Cases Considered: Johnston v.
PDF Version: Disinterment of RCMP Officer may proceed despite parents’ wishes
In a previous post, I reviewed a number of decisions of the
Category: Administrative Law Page 40 of 42
Cases Considered: Dunsmuir v.
PDF Version: Dunsmuir: Much Ado about Nothing
The majority judgment in Dunsmuir, written by Justices Bastarache and Lebel JJ. (writing also for Fish, Abella, and McLachlin JJ.), begins by setting out its grandiose intention to re-examine judicial review principles in Canadian administrative law with the view to making them more workable and coherent. In an initial glance, one is immediately struck by how such an immense and significant task is built upon a seemingly insignificant set of facts. The appellant, a former non-unionized provincial employee who was dismissed with pay in lieu of notice, sought to uphold a grievance arbitrator’s ruling that his employment be reinstated. In dismissing the appeal, the Supreme Court judgment follows that of both the New Brunswick Court of Queen’s Bench and Court of Appeal. One cannot also help but notice that in purporting to reformulate the pragmatic and functional approach to substantive judicial review, Dunsmuir consists of three concurring but inconsistent sets of reasons. Indeed, it is difficult to envision Dunsmuir as a defining moment in Canadian administrative law along the lines of CUPE Local 963 v.
Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9
PDF Version: Dunsmuir v. New Brunswick: Standards of Review and Employment Contracts
Dunsmuir was employed by the Province of New Brunswick as an office holder “at pleasure”. His probationary period was extended twice and the employer reprimanded him three times during the course of employment. Finally, a formal letter of reprimand was sent to Dunsmuir warning him that failure to improve his performance would result in further disciplinary action up to and including dismissal. The employer concluded that Dunsmuir was not right for the job, and a formal letter of termination was delivered to Dunsmuir’s lawyer the next day. A grievance was denied and then referred to adjudication under New Brunswick’s Public Service Labour Relations Act (“PSLRA”), R.S.N.B. 1973, c. P 25. A preliminary issue of statutory interpretation arose as to whether, where dismissal was with notice or pay in lieu thereof, the adjudicator was authorized to determine the reasons underlying the province’s decision to terminate. Ultimately, the adjudicator made no finding as to whether the discharge was or was not for cause. As Dunsmuir’s employment was hybrid in character, the adjudicator held that he was entitled to and did not receive procedural fairness in the employer’s decision to terminate his employment. He declared that the termination was void ab initio and ordered Dunsmuir reinstated as of the date of dismissal, adding that in the event that his reinstatement order was quashed on judicial review, he would find the appropriate notice period to be eight months.
Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9
PDF Version: The Metaphysical Court: Dunsmuir v. New Brunswick and the Standard of Review
Introduction
The standard used by courts to review administrative decision-making is of central importance to energy and resource development law. Key decisions about regulation of utilities, supervision of energy markets, development of energy projects and facilities, and environmental obligations imposed on resource development, are authorized by legislation, and made and implemented by regulatory authorities. While for the most part, most of the time, the focus of everyone involved is simply on the making and implementing of those regulatory decisions, the courts retain the constitutional power to review and ultimately control this exercise of regulatory authority. Thus, the question of how the courts will exercise that power – the level of deference they will employ and how willing they will be to override regulatory decision-makers – is the fundamental backdrop against which these decisions are made.
Cases Considered: Real Estate Council of Alberta v. Henderson, 2007 ABCA 303
On March 27, 2008 the Supreme Court of Canada denied Henderson leave to appeal. This result is not surprising given that the Alberta Court of Appeal characterized the issue in Henderson as seemingly straightforward statutory interpretation. However, the denial of leave is disappointing as the case is now an opportunity lost for judicial consideration into the merits of an administrative decision-maker impeaching its own decision.
For the original post on Henderson, click here.