Harper nominated the Honourable Justice Marc Nadon, then a member of the Federal Court of Appeal, to replace the retiring Morris J. Fish as a member of the Supreme Court of Canada. After Justice Nadon was sworn in, but before he could take an active part in proceedings before the Court, a challenge was launched to the legality of his nomination. Mr. Rocco Galati, a Toronto lawyer, contended amongst other things that Justice Nadon was not eligible for elevation to one of the three seats on the Court reserved for jurists from Québec. Justice Nadon stepped aside pending the resolution of the challenge to his nomination.

Subsequently, the federal government took two steps. It proposed modifications to the Supreme Court Act as part of Bill C-4. And it referred two questions to the Court for the decision: whether federal court judges can be appointed to the Court pursuant; and whether Parliament can enact declaratory provisions to end the ongoing uncertainty about the validity of Justice Nadon’s appointment and to confirm for the future that judges from the federal courts can be elevated to the Court.

In my written submissions, I propose to address three issues:

(1) Can a member of the Federal Court or Federal Court of Appeal be appointed to one of the three Québec seats on the Supreme Court of Canada in accordance with the provisions of the Supreme Court Act?
(2) Do the provisions of Bill C-4 alter the existing law?
(3) Do the provisions of Bill C-4 require a constitutional amendment?

A brief summary of my answers is as follows:

(1) No: The most natural reading of the English and French versions of ss. 5 and 6 of the Supreme Court Act is that sitting or former judges and lawyers with 10 years’ experience are eligible for appointment (s. 5), but that in the case of the three seats on the Supreme Court of Canada reserved for Québec there is an additional requirement that the appointee be a current judge or practitioner from the province (s. 6).

A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Québec judges on the Court have current knowledge of Québec’s Civil Code. This is confirmed by the legislative history leading to the adoption of s. 6 and its subsequent evolution. The purpose of ensuring familiarity with civil law underpinned the policy choice to list the Québec courts and Québec bar as the sole sources from which the Québec seats on the Court could be filled.

(2) Yes: Parliament may enact declaratory provisions to cure doubts or mistaken interpretations of existing law by declaring the law’s ‘true meaning’ not only for the future but also for the past. A court faced with the question will have to take the declaratory provisions into account and will likely conclude that the proposed ss. 5.1 and 6.1 serve to put the appointment of Justice Nadon beyond all doubt. Whether the deployment of Parliament’s powers in the judicial domain is desirable is a separate question.

(3) Maybe: It remains to be seen what approach the Supreme Court of Canada will take to the interpretation of the amending formulas set out in Part V of the Constitution Act, 1982. There is scope for it to take an approach which would protect core provisions of the Supreme Court Act from unilateral amendment by Parliament. The Court may well conclude that a change to s. 6 of the Supreme Court Act constitutes a change to the “composition of the Supreme Court of Canada” and requires a constitutional amendment. There is accordingly a risk that s. 6.1, declaratory or not, is beyond the powers of Parliament because alterations to s. 6 of the Supreme Court Act can be accomplished only by a constitutional amendment. Equally, however, the Court may conclude that the Supreme Court Act can be amended by Parliament.
 These submissions build on the arguments that I have already made on the blog in recent weeks.

Tuesday, 12 November 2013

Canada's Senate: Advisory Elections and the Fettering of Discretion

The Supreme Court of Canada is hearing argument this week on a set of questions relating to the reform (or abolition) of the Senate. Part V of the Constitution Act, 1982 sets out various procedures for constitutional amendment. The Court has to determine which matters fall under which procedures.

The Senate Reference involves classical questions of constitutional law, but administrative law has (thankfully!) managed to insinuate itself into the discussion, thanks particularly to questions during oral argument from Justice Cromwell.

One of the reform proposals put forward by the federal government is the holding of advisory elections. Based on the results of these elections, the Prime Minister would make recommendations that the Governor-General to appoint new senators. At the moment, the formal position is that the power of appointment is vested in the Governor-General, a prerogative power exercisable by convention on the advice of the Prime Minister. There are no statutory limitations.

The question is whether holding advisory elections would be a change to the "method of selecting Senators" which requires a constitutional amendment. Or, to put the point as it was put in the oral arguments this morning, would the Prime Minister's discretion be fettered by a statute requiring him to "consider" the results of advisory elections? There are a few points to make on the administrative-law aspects of the problem.

1. It is difficult to talk of fettering the prerogative, as the Court of Appeal for England and Wales has recently noted (my post is here). As the Court said, "where a policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion), there is no rule of law which requires the decision-maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in a particular case" (para. 53). On this reading, a policy of holding elections on the nomination of senators or consultations with law societies on the nomination of judges would not fetter the prerogative at all.

2. If advisory elections are enshrined in statute, however, the situation might be different. If the Prime Minister did not follow the results of an advisory election, the refusal to do so could be subject to judicial review. There is no clear Canadian law on this. One might say, relying on the Conrad Black cases, that appointment to the Senate is a privilege, not a right, and thus non-justiciable.

But where there are statutory requirements which touch what is otherwise a prerogative power, it seems axiomatic that compliance with statute is required and judicially enforceable. This seems to be the conclusion the British Columbia Court of Appeal came to in a recent case involving a challenge to the appointment of a non-lawyer as Attorney General. And in the second Black case, the fact that termination of membership in the Order of Canada is regulated by a written policy was held to mean that he had an enforceable legitimate expectation that the policy would be followed.

3. Yet, if there were a statute which required the holding of advisory elections, and the Prime Minister decided to always follow the results of the advisory elections, this would presumably amount to an unlawful fettering of discretion. One point in favour of the legality of the advisory-elections proposal is that they could not lawfully be treated as binding.

4. As a general matter, surely some prior consultation does not change the formal method of appointment. For example, significant consultations are now held before the nomination of judges by the federal government. These surely are unproblematic. Does it make any difference that they are not statutory?

I do not think any of this is conclusive of the question, but I thought it helpful to set out the administrative law aspects to the problem. They are not straightforward!

Friday, 8 November 2013

Deference Denied on Questions of Procedural Fairness: Osborn v. The Parole Board, [2013] UKSC 61

Traditionally courts have seen themselves as the guardians of fair procedures. The substance of administrative decisions is for the decision-makers: they are the ones entrusted by the legislature with making decisions, and they have the expertise to do so.

Courts have been much less deferential in addressing the processes by which those decisions are reached. When it comes to the fairness of procedures, administrative decision-makers have to get it right. If they do not, courts stand ready to correct them.

Wednesday, 6 November 2013

Sequesters, Quarantines, or Common Sense?

There are important legal questions about the ability of the Canadian federal government to appoint members of the Federal Court and Federal Court of Appeal to the three Québec seats on the Supreme Court of Canada. I discuss some of these in this podcast with the McGill Law Journal.

These questions will be answered by the Court in a reference made to them by the federal government. I think the questions are serious -- especially in light of the legislative history -- and were not dispelled by the opinion provided by former justice Ian Binnie at the time that Mr. Justice Nadon was announced as the government's latest nominee.

In particular, in order to conclude that section 6 of the Supreme Court Act permits the appointment of federal court judges, the Court would have to explain (at the very least):
These are important questions (on which my view is that the best reading of s. 6 is that federal court judges are excluded: I may put my thoughts together in a paper, although I would not be the first to do so).

But one is liable to get sidetracked by relatively trivial issues. One is whether Justice Nadon lived in the province of Québec. This has precisely nothing to do with the question of statutory interpretation at issue.

A more recent one is whether Justice Nadon has been "quarantined", as sensationalist headlines announce, by the Court, and whether it is improper that he has an office in the building.

This language is most unfortunate and evidences a misunderstanding of the situation. Justice Nadon has been sworn in as a member of the Court. Of his own volition, he stood aside temporarily. It is entirely unsurprising that he has an office. Naturally, he does not participate in case conferences and the like. Certainly he does not discuss his own case with colleagues.

This sort of situation is not quite unprecedented. The House of Lords had to address an allegation that one of its members, Lord Hoffman, had an impermissible interest in the Pinochet litigation. They addressed it, indeed, finding that Lord Hoffman's involvement created a reasonable apprehension of bias. Life went on. Lord Hoffman is one of the most distinguished recent members of the House of Lords. Doubtless he did not discuss his own case with his colleagues. Withdrawing entirely from the business of the court, however, would have been inappropriate in the circumstances.

The Court has taken a very protective view of the integrity of the institution in setting out restrictions on contact between its eight other members and Justice Nadon. These restrictions remove any trace of a reasonable apprehension of bias that might taint the reference decision. In truth, they probably go further than is strictly necessary in the circumstances. As Eugene Meehan has said, this is the principle that justice should not only be done but be seen to be done "on steroids". Indeed, the likelihood of sensationalism on the part of the media may have led the Court to act so cautiously. This, I think, is a pity.

The risk is that these silly controversies and alarmist headlines will distract attention from the important issues about the special position of Québec's legal system, the nomination process and Canada's procedure for constitutional amendment.

UPDATE: Added a link to the podcast I did with the McGill Law Journal.

The Basis of Fairness in Administrative Law: Osborn v. The Parole Board

The recent UK Supreme Court decision in Osborn v. The Parole Board, [2013] UKSC 61 has already provoked interesting commentary on the relationship between the common law of procedural fairness and the European Convention on Human Rights. I have nothing to add to that commentary, but one of the things I find interesting about Osborn is the discussion of the basis of fairness in administrative law.

Monday, 4 November 2013

Using Administrative Law to Advance Substantive Equality

This is a second extract from my paper, co-written with Angela Cameron, on Furthering Substantive Equality through Administrative Law: Charter Values in Education. What follows is written for the context of education law, but applies much more broadly.



What spaces exist for the furthering of substantive equality within the existing administrative law framework? Five can be identified.

First, consider the apparent importance accorded to general norms. Questions of general law are both of central importance to the legal system as a whole and outside a decision-maker’s specialized area of expertise fall in the judicial domain.[1] Should a decision-maker make a misstep in answering such a question, the courts stand ready to intervene.[2] Enforcement of these general norms, then, is within the judicial bailiwick. Ensuring that certain important factors are taken into account in decision-making processes might amount to the sort of general norm that deserves Canada-wide enforcement. If there are important characteristics of vulnerable individuals which are common to multiple regulatory regimes, reviewing courts could ensure that administrative actors give the characteristics due consideration. Failure to do so would result in decisions being quashed and remitted for reconsideration of the previously overlooked characteristics. 

For example, prior to the reorientation of judicial review doctrine in Dunsmuir v. New Brunswick,[3] the Court applied a standard of review of correctness in TWU,[4] a case in which the respondent had refused to accredit the teacher training program of a private university. The refusal was based on the homophobic internal policy of the school, Responsibilities of a Membership in the Community of Trinity Western University, to which students and faculty were to adhere. Justices Iacobucci and Bastarache noted that “[t]he existence of discriminatory practices is based on the interpretation of the TWU documents and human rights values and principles. This is a question of law that is concerned with human rights and not essentially educational matters.”[5] TWU provides some support for the existence of a general norm of non-discrimination, which reviewing courts can stand ready to enforce. It may be that the TWU foundation has been washed away by the recent waves of reform.[6] However, regardless of its precise place as a matter of judicial review doctrine, non-discrimination is doubtless a key benchmark against which ministers, civil servants, school boards, principals and teachers should judge themselves.

Second, the Canadian definition of unreasonableness has ample scope for the furthering of substantive equality claims. Failing to pay heed to the need to accord substantively equal treatment to vulnerable individuals or failing to take into account evidence which is relevant because of the need to accord substantively equal treatment could cause a decision-making process to lack the necessary “justification, transparency and intelligibility” or a decision to fall outside the range of acceptable and rational solutions.[7] This may be a more appropriate means of furthering substantive equality claims in Canadian administrative law. Elevating considerations to mandatory status as general norms could reduce the degree of deference accorded to administrative actors, whereas conceiving of failures to take important characteristics into account as tending to lead to unreasonableness strikes a balance between administrative autonomy and the aim of furthering substantive equality. 

Third, administrative actors must take Charter values into account in exercising their discretion. Values must be distinguished from guarantees: even in cases where an individual cannot surmount the formal thresholds of specific Charter rights, “the values they reflect” can still be a relevant consideration for administrative actors.[8] In furthering substantive equality, this distinction is critical. Although many vulnerable individuals would not be able to surmount the high thresholds of, say, section 7 of the Charter, they can invoke the values underpinning them. An individual’s life, liberty and security of the person may not be threatened to such an extent that section 7 is itself engaged, but where administrative decisions touch upon these aspects of vulnerable people’s lives, discretion should be exercised in an appropriately sensitive manner. More broadly still, the notions of compassion and fairness, in a broader setting of constitutionalism, democracy and the rule of law, animate the provisions of the Charter. For the vulnerable individual, these notions are full of vitality. Section 15’s guarantee of substantive equality looms especially large in this decision-making picture, whether or not the formal threshold of section 15 is surpassed.

Fourth, when it comes to statutory values, a broad view should be taken of statutory purposes. As public documents, statutes should be construed by reference to institutional and social values. Imbuing statutory provisions with values such as knowledge, fairness, integrity and compassion will give further guidance to administrative actors as to how they should exercise their authority, to institutions formulating guidelines, and courts in their reviewing roles. For example, the overarching principle of tolerance in British Columbia’s School Act[9] has been held to have the effect that while a school board is “indeed free to address the religious concerns of parents, it must be sure to do so in a manner that gives equal recognition and respect to other members of the community”.[10]

Fifth, “soft law” can be adapted to the requirements of substantive equality. Statutes provide baselines and, by and large, high ceilings. Institutions and those arguing within them can exploit this space to improve the lot of vulnerable individuals. At base, though, the exercise of discretion is a human endeavour and should be treated as such. Training administrative actors what to look for and how to react to it remains paramount. Adapting law and discretion is important, but we should not lose sight of the human element at the heart of government.


[1]       Smith v. Alliance Pipeline, [2011] S.C.J. No. 7, [2011] 1 S.C.R. 160, at para. 26 (S.C.C.), per Fish J.
[2]       Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17, [2003] 1 S.C.R. 247, at para. 268 (S.C.C.), per Iacobucci J.
[3]       [2008] S.C.J. No. 9, [2008] 1 S.C.R. 190 (S.C.C.) [hereinafter “Dunsmuir”].
[4]       TWU, supra, note 8.
[5]       Id., at para. 18.
[6]       See, e.g., Syndicat du personnel technique et professionnel de la Société des alcools du Québec (SPTP) c. Société des alcools du Québec, [2011] J.Q. no 12598, [2011] R.J.D.T. 993, at para. 71 (Que. C.A.).
[7]       Dunsmuir, supra, note 87, at para. 47.
[8]       Doré, supra, note 3, at para. 3, per Abella J.
[9]       R.S.B.C. 1996, c. 412 [hereinafter “School Act”].
[10]     Chamberlain, supra, note 28, at para. 19.