[Canada] Canadian Politics Redux

[Grey Fox]

Interesting to see the collapse of the NDP in the federal by-election.  Is this caused by local politics or unhappiness with the new leader?  Does this signal a resurgence of the Conservatives in Quebec or a flash in the pan?

I'm no expert on Quebec politics, but my take is:

-most importantly, Conservatives ran a star candidate, the former coach of the junior hockey team.  That kind of name recognition can be huge in a low-turnout by-election
-NDP - yup the orange wave is a distant memory.  Having a religiously observant sikh leader is probably hurting the party in Quebec
-also worth noting is the collapse of the BQ vote in a riding they held prior to 2011

This is all true. The riding really had 2 option Liberals or the PCs. The PCs ran, like BB said, former junior hockey team coach. That's all it took. The Saguenéens are religion.

Jagmeet Sing is a non-identity, dude his more busy criticizing Indian/Sikh politics than what's happening in Quebec.

[Malthus]

That is a very good summary of the Ontario decision Malthus 

Thanks!

What do you think of the current trend to limit judicial review? 

Relatively recent developments:

- no such thing as a jurisdictional error or "true question of jurisdiction" any more, really -- the concept exists but the Supremes have expressed doubt whether it ever actually happens - meaning they will defer to tribunals over a wider range of issues.

- the rule about raising all arguments, including all constitutional arguments, before the board itself (if it has the capacity to hear them) is now nearly iron-clad -- despite the fact that asking a board whether its constituent statute is constitutional is essentially pointless (has any board anywhere ever said that its statute is unconstitutional?). There is still some theoretical ability to seek prohibition without going first to the board, but no-one has articulated exactly when that would ever be allowed.

- the Doré/Loyola framework as opposed to the Oaks test where what is at stake is an administrative decision.

- now, gutting the notion that a decision-maker cannot fetter its discretion.

[crazy canuck]

That is a very good summary of the Ontario decision Malthus 

Thanks!

What do you think of the current trend to limit judicial review? 

Relatively recent developments:

- no such thing as a jurisdictional error or "true question of jurisdiction" any more, really -- the concept exists but the Supremes have expressed doubt whether it ever actually happens - meaning they will defer to tribunals over a wider range of issues.

We are still waiting for reasons from the SCC on this issue.  I think it is the last chance the concept of true jurisdictional error has to be resurrected.  Assuming it is not, and the Court simply applies the reasonableness test (which seems likely given McLauchlin's separate but concurring reasons in TWU) it will become very difficult to challenge an administrative decision maker who makes up its own rules as the specialist interpreting its home statute.

- the rule about raising all arguments, including all constitutional arguments, before the board itself (if it has the capacity to hear them) is now nearly iron-clad -- despite the fact that asking a board whether its constituent statute is constitutional is essentially pointless (has any board anywhere ever said that its statute is unconstitutional?). There is still some theoretical ability to seek prohibition without going first to the board, but no-one has articulated exactly when that would ever be allowed.

I was counsel on a case decided in the BC Court of Appeal which confirmed that is the law in BC.  Leave to the SCC has been sought by the unsuccessful party on the appeal and we are waiting to see whether the Court will take the case but, importantly, the Appellant has not sought to appeal on this issue, but rather on the question of whether the legislation itself can be challenged directly to the Court on an application of the Oakes test.  They have essentially conceded that it is correct in law that the Dore analysis ought to have been raised before the administrative decision maker.

I think this reflects the development in the law ever since the SCC held that if a decision maker has jurisdiction to decide questions of law, then they have jurisdiction to decide Charter issues.  I agree that it was an unintended consequence and that if anyone had given thought to the capacity of statutory decision makers to properly conduct a Charter analysis there would have been some considerable doubt as to the capacity to do so - but here we are.

- the Doré/Loyola framework as opposed to the Oaks test where what is at stake is an administrative decision.

Once one concludes, as the SCC has forcefully done in a number of cases, that statutory decision makers not only have the jurisdiction but also an obligation to consider Charter values in appropriate circumstances, then the Dore analysis is really the only way to do it.  The Oakes test does not fit into the context of an administrative proceeding.  The government is rarely there to give evidence as to why the statute was drafted as it was.

- now, gutting the notion that a decision-maker cannot fetter its discretion.

This is going to have a huge ripple effect.  I am currently writing to a number of clients for whom I have given opinions regarding fettering to say "guess what just happened"


So now the bigger picture. I think a lot of Canadians would be surprised to know how much of their lives are now regulated and governed by technocrats.  I think they would be even more surprised to learn that there is very little they can do to challenge an adverse decision.  What this will mean is that litigation will become front end loaded into the initial administrative decision making phase, whereas before all the important legal questions were decided on judicial review.  This in turn will cause the administrative process into long and costly legal battles.  I think we have lost sight of the fact that the reason these administrative decision makers were created was to provided fast efficient decisions in the first instance and a process to clean up errors after the fact in the Court.

I am not so sure you can describe our form of government as a democracy as Parliament and the Provincial Legislatures seem rather keen to download decision making responsibility to various commissions, tribunals and authorities.  It is more of a delegation of power from the elected official to the technocrat.

[Malthus]

We basically see it the same way, then.

To my mind, the rapid increase in judicial deference to administrative decision makers has large consequences. Not least of which a great expansion of legal work in this area ... well, that's good news for us who work in this area, but bad news for the system we work within and for the public good.

For one, it just flies in the face of reality to expect the expert panel on (say) patent drug pricing to know squat about constitutional litigation. In practice, they just hire outside counsel to worry about stuff like that for them ...

[crazy canuck]

Yeah, the advice I give to all young lawyers and law students is that administrative law is the one area where they will never want for work.  Ironically it is the one area that is barely touched in law school.

[crazy canuck]

Again going over McLaughlin's dissent (but agreeing on the result) highlights how much she will be missed and what a great jurist she has been.  She writes clearly and her logic is impeccable.   For the non lawyers, she expressly rejected the value judgment the majority made about the minor importance of the Covenant to the religious community.  She accepted that it was integral, as reflected in the evidence, and she cited a long history of the Courts accepting sincerely held religious beliefs as being fundamental to that particular religious community.

With respect, I think that was the intellectually honest thing to do.  She did not try to dodge the central question in this case.  One might disagree as to her ultimate conclusion - that the competing values were reasonably balanced in favour of upholding the law society decision - but one cannot fault her intellectual rigor.


We are going to miss you Chief Justice.

[Malthus]

Again going over McLaughlin's dissent (but agreeing on the result) highlights how much she will be missed and what a great jurist she has been.  She writes clearly and her logic is impeccable.   For the non lawyers, she expressly rejected the value judgment the majority made about the minor importance of the Covenant to the religious community.  She accepted that it was integral, as reflected in the evidence, and she cited a long history of the Courts accepting sincerely held religious beliefs as being fundamental to that particular religious community.

With respect, I think that was the intellectually honest thing to do.  She did not try to dodge the central question in this case.  One might disagree as to her ultimate conclusion - that the competing values were reasonably balanced in favour of upholding the law society decision - but one cannot fault her intellectual rigor.


We are going to miss you Chief Justice.

It certainly is an interesting decision.

These paragraphs from the Chief Justice's decision in the BC case really sums up the ultimate issue in the case:

[140]                      The LSBC is under a duty to protect the public interest and preserve and protect the rights and freedoms of everyone, including LGBTQ people. As the collective face of a profession bound to respect the law and the values that underpin it, it is entitled to refuse to condone practices that treat certain groups as less worthy than others.

[141]                      TWU seeks to counter this valid justification by arguing that it is beyond the statutory mandate of the LSBC to consider the effect the Covenant would have on the LGBTQ community. It argues that the public interest mandate of law societies is limited to ensuring that law students meet standards of learning and competence, and does not extend to the policies of a private institution. This ignores the broad public interest mandate the legislature has conferred on the LSBC, for reasons explored by the majority.

Broad public interest mandate, or narrow statutory mandate to accredit a school capable of producing competent lawyers? The rest of the reasons seem to flow from that.

[Barrister]

Yay the senate has passed the cannabis legalization bill!  Boy was that ever a fun conversation to have with my 8 year old last weekend.

[HVC]

So now that it's legal like alcohol you're all for it, right?

[Barrister]

So now that it's legal like alcohol you're all for it, right?

Fuck no.

[HVC]

Hah. What makes you so against it? Now that it's legal.  I've never been that into it, but I don't mind that others are. Seems mostly harmless.

[Admiral Yi]

He's got you there you old blue-nosed church lady.  Before it was all about respecting the law.

[crazy canuck]

Yay the senate has passed the cannabis legalization bill!  Boy was that ever a fun conversation to have with my 8 year old last weekend.

Not sure legalization changes the kind of discussion you would have with your children around alcohol, cigarettes and drugs.

[HVC]

They make you look cooler?

[Barrister]

Yay the senate has passed the cannabis legalization bill!  Boy was that ever a fun conversation to have with my 8 year old last weekend.

Not sure legalization changes the kind of discussion you would have with your children around alcohol, cigarettes and drugs.

Before I could have delayed it a couple of years.  Tim was definitely uncomfortable in are talk, though (despite me saying he could do what he wanted as an adult) he said he'd never use the stuff.