Administrative Justice: SCC’s Refusal of Leave in SFL v. Saskatchewan – The Range of Possible Reasons (Post # 5 – Independence Not in Fact an Issue?)

Preface

For the context for this Post #5 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 Issue

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 AG’s Position

The Saskatchewan Attorney General did not, however, concede that point.  He argued that what he refers to as the “reformation” of the Labour Board  [See the Response,  Para. 48]  should not be seen to have interfered with “the adjudicative independence” of the Board and, therefore, not be seen to have presented the constitutional issue concerning judicial independence. [Response, para. 47]

 The AG’s Argument

For this position, the Attorney General relied on the decision of the Saskatchewan Queen’s Bench in the first proceedings in this matter – Q.B. No. 1 (2009 SKQB 20) – in which the Court had held that the “theoretical concerns and apprehensions [of the unions] respecting the independence and impartiality of the LRB [arising from the new government’s reformation of the Labour Board] are answered”.

They were answered, the Court said, because: (a) the new Chair and Vice-chair had sworn to be impartial, (b) there were always a representative of employers and of unions participating in the Board’s decision-making [the Board is a tripartite tribunal], (c) the Board’s decisions were subject to judicial review, and (d) there was a 35-year tradition of respected appointments to the Board”.  [Q.B. No.1, at paras 55-61.]

The Attorney General did not on this point himself reference the Saskatchewan Court of Appeal decision for which the Application for Leave to Appeal was sought, but in that decision – C.A. No. 2 (2013 SKCA 61) – the Court also found that the independence of the Labour Board had not been affected by the government’s reformation of the Board.  The new Chair and Vice-chair were, the Court said, duty bound to be impartial and “free” to be and to act impartially. [C.A. No. 2, paras 25-39].

Full disclosure:

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 srellis@idirect.com

RE

 

 

 

(1706)

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