The "Range" of Reasonable Outcomes: a Spectrum or an Accordion?

My post welcoming Evans J.A.'s recent suggestion that weight could be accorded to administrative determinations of procedural fairness questions has provoked some debate, some in the comments section of that post, some on Twitter and some in emails to me. Another Federal Court of Appeal decision is therefore timely: Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56.

Move Along, Nothing to See Here: Orthodoxy and Procedural Fairness

A vigorous debate erupted in the comments to a recent post on deference on questions of procedural fairness. Recently, doctrinal orthodoxy has been challenged by several Canadian judges (a challenge based on Canadian developments but which ought also to be on the radar of those overseas) who have contended that procedural questions can no longer be said to fall exclusively in the province of the judiciary.

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.

And What if the Nadon Reference Never Happened? A (Fanciful) Thought Experiment

As you probably know by now, the Supreme Court of Canada ruled on Friday that federal court judges are not eligible for appointment to its three 'Quebec seats': Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Although retrospective legislation was introduced after the appointment of Justice Marc Nadon to the Court, the legislation was ultra vires Parliament. It was a change to the "composition" of the Court, something that can now be effected only by a constitutional amendment pursuant to Part V of the Constitution Act, 1982.

Regular readers will not have been as surprised as some. The Court's analytical framework mapped my submissions to the Senate Committee on Legal and Constitutional Affairs. There, I hedged my bets on the constitutional question, but I identified strong textual, purposive and intentionalist grounds for the Court's conclusion. Much more could have been said by the Court in support of its decision on the constitutional question but it was unquestionably on solid ground. On the interpretive issue, opinion has long been closely divided. Again, there was ample support for the Court's preferred view.

On one of the Sunday talk shows, a spokesman for the federal government raised the possibility that Justice Nadon might be appointed by some other means. As I (and others) explained to the Globe and Mail, there is very little chance of that happening. I submitted an explanatory op-ed which is more expansive, but I have no idea when or where it will appear.

A more interesting question to ponder is what would have happened had the initial challenge to Justice Nadon's appointment proceeded through Federal Court. For want of expertise I park the question of whether Rocco Galati would have been successful in his claim that solicitor-client privilege was waived by the selective publication of positive opinions on the legality of the appointment. It seems to me a solid tactical reason for the course taken, as does the need for a relatively swift resolution of a controversy that has left the Supreme Court a judge short during two terms.

I noted at the outset that Galati's challenge had significant merit. Galati had standing, the issue was justiciable and he had a strong argument on the interpretation of section 6 of the Supreme Court Act.

What was less clear, as Finn Makela noted in a comment, was whether the reviewing court would have to defer to the federal government.

There would have been strong arguments for deference. Though hedged in by statute, the power to name Supreme Court judges is plainly a discretionary one and may be based in part on broad considerations of policy, factors which trigger deference in the Court's current analytical framework.  Moreover, even though the government did not necessarily set out its interpretation of the Supreme Court Act, its preferred view was "implied" in its conclusion that Justice Nadon was eligible; and a court may have had to defer to the interpretation advanced in litigation in response to Galati's challenge.

As against this, the case might have been one which fell in the narrow category of "constitutional" questions reserved to the courts. As we now know, the "composition" of the Supreme Court of Canada is protected from "substantive change" (para. 105). Galati would have argued that what is impermissible by legislation is also impermissible by executive action. I agree, but the 'correctness' categories are narrow enough that the courts might nonetheless have felt bound to defer to the federal government's interpretation, especially since this sort of problem has never really been authoritatively resolved in Canada.

If deference were due, the federal government should in my view have won the case. On my view, recently set out in "Unreasonable Interpretations of Law", Galati would have had to identify a fatal flaw in the reasoning advanced by the federal government. This would have been very difficult. The expert opinion published in support of the appointment was unreasonable because it ignored section 6 of the Supreme Court Act, which was the key provision, but the federal government's ultimate litigating position advanced a plausible interpretation of the relevant statutory provisions. It is easy to disagree with the federal government's position but difficult to say that it was unreasonable. (I digress to say that I completely disagree with deferring in this sort of situation, but that is an argument for another day!).

Granted, Canadian courts have not adopted the view I set out in "Unreasonable Interpretations of Law". They have tended to defer less on questions of statutory interpretation. Nonetheless, even supporters of the Court's decision on Friday acknowledge that the interpretive question was "close", surely close enough that deference to the federal government would have tipped the scales decisively in favour of Justice Nadon.

Of course, this thought experiment is fanciful. The federal government really had no option but to refer the matter to the Supreme Court of Canada for authoritative resolution. I think it did the right thing in doing so. The thought experiment is nonetheless interesting. And in light of the result a deferential approach could well have given, it provides food for thought about the appropriateness of deference, especially on questions that touch fundamental constitutional values.

Overlapping Jurisdiction and Access to Administrative Justice: Université McGill c. Ong, 2014 QCCA 458

There are two interesting aspects to Université McGill c. Ong, 2014 QCCA 458, a technical aspect about administrative-law doctrine and a substantive aspect about access to administrative justice.

O was an employee of McGill University until she was dismissed for mishandling cash and impeding an investigation into missing funds. She vigorously contested the dismissal before the Commission des relations du travail. But she also pursued an arbitration option made available by the University's dispute resolution policy, a policy incorporated into her contract of employment.

She thus ran into s. 124 of the Loi sur les normes du travail, which allows an employee such as O to contest a dismissal before the Commission except:

where a remedial procedure, other than a recourse in damages, is provided elsewhere in this Act, in another Act or in an agreement.

Alternative procedures have to be equivalent to the Commission's procedures in order to trigger this provision. Did the arbitration procedure contained in the university's dispute resolution policy oust the jurisdiction of the Commission?

The Commission concluded that it did not because the employee had to foot half of the arbitrator's bill. Whereas the Commission grants free access to eligible employees, who may, moreover, benefit from being represented by another regulatory agency during the process.

Emphasizing the desirability of access to justice, Thibault J.A. agreed with the Commission. An inaccessible remedy is not an effective remedy:

[66]        En donnant effet à la volonté clairement exprimée par le législateur de permettre à un salarié d’avoir accès à un décideur gratuit en cas de congédiement sans cause juste et suffisante, la CRT s’est assurée de l’efficacité du recours de l’article 124 LNT. Elle a jugé qu’un recours non accessible n’est pas un recours efficace. Cette interprétation n’est pas désincarnée; elle témoigne du souci de la CRT de tenir compte de la vulnérabilité du salarié congédié qui ne peut pas compter sur l’assistance financière de son association accréditée (ou, le cas échéant, d’une autre association qui lui procure des avantages similaires) pour payer les frais d’arbitrage et le représenter.

Interestingly, Thibault J.A. recalled the emphasis recently placed by the Supreme Court of Canada on access to justice in Hryniak v. Mauldin, 2014 SCC 7, a landmark case involving the criteria for granting summary judgment:

[1]                              Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.

One could be cynical about whether Hryniak was about access to justice or access to judges, but this case makes clear that the Supreme Court's message has been widely received. Sometimes, if not most of the time, access to justice requires access to administrative justice (see also this post by Ian Mackenzie). A timely reminder, then, from the Quebec Court of Appeal.

Now for the technical aspect. The Commission's interpretation of s. 124 (a provision of its constitutive statute) was reviewed on a correctness standard:

[41]        Cette question, éminemment reliée au droit du travail, nécessite une comparaison entre deux recours pour vérifier si les décideurs visés ont la même capacité de réviser la décision de l’employeur, pour mettre en parallèle leurs pouvoirs de réparation, pour examiner le cadre procédural de chacun des recours et pour vérifier s’ils présentent une efficacité comparable. Ce travail de comparaison implique une connaissance intime du mécanisme de réparation de la LNT. Il fait aussi partie des éléments dont la CRT a une connaissance approfondie en raison de la mission qui lui est législativement confiée.

[42]        Mais, lorsque l’exercice a pour conséquence de délimiter la compétence de deux tribunaux spécialisés, ou que la question en est une d'importance pour le système juridique en général, il faut conclure que la norme de la décision correcte s’applique. C’est ce qu’a fait la Cour suprême dans SFPQ précitée. Se posait la question de savoir qui, de l’arbitre de grief ou de la CRT, devait entendre le recours de deux salariés (justifiant de deux ans de service continu) à qui la convention collective applicable niait le droit de grief en cas de congédiement sans cause juste et suffisante.

Once again the difficulty of assigning a question to one of the correctness or reasonableness categories established by the Supreme Court of Canada rears its head. Plainly the Commission was interpreting a provision of its constitutive statute, which presumptively attracts deference and was in any event well within the field of its expertise. Yet in interpreting s. 124 it had to determine whether it or the arbitrator had jurisdiction to hear O's complaint, a matter of overlapping jurisdiction which is to be resolved by the ordinary courts.

So what category does the decision fall into? We still lack a stable set of factors which would indicate how reviewing courts are to classify decisions. In the absence of guidance on how and when the presumption of reasonableness review of interpretations of constitutive statutes can be rebutted (or the outright abolition of correctness review!) difficult questions of classification are likely to recur and receive different treatment from different courts.

UPDATE: I hit "publish" too soon. Thibault J.A. relied in part on Supreme Court precedent to justify the application of the correctness standard. But in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, standard of review was not really discussed. Moreover, as the Court said recently in Agraira (at para. 48), "if the relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review" previous case law may not be helpful. Given that the presumption of reasonableness review for interpretations of home statutes post-dates the 2010 case, it does not give strong support to the Court of Appeal's choice of the correctness standard.

Procedural Fairness and Prosecutorial Discretion: Murphy v. Ireland, 2014 IESC 19

The Irish Supreme Court recently released its judgment in Murphy v. Ireland, 2014 IESC 19. Of greatest general interest is the recognition that the applicant had a limited right of procedural fairness which imposed a duty on the Director of Public Prosecutions to give reasons to send him for a non-jury trial at the Special Criminal Court on various taxation offences.

The Nadon Reference: the 16 (?) Possible Outcomes

On Friday, the Supreme Court of Canada will hand down its decision in the "Nadon reference". For further background -- and my take on the key issues -- you can download my submissions to the Senate Committee on Legal and Constitutional Affairs. Two posts by Michael Plaxton -- here and here -- also provide a good overview.