Administrative Justice: SCC’s Refusal of Leave in SFL v. Saskatchewan – The Range of Possible Reasons (Post # 6 – “Societal Consensus” Against Independence)

Preface

For the context for this Post #6 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 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 forthcoming new labour legislation in a manner compatible with its policy.

The AG’s Fourth Reason for the SCC not Granting Leave – No Societal Consensus

The Saskatchewan Attorney General’s fourth reason for the Court not granting the application for leave was  his claim that there is in Saskatchewan  an established “societal consensus” that tribunals like the Saskatchewan Labour Relations Board should not have constitutionally protected independence, and the applicants had failed to show that that consensus had changed.

The AG’s Argument

The Attorney General’s  “societal consensus” argument was set out in paragraph 37 of the Response and reads as follows:

37.  The Attorney General submits that there has been no material change in circumstance which would compel this Court to take up the questions presented to it by the Applicants. Neither the Court of Appeal nor the Queen’s Bench made any finding of any significant change in the social consensus relating to the issue of judicial independence and administrative tribunals. This case is not like two other recent cases, Bedford  v. Canada (Attorney General) [2012 ONCA 186 – appeal heard June 13, 2013 and reserved*] and Carter v. Canada(Attorney General) [2012 BCSC 886] where the trial judges found a rare confluence of events and a change in societal consensus.28  Unlike in these cases, the Applicants here have failed to raise any change in societal consensus pertaining to the principle of judicial independence. There is nothing in the present case that should motivate the Court to revisit the reasoning in Ocean Port Hotel.

* SCC decision since released.  See: Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII)

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

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