Author: Student

Beyond freedoms: the administrative underbelly of the Trinity Western decision

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By Sara Tatelman

The Supreme Court of Canada may have divided 7-2 on whether law societies must accredit Trinity Western University’s proposed law school, but the split was much narrower when it came to the nitty-gritty of administrative law. While the five-justice majority accepted the Doré/Loyola framework for judicial review of administrative law decisions, the other four justices called for varying degrees of reform.

The Doré framework applies when courts are reviewing the constitutionality of an administrative decision, such as one by a human rights tribunal, an immigration and refugee board, or a law society. Reviewing courts give considerable deference to the original decision-maker, given their subject matter expertise, and only over-turn their decisions if they are not reasonable.

On the other hand, when courts are determining whether a Charter-infringing law is nonetheless constitutional, the Oakes test applies. Unlike Doré, it clearly places the onus of proving the law is proportional on the government.

“The framework set out in Doré and affirmed in Loyola is not a weak or watered down version of proportionality – rather, it is a robust one,” the majority wrote (para 80).

“But saying [the framework is robust] does not make it so,” Côté and Brown J.J. snapped back in their dissent (para 304).

McLachlin C.J. (concurring) and Rowe (concurring), Côté and Brown (dissenting) J.J. all argued that judicial review of administrative law decisions should ask whether an individual’s Charter rights were infringed, rather than the more nebulous Charter values of the Doré framework and the majority’s decision. While rights are clearly outlined in constitutional documents, the majority suggests Charter values are those “the state always has a legitimate interest in promoting and protecting,” such as democracy, equality and human rights (para 41, citing Loyola at para 47).

Furthermore, rights are clearly distinct from other values. “To denominate an interest as a right is to recognize its normative primacy,” the Asper Centre noted in its 2013 intervention in Divito v. Minister of Public Safety and Emergency Preparedness. “As such, a Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement. A Charter right, once established, also possesses normative priority. A rights bearer need not justify protection of a Charter right; rather, the state must justify infringing it.”

Côté and Brown J.J. pointed out that Charter values are unsourced, amorphous and undefined, subject to each judge’s personal interpretation and nothing but “mere rhetorical devices by which courts can give priority to particular moral judgements” (para 309).

The dissenting (Côté and Brown J.J.) and the concurring (McLachlin C.J. and Rowe C.J., in separate in decisions) justices were divided over whether the Doré framework was salvageable. The latter argued it was, as they saw strong parallels between Doré and Oakes.

Under Doré, the decision maker must find reasonable the balance between the Charter values and the statutory objective, which of course involves identifying that objective, Rowe J. wrote. This corresponds to the first step of the Oakes test, which is ensuring the rights-infringing statute has a sufficiently pressing and substantial objective.

The second step of Doré is determining whether the decision proportionately balanced the relevant Charter protections, he added. This corresponds to the proportionality test in Oakes, which analyzes rational connection, minimal impairment and the balance between beneficial and deleterious effects.

McLachlin C.J. added that the Doré analysis usually comes down to the minimal impairment and balancing questions.

The dissenting justices, however, were troubled there was no clear rationale as to why judicial review of administrative decisions requires a separate framework. They noted courts had used the Oakes analysis before Doré was decided, as well as several times since.

“… [T]he orthodox test — the Oakes test — must apply to justify state infringements of Charter rights, regardless of the context in which they occur,” Côté and Brown J.J. wrote. “Holding otherwise subverts the promise of our Constitution that the rights and freedoms guaranteed by the Charter will be subject only to “such reasonable limits prescribed by law as can be demonstrably justified” (para 304).

The four justices were once again united when the question of burden of proof came up. They all found Doré, which has remained “conspicuously silent” on that issue (para 195), especially unsatisfactory in this regard.

In most administrative law decisions, applicants shoulder the burden of proof. But in Charter disputes, the four justices argue – as did the Asper Centre in Attorney General of Canada on behalf of the Republic of India v. Surjit Singh Badesha — that the justificatory burden must fall to the state actor. Otherwise, the Doré framework would provide significantly less protection than Oakes (para. 117, 197, 313).

And that, surely, is intolerable. As McLachlin C.J. wrote, “Canadians should not have to fear that their rights will be given different levels of protection depending on how the state has chosen to delegate and wield its power” (para 116).

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Meeting Susan Ursel, the Asper Centre’s next Constitutional Litigator-in-Residence

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By Sara Tatelman

When you walk into the waiting room at labour law firm Ursel Phillips Fellows Hopkinson LLP, you’re greeted by large black-and-white photographs of Canadians at work and, in silver sans-serif type mounted on the back wall, an unattributed quote: “The philosophers have only interpreted the world. The point is to change it.”

As we sit down, senior partner Susan Ursel readily tells me the photographs were taken by Toronto documentarian Vincenzo Pietropaolo, and the quote is from Karl Marx.  “[Partner] Gary Hopkinson is our resident philosopher … and he came up with that one,” she says. “It seems so apt because we don’t want to just study the world — we are actually here to contribute to it.”

Ursel, who will serve as the Asper Centre’s Constitutional Litigator-in-Residence for the 2018-19 year, has tried to change the world since she was in high school. “I used to picket my local Dominion store and ask people not to buy grapes and to support Cesar Chavez and the United Farm Workers in their struggle for recognition,” she says. “… I could see how difficult it was for some people to make their own way, to be successful, and we see it even more today. And I just thought, that’s a kind of work that I can see applying myself to … and feeling that I’m adding something to the world. And that became my pole star and what I followed all the way through undergrad and then law school.”

Throughout her career, Ursel has represented a wide variety of unions and individuals on labour, employment and human rights issues. Recently, she intervened for the Canadian Bar Association in Trinity Western University v. The Law Society of Upper Canada. “I think it’s problematic to view any rights in an absolutist way, and I think we have to be very careful about the concept of religious freedom,” she says. “… We’ve prided ourselves on being welcoming to everyone, and when an institution asks to be recognized in the public square, which is what Trinity Western is asking, … [it must] engage with everybody.”

Ursel’s long history of advocating for LGBTQ+ rights — including in Egan, which confirmed sexual orientation as a prohibited ground of discrimination under the Charter, and in XY, which established it’s discriminatory to require trans folks to have sex reassignment surgery before they can change their sex designation on their birth certificates — stems from her own experience as a lesbian lawyer who came out in the 1980s.

“There weren’t a lot of us,” she says. “And the ones who were out in the legal profession belonged to something called the Other Lawyers Association. We didn’t have email. We had telephone trees and letters in brown paper wrappers with no identifying marks on the outside to invite each other to parties.”

One year, Ursel hosted a Christmas party for other LGBTQ+ lawyers. “I couldn’t get the guys to leave!” she remembers, laughing. “They were so happy. … There was no place to go and be themselves and talk amongst their peers and they were having just a really wonderful time. I remember thinking, ‘They’re not going home. I’m going to find some of them on the living room floor tomorrow morning.’”

At the Asper Centre this fall, Ursel will co-teach the constitutional litigation clinic. This typically involves intervening on a Charter case at the Supreme Court, and preparing an advocacy brief on another constitutional issue.

Ursel is especially keen to meet and mentor students. When she was in law school at Osgoode Hall, she took a constitutional litigation course that was “absolutely formative” for her career. While the professor was more conservative than Ursel, she gave very specific feedback on students’ ideas and arguments, and wasn’t stingy with praise.

“That kind of affirmation from somebody with a different viewpoint than you has so much power,” Ursel says. “So I know I’m going to meet people from all walks of life in this program, with all different viewpoints, but I’m hoping I can give them something of what [my professor] gave to me. Even if I don’t see it exactly the same way as you, I will tell you when you’re doing a good job. I will tell you what I think you can do better. I will engage with you on tough issues and talk about them because I care passionately about them and I want the next generation to care passionately too, and to engage in the kind of civil debate we have in this country.”

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Procedural delays prevent constitutional answers in B.C. Medicare case

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By Sara Tatelman

It is a truth universally acknowledged that a first-year law student in possession of a jam-packed schedule must be in want of an excuse to skip Legal Process class. But as we see in Cambie Surgeries Corporation v. British Columbia (Attorney General), both ignorance and careful manipulation of the smallest rules of civil procedure lead to months- and even years-long delays before pressing constitutional questions will be answered. So 1Ls, skip at your peril.

Cambie Surgeries centres on British Columbia’s ban of most private healthcare. The plaintiffs – two private clinics owned by Dr. Brian Day and four patients – argue the unconstitutionality of three provisions of B.C.’s Medicare Protection Act: prohibition of private duplicate insurance, limits on extra billing, and preventing doctors from being paid by both the provincial Medical Services Plan and directly by patients. They argue that by preventing private billing, the province forces patients to suffer as they languish on waiting lists. They allege this infringes their s. 7 Charter right to security of the person, and the fact that some residents have access to expedited private medicine through workers’ compensation and government-run auto insurance infringes other British Columbians’ s. 15 equality rights.

The trial began in September 2016, was adjourned in April 2017 partly due to the plaintiff running out of funds and partly due to inefficient presentation of evidence, and re-commenced on April 9, 2018.

Between February and April 2018 alone, British Columbia filed eight interim motions. Seven sought to strike parts of various witness’s affidavits, while one sought to enforce Cambie Surgeries’ compliance with a previous disclosure order.

Such evidentiary disputes aren’t new: in an April 2017 interim judgement, Justice John Steeves noted that half of the 70+ days of the trial had been devoted to argument over expert witnesses. In an interview with the Canadian Press, Dr. Day said the government delays were an attempt to bleed him dry and force him to abandon his suit.

Between March and May 2018, Steeves J. released 11 interim judgements responding to the parties’ very particular quibbles. Most of the motions sought to strike expert witness affidavits in whole or in part. Steeves J. assessed the impugned statements one by one, concluding that some are admissible because they derive from the witness’s direct experience and observations while others are inadmissible because they include hearsay evidence or opinion.

The line between description and argument can be fine: stating that many patients will deteriorate as they wait for treatment is admissible, but stating that surgery gets more challenging the later it occurs is not (2018 BCSC 759 para 11). Similarly, in another judgement, some comments that might be described as opinion were held to be admissible descriptions of the physician’s work, such as his statement that efforts made at the hospital will be insufficient to meaningfully reduce his waitlist (2018 BCSC 760 para 26).

In another motion, British Columbia sought to enforce Cambie Surgeries’ compliance with a previous order. Specifically, Cambie Surgeries hadn’t produced documents it had been ordered to, and allegedly redacted 55 documents without any explanation. It also failed to list documents it didn’t have in its possession or control, as well as to include any information about privilege, all of which violates the Supreme Court Civil Rules. Steeves J. ordered Cambie Surgeries to provide unredacted copies of certain documents, an amended list of all relevant documents, and an affidavit from Dr. Day that all relevant documents have been disclosed. “… The amended list of documents will comply with the Rules by indicating the documents or classes of documents for which privilege is claimed,” Steeves J. said. “Following discussions and argument I think counsel now understands what that means.”

It’s been almost two years since the Cambie Surgeries trial began, and while a CanLII search yields nearly 50 interim decisions, we’re nowhere near a final judgement. Maybe that’s because British Columbia is disputing the smallest points in the hopes that Dr. Day, drained of his assets and mortgaged to the hilt, will slink away, taking his Charter challenge with him. Maybe that’s because Cambie Surgeries’ lawyers are making disclosure mistakes that would cost them points on a 1L Legal Process exam. Whatever’s causing the delays, and whatever one’s thoughts on privatized medicine in the Canadian healthcare system, it’s clear that the complexities of civil procedure aren’t helping the country get an answer to an important constitutional question.

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Susan Ursel chosen as Constitutional Litigator-in-Residence for fall 2018

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The Faculty of Law’s David Asper Centre for Constitutional Rights is pleased to announce that lawyer Susan Ursel will be the Asper Centre’s Constitutional Litigator-in-Residence for the fall 2018.

Ursel, a Toronto-based employment and human rights lawyer, will be teaching constitutional advocacy in the Asper Centre clinic during the fall term. Drawing upon her extensive experience from her constitutional, human rights and administrative law practice, she will mentor students on the case files that they will be working on in the clinic.

“Susan Ursel’s wealth of litigation experience and work in the human rights field, especially in seeking equality rights, will add an exciting dimension to the clinic this coming term,” says executive director Cheryl Milne.

Susan Ursel says, “I am very much anticipating the exciting and fascinating work with the Asper Centre this year. Constitutional issues and litigation have been a passion of mine for many years and I am honoured to be doing this work with the Asper Centre which is renowned for its constitutional expertise and for its exceptional educational programs. My thanks to the Centre for inviting me to work with them.”

Selected responses to R v Comeau

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By Sara Tatelman

Beer remains imprisoned by provincial borders. In 2012, Gerard Comeau of Tracadie, N.B. was fined nearly $300 for bringing 15 cases of beer and three bottles of spirits from Quebec to New Brunswick. His battle against the law behind that fine has finally wound its way up through the courts.

Last month, in the final word on the matter, the Supreme Court of Canada reversed the trial judge’s decision and found constitutional s. 134(b) of the New Brunswick Liquor Control Act, which limits the amount of extra-provincial Canadian alcohol individuals can bring into the province. The Court determined laws that aim to curtail the inter-provincial passage of goods, whether directly through tariffs or indirectly through fines, violate s. 121 of the Constitution Act, 1867, which states that all items manufactured in any province must be “admitted free” into the other provinces. But laws with different aims that incidentally curtail such passage do not violate s. 121. In this case, the Court noted the legislation aims “not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick” (para 124). Furthermore, the impugned provision targets black market bourbon and Fredericton-brewed rotgut, as well as cheap Quebec beer and crisp Okanagan Pinot Gris. So the liquor limits are byproducts of another regulatory scheme, and therefore permissible.

Before addressing the constitutionality of s. 134(b), the Court “deliver[ed] a benchslap to the trial judge” for disregarding its 1921 decision in Gold Seal Ltd. V Attorney-General for the Province of Alberta, as Professor Leonid Sirota of the Auckland University of Technology Law School wrote on his blog, Double Aspect. Based on the Bedford and Carter exceptions to vertical stare decisis, the trial judge ignored precedent because of a new historical assessment of the intent behind s. 121. The Court determined this wasn’t sufficient, since “the underlying social context that framed the original legal debate [must be] profoundly altered” (para 31) and such a re-assessment doesn’t do so.

Ironically, Sirota argues, the Court doesn’t uphold Gold Seal either. In that decision, outright tariffs on inter-provincial trade are banned. But post-Comeau, provinces could impose tariffs as long as they’re rationally connected to a regulatory scheme with a non-trade objective. “So much for stare decisis,” he writes.

In a commentary in the National Post, Professor David Schneiderman of the University of Toronto Faculty of Law notes it’s unsurprising the Court gives little weight to the historical context, “to some imagined framing moment derived almost exclusively from the pen of a single British draftsperson.” That is, under the “living tree” interpretation of the Constitution, purported intentions don’t matter all that much.

Professor Malcolm Lavoie of the University of Alberta Faculty of Law argues in a CBC column that the Court could have reached a fairer balance between federal and provincial powers by simply mandating a test more robust than rational connection, such as a test of necessity. “Under this approach, the government of New Brunswick would have had to establish that its prohibition on outside liquor was truly necessary to achieve objectives relating to public health and safety, a much higher bar than the one the Court applied,” he writes.

Furthermore, Lavoie points out that the Court’s interpretation of s. 121 renders it obsolete: under s. 91 of the Constitution Act, 1867, interprovincial trade is a federal head of power. That is, it was already impossible for provincial governments to directly impose tariffs on goods coming in from other provinces.

In the Toronto Star, Dr. Maria Banda, a visiting fellow at the University of Toronto Faculty of Law, has a more positive view of the decision. Comeau ensures that provinces with higher environmental or health standards, for example, don’t risk “being dragged down to the lowest common denominator by those with lax or inexistent regulations,” she writes.

This decision will likely reverberate throughout the country, including in Alberta and British Columbia’s pipeline dispute. Those provinces should see Comeau as a warning “that they’re not going to be able to rely on their own jurisdiction under the Constitution to do things that will either interfere in federal jurisdiction or will interrupt the free flow of natural resources that is normally supposed to occur without discrimination between provinces,” Professor Carissima Mathen of the University of Ottawa Faculty of Law, said in an interview in Maclean’s.

For his part, Schneiderman argues it’s now less likely Alberta’s Bill 12 will be held to be constitutional. The principle aim of the bill, which requires government permission to export petroleum resources, is “to economically harm a recalcitrant province for interfering with Alberta’s ability to get its oil to port,” he writes. And under Comeau, that cannot be countenanced.

So is it time to #FreeTheBeer, #FreeTheGrapes and #FreeTheOil?

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.