Thursday, 26 September 2013

Administrative Law and the Next Supreme Court of Canada Justice

With Justice Morris Fish's retirement, the federal government must appoint a new judge from the province of Québec to the Supreme Court of Canada. A shortlist of three names is lying on the Prime Minister's desk.

Among them is thought to be Justice Bich of the Québec Court of Appeal. I spoke with the Globe and Mail's Sean Fine last week. He mentioned that there was a sentiment that Justice Bich was thought to be too liberal for nomination by the current conservative government. This characterization seemed to me to be quite inapt, as I explained to Mr. Fine. Here is the relevant extract from his article:
Justice Bich, an expert in administrative law who writes frequently, and with gravitas, and knows civil law thoroughly, is considered a favourite. “Any third-year law student would tell you she’s a contender,” a Montreal lawyer said.
And she can’t be easily pigeonholed. “She’s a very intelligent judge who is likely to go further than the current Supreme Court in deferring to government agencies,” said Paul Daly, a University of Montreal law professor.
Presumably, the idea that Justice Bich is too "liberal" is intended to mean that she will be willing to enforce limits on government action, especially limits drawn from the Charter. But judging by Bich J.A.'s administrative law jurisprudence the idea that Bich J. would be an interventionist is entirely wrong-headed. In fact, she has gone further than the Supreme Court of Canada in advocating (a) deference on questions of procedural fairness; and (b) deferential review of general questions of law. A Supreme Court with Justice Bich on it would offer more latitude to government, not less.

In this, Justice Bich follows in a long tradition of Canadian labour lawyers (for she is, first and foremost, a labour-law expert) who have been suspicious of judicial activism. For example, Paul Weiler's influential 1971 article warning of the "slippery slope" of judicial intervention focused on the Court's meddling in labour law.

In short, Bich J.A. has been an innovative thinker on questions of administrative-law jurisprudence and she has wholeheartedly embraced the Supreme Court of Canada's deferential turn. Not appointing her because of a perception that she would be interventionist or too "liberal" would be profoundly silly.

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