Tuesday, 11 February 2014

Giving Directions to Administrative Decision-Makers (for Self-Represented Litigants): Bernard v. Canada (Attorney General), 2014 SCC 13

Bernard v. Canada (Attorney General), 2014 SCC 13 represents the end of a long struggle for Ms. Bernard, an employee of the Canadian revenue service who challenged -- without counsel -- her employer's ability to send her personal contact details to a union. A decision ordering disclosure was ultimately upheld as reasonable and constitutional but there was an interesting divergence of views on the Supreme Court of Canada about the jurisdiction of an administrative decision-maker to which a matter has been remitted with directions.

B was a member of a bargaining unit, though she refused to join the union. The case came before the Public Service Relations Board as an unfair practices matter. The employer had refused to release home contact details, to the chagrin of the union. The Board concluded that the refusal interfered with the union's task of representing the bargaining unit and ordered that home contact details be released.

At this point, B got wind of the case and commenced judicial review proceedings. She was successful. In Bernard and Canada (Attorney General), 2010 FCA 40 the Federal Court of Appeal remitted the matter to the Board to address whether it was compatible with the Privacy Act. Pelletier J.A. concluded:
[46]           In my view, the Board erred in declining to exercise its jurisdiction when it failed to consider the privacy issues raised by its decision of February 21, 2008 when issuing its order of July 18, 2008. Those issues involved the privacy rights of individuals whose interests were manifestly not represented by the parties. I would therefore set aside the Board’s order of July 18, 2008 and remit the matter to the Board for re-determination. I would order the Board to give the Office of the Commissioner of Privacy notice of the re-determination proceedings, together with a copy of these reasons, and to draw the latter’s attention to section 14 of the Regulations, on the understanding that if intervener status is sought, it will be granted with full rights of participation in accordance with the Board’s usual practice in the case of contested matters. The applicant, Ms. Bernard, should also be given notice of the proceedings and given the opportunity to participate.
The issue that divided the Supreme Court of Canada was whether these directions allowed the Board to consider constitutional arguments raised by B. She argued that the disclosure of her home contact details infringed her freedom of association by forcing her to associate with the union and that the disclosure amounted to an unconstitutional search and seizure.

The majority held that the Board was right to refuse to consider the arguments:
[35]                          The Federal Court of Appeal agreed with the Board that its mandate on the redetermination as set out in the Court of Appeal’s earlier decision was limited to the question of how much home contact information the employer could disclose to the union without infringing an employee’s rights under the Privacy Act.  It was argued that the Court of Appeal erred in this regard. However, that view was clearly not shared by Blais C.J., who was the president of the panel in both proceedings before the Court of Appeal. Giving some weight to the Court of Appeal’s interpretation of its own order in these circumstances is not so much a matter of deference as of operating on the common-sense assumption that the Court knew what it meant. We would hesitate to say that the Board made a reviewable error by interpreting the Court of Appeal’s order in the same way that court itself did or by failing to deal with an issue that manifestly has no merit. But we see no need to reach any final view on this point.
Reliance on the coincidence that Blais C.J. was on both panels is odd. In the common law tradition, the fact that a judge has a particular view of the scope of one of a decision she participated in does not bind her colleagues.

In a set of reasons dissenting in part, Rothstein J. took issue with the majority's approach. As he noted, once an administrative decision-maker's ability to hear constitutional arguments is established it can be removed only by statute:
[87]                          The Conway test for determining whether an administrative tribunal has jurisdiction to hear Charter claims asks whether the legislature has clearly excluded consideration of these issues from the tribunal’s jurisdiction. It would be inconsistent with Conway to now hold that a reviewing court may exclude such a fundamental aspect of a tribunal’s jurisdiction.
It is strange on first glance that a court giving directions could impose a constraint that the legislature did not. Nonetheless, when a matter is remitted to an administrative decision-maker, it must be constrained in some way by the reasons and order of the reviewing court.

Indeed, Rothstein J.'s conclusion was ultimately based on a close parsing of the text of the Federal Court of Appeal decision. The quoted passage above refers only to "privacy rights" but the paragraph before it suggested it would be "premature" to address B's constitutional arguments. Rothstein J. inferred from the use of "premature" that at some other point the argument would be "mature" enough to be addressed, presumably once the matter had been remitted to the Board! Given that B was never represented and might not have thought it necessary to reserve her rights, there is something to be said for Rothstein J.'s approach.

The lesson for reviewing courts is to be very clear in making directions. Beyond that, they should be alive to the risk that a self-represented litigant might not be knowledgeable enough to insist on the necessary level of clarity in the directions and make every effort to ensure that the individual's concerns are accommodated.

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