The Fact of the Matter Is...: McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39

A quick note on McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, an interesting case about whether law firm partners can be required to retire at 65. Short answer: yes (in British Columbia).

The BC Human Rights Tribunal found that Mr. McCormick was an employee of the firm, a finding which would have entitled him to protection against discrimination on the basis of age. The Supreme Court of Canada quashed this decision, concluding (uh-oh...) that the Tribunal did not have "jurisdiction" to address Mr. McCormick's complaint (at para. 15).

Do not worry! Abella J. was using "jurisdiction" in a conclusory sense to indicate that, properly interpreted, the statute did not cover Mr. McCormick.

And the proper interpretation of this particular statute is a matter for the courts. BC has a statute, the Administrative Tribunals Act, that requires courts to apply a correctness standard to all questions "except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness" (s. 59, in situations where there is no privative clause).

However, Abella J.'s decision was not purely an exercise in statutory interpretation. Consider the following paragraph:

[39]                          Turning to Mr. McCormick’s relationship with his partnership and applying the control/dependency test, based on his ownership, sharing of profits and losses, and the right to participate in management, I see him more as someone in control of, rather than subject to, decisions about workplace conditions.  As an equity partner, he was part of the group that controlled the partnership, not a person vulnerable to its control.

Whatever these considerations are, they are not questions of law. Arguably, they are "findings of fact". At the very least, they are questions of mixed fact and law.

The BC courts have reviewed questions of mixed fact and law under s. 59 on a correctness standard. I think this is wrong as a matter of principle. Common law principles apply to the Administrative Tribunals Act (see, by analogy, the treatment of the Federal Courts Act in Khosa), so s. 59 should be interpreted accordingly. These principles teach us that deference is appropriate on questions of mixed fact and law. Given that these are not clearly specified in s. 59, they should be subject to deferential review.

This is purely academic, however. The fact of the matter is that the Supreme Court has no appetite to undo a compromise that seems to suit BC's judges and politicians. It is understandable that pragmatism should triumph over principle!

Good Faith Bargaining and Deference

The Supreme Court of Canada has granted leave in National Gallery of Canada v. Canadian Artists’ Representation, 2013 FCA 64. This has the potential to be a very interesting administrative law case. I think that the majority of the Federal Court of Appeal was wrong and hope that the Supreme Court will favour the approach taken by Pelletier J.A. in his dissent.

You Don't Have the Power: Securities Investigations in Québec

In the context of an ongoing investigation of the embattled engineering firm, SNC-Lavalin, Québec's securities regulator compelled an executive to produce certain documents. In the same letter, however, the regulator purported to prevent the executive from telling anyone else about the documents (apart from the company's lawyers). Revealing the existence of an ongoing investigation was permitted, but not any details of the requested documents.

After some back and forth, the prohibition on disclosure was modified somewhat, so as to allow the company to comply with the request. However, the company was forbidden from communicating the details of the requested documents to its auditors. The auditors cried foul, arguing that they could not sign off on the company's books without knowing the details of the investigation, which they could piece together once they had identified the requested documents. On (internal) appeal to the Bureau de décision et révision, the company won, and the auditors had the necessary information (almost) at their fingertips, at which point the regulator too cried foul and appealed to the ordinary courts.

The saga came to an end yesterday (barring the granting of leave to appeal to the Supreme Court of Canada), with defeat for the regulator in Autorité des marchés financiers c. Groupe SNC-Lavalin Inc., 2013 QCCA 204.

Steering Charter Claims in the Right Direction

Williams v. British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 1976 featured an unsuccessful argument that the respondent, the statutory decision-maker who follows up on road-side penalties administered by the provincial police force, had jurisdiction to grant Charter remedies.

Section 1 of the Charter: A (Con)Way Out of the Morass?

Section 1 of the Charter of Rights and Freedoms provides that any infringement of a Charter right must be "prescribed by law", a requirement that must be satisfied by the government before an application of the proportionality test. The jurisprudence on section 1 is very messy and has been criticized. Indeed, the Supreme Court of Canada mentioned this criticism in its decision in Doré v. Barreau du Québec, 2012 SCC 12. It even relied on the criticism to justify overruling its previous decision in Multani (see my earlier post here). The funny thing is that the basic problem is not solved by Doré. I am going to suggest, however, that the Court's earlier decision in R. v. Conway, 2010 SCC 22 might point a way out of the morass.

Keeping the Federal Government out of the Provincial Courts

In its 2010 decision in Telezone, the Supreme Court of Canada took a relatively relaxed approach to private law actions against the federal government in provincial court. The difficulty is that in some of these cases a court will have to adjudicate on the lawfulness -- as a public law matter -- of actions or decisions taken by federal authorities, but this is a matter reserved to the federal courts by the Federal Courts Act.