For the context for this Post #4 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 of 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 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 Board’s independence.
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 Mootness Issue – Introduction
Another of the principal reasons the Saskatchewan Attorney General advanced as to why the SCC should not grant the SGEU and RWDSU applications for leave in this case was that, by the time the application for leave had been filed, the constitutional issue in the case was moot and one or more of the Borowski criteria for a court being justified in hearing and deciding an issue despite its mootness had not been met.
The Borowski criteria are the criteria identified by the Supreme Court in Borowski v. Canada (Attorney General),  1 S.C.R. 342, paras 15-26, for determining when a court would be justified in exercising its discretion to hear and decide an issue even though it is moot.
The Argument as to Mootness
The Saskatchewan Attorney General relied on two facts that he said rendered the constitutional issue moot in this case. First, the terms of appointment of the Labour Board Chair and Vice-Chairs who the government had replaced in mid-term in reliance on section 20 of the Interpretation Act had expired – the Chair’s on October 1, 2008, one Vice-chair’s on July 1, 2009, and the second Vice-chair’s on May 12, 2012. Second, and perhaps more to the point, the original appointments of the replacement Chair and Vice-chair had also expired (on, respectively, March 6, 2013 and August 18, 2013) and both had been re-appointed to further five-year terms. [Response, para. 48.]
The Attorney General did not explain why he thought the re-appointments of the replacement Chair and Vice-Chair made the constitutional issue moot – “their removal”, he merely noted, “was not [now] an option”. [Response, para. 49]
However, the reason may be plainly seen. In making the re-appointments, the government had not had to rely on section 20 of the Interpretation Act as it had for their original appointments. The re-appointments would have been made in the ordinary course under the authority provided by the Saskatchewan Trade Unions Act.
The Arguments on the Borowski Criteria
The Attorney General argued that the “tangible and concrete dispute” having “disappeared”, the case “fails to meet the live controversy” aspect of the Borowski criteria. [Response, para. 49.]
As another reason for the Court not exercising its discretion to hear an appeal when the issue is moot, the Attorney General also relied on the point made by the BC Court of Appeal in McKenzie. This was the appeal in which that court also found the constitutional issue concerning the independence of tribunals to have been rendered moot by the time it had reached the appeal court. (In that case, the legislature had in the meantime eliminated the tribunal in question).
The BC Court of Appeal held that because of the “statute-specific analysis required in each case to determine the degree of independence accorded a tribunal”, a decision pertaining to the constitutionality of the statutory provision in issue in that case would have ‘limited precedential value’ ”.
The Saskatchewan Attorney General argued that a decision pertaining to the constitutionality of section 20 of the Saskatchewan Interpretation Act would also have “limited precedential value” in this case, and for, presumably, the same reason – because a determination of the constitutionality of section 20 as it applied to the Labour Board would depend on an analysis of the independence requirement that would be unique to the Board. [Response, para. 49]
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