For the context for this Post #7 in this series of posts, see the brief statement of the Saskatchewan Court of Appeal’s findings of fact and its decision on the constitutional issue in “Post #1″ in this “The Constitution” category. That post is dated December 19, 2013.
Also, for an explanation as to why this writer is writing this series of posts on the ranges of reasons for which the Court may have dismissed the application for leave in SFL v. Saskatchewan, see Post #2 in this series. It is dated December 30, 2013.
The constitutional principle at issue in the Court of Appeal decision for which leave to appeal was sought in this case is the applicability of the PEI Reference‘s unwritten requirement of judicial independence to the Saskatchewan Labour Relations Board.
The relevance of that principle in this case was premised by the Applicants on the view that the Saskatchewan government’s reliance on the powers accorded to newly elected governments under section 20 of the Interpretation Act to “reform” the Labour Board by replacing the incumbent Chair and Vice-chairs in mid-term with others of the government’s choosing was incompatible with the Board’s independence or impartiality.
The government acknowledged publicly that it had engaged in this “reformation” of the Board because it did not have confidence in either the ability or willingness of the incumbent Chair or Vice-chairs to adjudicate its new labour legislation in a manner compatible with its policy.
The AG’s Position
The fifth reason the Saskatchewan Attorney General put forward for the Supreme Court not granting leave in this case is that on the facts there was no controversy about the constitutional issue for the Court to address. The Saskatchewan Labour Relations Board is, the AG claimed, an “administrative agency” and, as far as administrative agencies are concerned, the Supreme Court’s Ocean Port decision is unchallenged and conclusive.
More particularly, the AG’s position concerning the status of the Board is that it is an “administrative agency of the executive branch” [Response, para. 30] with “a significant adjudicative function” [Response, para. 46]. As such, it falls, the AG argues, squarely within the purview of the Ocean Port decision and, accordingly, there is no issue for the Court to consider; it has already decided in Ocean Port that the unwritten principle of judicial independence does not apply to administrative agencies. [Response, paras 32-33].
The AG notes but does not respond to the Court of Appeal’s finding that the Board is an “adjudicative tribunal” – that is, according to the Supreme Court’s decision in Bell Canada, a tribunal whose “primary purpose” is “adjudicative”. But, if the Court were to have agreed with the AG (and therefore disagreed with the Court of Appeal) that the Sask Labour Relations Board is not a tribunal whose primary purpose is adjudicative, then it might indeed have had no reason to address the constitutional issue as it pertains to tribunals whose primary purpose is adjudicative.
For administrative agencies whose primary purpose is policy-making, the Supreme Court’s decision in Ocean Port is unchallenged authority for the proposition that the unwritten constitutional principle of judicial independence does not apply to them, and the Court might well have had no interest in revisiting that proposition.
As the writer has made clear in other posts relative to the SGEU`s application for leave to appeal the Saskatchewan Court of Appeal`s decision in SFL v. Saskatchewan, he was counsel for the SGEU and the SFL in the Appeal, and co-counsel for the SGEU in its Application for Leave.
Access to the Application for Leave Documents
Requests for copies of the principal documents in the Application for Leave proceedings, including the Attorney General’s Response, should be sent directly to firstname.lastname@example.org