Administrative Justice – APPLICATION FOR LEAVE TO APPEAL DISMISSED (the Constitutional Issue, Post # 1)

NEWS

The Supreme Court of Canada has dismissed the Saskatchewan Government and General Employee’s Union’s application for leave to appeal the Saskatchewan Court of Appeal’s decision in SFL v. Saskatchewan (Attorney General), 2013 SKCA 61 (CanLII).

COMMENT

Some indication of the possible implications for the administrative justice system of the Court’s dismissal of this application for leave may be garnered  from the following statement of the issue and of the Saskatchewan Court of Appeal’s findings concerning the facts that triggered the litigation.  These statements appear as paragraphs 1 and 2 of the Memorandum of Argument filed in the Supreme Court by the SGEU in support of its application for leave. The statement of the Court of Appeal’s factual findings in paragraph 2 was not disputed by the Respondent.

1. This Application concerns the constitutional validity of s. 20 of the Saskatchewan Interpretation Act and seeks the Court’s intervention on the seminal question of constitutional protection for the independence and impartiality of adjudicative tribunals such as  the Saskatchewan Labour Relations Board, and in particular the security from arbitrary termination of the appointments of its Chairperson and Vice-chairpersons.

2. That constitutional question presented itself in stark terms in Saskatchewan on March 8, 2008, when the then new Saskatchewan Party government of Premier Brad Wall removed the Labour Board’s incumbent Chair and Vice-chairs without cause before their terms had expired, and replaced them with others of the government’s choosing.  Based on the Premier’s public statements at the time, the Court of Appeal found that the government had decided that the incumbent Chair and Vice-chairs had to be removed because the new government was planning major changes in the Province’s labour laws and “lacked confidence in [their] willingness or ability to give effect to the legislative policy choices embodied in [those] changes” and needed to “ensure”, [that] the new legislation “would be interpreted and applied in keeping with the policy choices reflected in the changes.”[1]

The statutory authority on which the Saskatchewan Government relied in dismissing the incumbent Chair and Vice-Chairs in 2008 for these purposes (the statutory authority the constitutional validity of which relative to the Labour Board’s Chair and Vice-chairs was at issue in the litigation and the validity of which the Court of Appeal affirmed) was section 20 of the Saskatchewan  Interpretation Act, 1995 (SS 1995, c I-11.2 ).  Section 20 reads as follows:

20(1) Subject to subsection (2), notwithstanding any other enactment or any agreement, if a person is a member of a board, commission or other appointed body of the Government of Saskatchewan or any of its agencies or Crown Corporations on the day on which the Executive Council is first installed following a general election as defined in The Election Act, the term of office for which that person was appointed is deemed to end on the earlier of:

(a) the last day of the term for which that person was appointed; or

(b) a day designated by the Lieutenant Governor in Council or the person who made the appointment.

(2) Subsection (1) does not apply to a person whose appointment is expressly stated in an Act to be subject to termination by the Legislative Assembly. (Emphasis added)

It is to be noted that the Court of Appeal  found  the Saskatchewan Labour Relations Board to be an “adjudicative” tribunal at the “judicial end” of the spectrum of tribunals.

Full disclosure:  The foregoing was posted by Ron Ellis whom, the informed reader will know, was one of the counsel for the Applicant, SGEU.

Copies available:  Should any reader like to have a copy of the full Application, Response and Reply documents in the SGEU’s application for leave, please contact the writer at srellis@idirect.com