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.

Drugs and Administrative Law: Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64

The Supreme Court of Canada had not addressed a challenge to the vires of delegated legislation since reformulating the framework for judicial review of administrative action in Dunsmuir until today's decision in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64. A good summary is available here.

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. 

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.

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!

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.