Category: Supreme Court of Canada Page 22 of 23

Cases Considered: Director of the Alberta Human Rights and Citzenship Commission, et al. v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426

In the May 29, 2008 version of his S.C.C. L@wletter Eugene Meehan reports that the Supreme Court of Canada has dismissed the application of the Director of the Alberta Human Rights and Citizenship Commission for leave to appeal in the case of Kellogg Brown & Root (Canada) Company (at the time of writing the SCC’s decision on leave to appeal is not yet available on its website). For posts on the Alberta Court of Appeal’s decision in this case, see Linda McKay Panos, “Court of Appeal Sends Court of Queen’s Bench Decision to Rehab” and David Corry, “Drug Testing: A Wake-up Call to the Courts ”. Linda and David disagreed about the correctness of the Alberta Court of Appeal’s approach, which overturned the decision of Madam Justice Sheilah Martin and upheld the position of the employer. It is unfortunate that the Supreme Court will not take advantage of the opportunity to clarify the law in this area. This leaves it uncertain for employers, employees and human rights tribunals whether perceived addiction to alcohol and drugs is covered by human rights legislation, and in what circumstances employers are entitled to implement drug and alcohol testing policies without running afoul of human rights legislation.

Vriend Ten Years Later

By Linda McKay-Panos

On May 21, 2008

In Constitutional, Human Rights, Supreme Court of Canada

By: Linda McKay-Panos

PDF Version: Vriend Ten Years Later

Case Commented On: Vriend v Alberta, [1998] 1 S.C.R. 493

April 2, 2008 marked the 10th anniversary of the release of the SCC decision in Vriend v Alberta. This decision was remarkable in many ways. First, there were no less than 17 intervenors by the time the case reached the SCC. Our affiliated agency, the Alberta Civil Liberties Association, was one of those intervenors. The case was significant because of the remedy that was ordered by the SCC and because of the analysis that the SCC undertook in determining that sexual orientation should be included as a protected ground in Alberta’s Individual’s Rights Protection Act (“IRPA”, now called the Human Rights, Citizenship and Multiculturalism Act (“HRCMA”), R.S.A. 2000, c. H-14). It is also interesting to examine what has happened in the area of sexual orientation and human rights since this noteworthy case.

Dunsmuir: Much Ado about Nothing

By Shaun Fluker

On May 16, 2008

In Administrative Law, Supreme Court of Canada

Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9

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. New Brunswick Liquor Board, [1979] 2 SCR 227, Nicholson v. Haldimand-Norfolk Police Commissioners, [1979] 1 SCR 311, Knight v. Indian Head School Division, [1990] 1 SCR 653, Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, or Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. This is because Dunsmuir falls well short of its lofty ambitions. Binnie J.’s reasons aside, Dunsmuir is little more than formal acknowledgement of recent shifts in, and deficiencies with, the Supreme Court’s attitude towards substantive judicial review.

Dunsmuir v. New Brunswick: Standards of Review and Employment Contracts

By David Corry

On April 28, 2008

In Administrative Law, Supreme Court of Canada

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.

The Metaphysical Court: Dunsmuir v. New Brunswick and the Standard of Review

By Alice Woolley

On April 24, 2008

In Administrative Law, Supreme Court of Canada

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.

Category: Supreme Court of Canada Page 22 of 23

Leave to appeal refused by Supreme Court in Drug Testing Case

Vriend Ten Years Later

Dunsmuir: Much Ado about Nothing

Dunsmuir v. New Brunswick: Standards of Review and Employment Contracts

The Metaphysical Court: Dunsmuir v. New Brunswick and the Standard of Review