Preface
As the necessary context for what follows in this Post # 3, 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. The post is dated December 19, 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.
Introduction
One 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 in the complicated procedures in the courts below the res judicata principles had been ignored and the applicants had abused the courts’ process through re-litigation – i.e., litigation by installments.
The facts
The res judicata/ abuse of process issues in the application for leave arise from the fact that in their court challenges to the Government’s “reformation” of the Labour Board – reformation through the removal of the incumbent Chair and Vice-chairs and their replacement by people the government preferred to have in those positions – the unions applied for judicial review twice.
On the first application, they could have raised the issue concerning the constitutional validity of section 20 of the Interpretation Act (the section on which the government had relied for its authority for the reformation) but chose not to, preferring to challenge only on the basis that the government’s removal of the Board’s incumbent Chair and Vice-chairs constituted the exercise of the section 20 authority for an improper purpose – ie., for the purpose of subverting the independence of the Labour Board.
The fact that the Unions were not challenging the constitutionality of section 20 was noted in the Attorney General’s brief in the Queen’s Bench proceedings.
The Queen’s Bench dismissed the unions’ judicial review application on the ground that section 20 authorized the removal of the Chair and Vice-Chair for that very purpose, and that the government’s action had not affected the independence of the Board in any event. It will be convenient to refer to this Queen’s Bench decision as “QB No. 1”.
On their appeal of QB. No. 1, the unions decided to now include the argument that the unwritten principle of judicial independence applied to the Labour Board, thus rendering section 20 constitutionally invalid in its application to the Board’s Chair and Vice-chair positions. However, timely notice of the constitutional issue was not given to the Attorneys General and the Court of Appeal rejected the appellants’ application to abridge the time for service.
Because of the failure to give timely notice but also because the constitutional issue had not been dealt with in the court below, the Court of Appeal declined to deal with that issue on the appeal. In its reasons for dismissing the appeal on its merits, the Court made it explicitly clear that it had not considered the constitutional issue – an issue it confirmed as being whether the unwritten principle of judicial independence first identified in the judgment of Chief Justice Lamer in Reference re PEI Provincial Court Judges (herein “the PEI Reference” and the “PEI principle”) applied to the Labour Board. (For convenience, this Court of Appeal decision – the first of two – will be referred to as “CA No. 1”. )
Upon receipt of CA No.1, the unions regrouped – CUPE withdrew from the fray, leaving the SFL and RWDSU to carry on, and the SGEU joined the proceedings as a new party. And it was decided that instead of applying to the Supreme Court for leave to appeal the CA No.1 decision, they would file a second application for judicial review by the Queen’s Bench, this time challenging the government’s reformation of the Labour Board solely on the grounds that section 20 as it applied to the Labour Board Chair and Vice-chair positions was constitutionally invalid.
On this application, while there was one new party, the counsel representing the unions were, as noted subsequently by the Attorney General, principally those that had been involved in the first proceedings.
As was to be expected, in his defence of this second judicial review application Saskatchewan’s Attorney General relied in important measure on the res judicata /abuse of process (by re-litigation) principles and in that hearing those issues were argued at length. However, in its decision on this application (QB. No. 2), the Queen’s Bench ignored those arguments (made no mention of them) and, deciding the constitutional issue on its merits, ruled that while the PEI principle could possibly apply to some tribunals, it could not apply to the Saskatchewan Labour Board.
In the court’s view, the Labour Board was not an adjudicative tribunal but a policy-making tribunal located at the executive end of the tribunal spectrum. And, of course, whatever else Ocean Port may be seen to stand for, it certainly rules out the application of the PEI principle to tribunals whose principal function is policy-making.
The unions appealed, and it was at this point that this writer joined the unions’ legal team as co-counsel, acting in that instance for the SGEU and the SFL.
In his response to this second appeal, the Attorney General again relied heavily on the res judicata/abuse of process principles; arguing that the appeal should not be allowed because to do so would countenance an egregious abuse of the court’s process. But, once again, there was to be no judicial decision on the res judicata/abuse of process issues.
In this its second decision in the case (CA No. 2) the court ruled on the merits of the constitutional issue, noting with respect to the res judicata/abuse of process issues only that it was not necessary for the Court to address those issues because the appeal had failed on the merits of the constitutional issue.
With respect to the constitutional issue on its merits, the Court of Appeal disagreed with the Queen’s Bench on the categorization of the Labour Board (holding that it was not a policy-making tribunal but an adjudicative tribunal at the judicial end of the tribunal spectrum). It then held, however, that in Ocean Port the Supreme Court must be taken to have ruled out the application of the PEI principle to both policy-making tribunals and adjudicative tribunals.
At this juncture the Saskatchewan Federation of Labour withdrew from the proceedings and the SGEU and the RWDSU brought their applications to the Supreme Court for leave to appeal.
In his Response to the Applications for Leave, the Saskatchewan Attorney General again argued the res judicata/abuse of process issues as grounds for the Court to find that the application did not meet its leave criteria – that, as the Response argued, “this Court should not grant the applicants a further opportunity to continue their challenge to the validity of the Order in Council [the Order by which the government terminated the incumbent Board Chair and Vice-chairs]”. It was not an application “worthy of this Court’s attention and consideration” in part because the unions should not be allowed to litigate “by installment”.
The Argument
The Attorney General’s counsel relied extensively on the res judicata/abuse of process arguments against the grant of leave and pressed them very hard. Of the 53 paragraphs in the AG’s Response to the Application for Leave, almost half were devoted to the res judicata/ abuse of process issues. Those arguments may be found in the Attorney General’s Response in paragraphs 3, 4, 6, 9, 10(a), 11(a), 12, 13(a, b, and c), and 14-29.
Requests for copies of the principal documents in the Application for Leave proceedings should be sent directly to srellis@idirect.com.
RE