PDF version: True Questions of Jurisdiction: Administrative Law’s Unicorns?

Decision considered: Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 

Introduction

In its recent decision reversing the Alberta Court of Appeal’s decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (Teachers’ Association), 2010 ABCA 26, the Supreme Court of Canada made significant statements with respect to issues of administrative law. In particular, a majority of the Court held:

1. When an issue is not raised before an administrative decision-maker it may nonetheless be raised in an application for judicial review. A court may, however, exercise its “discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so” (para 22).
2. In such cases deference may still be granted: “Where the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear because the issue was not raised before the tribunal” (para 50).
3. In order to be deferential in such circumstances, the court may take into account the reasons that the administrator could have given had the issue been put before it. If a “reasonable basis for the decision is apparent to the reviewing court” then that will suffice (para 55). The court may also look at reasons offered by the administrative decision-maker on the issue in other cases to determine whether the decision-maker’s approach to the issue is reasonable. In some circumstances the court may remit the matter to the decision-maker to allow reasons to be prepared.
4. Finally, and most significantly, a majority of the Court, in reasons prepared by Justice Rothstein, called into question the ability to identify a “true question of jurisdiction” to which deference should not be granted. Justice Rothstein stated that he was “unable to provide a definition of what might constitute a true question of jurisdiction” (para 42).
5. Justice Rothstein held that when an administrative decision-maker interprets its home statute it is presumptively entitled to deference (para 34). Deference will not be offered where the interpretation raises constitutional questions, a question regarding the jurisdictional lines between tribunals or a question of law “that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise” (para 43). If a party claims that deference is not owed because the matter is a true question of jurisdiction, that party will “be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness” (para 39).
6. Finally, Justice Rothstein held that once a deferential standard has been identified, it is not necessary to question further how deferential the court should be: “Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted” (para 47).  

Read the rest of this entry »

PDF version: Lawyers regulating lawyers? 

Decision considered: Law Society of British Columbia v Laarakker Law Society of British Columbia Disciplinary Hearing Reports, September 21, 2011

Introduction

A disciplinary decision by the Law Society of British Columbia does not fall within the usual mandate of ABlawg. It is not an Alberta decision, nor even a judicial one, and has no direct precedential significance for Alberta lawyers or courts. The decision warrants comment, however, because the threat it creates to the legitimacy of lawyer self-regulation applies to all Canadian law societies. Specifically, the misdirection in regulatory energy reflected by the decision of the Law Society of British Columbia in this case is something to which all Canadian law societies have shown themselves to be susceptible.

This comment is a plea to the law societies to think more carefully about the cases they pursue; to take more seriously conduct by lawyers that undermines the rule of law; and, to allow lawyers to hold each other to account in circumstances where there is a reasonable basis to allege misconduct, even if lawyers sometimes do so with “incivility”. Law societies suggest that the public will lose faith in the legal profession if we do not treat each other with courtesy and civility, perhaps thinking that our own criticisms will make the public critical, and less able to access legal services even if they need them. I want to offer an alternative suggestion: the public will lose faith in us if we silence legitimate criticism and debate, and if we do nothing about lawyers who engage in conduct that could be reasonably characterized as extortion with letterhead.

Read the rest of this entry »

PDF version: Conflicts of Interest and Good Judgment

Case considered: Dow Chemical Canada Inc. v Nova Chemicals Corporation, 2011 ABQB 509

Previously on ABlawg I have suggested that outcomes in conflicts cases turn more on a judge’s overall impression of the facts and the equities than on the precise articulation and application of specific rules (here). A recent judgment of the Alberta Court of Queen’s Bench aligns with this perception, insofar as the outcome of the case seems closely linked to the judge’s assessment of the good faith and propriety of the conduct of the law firm alleged to be in conflict. The case also, though, shows the continued evolution of the principles that govern conflicts of interest. Specifically, Chief Justice Wittmann’s judgment provides new analysis of the principles governing what is necessary for a client to consent to a conflict in advance, how imputation rules operate in national firms, lawyers transferring between law firms, and the intersection between law society rules and judicial determinations in assessing conflicts. In this way the judgment may indicate that contrary to my earlier suggestion, conflicts cases are in fact like other legal judgments, with outcomes determined by a complex interplay of principles, rules, facts and, above all, the “judgment” of the judge, what in the context of moral decision-making David Luban and Michael Milleman have described as the ability to identify “which principle is most important given the particularities of the situation” (”Good Judgment: Ethics Teaching in Dark Times,” (1995-96) 9 Geo J of Legal Ethics 31 at 39). In other words, it’s not so much whether judges perceive lawyers to have been “good” or not, as it is whether judges perceive lawyers to have been good enough that the applicable principles do not require that they be removed from a file. This does mean that the interplay of fact and law matters more than the precise articulation of the law - i.e., that there is some legitimacy to my general feeling that the fights between the CBA and the Federation of Law Societies over the precise wording of conflicts rules is not a very good use of anyone’s time. But it does not mean that principles are irrelevant.

Read the rest of this entry »

PDF version: Unauthorized practice and access to justice 

Case considered: Lameman v Alberta, 2011 ABQB 396

The Beaver Lake Cree Nation have commenced an action against the federal and provincial Crowns claiming that their treaty rights have been infringed by the Crown “taking up so much of their traditional territory that [they] have no meaningful right to hunt, trap or fish” (Lameman v Alberta, 2011 ABQB 396, para 12). The Crown brought applications to strike the Nation’s actions, the hearings in respect of which were adjourned on the basis of the Nation’s impecuniosity.

Read the rest of this entry »

PDF version: Pleading Fairly 

Case considered: R. v. Nixon, 2011 SCC 34

Introduction

In its June 3, 2011 Throne Speech, the Canadian government announced its plan to introduce an omnibus crime bill. Based on the limited information provided in the Speech, it appears that this legislation will increase the sanctions for some crimes, and eliminate judicial discretion on some matters of criminal sentencing:

Our Government will move quickly to reintroduce comprehensive law-and-order legislation to combat crime and terrorism. These measures will protect children from sex offenders. They will eliminate house arrest and pardons for serious crimes. They will give law enforcement officials, courts and victims the legal tools they need to fight criminals and terrorists. Our Government will continue to protect the most vulnerable in society and work to prevent crime. It will propose tougher sentences for those who abuse seniors and will help at?risk youth avoid gangs and criminal activity. It will address the problem of violence against women and girls (Throne Speech, p. 12).

The Throne Speech emphasized that the purpose of this legislation would be to protect “the personal safety of our citizens” and to “place the interests of law-abiding citizens ahead of criminals” (Throne Speech, p. 12).

Read the rest of this entry »

PDF version: Confidentiality and Context: Lawyers’ obligations of confidentiality and loyalty when acting in both lawyer and non-lawyer roles for a client 

Case considered: Kent v. Martin, 2011 ABQB 298

Lawyers owe clients a duty of confidentiality, and also a fiduciary obligation to act in furtherance of their clients’ legal interests. The duty of confidentiality and the duty of loyalty are related. Breach of a client’s confidences without the client’s consent obviously has the potential to undermine accomplishment of the client’s legal objectives. The ability of a client to repose confidence in her lawyer has been identified by the Supreme Court as important to permit the lawyer to provide “sound legal advice” to that client (Smith v. Jones [1999] S.C.J. No. 15 at para. 46).

The specific obligations arising from lawyer duties of confidentiality and loyalty can be complex, however, particularly when a lawyer acts in more than one capacity for a client, and where the client’s interests may be both legal and non-legal. A recent Alberta case highlights these issues.

Read the rest of this entry »

PDF version: The Practice (not theory) of Avoiding Conflicts of Interest

Cases commented on: Novotny v. LePan, 2011 ABQB 205, R. v. Lewis, 2011 ABQB 227

As I have written about previously on this blog (e.g., here), the question of how disqualifying conflicts of interest should be identified has divided the profession and caused tension between it and the judiciary. The result has been not only dissensus, but also on occasion increasingly complicated ways of articulating when a conflict should be disqualifying, and when it should not be. The Canadian Bar Association’s Model Code of Professional Conduct, for example, has conflict of interest rules and commentaries that extend for some 27 pages (CBA Model Code).

Read the rest of this entry »

PDF version: Advocacy and Independence 

Case considered: Goold v. Alberta (Child and Youth Advocate), 2011 ABCA 63

Linda Goold was a lawyer on the roster of lawyers eligible to represent children through the Office of the Child and Youth Advocate. She was removed from the roster on January 15, 2008 due to allegations of unprofessionalism, and in particular allegations of persistent rudeness to caseworkers and others involved in the child welfare system. In addition, it was alleged that she did not comply with policies of the Legal Representation Service. Goold sought judicial review of this decision but her application was dismissed on the grounds of prematurity; she then sought review through the Office of the Child and Youth Advocate. By way of a letter dated October 3, 2008, Goold was advised that a review hearing would take place before the Advocate on October 30. In response to further correspondence from Goold, the Advocate advised that the process would allow her counsel to make submissions, and that he may have questions for her. On October 29, 2008 Goold advised the Advocate that she would not be attending the review hearing, requested a transcript and offered to answer questions in writing. The Advocate advised that given her non-attendance he would review her case by reviewing the documents before him, which included the affidavits prepared by Goold as part of her earlier judicial review application.

Read the rest of this entry »

PDF version:The Continued Complexity of Administrative Law post-Dunsmuir 

Cases considered: Mitzel v. Alberta (Law Enforcement Review Board), 2010 ABCA 336; Calgary (City) v. Alberta (Municipal Government Board), 2010 ABQB 719

The Supreme Court’s judgment in Dunsmuir v. New Brunswick, 2008 SCC 9, purported to identify a “more coherent and workable” approach to substantive judicial review (Dunsmuir at para. 32). Whether, as a general matter, Dunsmuir has achieved this ambition is uncertain. It does seem to have liberated courts from the formalistic analysis that was previously de rigueur in the standard of review analysis. On the other hand, it has left some significant questions unanswered, and in some respects has created new issues that did not exist formerly.

Read the rest of this entry »

PDF version: Public Rights Trump Private Privilege  

Case considered: J.O. v. Strathcona-Tweedsmuir School, 2010 ABQB 559

In December 2006 the Strathcona-Tweedsmuir School expelled J.O. based on allegations that she had been seen having sex with her boyfriend in the women’s washroom at the Calgary Golf and Country Club. The allegations were “mistaken” (para. 41). J.O. was rather suffering the predictable consequences of teenage drinking and a long-car ride; she was drunk and sick, and her boyfriend was in the bathroom helping to clean her up.

Read the rest of this entry »