Introduction
In his last post – Post #7, dated February 3, 2014 – the writer completed his description of each of the five reasons the Saskatchewan Attorney General presented to the Supreme Court as to why the unions’ applications for leave to appeal the Saskatchewan Court of Appeals’s decision in SFL v. Saskatchewan did not meet the Court’s criteria for granting leave – five reasons unrelated to the substantive merit of the constitutional issue the Court of Appeal decision presented.
As readers would expect, there are substantial arguments to be made against the validity or weight of each of those five reasons – arguments that were presented in the SGEU’s Reply to the AG’s Response.
Nevertheless, there is some degree of substance in one or more of those reasons. And the fact that these five, alternative, non-constitutional reasons were before the Court when it decided to dismiss the application must stand in the way of any inference that the application was dismissed for the reason that the Court saw no merit in the constitutional issue itself.
Moreover, when one examines the arguments in support of the Court granting the application and addressing the constitutional issue on its merits, it appears even more likely that it was the influence of those alternative reasons that was in fact the determining factor. Given the inherent weight of the constitutional arguments, it is, in the writer’s respectful submission, improbable that the Court would have decided to dismiss the leave application for the reason that, in the decision for which leave to appeal was sought, it saw no issue of pressing national importance – no issue that, on its own merits, met the Court’s criteria for granting leave.
In support of that view, the writer now takes the liberty of setting out in these pages the arguments for granting leave as they appeared in the SGEU’s application.
Arguments in Support of the Application for Leave, as filed.
To save space, the foot-noted citations have been omitted.
SGEU APPLICATION TO THE SCC FOR LEAVE TO APPEAL
THE SASKATCHEWAN COURT OF APPEAL DECISION
IN
SFL v. SASKATCHEWAN
MEMORANDUM OF ARGUMENT
PART I
OVERVIEW AND STATEMENT OF FACTS
1. This Application concerns the constitutional validity of s. 20 of the Saskatchewan Interpretation Act, 1995, and seeks the Court’s intervention on the seminal question of constitutional protection for the independence and impartiality of adjudicative tribunals such as the Saskatchewan Labour Relations Board and its adjudicator members.
2. That constitutional question presented itself in stark terms in Saskatchewan on March 8, 2008, when the then new Saskatchewan Party government removed the Labour Board’s incumbent Chair and Vice-chairs without cause before their terms had expired, and then replaced them with others of the government’s choosing. Based on the Premier’s public statements at the time, the Court of Appeal found that the government had decided that the incumbent Chair and Vice-chairs had to be removed because the new government was planning major changes in the Province’s labour laws and “lacked confidence in [their] willingness or ability to give effect to the legislative policy choices embodied in [those] changes” and needed to “ensure”, [that] the new legislation “would be interpreted and applied in keeping with the policy choices reflected in the changes.”1
3. On these facts, the issue of constitutional protection for the independence and impartiality of adjudicative tribunals and their adjudicator members presents itself squarely. The Labour Board is, as the Court of Appeal held, an “adjudicative tribunal” located at the “judicial end” of the tribunal spectrum.2 The government terminated the appointments of its Chair and Vice-chairs without cause, and with the intent to appoint new adjudicators the government perceived as being more sympathetic to its agenda. The government did so in reliance on statutory authority that is plainly incompatible with the constitutional principles of judicial independence and impartiality by which the Applicants say the Labour Board is protected.
4. The statutory authority in question is section 20 of the Interpretation Act:3
20(1) Subject to subsection (2), notwithstanding any other enactment or any agreement, if a person is a member of a board, commission or other appointed body of the Government of Saskatchewan or any of its agencies or Crown Corporations on the day on which the Executive Council is first installed following a general election as defined in The Election Act, the term of office for which that person was appointed is deemed to end on the earlier of:
(a) the last day of the term for which that person was appointed; or
(b) a day designated by the Lieutenant Governor in Council or the person who made the appointment.
(2) Subsection (1) does not apply to a person whose appointment is expressly stated in an Act to be subject to termination by the Legislative Assembly. (Emphasis added)
5. The Court of Appeal interpreted section 20 as applying to members of all government agencies, boards and commissions, including adjudicators appointed to adjudicative tribunals, and as intended to authorize the post-election replacement of incumbent adjudicators with new adjudicators for the very purpose of ensuring that the new adjudicators would assist the new government in the implementation of its policies.4
6. Section 20 was added to the Interpretation Act in 1982 by a newly elected Progressive Conservative government. In its findings concerning the legislative purpose of the section in its earlier decision in this matter (SKCA 2010),5 the Court of Appeal relied on the following statement by the Attorney General of the day in the Legislative Assembly on July 5, 1982, during second reading of the amending Bill:
Mr. Speaker, the purpose of the amendment is quite clear. When any new government is elected, it cannot have its hands tied by the previous government’s actions. This amendment will assist any new government…to move to implement its policies through its various boards, commissions, and agencies, by changing memberships on those bodies as is necessary.6
7. In that earlier decision, the Court of Appeal acknowledged the argument that section 20 might not have been intended to apply to adjudicative tribunals such as the Labour Board. It concluded however that that argument was foreclosed because, in the July 1982 legislative session, an amendment had been moved seeking to exempt the Labour Board appointments from the new provision, and that amendment had been roundly rejected.7
8. This Court`s judgment in Ocean Port 8 was the first judgment in which this Court considered the applicability to administrative tribunals of the “unwritten” principle of judicial independence – the principle first identified in PEI Reference 9 (and herein referred to as “the PEI principle”). The Applicant submits that in the decision for which leave to appeal is sought, the Court of Appeal erred in holding that this Court’s jurisprudence rules out the application of that principle to any administrative tribunal, including adjudicative tribunals and their members, and required the Court of Appeal to accept that section 20 was constitutionally valid even as it applied to the Labour Board’s Chair and Vice-chairs.
9. While the Court of Appeal recognized that Ocean Port was distinguishable on the basis that the Labour Board is an adjudicative rather than a policy-making or licensing tribunal,10 it considered itself “heavily driven” by Ocean Port’s “expressions of principles of general application” concerning “the fundamental distinction between courts and administrative tribunals”, which expressions, it held, demanded from it the conclusion that no administrative tribunal qualifies for constitutional protection of its independence.11
10. The Applicant argues that in its interpretation of Ocean Port the Court of Appeal erred by according insufficient weight to this Court’s post-Ocean Port jurisprudence – in CUPE 12 Bell Canada 13 and Ell.14 In the Applicant’s submission, Ocean Port does not govern this case. Ocean Port must now be seen to be authoritative only in respect of “policy-making” tribunals at the executive end of the tribunal spectrum. The Applicant submits that, in particular, the reasoning in Ell required the Court of Appeal to find that the PEI principle did apply to protect the independence of the Labour Board and its adjudicators.15
11. The Court of Appeal’s interpretation of Ocean Port was also in error, the Applicant says, by reason of its failure to confront one particularly egregious consequence of accepting that Ocean Port rules out the application of the PEI principle to adjudicative tribunals – that is, of having to accept that adjudicative tribunals may lawfully exercise judicial functions even if informed objective observers have eminently reasonable grounds for apprehending bias.
12. In an extensive, 21-paragraph analysis of the “Independence of the Chairperson and Vice-Chairperson”,16 the Court referred to several factors that led it to conclude that the Board’s Chair and Vice-chairs are duty-bound to be impartial, to adjudicate impartially, to so conduct themselves as to ensure a fair hearing by an impartial decision-maker, and that they are, indeed, independent – i.e., “free” to be impartial, “free” to adjudicate impartially.
13. But that analysis ignores the question: can the Board with its new adjudicators be seen to be impartial? The Court of Appeal never acknowledged that the government’s action against the Chair and Vice-chairs of the Labour Board, and through those actions against the Board itself, resulted in a Board that no objective, informed observer could reasonably perceive to be impartial. The rule of law’s requirement that adjudicative bodies such as the Labour Board not only be impartial but also be seen to be impartial was not addressed. The Court failed to say how its conclusions about the Chair and Vice-chair “being” impartial could be squared with the Valente principles. Its conclusion did not reflect any constitutionally principled analysis as to why those impartiality standards should not apply to an adjudicative tribunal functionally indistinguishable from a statutory court.
14. The Court of Appeal’s interpretation of this Court’s jurisprudence concerning the applicability of the PEI principle to adjudicative tribunals leaves all aspects of the rule of law as it applies to Canada’s adjudicative tribunals and their adjudicator members open to legislative override. Whether that is a result the Constitution in fact condones is a question of national and public importance. The grant of this Application for leave to appeal would enable this Court to address that question and resolve the debilitating constitutional uncertainties attendant on the Court of Appeal’s decision.
15. A central issue in the appeal if this Application is granted will be the constitutional validity of section 20. The Applicant will argue that with respect to adjudicators appointed to adjudicative tribunals, the PEI principle applies and section 20 is constitutionally invalid insofar as it applies to the Labour Board and its adjudicator members.
16. If the section is found to be invalid, the government’s dismissal of the Labour Board’s incumbent Chair and Vice-chairs would then have been unauthorized as would the ensuing appointments and reappointments of their replacements. The question of what remedy the Applicant proposes will be outlined below.
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PART II:
STATEMENT OF THE QUESTIONS IN ISSUE
27. Does the unwritten constitutional requirement of judicial independence first identified in PEI Reference29 apply to the Saskatchewan Labour Relations Board?
28. If it does so apply, were the Orders in Council terminating the appointments of the incumbent Labour Board Chair and Vice-chairs and appointing and reappointing their replacements in reliance on section 20 of the Saskatchewan Interpretation Act 30 constitutionally valid?
29. If they were not constitutionally valid, what remedy should the Court provide with regard to (a) the validity of the decisions in which the new Chair or Vice-chair have participated since 2008, and (b) the restoration of confidence in the Board’s independence and impartiality?
PART III
STATEMENT OF ARGUMENT
30. The Court of Appeal held that the Supreme Court’s decision in Ocean Port 31 ruled out the application of the PEI principle 32 to the Labour Board. It found Ocean Port to be “dispositive” of that question despite its view that the Board is an adjudicative tribunal at the judicial end of the tribunal spectrum, and despite its recognition that Ocean Port was “distinguishable in fact from the present case”.33 The Applicant will submit that the decision is in error in accepting form-over-function as the basis for determining when the constitution protects judicial independence: statutory provincial “courts” are protected; statutory “adjudicative tribunals” are not; yet both exercise judicial functions that cannot be rationally distinguished on any constitutionally valid basis. The Applicant submits that this is an issue of national and public importance in respect of which, leave to appeal should be granted.
31. The language of this Court that the Court of Appeal found to be dispositive is summarized in paragraph 24 of Ocean Port. 34
32. In 2005, an extensive article by Gerald Heckman and Lorne Sossin contrasted the European approach to ensuring the independence of adjudicative tribunals to the Canadian approach. Finding the Canadian approach wanting for failing, inter alia, to take into account the appointments process for adjudicators, the authors offered this comment:
In our view, none of [the Supreme Court of Canada’s judgments in] Ocean Port, Bell or Ell provides a satisfactory account of why the Court opts for a formalist over a functionalist approach to the requirements of independence in the administrative sphere. In Ocean Port, Chief Justice McLachlin does not adequately distinguish the principle at issue in the Provincial Court Judges Reference from the principle at issue regarding the independence of adjudicative tribunal members. Both [provincial courts and adjudicative tribunals] are creatures of statute charged not with “implementing policy” but with resolving disputes by making findings of fact and law on an impartial basis. Moreover, both bodies may interpret the Charter and provide remedies to aggrieved parties. It is difficult to sustain a constitutional divide between these two types of adjudicative bodies; and it is not clear how administrative justice is served by attempting to do so. Put differently, the question the Court should have asked is whether there could ever be any legitimate policy rationale behind a government seeking to influence an adjudicative tribunal.
33. It is the Applicant’s submission that contrary to the Court of Appeal’s interpretation of this Court’s post-Ocean Port jurisprudence, the Court has in fact made it clear since Ocean Port that the application of the PEI principle is to be based on function not form, and that Ocean Port is thus properly understood as authority concerning only administrative tribunals that are not adjudicative in nature.
34. The latter view of the Court’s jurisprudence was adopted in the 2006 judgment of McEwan J. of the B.C. Supreme Court in McKenzie36 in which the Court held that the PEI principle was not ruled out with respect to adjudicative tribunals and did apply to protect the independence of B.C.’s residential tenancy arbitrators.
35. The Court of Appeal’s decision thus conflicts with this Court’s own jurisprudence on an issue of the utmost importance to Canada’s justice system. It espouses a conclusion that, in the Applicant’s submission, is incompatible with fundamental rule-of-law and constitutional principles. It conflicts with distinguished academic commentary 37 and with a compelling decision of the B.C. Supreme Court. Given these circumstances, this Application clearly meets the test for the grant of leave to appeal.
36. The argument that the Court of Appeal’s decision is in error in its assessment of this Court’s post-Ocean Port jurisprudence is as follows.
37. The post-Ocean Port jurisprudence began in 2003 with CUPE 38 – the retired judges case – where the Court had occasion to compare the Ocean Port tribunal with “interest arbitrators” and distinguished Ocean Port. Binnie J. speaking for the majority, said this:
Ocean Port Hotel… involved adjudication of licensing violations in the context of government liquor policy. As was stated at para. 33 [of the Ocean Port judgment], “[The Board] is first and foremost a licensing body. The suspension complained of was an incident of the Board’s licensing function. . . . The exercise of power here at issue falls squarely within the executive power of the provincial government.”39… Here, the context is quite different.40
38. A month later, this Court issued its unanimous judgment in Bell Canada 41 wherein the Court considered the applicability of the PEI principle to the Canadian Human Rights Tribunal (CHRT). In that judgment, the Court distinguished between tribunals whose “primary purpose is to develop, or supervise the implementation of, particular government policies” as described in Ocean Port, and the “other tribunals” whose “primary purpose is to adjudicate disputes…”.42 It held that the CHRT fell within the latter category. (It was on this distinction in Bell Canada that McEwan J. relied particularly in his judgment in McKenzie.)
39. Having distinguished Ocean Port, the Bell Canada Court then addressed the appellant’s two arguments concerning the applicability of the PEI principle to the CHRT: first, that the principle applied to protect the independence of the tribunal members at the level of a superior court judge, and second, and alternatively, that it applied to protect the members’ independence at least at the level of the common law of judicial independence as defined in the Valente jurisprudence.
40. In its response to these two arguments, the Court did not say that neither could prevail because the PEI principle was not applicable to administrative tribunals of any kind. Instead, it addressed the arguments on their merits, dismissing the first argument on the grounds that the principle did not apply to protect the independence of adjudicative tribunal members at the “highest”, superior court judges level,43 and addressing the second on the basis that it was unnecessary to deal with it because the Court had found on the facts that the CHRT’s independence was compliant with the Valente requirements. 44
41. One may, the Applicant argues, fairly conclude from the Bell Canada decision – especially from the Court’s treatment of the appellant’s alternative argument – that the Court made no finding suggesting that the application of the PEI principle to the CHRT had been ruled out by Ocean Port.45 The ruling that it was unnecessary to address that argument gives rise to the natural inference that the Court saw the issue as being at least open. If the Court had thought otherwise, this was the point where, with respect, it would have said so.
42. On the same day that the Court issued Bell Canada, it also released its judgment in Ell v. Alberta 46 in which, in the course of deciding whether the PEI principle applied to protect the independence of Alberta’s non-sitting justices of the peace, the Court provided a general and purposive definition of the principle’s “scope”:
The scope of the unwritten principle of independence must be interpreted in accordance with its underlying purposes. In this appeal, its extension to the office held by the respondents depends on whether they exercise judicial functions that relate to the bases upon which the principle is founded. 47
43. The “bases upon which the principle is founded” were stated by the Court in Ell to be: “impartiality in adjudication”, “preservation of our constitutional order”, and “public confidence in the administration of justice”.48 While it is the Applicant’s position that the Labour Board’s functions are judicial functions that “relate” to each of the three bases, it is important to note that the Court did not say in Ell that the extension of the PEI principle to office holders exercising judicial functions was conditional upon their functions relating to all three of the “bases” of judicial independence. Obviously, a relationship to either one of the first two of those bases would be of sufficient importance to attract the principle. Absent either “impartiality in adjudication” or the “preservation of the constitutional order”, how could the third basis – “public confidence in the administration of justice” – be sustained?
44. With these as the criteria by which the PEI principle’s reach is to be measured, it is, the Applicant will argue, no longer possible to say that there are no administrative tribunals within that reach. Once the applicability of the principle is seen to depend on the functions being exercised rather than on the institutional form or label of the person or body exercising those functions, it must be clear that it is not only rights-determining bodies formally designated as “courts” or “judges” that can qualify for the principle’s protection. It is well established that whether a rights-determining function is a judicial function cannot turn merely on the nature of the forum in which it is exercised. 49
That the functions of administrative tribunals can include judicial functions that relate to the Ell bases was recently demonstrated in a practical way when the functions of the Saskatchewan Human Rights Tribunal were transferred to the Saskatchewan Queen’s Bench.50 No one would suggest that when those functions are exercised by the Queen’s Bench they change their nature, and for the first time qualify as judicial functions that meet the Ell criteria.
45. In the Applicant’s submission, the rights-determining functions of the Labour Board and its Chair and Vice-Chairs are judicial functions that relate to each of the Ell criteria.
46. It is noteworthy that since Ocean Port, the PEI principle has been applied at the court of appeal level to Ontario’s Small Claims Court’s “Deputy Judges” – adjudicators appointed for renewable three year terms and whose functions are self-evidently not more “judicial” in nature than the functions of adjudicative tribunals 51 – and to Case Management Masters of the Ontario Superior Court.52
47. If leave to appeal is granted, the Applicant will argue not only that the Court of Appeal erred in its interpretation of the Court’s current jurisprudence, but that this Court should in any event expressly settle the law and find that the PEI principle applies with respect to adjudicative tribunals and in particular applies to protect the independence and impartiality of the Saskatchewan Labour Relations Board and its Chair and Vice-chairs.
48. In 1999, Justice Kirby of the High Court of Australia concisely outlined the fundamental rationale for security of tenure:
A decision-maker who must examine and weigh up evidence and submissions fairly and reach conclusions affecting powerful and opinionated interests, must be put beyond the reach of retaliation and retribution. … 53
49. The same considerations must surely pertain, both in fact and perception, to decision-makers exercising judicial functions whether they are “judges” in “courts” or “adjudicators” in “adjudicative tribunals”.
50. Opponents of tribunal independence sometimes express the concern that attaching constitutional protection to the independence of adjudicative tribunals will inappropriately limit the role of the executive branch with respect to legislative policy.
51. The Heckman/Sossin article referred to earlier addressed this concern directly:
… it is necessary [in advocating for greater independence protections for tribunals] to deal with the concern that by entrenching [such protections], especially in contexts such as administrative appointments, regulatory or adjudicative bodies that have no legitimacy to pursue policy preferences of their own will be too insulated from legitimate executive policy direction. We do not find this argument compelling. Government retains more than sufficient levers to shape policy direction for tribunals and agencies. It can modify the mandate and discretion of decision makers by statute or regulation. Ultimately, it can create or eliminate decision-making bodies and transfer jurisdiction from one to the other. Of course, in all these cases, these changes in policy direction are explicit and transparent and subject to political accountability of one kind or another. The lever removed from government – if independence is to have substance – is the option to inculcate policy changes in non-explicit and opaque ways, for example, through removing unwanted adjudicators and appointing like-minded ones at the government’s whim.54
52. The foregoing is a precise description of the issue presented by the decision for which leave to appeal is sought and, with respect, the national importance of having it resolved by this Court cannot be overstated.
53. The acceptance of this Application for Leave would provide a particularly useful and most pertinent occasion to address the issue of the scope of the PEI principle relative to adjudicative tribunals generally, because the Saskatchewan Labour Relations Board’s adjudicative and rights-determining functions are characteristic of the functions of adjudicative tribunals.
54. The Labour Board’s independence and impartiality is embodied in the independence and impartiality of its Chair and Vice-chairs. The Trade Union Act 55 appoints them to chair the Labour Board’s tripartite hearing panels and to cast the deciding vote whenever a panel’s employer and union members cannot agree 56, which experience tells us is the rule rather than the exception. No decision emanates from the Labour Board that is not approved and signed by the Chair or a Vice-chair unless the Chair and Vice-chairs are absent or disabled, except for decisions of the executive officer in the exercise of powers or functions delegated to him or her by the Board (which decisions are reviewable by Board panels chaired by the Chair or a Vice-chair).57
55. The Court in Ell identified not only the individual dimension of the need for the application of the PEI principle to offices exercising judicial functions but also the institutional dimension of that need.58 It is apparent that if the Board’s Chair or Vice-chairs are not seen to be both independent and impartial (whether or not they are independent and able and willing to act impartially) the Board itself will not be seen to be independent and impartial.
56. Given the central role played by the concept of “judicial functions” in Ell’s definition of the scope of the PEI principle, the first question the Court will want to consider in assessing the Board and its adjudicative officers as probable candidates for the application of the principle is: are the Board’s functions “judicial” functions?
57. The Court of first instance held that the Labour Board’s primary function was policy-making. The Court of Appeal disagreed, holding its primary function to be adjudicative. If the Respondents were to challenge the Court of Appeal’s decision on the nature of the Board’s functions, the Applicant would address that challenge in its reply.
58. For present purposes, it is enough to say that, in support of the Labour Board`s primary functions being acknowledged as “judicial functions”, the Applicant will be relying on: (a) the definition of judicial function in the common law, principally on the Supreme Court`s decision in Re Residential Tenancies Act 59 and the authorities referred to there; (b) what the Trade Union Act 60 and the Board`s 2009-10 Annual Report 61 disclose about the nature of the Board`s rights-determining functions and about the allocation of its resources amongst those functions; (c) the fact that the Board conducts formal hearings which have much the same structure as a trial – the parties lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts, and the Board finds facts, interprets and applies the law to the facts before it, and awards appropriate remedies; (d) the fact that the Board has the same powers, privileges and immunities as the Court of Queen’s Bench including, inter alia, the power to summon witnesses, to enforce their attendance, to compel them to testify, and to compel them to produce documents or things; 62 (e) the fact that the nature of the Board`s responsibilities invokes an intrinsic expectation of impartiality, and, finally, (f) the fact that the decisions of the Board’s hearing panels are enforceable as though they were judgments of the Queen’s Bench in “the same manner as any other judgment or order of the court”. 63
59. That the fruit of the Labour board’s rights-determining functions is a labour law jurisprudence does not make the Board a policy-making tribunal any more than a provincial court becomes a policy-making body when it renders judgments applying a family law statute and thus creates a family law jurisprudence. It is an error to conflate “impacting” policy through judicial interpretations of the legislature’s intentions concerning the application of a statute in particular fact situations, with “making” policy.
60. If the Court accepts that this appeal would present the issue of the scope of the PEI principle squarely insofar as the Board’s functions qualifying as “judicial” is concerned, the next question is what is it about those functions that would persuade the Court that they are likely to qualify as functions that satisfy the Ell criteria?
61. The Applicant will argue that given the Labour Board’s central role in the province’s labour relations regime as the ultimate protector of the rights of both employer and employees and of the unions and their members, it is self-evident that if its judicial functions are not seen to be independent, or are not seen to be exercised impartially, it will be impossible to “uphold public confidence in the administration of justice” in that regime.
62. The need for the Labour Board to be and appear to be independent and impartial, and to enjoy the confidence of parties appearing before it, was recently addressed by the International Labour Organization’s Committee on Freedom of Association. In its 2010 decision upholding a complaint brought by the Saskatchewan Federation of Labour (amongst others) respecting the Saskatchewan Public Service Essential Services Act, S.S. 2008, c. P-42.2 and the Saskatchewan Trade Union Amendment Act, 2007, the Committee wrote:
… Without taking a position as to the independence of the [Saskatchewan] LRB as currently constituted, the Committee draws the provincial Government’s attention to the need to ensure that the members of bodies entrusted to administer labour relations legislation enjoy the confidence of all parties and are impartial and are seen to be impartial. The Committee therefore requests the Government to encourage the provincial authorities to endeavour, in consultation with the social partners, to find an appropriate means of ensuring that the LRB enjoys the confidence of all the parties concerned. 64
63. The Labour Board’s judicial functions may also be seen to relate to the “preservation of our constitutional order”. It has been held, for instance, that provincial labour relations boards have the jurisdiction to interpret and apply the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms.65 The Board also has the jurisdiction to fashion remedies for breaches of the Charter.66 An independent and manifestly impartial Labour Board is also the indispensable guarantor of the Charter-guaranteed, internationally sanctioned, freedom of association within the labour relations field.67 Moreover, the Labour Board has the responsibility for determining under sections 91 and 92 of the Constitution Act whether labour relations issues concerning certain sectors of Saskatchewan’s economy fall within federal or provincial jurisdiction. The Board is thus an adjudicative tribunal whose manifest separation from the executive branch of government is intrinsically essential to the maintenance of our constitutional order.
64. It is important to remember in the latter respect that in a large proportion of the Labour Board’s hearings the government has a direct interest in the outcome. In Saskatchewan, the government – the government itself, and through its various emanations – is the largest employer in the Province and is routinely the employer party in the Board’s typical employer-union cases involving, inter alia, collective bargaining issues, strike issues, and unfair labour complaints. In Charter and division of powers cases, what is at stake is typically the validity of government-sponsored legislation or provincial jurisdiction in which the government will often be deeply invested. And in any cases involving strike issues the government’s political interests in the economic welfare of the Province and the convenience of its citizens are often significantly engaged even where it is not an actual party.
65. In summary, the Applicant submits that the vast majority of the Labour Board’s functions are self-evidently judicial functions that clearly relate to all three of the Ell bases.
66. This squarely raises the issue as to whether section 20 of the Saskatchewan Interpretation Act is constitutionally valid as it applies to the Board. The Applicant will argue on the appeal that, to the extent that s. 20 applies to the Chair and Vice-chairs of the Labour Board and to any members of other tribunals exercising judicial functions that relate to the Ell criteria, it is incompatible with the PEI principle and constitutionally invalid.
67. It is incompatible with that principle because, as interpreted by the Court of Appeal, the section converts the fixed-term appointments of all members of tribunals exercising judicial functions at the time a new government is elected to at-pleasure appointments during an indeterminate period of time after the election, in breach of the Valente security-of-tenure requirement. Its very existence proclaims that the Saskatchewan legislature regards all tribunal adjudicative offices as partisan – i.e. manifestly biased positions. Section 20 effectively characterizes those positions as positions the legislature expects to be occupied by partisan adjudicators – a characterization that conflicts directly with the Constitution’s requirement that those adjudicators be and be seen to be impartial.
68. With the applicability of the principle established and section 20 found to be constitutionally invalid as it applies to the Labour Board and its adjudicator members, the Court would then be asked to deal with the effects of that finding, which are, the Applicant submits: (1) That the Order in Council terminating the Labour Board’s incumbent Chair and Vice-chairs was unauthorized and ultra vires and must be quashed; (2) That the Orders appointing the new Chair and Vice-chair were invalid because they purported to fill vacancies that did not exist, and were therefore ultra vires and must also be quashed; (3) That the government’s purpose in changing the Chair and Vice-chairs at the Board can no longer be seen to be supported by section 20.
69. These consequences will present issues concerning the appropriate remedies, including, as previously indicated in Part I of this Memorandum,68 the problem of the invalidity of the Board decisions in which the Chair or Vice-chair have participated since 2008, and the need for the Court to exercise its “remedial innovations” jurisdiction69 in the interest of restoring public confidence in the impartiality of the Labour Board and its Chair and Vice-chairs.
70. In summary, the Applicant submits that the Labour Board’s rights-determining functions are judicial functions that must be seen to relate to each of the three Ell bases. On the basis of this Court’s jurisprudence, and contrary to the Court of Appeal’s decision, these functions do attract the application of the PEI principle of judicial independence for the protection of the Labour Board’s institutional independence and impartiality and of the independence and impartiality of its Chair and Vice-chairs.
71. The Applicant submits that the issue of what the constitution must intrinsically say about the independence and impartiality of adjudicative tribunals exercising judicial functions is of critical importance to Canada`s justice system and cannot be said to have been finally settled.
72. The facts of this case present a singular occasion for addressing the fundamental question of whether Canadians, required by legislatures to seek the adjudication of their rights in the administrative branch of our justice system, are constitutionally entitled to have their cases decided by adjudicators who are, and are seen to be, independent and impartial, beyond the reach of arbitrary termination, retaliation, retribution and partisan politics.
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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
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