Monday, 24 March 2014

Turning Back Time: Legitimate Expectations and the Potential Significance of Paragraph 6 of the Nadon Reference

Consider paragraph 6 of Friday's Supreme Court of Canada decision in the Nadon reference:
[6]                              The practical effect is that the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.
So far attention has focused on whether Justice Nadon might have to reimburse the additional salary he received during his time as a member of the Court. That is a complicated legal question which brings into play the enforcement discretion of those with the purse strings.

Paragraph 6 might have some unforeseen consequences, however. The practical and legal effect is that the clock has been turned back to October 2013. It is as if Justice Nadon were never plucked from the three-person shortlist. It is as if there is now a two-person shortlist that the government can pick from.

Can the government ignore that shortlist? If it does so, it opens up the following problem. Rocco Galati's initial challenge to the appointment of Justice Nadon is still outstanding. You can look at the docket here: the case was stayed pending Friday's decision and remains in the system, although a direction was given today by Zinn J. for the parties to indicate their intentions within seven days.

Ordinarily, the federal government would apply for it to be dismissed and Galati would consent.

But will he? Galati may insist on waiting for a replacement to be named. If the government goes outside the two-person shortlist, Galati may well amend his application for judicial review to contend, for example, that he has a legitimate expectation that the government will finish a process it gave a "clear, unambiguous and unqualified" undertaking to complete. Remember: the clock has been turned back to October. On this hypothetical argument, it would be as if the government had proceeded through its normal process only to pick someone who had never appeared at all on the shortlist.

I am not suggesting that this sort of argument would succeed. Such an amendment would be vigorously contested on standing and justiciability grounds and it is far from clear that it would be successful on the merits. Nonetheless, as long as Galati's application is in the system, it can be amended relatively easily. And I suspect Galati is not going to consent to a dismissal until the government has appointed a replacement.

Hanging over all of this is the bunch of ancillary orders Galati is seeking, including disclosure of internal government opinions on the legality of the appointment of Justice Nadon. If he amends his initial application, the ancillary relief orders will still be there, opening up the prospect of the release of sensitive government documents.

Going outside the existing shortlist therefore risks dragging the process out further by leading to even more litigation. That is the unforeseen and doubtless unintended consequence of paragraph 6.

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