On December 19, 2013, the Supreme Court of Canada dismissed the applications of the Saskatchewan Government and General Employee’s Union (SGEU) and the Saskatchewan Joint Board Retail, Wholesale and Department Store Union (RWDSU) for leave to appeal the Saskatchewan Court of Appeal’s decision in SFL v. Saskatchewan (Attorney General), 2013 SKCA 61 (CanLII).
The applications were dismissed without costs and, of course, in compliance with the Court`s invariable practice, without reasons.
The regular reader will be aware of this decision as it was reported by this writer in his December 19 post under “Featured News.”
The Concern about the Absence of Reasons in this Case
There is a danger that the Court’s mere refusal to hear the appeal in the SFL v. Saskatchewan case may be interpreted – given the compelling facts – as the Supreme Court signaling a general conviction that Canada’s constitution provides no impediment to legislatures choosing to assign court functions to demonstrably partisan bodies.
If that interpretation were to become influential it would have a seminal impact on Canada’s justice system. It seems important, therefore, that the Canadian bar and academic communities – and the courts – be aware of the range of significant reasons for not granting leave that the Supreme Court is known to have had under consideration when it was deciding whether or not it should grant the leave application in this case.
Of these, the most apparent are those presented by the Saskatchewan Attorney General in the Response he filed in the Application-for-Leave proceedings.
The Saskatchewan AG’s Reasons for Asking the Court to Refuse Leave
The reasons the Saskatchewan Attorney General presented (in his Response to the Application for Leave) as to why the Court should refuse leave included five reasons that do not engage the merits of the constitutional issue itself. These are:
(1) that to grant the application would be to ignore the principles of res judicata and countenance an abuse of court processes;
(2) that by the time the application for leave was filed, any constitutional issue had become moot;
(3) that as held by the Saskatchewan Court of Appeal (and the Saskatchewan Queen’s Bench in QB No.1) the removal of the incumbent Chair and Vice-chairs had not affected the independence of the Board;
(4) that there is a “societal consensus” that tribunals like the Saskatchewan Labour Relations Board should not have constitutional protection for their independence; and
(5) that on the facts of the case there was no controversy about the constitutional issue for the Court to address because the Saskatchewan Labour Relations Board is an “administrative agency” and, as far as administrative agencies are concerned, the Supreme Court’s Ocean Port decision is unchallenged and conclusive.
The Writer’s Plan
Because of the importance of having the range of possible reasons for the Court’s dismissal of the leave application generally known, this site’s webmaster has opened a new Category of postings entitled “The Constitutional Issue”.
And it is the writer’s intention to publish in this new Category a number of posts over the next few weeks setting out the grounds upon which Saskatchewan’s Attorney General relied in his successful effort to persuade the Court that the SGEU and RWDSU Applications for Leave did not satisfy the Court’s leave criteria.
Through these posts, the writer hopes to provide information that will contribute to a general understanding of the degree to which the Supreme Court’s refusal of leave may have been influenced by considerations other than the intrinsic merits of the constitutional issue itself.
Checking the Writer’s Posts Against the Record
The relevant paragraphs of the AG’s Response will be cited in the writer’s posts, and for those who would like to check the accuracy of those posts against the Response itself, the writer will, upon request – a request that will be treated as confidential – send any reader PDF copies of all the principal documents filed in the Application for Leave process.
Requests for copies should be sent directly to email@example.com.
This offer to supply copies of the principal documents is necessary because the Supreme Court of Canada does not make documents filed in its Application-for-Leave processes available on its website, and while copies can be ordered from the Court, it is not a convenient or inexpensive process.
First post in the series – January 6, 2014
The first in this series of posts will be published on Monday, January 6, 2014, and will be devoted to the Attorney General’s Res Judicata and Abuse of Process arguments.
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.