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Mitzel v. Alberta (LERB) 161

[Indexed as: Mitzel v. Alberta (Law Enforcement Review Board)]

Cst. Jason Mitzel (#2082) and Cst. Tim Horon (#2332) (Appellants /Applicants) and Law Enforcement Review Board, Virgil Holloway and

The Chief of Police of Edmonton Police Service (Respondents /Respondents)

Alberta Court of Appeal

Constance Hunt, Clifton O’Brien, Paul Belzil JJ.A.

Heard: September 10, 2010

Judgment: November 15, 2010*

Docket: Edmonton Appeal 0903-0059-AC, 2010 ABCA 336

G.J. Stewart-Palmer for Appellants / ApplicantsS.P. McDonough for Respondent / Respondent, Law Enforcement Review

BoardE.D. Norheim for Respondent / Respondent, Virgil HollowayD.A. Cranna for Respondent / Respondent, Chief of Police of Edmonton Police

Service

Law enforcement agencies –––– Police — Organization of police forces — Discipli-nary proceedings — Jurisdiction.

Administrative law –––– Standard of review — Reasonableness — Reasonablenesssimpliciter –––– Complainant was arrested following incident at his apartment — Consta-ble strip searched complainant in jail cell — Constable made no notes about stripsearch — Police Policy required members conducting strip searches to make note of rea-sons for doing so — Complainant submitted complaint to Police Chief against number ofnamed officers, and any other officers “who were at the scene”, with regard to inci-dent — Constable was not specifically named — Chief dismissed complaints — Com-plainant appealed under Police Act — Law Enforcement Review Board (Board) directedChief to lay charge of neglect of duty against Constable — Constable appealed — Leaveto appeal was granted on question whether Board had jurisdiction to direct chargesagainst Constable — Appeal allowed on other grounds — Reasonableness standard of re-view applied to whether Board properly concluded complaint included Constable — Is-sue was not matter of true jurisdiction as discussed in leading Supreme Court of Canadacase — Board had to decide if complainant’s complaint included Constable, which re-quired it to interpret and construe original letter of complaint — Act contained no priva-tive clause, which suggested less deference to Board — Construing letter of complaint todetermine whether it included Constable was not outside Board’s expertise — In order toensure public complaints are dealt with properly, Board must be given latitude in deter-mining scope of complaint.

Administrative law –––– Requirements of natural justice — Right to hearing — Pro-cedural rights at hearing — Reasons for decision –––– Complainant was arrested fol-

*A corrigendum issued on November 23, 2010 has been incorporated herein.

ADMINISTRATIVE LAW REPORTS 13 Admin. L.R. (5th)162

lowing incident at his apartment — Constable strip searched complainant in jail cell —Constable made no notes about strip search — Police Policy required members con-ducting strip searches to make note of reasons for doing so — Complainant submittedcomplaint to Police Chief against number of named officers, and any other officers “whowere at the scene”, with regard to incident — Constable was not specifically named —Chief dismissed complaints — Complainant appealed under Police Act — Law Enforce-ment Review Board (Board) directed Chief to lay charge of neglect of duty against Con-stable — Constable appealed — Leave to appeal was granted on question whether Boardhad jurisdiction to direct charges against Constable — Appeal allowed — Given partialappeal record and lack of Board reasons critical to issue on appeal, it was not possible toanswer question on which leave was granted — It was impossible to ascertain why Boardconcluded complaint included Constable’s failure to make notes about strip search —Board acknowledged its reasons were inadequate on critical point — Essentially nothingwas offered by Board to support its decision on critical issue of whether Constable wasincluded in complaint — Board breached its obligations.

Civil practice and procedure –––– Practice on appeal — Powers and duties of appel-late court — Miscellaneous –––– Remedy — Complainant was arrested following inci-dent at his apartment — Constable strip searched complainant in jail cell — Constablemade no notes about strip search — Police Policy required members conducting stripsearches to make note of reasons for doing so — Complainant submitted complaint toPolice Chief against number of named officers, and any other officers “who were at thescene”, with regard to incident — Constable was not specifically named — Chief dis-missed complaints — Complainant appealed under Police Act — Law Enforcement Re-view Board (Board) directed Chief to lay charge of neglect of duty against Constable —Constable appealed — Leave to appeal was granted on question whether Board had juris-diction to direct charges against Constable — Appeal allowed — With respect to remedy,Police Act does not specify powers of Court of Appeal, nor did it appear that any caseshad expressly discussed that point — Rule 518(e) of Alberta Rules of Court grants Courtof Appeal broad remedial powers — This was not case where reviewing court was inposition to decide appropriate outcome based on record before it, or where little would begained by remitting matter to tribunal for proper reasons — Accordingly, Board’s orderquashed and matter remitted to new panel for consideration in accordance with Court ofAppeal’s reasons.

The complainant was arrested following an incident involving a noise complaint and analtercation at an apartment building. Constable H conducted a strip search of the com-plainant in a jail cell after his arrest, but made no notes about the strip search. PolicePolicy required members conducting strip searches to record their reasons for doing so.

The complainant submitted a complaint to the Police Chief against a number of namedofficers, and any other officers “who were at the scene”, with regard to the incident.Constable H was not specifically named. The Chief dismissed the complaints. The com-plainant appealed under the Police Act.

A hearing was held before the Law Enforcement Review Board (Board). The Board di-rected the Chief to lay a charge of neglect of duty against Constable H pursuant to s.5(1)(h) of the Police Service Regulation, with respect to Constable H’s failure to makenotes regarding the strip search.

Mitzel v. Alberta (LERB) 163

The Board’s reasons did not discuss whether or not a complaint was ever made againstConstable H. Constable H sought leave to appeal, alleging that the Board acted withoutjurisdiction.

Leave to appeal was granted on the issue of whether the Board had jurisdiction to directcharges against H.

Held: The appeal was allowed.

Per Clifton O’Brien, Constance Hunt JJ.A: Given the partial appeal record and the lack ofBoard reasons critical to the issue on which leave to appeal was granted, it was not possi-ble to answer the question at issue. It was impossible to ascertain why the Board con-cluded the complaint included Constable H’s failure to make notes about the strip search.

The issue was not a matter of true jurisdiction as discussed in a leading Supreme Court ofCanada case. The reasonableness standard of review applied to whether the Board prop-erly concluded the complaint included Constable H.

The Board acknowledged that its reasons were inadequate on the critical point. Essen-tially nothing was offered by the Board to support its decision on whether H was includedin the complaint. The Board breached its obligations.

The Board’s reasons did not explore what the complaint meant by officers “who were atthe scene” or what was the scope of the “investigation” in relation to which the complain-ant asserted that inadequate records had been made. Both matters were central to anydecision about whether or not Constable H was included in the complaint.

With respect to remedy, the Police Act does not specify the powers of the Court of Ap-peal, nor did it appear that any cases had expressly discussed that point. Rule 518(e) ofAlberta Rules of Court grants the Court of Appeal broad remedial powers. This was not acase where the reviewing court was in a position to decide the appropriate outcome basedon the record before it, or where little would be gained by remitting the matter to a tribu-nal for proper reasons. Accordingly, the Board’s order was quashed and the matter remit-ted to a new panel for consideration in accordance with the Court’s reasons.

Per R. Paul Belzil J.A. (dissenting in part): The appeal should be allowed. All ordersagainst Constable H should be quashed.

The jurisdiction of the Board to make an order respecting Constable H could only derivefrom the complainant’s complaint. It was agreed with the majority that the appeal did notinvolve a matter of true jurisdiction and that the reasonableness standard of review ap-plied to whether the Board properly included Constable H in the complaint.

The Board failed to provide reasons as to why it concluded that Constable H was part ofthe complaint. Given that Constable H was not included in the complaint no purposewould be served by remitting the matter back for rehearing.

Cases considered:

Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1,[1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 Car-swellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39(S.C.C.) — referred to

C. (S.) v. Calgary (City) Chief of Police (2001), 33 Admin. L.R. (3d) 215, 281 A.R. 297,248 W.A.C. 297, 2001 CarswellAlta 720, 2001 ABCA 122 (Alta. C.A.) —distinguished


Clifford v. Ontario (Attorney General) (2009), 256 O.A.C. 354, 93 Admin. L.R. (4th)131, 2009 ONCA 670, 2009 CarswellOnt 5595, 2009 C.E.B. & P.G.R. 8359, 98 O.R.(3d) 210, 312 D.L.R. (4th) 70, 188 L.A.C. (4th) 97, 76 C.C.P.B. 184, [2009] O.J. No.3900 (Ont. C.A.) — considered

Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th)1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1,77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration)v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to

Mitzel v. Alberta (Law Enforcement Review Board) (2009), 2009 ABCA 288, 2009CarswellAlta 1353 (Alta. C.A.) — referred to

N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2010), (sub nom.Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador(Treasury Board)) 294 Nfld. & P.E.I.R. 161, (sub nom. Newfoundland and LabradorNurses’ Union v. Newfoundland and Labrador (Treasury Board)) 908 A.P.R. 161,(sub nom. Newfoundland & Labrador v. NLNU) 2010 C.L.L.C. 220-017, 2010NLCA 13, 2010 CarswellNfld 49, 190 L.A.C. (4th) 385 (N.L. C.A.) — referred to

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R.(4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C.220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns-wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th)577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1,(sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008]A.C.S. No. 9 (S.C.C.) — followed

Petro-Canada v. British Columbia (Workers’ Compensation Board) (2009), 2009 Car-swellBC 2416, 2009 BCCA 396, 98 B.C.L.R. (4th) 1, 276 B.C.A.C. 135, 468 W.A.C.135 (B.C. C.A.) — referred to

Plimmer v. Calgary (City) Chief of Police (2004), (sub nom. Plimmer v. Chief of Police)354 A.R. 62, (sub nom. Plimmer v. Chief of Police) 329 W.A.C. 62, 2004 ABCA175, 2004 CarswellAlta 710, 33 C.C.E.L. (3d) 21, 29 Alta. L.R. (4th) 243, [2005] 1W.W.R. 26, [2004] A.J. No. 616 (Alta. C.A.) — considered

United States v. Lake (2008), 72 Admin. L.R. (4th) 30, (sub nom. Lake v. Canada(Minister of Justice)) 236 O.A.C. 371, (sub nom. Lake v. Canada (Minister of Jus-tice)) 171 C.R.R. (2d) 280, 2008 SCC 23, 2008 CarswellOnt 2574, 2008 CarswellOnt2575, (sub nom. Lake v. Canada (Minister of Justice)) 373 N.R. 339, 56 C.R. (6th)336, 230 C.C.C. (3d) 449, (sub nom. United States of America v. Lake) 292 D.L.R.(4th) 193, (sub nom. Lake v. Canada (Minister of Justice)) [2008] 1 S.C.R. 761,[2008] S.C.J. No. 23 (S.C.C.) — referred to

Cases considered by R. Paul Belzil J.A.:

C. (S.) v. Calgary (City) Chief of Police (2001), 33 Admin. L.R. (3d) 215, 281 A.R. 297,248 W.A.C. 297, 2001 CarswellAlta 720, 2001 ABCA 122 (Alta. C.A.) — followed

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R.(4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C.220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns-wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th)

Mitzel v. Alberta (LERB) O’Brien, Hunt JJ.A. 165

577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1,(sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008]A.C.S. No. 9 (S.C.C.) — considered

Statutes considered:

Judicature Act, R.S.A. 2000, c. J-2Generally — referred to

Police Act, R.S.A. 2000, c. P-17Generally — referred tos. 18 — considereds. 20(2)(b)(iii) — referred tos. 20(2)(b)(iv) — referred tos. 48(2) — considered

Statutes considered by R. Paul Belzil J.A.:

Police Act, R.S.A. 2000, c. P-17Generally — referred tos. 20(2)(b) — considered

Rules considered:

Alberta Rules of Court, Alta. Reg. 390/68R. 518(e) — referred to

Regulations considered:

Police Act, R.S.A. 2000, c. P-17Police Service Regulation, Alta. Reg. 356/90

s. 5(1)(g) — considereds. 5(1)(h) — referred to

APPEAL by Constable from decision of Law Enforcement Review Board, directingcharges against Constable.

Clifton O’Brien, Constance Hunt JJ.A:

The Majority1 The narrow issue on which leave to appeal was granted is whether the Law

Enforcement Review Board (Board) had jurisdiction to direct charges againstthe appellant, Constable Horon: Mitzel v. Alberta (Law Enforcement ReviewBoard), 2009 ABCA 288 (Alta. C.A.) at para 7.

2 Given the partial appeal record and the lack of Board reasons critical to thisissue, it is not possible to answer the question on which leave was granted. Con-sequently, the appeal is allowed and the matter remitted to a differently consti-tuted panel of the Board in accordance with these reasons.


Background3 In February 2003 two police officers responded to a noise complaint in an

apartment building. They arrested Holloway (complainant) and his girlfriend af-ter an altercation. Several other officers arrived at the apartment to assist andconduct a search. Horon and his partner (Martin, who was named in the com-plaint but is not relevant to this appeal) transported the complainant to policeheadquarters in police vehicle 3D58. Once Holloway was placed in a cell, Horonconducted a strip search. He made no notes about the strip search. EPS Policy(Part 1, Chapter 7) governs strip searches and requires that members conductingsuch searches “shall record in their notes ... the reason(s) for having conductedsuch a search”: Appellant’s Extracts of Key Evidence (AEKE) 33.

4 On December 2, 2003, the complainant’s lawyer sent a letter of complaint tothe Edmonton Police Service’s (Police) now-retired Chief. This letter com-plained about several named officers (Horon was not named), the occupants ofseveral identified police cars (Horon’s police vehicle was identified by number)and any other officers “who were at the scene”: AEKE A7. The letter containedan eight-point summary, which list included excessive use of force; criminal as-sault; unlawful confinement and kidnapping; unlawful entry to and search ofapartment; “failure to make accurate and complete records of the investigation”;and negligent investigation: AEKE A8. Thirteen paragraphs containing “furtherparticulars” followed. These primarily related to incidents that occurred at theapartment, but the final paragraph stated:

The other police officers involved here, including Ziele, Tassone, Babic,Martin and Fritsch either breached Edmonton Police Service policy by fail-ing to provide sufficient detail in their investigative records or failed to pro-vide any investigative record at all (see Edmonton Police Service 1.B.1(I)(2);1.B.3(B); Part 7.A.9(A)(9)a.2; 7.A.9(g); 7.B.4(A)(2); 7.B.5(A)).

5 The policy numbers listed did not include 1.D.7 which requires that notes bemade of the reasons for a strip search.

6 As part of an internal investigation of the complaint, Horon wrote a memo-randum in which he recalled “conducting a search in the cell” and stated he“made no notes ... as my involvement was merely cursory”: AEKE A36. A finalinvestigative report dated October 25, 2005 was issued (of which this appealrecord only contained an excerpt). It named eight officers, including Horon’spartner, Martin, but did not name Horon: AEKE A11.

7 In a letter to the complainant’s lawyer on September 27, 2005, the ActingChief stated that allegations against the eight named officers (which did not in-clude Horon) did not warrant criminal charges and the allegations of misconductagainst the eight named officers were neither sustained nor justified: AEKEA16-20.

8 Section 48(2) of the Police Act, RSA 2000, c P-17 permits an appeal to theBoard following the disposition of his complaint by “written notice of appeal


setting out the grounds on which the appeal is based”. On October 21, 2005 thecomplainant (again through a letter from his counsel) appealed on four grounds:“inadequate investigation; unreasonable findings of fact; application of the in-correct legal test to determine whether charges should be laid; and such furtherand other grounds of appeal as may become apparent when disclosure has beenreceived and reviewed”: AEKE A21.

9 In August 2007 correspondence between counsel prior to the Board proceed-ings, the complainant’s lawyer provided “Particulars of Grounds of Appeal”, as-serting that the Chief ought to have directed a disciplinary hearing as regards,among other things, Horon’s failure to “make notes of his activities in connec-tion with this investigation, contrary to section 5(1)(g) of the Police ServiceRegulation (EPS Policy Part 7, Chapter B)”: Respondent’s Extracts of Key Evi-dence (REKE) R6.

10 Subsection 5(1)(g) of the Police Service Regulation, Alta Reg 356/1990 con-cerns insubordination and the EPS Policy referred to, which is entitled “Notesand Notebooks”, discusses making and using notes generally: AEKE A24.

11 As a result of this letter, counsel (who was already representing the eightnamed officers and the Police) was engaged to also represent Horon at the Boardhearing: REKE R13.

Board Hearing and Reasons12 In addition to certain documents put forward by Horon and the complainant,

the record before this Court consists of the Board’s reasons along with a part ofthe transcript (Appeal Record F11-25) entitled “Preliminary Application”. Thispart concerns arguments made by counsel for the complainant and the officersconcerning the scope of the complaint.

13 At one point during these submissions, the officers’ counsel asked “What isthe investigation?” (AR F16), suggesting that the investigation only concernedevents at the apartment such as the alleged unlawful assaults, improper entry andsearch, and wrongful confinement and kidnapping. He noted that there was noallegation of a strip search being conducted.

14 On the other hand, while the complainant’s counsel acknowledged that thestrip search was “not part of the original letter of complaint, and that is why I’mnot asking the Board to direct a hearing on that particular issue” (AR F13), sheasserted that the failure to make adequate records was part of the original com-plaint. Later, she alluded to the fact that the complaint included the “failure tomake accurate and complete records of the investigation”: AR F23.

15 According to the Board’s reasons, at the hearing in June 2008 Horon “ac-knowledged ... that he had not complied with the Service Directive”: DecisionNo. 003R-2009, Reasons at AR F49 para 31. This Service Directive (No. 01-151) requires an officer to make notes setting out the reasons for a strip search.


16 The Board found that the only note Horon made in relation “to this investi-gation” was the memorandum he authored in conjunction with the internal in-vestigation: AR F10. Accordingly, since “a presiding officer could conclude thata disciplinary offence took place”, the Board directed the Chief of Police to lay acharge of neglect of duty against Horon pursuant to subsection 5(1)(h) of thePolice Service Regulation. This remits the matter back to the Police for a disci-plinary hearing: Reasons at AR F5 para 18.

17 The Reasons do not discuss whether or not a complaint was ever madeagainst Horon, although it is logical to assume it concluded Horon’s failure tomake notes about the strip search was part of the complaint.

Grounds of Appeal and Position of the Parties18 Horon contends the Board acted without jurisdiction as no complaint was

made against him. He asserts his conduct did not form part of the “complaint”and he was not a police officer in respect of whom a complaint was made. ThePolice agree with Horon’s position. Alternatively, the Police suggest that if theBoard had jurisdiction as regards Horon, the appropriate remedy would havebeen for the Board to direct another investigation under section 20(2)(b)(iv) ofthe Police Act (rather than to direct the chief to lay a charge, pursuant to section20(2)(b)(iii)). It is central to both provisions that there be a “complaint” againstthe officer.

19 The complainant urges that the Board was within its jurisdiction to make theorder and the Board’s conclusion that the complaint included Horon was a find-ing of fact or discretion entitled to deference. He takes the position that the com-plaint was broadly enough worded to include Horon’s failure to make notesabout the strip search. He does not rely on the August 2007 letter from his coun-sel as a basis for expanding the scope of his complaint.

20 The Board has not submitted a factum but advises that it does not oppose theappeal. At the hearing, Board counsel acknowledged that the Board’s reasonsoffer no explanation for its apparent conclusion that the complaint includedHoron.

Standard of Review21 Appeals to this Court from the Board’s decisions are restricted to questions

of law: Police Act, section 18. True questions of jurisdiction are questions oflaw: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.)at paras 29 and 31, [2008] 1 S.C.R. 190 (S.C.C.). Such questions arise when “thetribunal must explicitly determine whether its statutory grant of power gives itthe authority to decide a particular matter”: Dunsmuir at para 59. Questions oftrue jurisdiction are reviewable on the correctness standard: Khosa v. Canada(Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 42,[2009] 1 S.C.R. 339 (S.C.C.) Correctness applies equally to questions that are


“both of central importance to the legal system as a whole and outside the adju-dicator’s specialized area of expertise”: Dunsmuir at para 60.

22 Horon points out that the Board cannot make an order if there is no com-plaint because, without a complaint, it lacks jurisdiction: C. (S.) v. Calgary(City) Chief of Police, 2001 ABCA 122 (Alta. C.A.) at paras 15-17, 281 A.R.297 (Alta. C.A.). He says the Board had to be correct in determining that therehad been a complaint about him in order to make the impugned order.

23 The issue raised here is not a matter of true jurisdiction as discussed in Dun-smuir. In C. (S.) this Court concluded that there was a jurisdictional issue be-cause the complainant had never made a complaint against the officer. This caseis different because here there was a complaint. The Board had to decide if itincluded Horon, which required it to interpret and construe the original letter ofcomplaint.

24 This legislation has been described as follows:

The purpose of the Act generally is to provide for an adequate and effectivelevel of policing in the province. To accomplish that purpose, the Act pro-vides for the establishment of the Board and police commissions and sets outprocedures for dealing with complaints and discipline. The particular pur-pose of the hearing and appeal provisions at issue in this appeal, is to allowan avenue for public complaint and a mechanism for inquiring into suchcomplaints, with a view to balancing the need for public confidence with theemployment rights of the officer in the context of the safe, efficient and ef-fective operation of the police service.

Plimmer v. Calgary (City) Chief of Police, 2004 ABCA 175 (Alta. C.A.) atpara 32, (2004), 354 A.R. 62 (Alta. C.A.)

25 The legislation contains no privative clause, which suggests less deferenceto the Board. On the other hand, construing the letter of complaint to determinewhether it included Horon was not outside the Board’s expertise. Indeed, thereare many reasons why a court ought to defer to the Board on such a question.For example, complaints may be written by people representing themselves.Their use of language may be less sophisticated than the sort of language typi-cally used by a lawyer. In order to ensure that public complaints are dealt withproperly, the Board must be given latitude in determining the scope of acomplaint.

26 It follows that the reasonableness standard applies to whether the Boardproperly concluded the complaint included Horon. Reasonableness requires thatthe reviewing court inquire into:

... the process of articulating the reasons and to outcomes. In judicial review,reasonableness is concerned mostly with the existence of justification, trans-parency and intelligibility within the decision-making process. But it is alsoconcerned with whether the decision falls within a range of possible, accept-able outcomes which are defensible in respect of the facts and law.

Dunsmuir at para 47


27 Reasons for a conclusion permit an individual to understand why the deci-sion was made and a reviewing court to assess the validity of the reasons: UnitedStates v. Lake, 2008 SCC 23 (S.C.C.) at para 46, [2008] 1 S.C.R. 761 (S.C.C.).Conclusions will not be defensible if they do not contain the proper analysis:ibid.

28 The jurisprudence is mixed as to whether the adequacy of reasons are to beassessed on the reasonableness standard (see N.L.N.U. v. Newfoundland &Labrador (Treasury Board), 2010 NLCA 13, 294 Nfld. & P.E.I.R. 161 (N.L.C.A.)) or whether inadequate reasons violate the requirement of fairness de-scribed in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2S.C.R. 817, 174 D.L.R. (4th) 193 (S.C.C.)), making them reviewable on the cor-rectness standard: Clifford v. Ontario (Attorney General), 2009 ONCA 670(Ont. C.A.) at paras 23 and 24, (2009), 98 O.R. (3d) 210 (Ont. C.A.); Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396,276 B.C.A.C. 135 (B.C. C.A.).

29 However, it is not necessary to resolve this issue here given the Board’sacknowledgment that its reasons were inadequate on the critical point. This isone of the rare cases referred to in Clifford at para 26 where essentially nothingwas offered by the tribunal to support its decision on the critical issue of whetherHoron was included in the complaint. Therefore, it is easy to conclude that theBoard breached its obligations.

Analysis30 This appeal must be allowed because it is impossible to ascertain why the

Board concluded the complaint included Horon’s failure to make notes about thestrip search. For example, the Board’s reasons do not explore what the com-plaint meant by officers “who were at the scene” or what was the scope of the“investigation” in relation to which the complainant asserted that inadequaterecords had been made. Both matters are central to any decision about whetheror not Horon was included in the complaint.

31 This brings us to the matter of remedy. The Police Act does not specify thepowers of the Court of Appeal, nor does it appear that any cases have expresslydiscussed that point. Rule 518(e) grants this Court broad remedial powers: Al-berta Rules of Court, Alta Reg 390/68, see also Judicature Act, RSA 2000, c J-2.

32 There may be cases where a reviewing court is positioned to decide the ap-propriate outcome based on the record before it. There may also be cases wherelittle would be gained by remitting a matter to a tribunal for proper reasons. Butthis case falls into neither category. Given the lack of a complete record, we donot know, for example, what if any evidence the Board heard about what consti-tuted the “investigation” in this case.

Mitzel v. Alberta (LERB) R. Paul Belzil J.A. 171

33 Accordingly, the Board’s order is quashed and the matter remitted to a newpanel for consideration in accordance with these reasons.

R. Paul Belzil J.A. (dissenting in part):

Part 1 The Appeal34 While I agree with the majority that the standard of review of reasonableness

applies, I do not accept the decision to include Constable Horon in the complaintcan withstand scrutiny applying it to the evidence in this case. For the reasonswhich follow I would allow the appeal and quash the orders made against him.

Part 2 Determining the Jurisdiction of the Law Enforcement Review Board35 This Court in C. (S.) v. Calgary (City) Chief of Police, 2001 ABCA 122

(Alta. C.A.), held that the jurisdiction of a Law Enforcement Review Board todeal with appeals under the provisions of the Police Act is derived solely fromthe Act (para. 12). Appeals of the type involved in this appeal are governed by s.20(2)(b).

36 At paragraphs 15 and 16 it was held that the Board’s authority is limited todealing with the matter before it, that is the substance of the original complaint.

37 In C. (S.) the complaint related to four officers. The Board purported to issuean order pertaining to another officer. The court held that the Board lacked thejurisdiction to make an order against an officer who was not among the fourcomplained against. C. (S.) is thus primarily a case about determining the scopeof the Board’s jurisdiction which at para. 1 is how the issue before the court wasframed.

38 It necessarily follows from the reasoning in C. (S.) that the wording of acomplaint must be carefully scrutinized. At para. 14 it was noted that a plainmeaning or purposive approach should be adopted in interpreting whether juris-diction exists under s. 20(2)(b).

39 Given the court’s finding that jurisdiction derives from the underlying com-plaint, this surely must mean that in the context of a complaint, a plain meaningor purposive approach must be adopted in analyzing whether a complaint hasactually been made against an officer who was not specifically named and whoquestions the jurisdiction of the Board to make an order against that officer.

Part 3 The Holloway Complaint40 On February 19, 2003 the Edmonton Police Service received a complaint

about a noisy party being held at apartment 303, 9329 - 104 Avenue inEdmonton. Officers were dispatched and an altercation developed involving theapartment tenant Miles Holloway and a female occupant. The officers on scenecalled for backup and a number of other officers responded. Holloway was ar-rested and handcuffed.


41 Constable Horon went to that location in a patrol car and was asked to trans-port Holloway to police headquarters. He was not involved in the arrest of Hol-loway and transported him to police headquarters where he conducted a stripsearch of Holloway. The trip to police headquarters was uneventful as was thestrip search.

42 On December 2, 2003 Mr. Tom Engel, counsel for Holloway, submitted adetailed letter of complaint on behalf of his client. The first two paragraphs ofthe complaint read as follows, AEKE A7:

Re: Complaints by Miles Holloway

I am counsel for Miles Holloway. He has instructed me to make complaintsarising out of the circumstances of Edmonton Police Service file 03-22518.

The complaints are against Constables Mitzel, Babic, Ziele, Tassone, Martin,Fritsch, the occupants of Edmonton Police Service units 1H15, 1H11, 1D32,1D36, 3D58 and 3D45 and any other officers, including Constable Mitzel’ssergeant and other sergeants who were at the scene.

(emphasis added)

43 On page two of the letter, eight allegations of misconduct are listed followedby one and one half pages of particulars of the allegations: AEKE A8-9. Horonis not mentioned in the complaint nor is there any reference to events other thanat the Holloway apartment. Specifically, there was no mention of the strip searchat police headquarters or an alleged failure to make notes about the strip search.

44 The Internal Affairs section of the Edmonton Police Service conducted aninvestigation and although the complete Internal Affairs files does not form partof the evidence on appeal, the final report of Internal Affairs does form part ofthe appeal record: AEKE A11-15. It references eight officers, not includingHoron. Indeed, the Internal Affairs section advised Horon in writing that he wasnot part of the investigation: AEKE A38.

45 On September 25, 2005 the Edmonton Police Service provided a detailedresponse to the complaint filed on behalf of Holloway by Engel: AEKE A16-20.Eight concerns were addressed involving a number of officers, not includingHoron. All of the concerns involved in the response related to the altercation atthe Holloway apartment and no mention was made of anything done or not doneat police headquarters, including the strip search or any reference to the absenceof note taking in connection with it.

Part 4 Discussion46 On the authority of C. (S.) the jurisdiction of the Board to make an order

respecting Horon could only derive from the Holloway complaint.

47 I agree with the majority that this appeal does not involve a matter of truejurisdiction as discussed in Dunsmuir [New Brunswick (Board of Management)v. Dunsmuir, 2008 CarswellNB 124 (S.C.C.)] and that accordingly the reasona-

Mitzel v. Alberta (LERB) R. Paul Belzil J.A. 173

bleness standard of review applies to whether the Board properly includedHoron in the complaint.

48 However, I do not accept that utilization of a standard of review of reasona-bleness can justify including an individual in a complaint when on a plain mean-ing or purposive approach to the complaint, that individual is not included in it.The standard of review of reasonableness is deferential and broadly defined butthis does not equate with a standard of review which is without limits and com-pletely open ended.

49 On a plain wording the complaint is limited to the Holloway apartment andlogically would include the street in front of it. By the same token, the complaintwould cover the time period from the arrival of the first officers at that locationuntil Holloway left that location in a police vehicle.

50 The phrase “who were at the scene” modifies paragraph 2 of the complaintand clearly limits the complaint to that geographic location and that time period.There is nothing in the letter of complaint which would flag the reader thatevents at other locations, including police headquarters, were being complainedabout, specifically an alleged failure to prepare notes about a strip search.

51 Moreover, I do not accept that the allegation in the letter of complaint thatthere was a failure to make accurate and complete records of the “investigation”can be used to justify including an individual in a complaint when in grammati-cal context the “investigation” could only refer to the “scene”, that is the Hollo-way apartment. The parameters of the investigation must be viewed through theprism of the complaint.

52 At the hearing Holloway’s lawyer conceded that the strip search was “notpart of the original complaint” (AR F13). Why then would it be reasonable toinclude in the complaint a failure to make notes about a subject which it is ac-knowledged is irrelevant to the complaint?

53 It is extremely significant that neither Holloway or his lawyer raised anyobjection to the fact that Horon was not referenced in the detailed reply to thecomplaint from the Edmonton Police Service on September 27, 2005. Surely, ifHolloway and his lawyer thought that the complaint dealt with anything done ornot done at police headquarters, this would have been raised at the time with arequest to add Horon’s name to the investigation. This was not done. Moreover,Engel’s letter of October 21, 2005 to the Board did not raise the issue that Horonwas not part of the investigation as a ground of appeal: AEKE A21.

54 Recognizing that individuals wishing to complain about police conduct maybe unsophisticated, nonetheless, no onerous burden is created if complainantsare required to clearly identify, even if in simple terms, who is the subject of thecomplaint and what thing done or not done is the foundation for it.


55 When, as in this case, the complainant is represented by an experienced law-yer who drafted a detailed letter of complaint, surely this requirement becomeseven more critical.

56 Even if one makes allowance for later disclosure requiring amending a com-plaint, there is no justification, by the time the matter reaches the Board for acomplaint to be not completely clear as to who is being complained about andwhy. Conversely, significant unfairness results to the subjects of complaintswhich on their face are not applicable to them and who are much later subject toan argument that they are included.

57 The Board failed to provide reasons as to why it concluded that Horon waspart of the complaint. In many circumstances this failure to provide reasonsmight well justify remitting the matter back to the Board for rehearing, however,given that Horon was not included in the complaint no purpose is served byremitting this matter back for a rehearing and thus I would allow the appeal andquash all orders made against him.

Appeal allowed.

Halliburton Group Canada Inc. v. Alberta (MF) 175

[Indexed as: Halliburton Group Canada Inc. v. Alberta (Ministerof Finance)]

Halliburton Group Canada Inc. (Appellant / Plaintiff) and Her Majestythe Queen in Right of Alberta, as represented by the Minister ofFinance and Dennis Gartner, in his capacity as Superintendent ofPensions of the Province of Alberta (Respondents / Defendants)


Carole Conrad, Ronald Berger, Peter Martin JJ.A.

Heard: May 6, 2010

Judgment: September 9, 2010*

Docket: Calgary Appeal 0901-0228-AC, 2010 ABCA 254

M.E. Killoram for Appellant / PlaintiffJ.H. Mayan, J.B. Currie for Respondents / Defendants

Pensions –––– Administration of pension plans — Amendment of plan — Whetherpermitted –––– Employer planned to convert existing defined benefit (DB) plan of whichit was sponsor and administrator to defined contribution (DC) plan by amending DB planto include DC component and to except from definition of “credited service” those mem-bers’ continuous service after date when that part of operation began participating in DCcomponent of plan — Appellant planned to pay differential payment based on “presentvalue” of shortfall to each of 17 affected employees who did not switch to DC plan —Employer submitted amendments to government department established under Employ-ment Pension Plans Act to oversee registered pension plans — Superintendent of Pen-sions viewed amendments as retroactive reduction of benefits and directed employer toprovide revised cost certificates and actuarial valuations and fund plan in accordance withrevised valuations, then issued Revised Direction to rescind part of amendment retroac-tively, provide revised cost certificates and actuarial valuations, and fund plan accord-ingly — Employer brought unsuccessful application for statutory appeal and judicial re-view — Chambers judge determined that question of whether administration of certainprovisions of amendments constituted retroactive reduction in member benefits fellwithin regulatory mandate and expertise of Commission and was within its competenceto answer and that Superintendent’s answer was supported by clear reasons in letterswhich could be used as reasons for decision — Employer appealed — Appeal dis-missed — Superintendent’s decision to issue Directions was reasonable, and Directionswere to stand — Act gave Superintendent broad powers to issue impugned Directionsrescinding previously registered amendment — Affected members were entitled to havepost-amendment earnings included in calculation of final pension benefits, as, otherwise,members would have benefits retroactively reduced — From time they became plan par-ticipants, employees were entitled to have DB calculated in accordance with DB formula

*A corrigendum issued by the court on September 23, 2010 has been incorporated herein.


which required use of highest compensation number for five of their last ten years ofemployment “prior to employee’s normal retirement date” — Lump sum payments em-ployer proposed to pay 17 employees might attract tax consequences, effect of whichwould diminish value of acquired benefits, which might be why employees did not optfor DC plan — Seventeen employees were entitled to pension premised upon their pro-jected five years of employment preceding normal retirement date, and amendments de-priving them of that contravened Act and entitled Superintendent to order deregistrationof amendments.

Administrative law –––– Practice and procedure — Under statutory review provi-sions — General principles –––– Employer planned to convert existing defined benefit(DB) plan of which it was sponsor and administrator to defined contribution (DC) plan —Conversion involved amendments to include DC component and to except from defini-tion of “credited service” those members’ continuous service after date when that part ofoperation began participating in DC component of plan — Employer submitted amend-ments to government department established pursuant to Employment Pension Plans Actto oversee registered pension plans — Superintendent of Pensions in department took po-sition that amendments collectively constituted retroactive reduction of member benefitsand issued Direction to employer to provide revised cost certificates and actuarial valua-tions and to fund plan in accordance with revised valuations, then issued Revised Direc-tion to rescind part of amendment retroactively, provide revised cost certificates and actu-arial valuations, and to fund plan in accordance with revised valuations — Employerbrought unsuccessful application for statutory appeal under Act and judicial review ofSuperintendent’s decisions — Chambers judge determined that application could be con-ducted as combination of judicial review and statutory appeal — Both parties agreed thatstatutory appeal would not be adequate remedy under circumstances, though, and cham-bers judge was of view that most of factors identified in prevailing Supreme Court ofCanada authority as suggesting that party should proceed by way of statutory appeal werenot at issue in case — Employer appealed — Appeal dismissed on other grounds —Chambers judge erred in proceeding on premise that statutory right of appeal was availa-ble in respect of Directions — Directions were not subject to statutory right of appeal —Section 26(1) of Act was limited to appealing Superintendent’s refusal to register plan oramendment or cancellation of plan’s registration, none of which had been done in case atbar.

Pensions –––– Administration of pension plans — Amendment of plan — Prac-tice –––– Employer planned to convert existing defined benefit (DB) plan of which it wassponsor and administrator to defined contribution (DC) plan — Conversion involvedamendments to include DC component and to except from definition of “credited ser-vice” those members’ continuous service after date when that part of operation beganparticipating in DC component of plan — Employer submitted amendments to govern-ment department established pursuant to Employment Pension Plans Act to oversee regis-tered pension plans — Superintendent of Pensions in department took position thatamendments collectively constituted retroactive reduction of member benefits and issuedDirection to employer to provide revised cost certificates and actuarial valuations and tofund plan in accordance with revised valuations, then issued Revised Direction to rescindpart of amendment retroactively, provide revised cost certificates and actuarial valua-tions, and to fund plan in accordance with revised valuations — Employer brought unsuc-


cessful application for statutory appeal under Act and judicial review of Superintendent’sdecisions — Chambers judge determined that application could be conducted as combi-nation of judicial review and statutory appeal — Both parties agreed that statutory appealwould not be adequate remedy under circumstances, though, and chambers judge was ofview that most of factors identified in prevailing Supreme Court of Canada authority assuggesting that party should proceed by way of statutory appeal were not at issue incase — Employer appealed — Appeal dismissed on other grounds — Chambers judgeerred in proceeding on premise that statutory right of appeal was available in respect ofDirections — Directions were not subject to statutory right of appeal — Section 26(1) ofAct was limited to appealing Superintendent’s refusal to register plan or amendment orcancellation of plan’s registration, none of which had been done in case at bar.

Pensions –––– Practice in pension actions — Appeals –––– Employer planned to con-vert existing defined benefit (DB) plan of which it was sponsor and administrator to de-fined contribution (DC) plan — Conversion involved amendments to include DC compo-nent and to except from definition of “credited service” those members’ continuousservice after date when that part of operation began participating in DC component ofplan — Employer submitted amendments to government department established pursuantto Employment Pension Plans Act to oversee registered pension plans — Superintendentof Pensions in department took position that amendments collectively constituted retroac-tive reduction of member benefits and issued Direction to employer to provide revisedcost certificates and actuarial valuations and to fund plan in accordance with revised val-uations, then issued Revised Direction to rescind part of amendment retroactively, pro-vide revised cost certificates and actuarial valuations, and to fund plan in accordance withrevised valuations — Employer brought unsuccessful application for statutory appealunder Act and judicial review of Superintendent’s decisions — Chambers judge deter-mined that application could be conducted as combination of judicial review and statu-tory appeal — Both parties agreed that statutory appeal would not be adequate remedyunder circumstances, though, and chambers judge was of view that most of factors identi-fied in prevailing Supreme Court of Canada authority as suggesting that party shouldproceed by way of statutory appeal were not at issue in case — Employer appealed —Appeal dismissed on other grounds — Chambers judge erred in proceeding on premisethat statutory right of appeal was available in respect of Directions — Directions were notsubject to statutory right of appeal — Section 26(1) of Act was limited to appealing Su-perintendent’s refusal to register plan or amendment or cancellation of plan’s registration,none of which had been done in case at bar.

Pensions –––– Regulatory bodies — Judicial review of decisions — Miscellane-ous –––– Standard of review — Employer planned to convert existing defined benefit(DB) plan of which it was sponsor and administrator to defined contribution (DC) plan byamending DB plan to include DC component and to except from definition of “creditedservice” those members’ continuous service after date when that part of operation beganparticipating in DC component of plan — Employer submitted amendments to govern-ment department established under Employment Pension Plans Act to oversee registeredpension plans — Superintendent of Pensions in department took position amendmentsconstituted retroactive reduction of member benefits and issued Direction to employer toprovide revised cost certificates and actuarial valuations and to fund plan in accordancewith revised valuations, then issued Revised Direction to rescind part of amendment ret-


roactively, provide revised cost certificates and actuarial valuations, and to fund plan inaccordance with revised valuations — Employer brought unsuccessful application forstatutory appeal and judicial review of Superintendent’s decisions — Chambers judge de-termined, among other things, that appropriate standard of review was reasonableness —Employer appealed and issue arose as to whether chambers judge applied correct stan-dard of review — Chambers judge correctly applied reasonableness standard in review-ing Superintendent’s decision — Act gave Superintendent broad powers to issue im-pugned Directions rescinding previously registered amendment — Absence of bothstatutory right of appeal and privative clause suggested legislative intent was to limitcourt’s review of issues not under rubric of conferred statutory appeal, weighing in fa-vour of standard of reasonableness — Act was meant to benefit and protect interests ofmembers and former members of pension plans and give Superintendent power to benefitand protect members’ interests and strike balance between employers’ and employees’interests while advancing public interest in retirement income security — It was not un-fair to characterize Superintendent as expert in interpreting pensions legislation and ap-plying it to pension plan documents, indicating Superintendent was entitled to some def-erence and that chambers judge was correct in concluding that reasonableness was properstandard.

Pensions –––– Practice in pension actions — Remedies and relief –––– Employerplanned to convert existing defined benefit (DB) plan of which it was sponsor and admin-istrator to defined contribution (DC) plan — Conversion involved amendments to includeDC component and to except from definition of “credited service” those members’ con-tinuous service after date when that part of operation began participating in DC compo-nent of plan — Employer submitted amendments to government department establishedpursuant to Employment Pension Plans Act to oversee registered pension plans — Super-intendent of Pensions in department took position that amendments collectively consti-tuted retroactive reduction of member benefits and issued Direction to employer to pro-vide revised cost certificates and actuarial valuations and to fund plan in accordance withrevised valuations, then issued Revised Direction to rescind part of amendment retroac-tively, provide revised cost certificates and actuarial valuations, and to fund plan in ac-cordance with revised valuations — Employer brought unsuccessful application for statu-tory appeal under Act and judicial review of Superintendent’s decisions — Chambersjudge determined that application could be conducted as combination of judicial reviewand statutory appeal — Both parties agreed that statutory appeal would not be adequateremedy under circumstances, though, and chambers judge was of view that most of fac-tors identified in prevailing Supreme Court of Canada authority as suggesting that partyshould proceed by way of statutory appeal were not at issue in case — Employer ap-pealed — Appeal dismissed on other grounds — Chambers judge erred in proceeding onpremise that statutory right of appeal was available in respect of Directions — Directionswere not subject to statutory right of appeal — Section 26(1) of Act was limited to ap-pealing Superintendent’s refusal to register plan or amendment or cancellation of plan’sregistration, none of which had been done in case at bar.

Pensions –––– Regulatory bodies — Jurisdiction and powers –––– Employer plannedto convert existing defined benefit (DB) plan of which it was sponsor and administratorto defined contribution (DC) plan — Conversion involved amendments to include DCcomponent and to except from definition of “credited service” those members’ continu-


ous service after date when that part of operation began participating in DC component ofplan — Employer submitted amendments to government department established pursuantto Employment Pension Plans Act to oversee registered pension plans — Superintendentof Pensions in department took position that amendments collectively constituted retroac-tive reduction of member benefits and issued Direction to employer to provide revisedcost certificates and actuarial valuations and to fund plan in accordance with revised val-uations, then issued Revised Direction to rescind part of amendment retroactively, pro-vide revised cost certificates and actuarial valuations, and to fund plan in accordance withrevised valuations — Employer brought unsuccessful application seeking statutory rightof appeal under Act and judicial review of Superintendent’s decisions — Chambers judgeagreed to conduct application as combination of judicial review and statutory appeal, de-termined that appropriate standard of review was reasonableness, that question ofwhether administration of certain provisions of amendments constituted retroactive re-duction in member benefits was one that arose in course of proceedings before Superin-tendent, that question fell within regulatory mandate and expertise of Commission andwas within its competence to answer, and that Superintendent’s answer was supported byclear reasons in letters from Office of Superintendent which could be used as reasons fordecision — Chambers judge considered that Superintendent had requisite authority to re-voke amendment and that ss. 8(3) and 24(1) of Act explicitly provided for power to re-voke registration and combined effect of ss. 8(1) and (2) was to give Superintendent ju-risdiction to revoke all or portion of pension plan amendment after duly registered bySuperintendent — Employer appealed — Appeal dismissed — Act gave Superintendentbroad powers to issue impugned Directions rescinding previously registered amend-ment — Act gave Superintendent power to benefit and protect members’ interests andstrike balance between employers’ and employees’ interests while advancing public inter-est in retirement income security.

Cases considered by Ronald Berger J.A.:

Buschau v. Canada (Attorney General) (2009), 2009 FCA 258, 2009 CarswellNat 2588,393 N.R. 337, 2009 CarswellNat 5335, 2009 CAF 258, 76 C.C.P.B. 161, [2009]F.C.J. No. 1119 (F.C.A.) — followed

Canada (Director of Investigation & Research) v. Southam Inc. (1997), 50 Admin. L.R.(2d) 199, 144 D.L.R. (4th) 1, 71 C.P.R. (3d) 417, [1997] 1 S.C.R. 748, 209 N.R. 20,1997 CarswellNat 368, 1997 CarswellNat 369, [1996] S.C.J. No. 116 (S.C.C.) —followed

Cousins v. Canada (Attorney General) (2008), 68 C.C.P.B. 54, (sub nom. Cousins v.Marine Atlantic Inc.) 2008 C.E.B. & P.G.R. 8300, 386 N.R. 223, 2008 FCA 226,2008 CarswellNat 2092, 67 C.C.E.L. (3d) 159, [2009] 2 F.C.R. 553, 2008 CAF 226,2008 CarswellNat 5088, [2008] F.C.J. No. 1011 (F.C.A.) — followed

Dinney v. Great-West Life Assurance Co. (2005), 2005 C.E.B. & P.G.R. 8144, 252D.L.R. (4th) 660, 192 Man. R. (2d) 229, 340 W.A.C. 229, [2005] 10 W.W.R. 401,2005 MBCA 36, 2005 CarswellMan 78, 16 E.T.R. (3d) 206, 45 C.C.P.B. 222, [2005]M.J. No. 69 (Man. C.A.) — considered

Goodine v. New Brunswick Milk Marketing Board (2003), 2003 CarswellNB 379, 2003CarswellNB 380, 2003 NBCA 59, 263 N.B.R. (2d) 386, 689 A.P.R. 386 (N.B.C.A.) — followed

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R.(4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1


S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C.220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns-wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th)577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1,(sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008]A.C.S. No. 9 (S.C.C.) — followed

Pushpanathan v. Canada (Minister of Employment & Immigration) (1998), 43 Imm. L.R.(2d) 117, 226 N.R. 201, (sub nom. Pushpanathan v. Canada (Minister of Citizenship& Immigration)) 160 D.L.R. (4th) 193, (sub nom. Pushpanathan v. Canada (Ministerof Citizenship & Immigration)) [1998] 1 S.C.R. 982, 11 Admin. L.R. (3d) 1, 6B.H.R.C. 387, [1999] I.N.L.R. 36, 1998 CarswellNat 830, 1998 CarswellNat 831,[1998] S.C.J. No. 46 (S.C.C.) — followed


Employment Pension Plans Act, R.S.A. 2000, c. E-8Generally — referred tos. 8 — considereds. 8(1) — considereds. 8(2) — considereds. 25 — considereds. 26 — considereds. 26(1) — considereds. 81 — pursuant tos. 81(1) — referred tos. 81(1)(a) — considereds. 81(2) — considered

Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Supp.)Generally — referred to

APPEAL from judgment reported at Halliburton Group Canada Inc. v. Alberta (Ministerof Finance) (2009), 2009 CarswellAlta 1184, 2009 ABQB 420, [2009] A.J. No. 864, 78C.C.P.B. 130, 481 A.R. 72 (Alta. Q.B.).

Ronald Berger J.A.:

1 The central issue in this appeal is whether the impugned amendments to apension plan constitute a retroactive reduction of benefits in contravention of s.81 of the Employment Pension Plans Act, RSA 2000, c. E-8 (“EPPA”) and/or incontravention of s. 9.01 of the pension plan itself.

2 The Appellant, Halliburton, is responsible for a pension plan registered inAlberta under EPPA. The Plan was originally administered by Dresser Canada,but Halliburton assumed sponsorship and administration of the Plan when it ac-quired Dresser in 1999.

3 The Respondent, Alberta’s Superintendent of Pensions, issued directions re-lating to certain amendments made to the Plan by the Appellant. Halliburtonappealed these directives under the statutory appeal provisions set out in s. 26 of

Halliburton Group Canada Inc. v. Alberta (MF) Ronald Berger J.A. 181

EPPA. It also sought judicial review. A chambers judge dismissed these applica-tions. That decision is reported at 2009 ABQB 420, [2009] A.J. No. 864 (Alta.Q.B.). Halliburton now appeals to this Court.

4 The Plan was originally a defined benefit plan which provides for a specificbenefit upon retirement. A mechanism was set out in the Plan for calculating thebenefit to be received upon retirement. Pension benefits were determined, inpart, on the basis of five consecutive years out of the last ten years of creditedservice (the Defined Benefits Plan (“DB”)). In 1998, however, Dresser decidedto convert the Plan to a Defined Contribution Plan (“DC”). Under such a planonly the contributions are specified and there is no guarantee of a benefit uponretirement.

5 The Plan permitted amendment provided that it did not “reduce the value ofbenefits vested in Participants ...” (s. 9.01 of the Plan). Prior to the contestedamendments, the Plan had been amended five times without controversy.

6 Amendment 6, which was filed with Alberta Finance on September 25,1998, introduced certain “defined contributions” provisions into the Plan. Fur-ther steps were taken towards conversion in 2001 when Halliburton (now oper-ating the Plan) adopted Amendment 7 effective April 1, 2001. This amendmentwas filed with Alberta Finance on May 31, 2001. Its effect was to make the now“defined contribution” Plan applicable to all Plan members effective January 1,2002.

7 The conversion was done on a go-forward basis. Thus, benefits accruedunder the “defined benefits” structure were preserved, but salary and servicewere frozen as of January 1, 2002 for the purpose of calculating a final definedbenefit amount (the freeze).

8 These various changes did not excite regulatory concern until 2005 whenHalliburton submitted Amendment 9 which purported to make clear that thefreeze provisions were designed to affect seventeen former employees ofDresser. The provision in controversy is para. 17 which reads as follow:

If the Participant is a Defined Contribution Participating Employee, ‘BestAverage Compensation’ means the annualized average of a Participant’shighest thirty-six (36) months of Compensation prior to the date that the Par-ticipant elects to become a Defined Contribution Employee.

9 The amendment was rejected by the Superintendent because the freeze, ex-plicit in this provision, was thought to interfere with vested rights (in the case ofthe Plan) or a person’s benefits (in the case of the statute). A series of lettersthen passed between the Superintendent and counsel for Halliburton debatingwhether the conversion was contrary to the Plan and/or section 81(1) of EPPA.The amendment was later accepted after this paragraph was removed.

10 Eventually, the Superintendent issued the directions which became the foun-dation of the appeal/judicial review application. The initial direction requiredHalliburton to file revised cost certificates relating to actuarial valuations first


filed December 31, 2002 and December 31, 2005, and to file a revised actuarialvaluation report and cost certificate of the valuation done as of December 31,2006. In each case, Halliburton was required to project salaries for the affectedmembers. Finally, Halliburton was told to remit any additional funds required tofund the benefits set out in the cost certificates, and confirm the date and amountin writing to the Superintendent.

11 The second “revised” direction told Halliburton to rescind item 2 of Amend-ment 6 which had the effect of freezing earnings for purposes of calculatingbenefit entitlements. It also required Halliburton to file revised valuation certifi-cates and to make any necessary additional contributions to the Plan fund withinterest. Compliance was required by May 11, 2008.

12 Halliburton appealed these decisions to the Court of Queen’s Bench pursuantto the statutory appeal provisions set out in ss. 25 and 26 of EPPA. It also soughtjudicial review. Sections 25 and 26 read as follows:

25(1) If the Superintendent refuses to register a pension plan or a planamendment filed for registration or cancels a registration under sec-tion 24(1), the Superintendent shall forthwith serve on the adminis-trator a written notification of that fact containing the reasons forthat decision.

(2) In the case of a cancellation of registration, the notification mustspecify the date referred to in section 24(1).

26(1) Where the Superintendent has served a notification under section25(1), the administrator may, by originating notice supported by anaffidavit, appeal to the Court for an order requiring the Superinten-dent to register the plan or amendment or reinstate the registration.

(2) A copy of the originating notice and of the affidavit must be filedwith the clerk of the Court and served on the Superintendent within60 days after the service of the notification under section 25(1) orany longer period that the Court allows, and the application shall bemade returnable within 90 days after the filing of the originatingnotice.

The Queen’s Bench Decision13 The Queen’s Bench chambers judge endorsed the agreement of both parties

that the statutory appeal would not be an adequate process. She agreed that theapplication would be conducted as a combination of judicial review and statu-tory appeal.

14 Because the issues before her had not been determined by any court in Al-berta, the chambers judge concluded that a consideration of the fourPushpanathan factors favoured a standard of review of reasonableness. She wasof the view that, mindful of the Supreme Court of Canada’s explanation of “rea-sonableness” in New Brunswick (Board of Management) v. Dunsmuir, 2008SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para. 47, the test was met. In her opin-


ion, the decision fell within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law. She held at para. 95:

... The question of whether the administration of certain provisions ofAmendments 6 and 9 constituted a retroactive reduction in member benefitswas one that arose in the course of proceedings properly before the Superin-tendent. This was a question that falls within the regulatory mandate andexpertise of the Commission and was within its competence to answer. TheSuperintendent’s answer was supported by clear reasons and the letters fromthe Office of the Superintendent.

Grounds of Appeal15 Halliburton submits the chambers judge erred by “failing to consider all of

the evidence and the substantive issues on appeal, and further erred in law, andin mixed law and fact, in finding that:

(a) the appropriate standard of judicial review was ‘reasonableness’;

(b) the Direction was reasonable;

(c) the amendments in question together constitute a retroactive reduc-tion of benefits in contravention of section 81 of EPPA; and

(d) the Superintendent has the authority to retroactively direct that all ora portion of an amendment be rescinded after it has been duly regis-tered by AF [Alberta Finance].

16 The prayer for relief seeks the following declarations:

(a) An order setting aside the Superintendent’s directives.

(b) An order allowing the amendments, and

(c) An order allowing Halliburton to proceed with the Plan as a DefinedContribution Plan.

Right of Appeal17 Section 8 of EPPA confers upon the Superintendent the authority to issue

directions. It reads as follows:

8(1) If the Superintendent considers that a pension plan or any of theother plan documents do not comply with this Act or that a pensionplan is not being administered in accordance with this Act or theplan, the Superintendent may direct the person responsible, in writ-ing,

(a) to cease or refrain from doing whatever constitutes the non-compliance, or

(b) to do whatever the Superintendent considers necessary toremedy the situation,

or both, within 60 days or any longer period that the Superintendentspecifies in the direction.


(2) If the Superintendent considers that an administrator, employer orany other person with responsibilities under this Act is, in respect ofa pension plan, doing or about to do anything that is contrary to safeand sound pension practices, the Superintendent may direct that per-son, in writing,

(a) to cease or refrain from doing that thing, or

(b) to do whatever the Superintendent considers necessary toremedy the situation,

or both, within 60 days or any longer period that the Superintendentspecifies in the direction.

(3) The Superintendent shall issue a direction under subsection (1) andmeet the requirements of this section before cancelling a plan’s re-gistration under section 24(1).

(4) Notwithstanding subsection (1) or (2), if the Superintendent consid-ers that the minimum length of time required by that subsection forcompliance might prejudice the interests of the members, formermembers or any other persons entitled to benefits, the direction mayprovide that the compliance must be effected immediately or beforethe expiration of any period of less than 60 days that is specified inthe direction.

(5) The Superintendent shall, in a direction under subsection (1) or (2),provide the person to whom it is addressed with an opportunity tomake written representations to the Superintendent about it withinany reasonable period that is specified in it.

(6) On receiving any representations made under subsection (5) and af-ter reviewing them, the Superintendent shall in writing confirm, varyor revoke the direction.

(7) A person served with a direction under subsection (1) or (2) shallcomply with it and, where subsection (4) applies, shall do so withinthe time limit specified, regardless of the person’s right to the oppor-tunity referred to in subsection (5).

18 A direction is not subject to a statutory right of appeal. Section 26(1) ofEPPA is limited to appealing a decision by the Superintendent in the event thathe has refused to register a plan or amendment or has cancelled a plan’s registra-tion. In the case at bar, the Superintendent did none of those things.

19 It follows that the chambers judge erred in proceeding, albeit with the con-currence of counsel, on the premise that a statutory right of appeal was availablein respect of the directions of the Superintendent.

Standard of Review20 The factors identified in Pushpanathan v. Canada (Minister of Employment

& Immigration), [1998] 1 S.C.R. 982 (S.C.C.) and in New Brunswick (Board ofManagement) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) must be reviewed in


light of the chambers judge’s conclusion that she was entitled to take into ac-count both the absence of a privative clause and the existence of a right of ap-peal in EPPA. As I have indicated, no statutory right of appeal was available inthis case. Accordingly, what is to be made of a the absence of both a privativeclause and a statutory right of appeal? It seems to me that the legislative intentwas to limit the Court’s review of issues that do not fall under the rubric of theconferred statutory appeal: Goodine v. New Brunswick Milk Marketing Board,2003 NBCA 59 (N.B. C.A.). This would weigh in favour of a standard ofreasonableness.

21 The legislation here is intended to benefit and protect the interests of mem-bers and former members of pension plans. The Superintendent is the adminis-trative decision-maker. He plays a polycentric role in administrating EPPA. Thatsaid, the role of the Superintendent is to ensure that pension plans accord withlegislative and regulatory requirements. The Superintendent’s statutory powersunder EPPA are intended to benefit and protect the interests of members andformer members of pension plans and to strike a balance between the interests ofemployers and employees, while advancing the public interest in retirement in-come security.

22 The ultimate question in the judicial review proceedings was whether theamendments to the Plan constituted a retroactive reduction to a vested benefit incontravention of EPPA and the pension plan. This is a question of mixed factand law, as it requires interpreting the legislation and applying it to the pensiondocuments. As a general rule, questions of mixed fact and law attract deferenceunless there is an extricable error of law: Canada (Director of Investigation &Research) v. Southam Inc., [1997] 1 S.C.R. 748 (S.C.C.).

23 The Respondents submit that the office of the Superintendent of Pensions ishighly specialized with years of experience in the field of pensions and a closerelationship with, and understanding of, the pensions industry. The Superinten-dent has a role in legislative planning with regard to pensions, which furtherindicates a special expertise.

24 The Appellant, by contrast, emphasizes that, while the Superintendent mayhave expertise relative to the general population, he is not an expert in interpret-ing pension contracts and legislation compared to the courts.

25 Cases involving the Pension Benefits Standards Act, R.S.C. 1985, c. 32 havefound that a decision of the Superintendent interpreting the Act is reviewable ona standard of reasonableness: Cousins v. Canada (Attorney General), 2008 FCA226, [2008] F.C.J. No. 1011 (F.C.A.) at para. 22; Buschau v. Canada (AttorneyGeneral), 2009 FCA 258, [2009] F.C.J. No. 1119 (F.C.A.) at para. 44.

26 In my opinion, it is not unfair to characterize the Superintendent as an expertin interpreting pensions legislation and applying that legislation to pension plandocuments. This indicates that a standard of reasonableness is appropriate.


27 I conclude that some deference to the Superintendent in the light of the anal-ysis above is appropriate. In my opinion, the chambers judge was correct in con-cluding that reasonableness was the proper standard of review.

Analysis28 There is no question that the Appellant is entitled to amend the Plan. There

are, however, limitations. The first is s. 9.01 of the Dresser Retirement IncomePlan which states:

... [P]rovided that no such amendment shall reduce the value of benefitsvested in Participants as of such effective date or cause a reversion of anyfunds to any Employer prior to satisfaction of or provision for all benefitsthen accrued ...

(Extracts, Vol. I, A108)

29 The second limitation is set out in s. 81(1)(a) of EPPA. It reads as follows:

An amendment to a pension plan or, where one plan has been adopted inplace of another, the plan so adopted, may not reduce

a) a person’s benefits in respect of employment on or after the initialqualification date and before the date of the amendment or the adop-tion of the other plan,

30 Regard must also be had to s. 81(2) of EPPA which reads as follows:

81(2) Unless the plan so provides, subsection (1)(a) does not apply to thatportion of the benefits that is based on the earnings of a memberprojected in relation to a period after the date of the amendment oradoption of the other plan.

[emphasis added]

31 Critical to the analysis are the following definitions:

Section 1.11 of the Plan defines ‘continuous service’ as follow:

‘Continuous Service’ shall mean continuous, uninterrupted timeof employment ... from original date of hire, with an Employerand any Related Entity, or any predecessor thereof, as reflectedon Company records. ...

Section 1.12 defines ‘credited service’ as follows:

‘Credited Service’ shall mean the Continuous Service of an em-ployee prior to his Normal Retirement Date. ...

Final average monthly earnings is defined in section 1.17. It reads as follows:

Final Average Monthly Earnings’ shall mean the highest totalCompensation of a Participant for any consecutive five (5) cal-endar years out of the last ten (10) complete calendar years ofhis Credited Service. ...

32 It is common ground between the parties that the result of the amendments isthat at least some of the Dresser members will receive less pension for the pe-


riod worked before January 1, 2001 than they would had there been no amend-ments. The real question then is whether the formula for calculating the pensionis a vested right, or a Plan element that can be reduced by amendment.

33 The Superintendent acknowledges that the issue is tied so closely to the spe-cific wording of the Plan that no case law provides guidance on the matter. TheSuperintendent submits that because the Plan includes no provisions for tying adetermination date to the formula in case of an amendment, the formula must betaken as a vested right. Apparently, many, if not most plans, do not include adetermination date provision. That is why all the other Halliburton plans couldbe converted from DB to DC under the amendments. But, the Superintendentargues, this one cannot.

34 Halliburton, by contrast, argues that a benefit is vested or accrued (the termsare used interchangeably in the case law in accordance with Dinney v. Great-West Life Assurance Co. (2005), 252 D.L.R. (4th) 660 (Man. C.A.) at paras. 30-32) if the member would be entitled to it if he or she retired today. In this case,the Appellant submits that the amendment did not reduce the benefits that themembers would be entitled to if they retired immediately. Rather, it reducedfuture benefits which are not vested.

35 Sections 81(1)(a) and 81(2) of EPPA contemplate a temporal analysis. Sec-tion 81(1)(a) speaks of benefits acquired from day one of employment (“the ini-tial qualification date”) accruing thereafter to the day of the amendment of thePlan. An amendment may not reduce those benefits. The Appellant argues thatthe provision should be read to permit reduction of benefits that would otherwisehave accrued after the amendment. I disagree. At best the enactment is silent. Inany event, the effect of s. 81(2) is that s. 81(1)(a) does not apply to projectedbenefits. A plain reading of the Plan makes clear that the Plan contemplates thatprojected earnings are to be taken into account in the determination of employeebenefits. The cumulative effect of all of the foregoing is that as at the point thatany individual becomes a participant in the Plan, they are entitled to have theirdefined benefit calculated in accordance with the DB formula. The formula re-quires that the compensation number used is the one that is the highest for fiveof their last ten years of employment “prior to [an employee’s] normal retire-ment date.”

36 There are, in fact, seventeen former Dresser employees now employed byHalliburton who are affected by the amendment to the Plan. They did not electto switch to the DC Plan.

37 Actuaries engaged by the Appellant set out an arithmetic calculation of theresultant shortfall in monthly payments under the DC Plan as compared withentitlements under the DB Plan. The Appellant proposes to pay to each of theseventeen employees a lump sum based on “present value” of the shortfall as adifferential payment.


38 In my view, such a payment might well attract tax consequences, the effectof which would diminish the value of the acquired benefits of the seventeenemployees. It may well be that most of the seventeen employees did not opt forthe DC Plan for that very reason. They must have concluded that the monthlypension available under the DB Plan was to be preferred.

39 The Appellant submits that the seventeen employees lose nothing acquiredto the date of amendment pursuant to their DB Plan and accrue further benefitsthereafter under their DC Plan. The contention is that the seventeen employeeshave, in effect, two pension plans. In my view, that argument is without merit if,at the end of the day, the Plan is read to confer upon the seventeen employees anacquired or “vested” entitlement to benefits extending beyond the date of theamendment. Indeed, as I read the Plan, the seventeen employees prior to theeffective date of the amendment were entitled to a pension premised upon theirprojected five years of employment preceding their normal retirement date.Amendments that deprive them of that entitlement contravene the Act and enti-tle the Superintendent to order deregistration of the amendments.

40 I cannot accept the Appellant’s submission that “prospective rights” in thiscase must be distinguished from “vested rights”. After all, a vested right is capa-ble of measurement and, as I have held, is properly measured in the case at bar,given the language of the Plan, on the basis of “prospective calculations”. Torepeat, the seventeen employees had acquired a right to measure their pensionentitlements on a prospective basis. To deprive them of that entitlement consti-tutes a contravention of the Act.

41 I conclude that the directions of the Superintendent must stand. The decisionto issue those directions was reasonable. Affected members should have theirpost-Amendment 6 earnings included in the calculation of their final pensionbenefits. To do otherwise would constitute a retroactive reduction of benefits.

42 There is, in my opinion, no merit to the Appellant’s contention that the Su-perintendent is without jurisdiction to rescind a previously registered amend-ment. Sections 8(1) and 8(2) of EPPA reflect on their face the legislative choiceto confer upon the Superintendent broad powers to issue the impugned direc-tions revoking amendments to a pension plan that contravene the Act. Prior re-gistration is no constraint.

43 The appeal is dismissed.

Carole Conrad J.A.:

I concur.

Peter Martin J.A.:

I concur.

Appeal dismissed.

Pelech v. Alberta (Law Enforcement Review Board) 189

[Indexed as: Pelech v. Alberta (Law Enforcement Review Board)]

Detective Dave Pelech, Appellant and Law Enforcement ReviewBoard and the Criminal Trial Lawyers Association, Respondents andMike Boyd, Chief of the Edmonton Police Service, Other Party and

Edmonton Police Association, Intervenor


Keith Ritter, Frans Slatter, Patricia Rowbotham JJ.A.

Heard: October 5, 2010

Judgment: December 17, 2010

Docket: Edmonton Appeal 0903-0224-AC, 2010 ABCA 400

R.S. Abells, Q.C., for AppellantS.P. McDonough, for Respondent, Law Enforcement Review BoardE.D. Norheim, for Respondent, Criminal Trial Lawyers’ AssociationS.D. Johnson, for Respondent, Mike Boyd, Chief of the Edmonton Police

ServiceR. Khullar, for Intervenor, Edmonton Police Association

Law enforcement agencies –––– Police — Organization of police forces — Discipli-nary proceedings — Miscellaneous –––– Message or logo conveyed on T-shirts worn bypolice officers followed signage convention for “no rats”, rat being intended to symbolizepolice officer who would report misconduct by another police officer — Detective cameforward and accepted sole responsibility for designing, ordering and distributing T-shirtswith logo in question — Chief of police directed that investigation be conducted, anddetective was charged with discreditable conduct with respect to wearing of T-shirts withlogo at baseball tournament — Chief directed second investigation into events at meetingof police association, but concluded there was insufficient substance to complaint —Criminal Trial Lawyers’ Association appealed to Law Enforcement Review Board ongrounds that investigation was inadequate and unreasonable — Board concluded thatthere was sufficient evidence to show that disciplinary offence could be found to havebeen committed and directed chief to hold hearing and reinvestigate what happened atmeeting — Detective appealed — Appeal allowed — Board erred in holding that it wasrequired to hold de novo hearing — Role of board was primarily to sit on appeal fromchief — Deference was owed where primary issue was factual and related to adequacy ofevidence, and standard of review was reasonableness — There was nothing unreasonableabout decision of chief to terminate investigation into allegations about general meetingwithout hearing, and board was in error in overruling that decision — Only evidence con-sisted of third-hand rumours and inspector’s note of conversation with detective, whichwas rebutted by detective’s contention that inspector had mixed up two events in ques-tion — Chief was entitled to have regard to seriousness of offence and other circum-stances — It was open to chief to decide that dedication of further resources to investigat-ing complaint about general meeting was not warranted — Absent sufficient credibleevidence, board’s decision to order new hearing was unreasonable.


Administrative law –––– Standard of review — Miscellaneous –––– Revised standardof review — Reasonableness — Message or logo conveyed on T-shirts worn by policeofficers followed signage convention for “no rats”, rat being intended to symbolize policeofficer who would report misconduct by another police officer — Detective came for-ward and accepted sole responsibility for designing, ordering and distributing T-shirtswith logo in question — Chief of police directed that investigation be conducted, anddetective was charged with discreditable conduct with respect to wearing of T-shirts withlogo at baseball tournament — Chief directed second investigation into events at meetingof police association, but concluded there was insufficient substance to complaint —Criminal Trial Lawyers’ Association appealed to Law Enforcement Review Board ongrounds that investigation was inadequate and unreasonable — Board concluded thatthere was sufficient evidence to show that disciplinary offence could be found to havebeen committed and directed chief to hold hearing and reinvestigate what happened atmeeting — Detective appealed — Appeal allowed — Board erred in holding that it wasrequired to hold de novo hearing — Role of board was primarily to sit on appeal fromchief — Deference was owed where primary issue was factual and related to adequacy ofevidence, and standard of review was reasonableness — Unless his decision was unrea-sonable, or process before chief was compromised in way that called into play board’smandate to provide civilian oversight, board should not intervene — Respective roles ofboard and chief, as revealed by proper interpretation of Police Act, suggested that boardshould accord deference to decision of chief — Nature of question suggested defer-ence — In terms of economy and integrity of proceedings, ensuring that legitimate roleassigned to chief of police by Act was not undermined was further indication that boardshould extend deference to chief’s decisions.

Cases considered by Frans Slatter J.A.:

Alberta Liquor Store Assn. v. Alberta (Gaming & Liquor Commission) (2006), 2006CarswellAlta 1690, 69 Alta. L.R. (4th) 98, [2007] 4 W.W.R. 131, 406 A.R. 104, 2006ABQB 904, 58 Admin. L.R. (4th) 22, [2006] A.J. No. 1597 (Alta. Q.B.) — referredto

Co-operators General Insurance Co. v. Great Pacific Industries Inc. (1998), 1998CarswellAlta 759, 219 A.R. 90, 179 W.A.C. 90, 1998 ABCA 272, 64 Alta. L.R. (3d)323, [1998] A.J. No. 914 (Alta. C.A.) — referred to

Edwards v. Alberta (Law Enforcement Review Board) (2009), 2009 ABCA 383, 2009CarswellAlta 1864, 469 A.R. 25, 470 W.A.C. 25 (Alta. C.A.) — referred to

Edwards v. Alberta (Law Enforcement Review Board) (2010), 25 Alta. L.R. (5th) 65, 483W.A.C. 247, 477 A.R. 247, 2010 CarswellAlta 417, 2010 ABCA 77, 2 Admin. L.R.(5th) 1 (Alta. C.A.) — considered

Higgins v. Camrose No. 22 (County) (1995), 1995 CarswellAlta 160, 29 Alta. L.R. (3d)160, 169 A.R. 16, 97 W.A.C. 16, [1995] 8 W.W.R. 71 (Alta. C.A.) — referred to

Newton v. Criminal Trial Lawyers’ Assn. (2010), 2010 CarswellAlta 2461, 2010 ABCA399 (Alta. C.A.) — followed

Pelech v. Alberta (Law Enforcement Review Board) (2010), 2010 ABCA 4, 2010CarswellAlta 2, [2010] A.J. No. 2 (Alta. C.A.) — referred to

Sarg Oils Ltd. v. Alberta (Director, Land Reclamation Division, Alberta EnvironmentalProtection) (2007), 2007 CarswellAlta 1390, 2007 ABCA 215, 32 C.E.L.R. (3d) 1,75 Admin. L.R. (4th) 314 (Alta. C.A.) — referred to

Pelech v. Alberta (Law Enforcement Review Board) Frans Slatter J.A. 191

Western Securities Ltd. v. Foothills (Municipal District) (1981), [1982] 1 W.W.R. 171,1981 CarswellAlta 99, 17 Alta. L.R. (2d) 164, 35 A.R. 480 (Alta. C.A.) — referred to


Police Act, R.S.A. 2000, c. P-17Generally — referred tos. 45(1) — considereds. 45(3) — referred tos. 45(4) — referred tos. 48(2) — referred to

Regulations considered:

Police Act, R.S.A. 2000, c. P-17Police Service Regulation, Alta. Reg. 356/90

Generally — referred tos. 1(e) “presiding officer” — referred to

APPEAL by police detective from decision of Law Enforcement Review Board.

Frans Slatter J.A.:

1 This appeal concerns the allocation of responsibility for police discipline be-tween the Chief of Police and the Law Enforcement Review Board. It concernsthe procedures the Board should follow on an appeal from the Chief, and thestandard of review the Board should apply.

Facts2 This appeal is about the wearing of inappropriate T-shirts by police officers.

There were two events and possibly two styles of T-shirt.

3 The first T-shirt displayed a number of logos, including a logo consisting ofa red circle with the number “440” in the middle, and a diagonal red line throughthe circle. Under the computer coding system used by the Edmonton Police Ser-vice to record tattoos, the number 440 represents a mouse or a rat. The logotherefore followed the universal signage convention for “no rats”. The second T-shirt displayed a logo consisting of a red circle with a rat in the middle, and adiagonal red line through the circle. The second T-shirt accordingly conveyedthe same message as the first. It is not clear from the record whether the secondstyle of T-shirt actually existed, or was confused with the first. It was not dis-puted that the rat was intended to symbolize a police officer who would reportmisconduct by another police officer.

4 The first event was a slow-pitch baseball tournament held by the EdmontonPolice Association on June 4 and 5, 2005. The appellant admitted that he de-signed and distributed T-shirts which included the 440 logo for his team to wearat the tournament. The second event was a general meeting of the Edmonton


Police Association held three days later at police headquarters on June 8, 2005.It was alleged that several police officers attended this meeting wearing T-shirtscontaining the rat logo. The appellant denies that this happened, or at least anyinvolvement in it.

5 On June 7, 2005 (that is, between the baseball tournament and the generalmeeting) the Profession Standards Branch (formerly the Internal Affairs Sec-tion) of the Edmonton Police Service made inquiries into reports that inappropri-ate T-shirts had been worn, and on June 15, 2005 the Acting Chief of Policedirected that a service investigation be conducted into the allegations about whathad happened at the tournament.

6 On that same day, June 15, 2005, a local newspaper reported that severalofficers had attended the general meeting wearing T-shirts with the rat logo. OnJune 16, 2005 the Criminal Trial Lawyers’ Association lodged a complaint withthe Acting Chief of Police as provided for in the Police Act, R.S.A. 2000, c. P-17. The complaint referred to the newspaper article, and to the rat logo. It re-ferred to the general meeting of the Association, but also noted that the Mayorand the Acting Chief has suggested that the T-shirts were actually worn at thebaseball tournament, not the meeting. The letter made no mention of the 440logo. The appellant also saw the article in the newspaper, and on June 19, 2005he voluntarily came forward and accepted sole responsibility for designing, or-dering and distributing the 440 T-shirts.

7 The scheme of the Act is that complaints about misconduct by police officersare made to the chief of police. Under s. 45(1) the chief of police must “causethe complaint to be investigated”. If the chief of police is of the opinion that thecontravention is “not of a serious nature” he may dispose of the complaint him-self under s. 45(4) without a hearing. The decisions of the chief of police aresubject to appeal to the Board under s. 48(2). If the alleged contravention isserious, then under s. 45(3) the chief of police must conduct a hearing. The hear-ings are conducted under the Police Service Regulation, AR 356/90 before a“presiding officer” who is an impartial and independent senior police officer.The decisions of the presiding officer are also subject to appeal to the Board.

8 Acting Chief of Police da Costa directed that the necessary investigation beconducted. As a result, the appellant was charged with discreditable conductwith respect to the wearing of T-shirts with the 440 logo at the baseball tourna-ment. Inspector Bohachyk was appointed as the presenting officer (essentially,the prosecutor) in that matter, and in that capacity he had certain discussionswith the appellant. He understood (and made a note) that the appellant had toldhim that officers wearing T-shirts with the rat logo were at the Association’sgeneral meeting. Inspector Bohachyk reported this conversation to the Chief ofPolice who directed a second investigation into the events at the meeting.

9 As noted, the appellant admitted responsibility for the charges arising out ofthe baseball tournament, his conduct was found to have been discreditable, and


he was suspended from duty without pay for 80 hours and ordered to read abook on the police code of silence. The Criminal Trial Lawyers’ Associationappealed the penalty imposed on the appellant, and also appealed the failure toprosecute the officers who merely wore the T-shirts. That appeal is still pendingbefore the Law Enforcement Review Board, and is not the subject of the presentappeal.

10 Initially it was not clear that there were allegations respecting both events,but in due course an investigation commenced into the events at the Associa-tion’s general meeting. A number of persons who were present at the meetingwere interviewed, but none recalled seeing the alleged T-shirts. Two of thoseinterviewed were senior officers who were at the meeting, but who had sincebeen assigned to the Professional Standards Branch; they said they had not seenanyone wearing the T-shirts. An email was sent to 37 persons who had signed infor the meeting (all in attendance other than those suspected of being involved).Six retired members and four other officers did not reply to the email, but therest all replied that they had not seen any T-shirts with logos as described.

11 The only evidence that the offending T-shirts had been worn at the meetingcame from Detective Collins, who said that he had heard “third hand” that suchT-shirts were worn. There was also the note made by Inspector Bohachyk of hisconversations with the appellant. The appellant denied having said that the T-shirts were worn at the meeting, and suggested that Inspector Bohachyk hadconfused his comments about the baseball tournament with the meeting. It ispossible the appellant was merely repeating what he had read in the newspaper.

12 Staff Sgt. Hogg reviewed the investigation report and recommended that theallegations about the Association’s meeting not be pursued further. Chief of Po-lice Boyd agreed:

I concur with Staff Sgt. Hogg that there is N.R.P. [no reasonable prospect] ofestablishing the facts necessary for conviction. When viewing file in its en-tirety, along with the “original” no rats complaint (IA 2005-0179) [the base-ball tournament complaint] I am of the opinion that this file and the other areessentially one and the same. Det. Pelech admitted to designing and havingthe shirts made for his squad (12 in total) for the EPA Ball Tournament.Numerous witnesses confirmed the shirts being worn at the tournament aswell as admissions from the wearers themselves. The claims of the shirtshaving been worn at the EPA meeting are all based on third or fourth handinformation and rumours. No evidence to support allegations could be foundand the description of the shirts varied significantly. (Extracts of Key Evi-dence A46)

Because the Chief of Police concluded that there was insufficient substance tothe complaint, he did not direct a hearing before a presiding officer, which


would have been the next step in the process under s. 45(3) of the Act. He dis-missed the complaint himself under s. 45(4).

13 The Chief of Police reported to the Criminal Trial Lawyers’ Association atlength, summarizing the investigation and its conclusions, and stated that thematter was concluded as there was no reasonable prospect of establishing thefacts necessary to obtain a conviction. The Criminal Trial Lawyers’ Associationlaunched an appeal to the Law Enforcement Review Board on the grounds that“the investigation was inadequate and unreasonable”. The Criminal Trial Law-yers’ Association asked that the Board direct the Chief of Police to lay chargesagainst the appellant, and to direct a further investigation of the allegations.

14 The Board conducted a two-day viva voce hearing of the appeal. The Crimi-nal Trial Lawyers’ Association called five witnesses: the appellant, two otherconstables accused of involvement, Inspector Bohachyk and Detective Rosnau(the primary investigator of the complaint concerning the meeting).

15 The Board indicated that it proceeded by a trial de novo. Since there was noinitial hearing by the Chief of Police, the concept of the proceedings before theBoard being “de novo” loses much of its meaning. The Board stated the issue asfollows:

[23] This matter was disposed of by the Chief of Police without a hearing.The Board must therefore assess the evidence before it and determinewhether there is a reasonable prospect of establishing the facts necessary toprove that a disciplinary offence was committed. If so, the matter must beremitted to the Chief of Police for a hearing. The Unrau case (LERB deci-sion No. 003-2006) sets out that the standard to be applied by the Board is“more than a prima facie case but less than a likelihood of conviction”.

In stating the issue in this way, the Board extended no deference to the decisionof the Chief of Police.

16 The Unrau decision described the role of the Board as follows:

[88] What the Board is called upon to do at a hearing in which there has beenno hearing at the service level is mainly to decide whether the Board agreeswith the chief’s decision not to lay charges or to conduct a hearing before apresiding officer. ...

[89] ... A chief of police and the Board, in assessing the decision of the chiefof police, are deciding the same issue - that is, whether there is sufficientevidence to require the holding of the disciplinary hearing before a presidingofficer.

[96] ... On appeal the Board conducts a hearing (absent consent of the partiesto proceed by way of an appeal on the record) and if the Board disagreeswith the chief’s decision it will exercise one of the remedies provided ....

(emphasis added)

In Unrau, and in this matter, the Board clearly applied a correctness standard tothe decision of the Chief of Police. The Board did not expressly consider the


proper standard of review, and apparently assumed that describing the proceed-ings as de novo mandated a correctness standard of review.

17 The Board concluded that there was sufficient evidence to show that “a dis-ciplinary offence could be found to have been committed”. It directed the Chiefto hold a hearing. The Board also directed that the Chief reinvestigate what hap-pened at the Edmonton Police Association meeting. The Board expressed theopinion that the investigation had been inadequate, noting that there was no fol-low-up with those who did not reply to the email inquiry, and that Det. Collinswas not interviewed about the rumours he heard.

18 The appellant subsequently obtained leave to appeal (Pelech v. Alberta (LawEnforcement Review Board), 2010 ABCA 4 (Alta. C.A.)) on the followingissues:

1. Did the LERB err by failing to articulate and apply the correct standardof review applicable to the decision of a Chief of Police to dismiss apublic complaint of misconduct without a hearing? and

2. Did the LERB err by ordering a disciplinary proceeding against the Ap-plicant in the absence of any evidence of a disciplinary infraction?

No one has appealed the second part of the Board’s order, namely that the Chiefof Police reinvestigate what happened at the meeting.

Standard of Review in this Court19 This appeal was heard at the same time as the appeal in Newton v. Criminal

Trial Lawyers’ Assn., 2010 ABCA 399 (Alta. C.A.). For the reasons given thereat paras. 39-40, this Court reviews for correctness the selection by the Board ofthe standard of review it applies to the decisions of the Chief of Police.

Standard of Review to be Applied by the Board20 The first question on which leave to appeal was granted is whether the Board

correctly selected the standard of review. As previously noted, the Board gaveno deference whatsoever to the decision of the Chief of Police, and effectivelyreviewed his decision not to lay charges for correctness.

21 The Board assumed that, absent the consent of the parties, it was required tohold a de novo hearing. For the reasons given in Newton at paras. 45-51, theBoard was in error in so holding. Appeals to the Board are conducted primarilyon the record, with an ability to permit new evidence in appropriatecircumstances.

22 As set out in Newton at paras. 41-3, the standard of review to be applied byan appellate tribunal to the decisions of a tribunal of first instance is determinedby considering a number of factors:

(a) the respective roles of the tribunal of first instance and the appellate tri-bunal, as determined by interpreting the enabling legislation;


(b) the nature of the question in issue;

(c) the interpretation of the statute as a whole;

(d) the expertise and advantageous position of the tribunal of first instance,compared to that of the appellate tribunal;

(e) the need to limit the number, length and cost of appeals;

(f) preserving the economy and integrity of the proceedings in the tribunalof first instance; and

(g) other factors that are relevant in the particular context.

Not all of these factors will be in play in every analysis of the standard ofreview.

The Respective Roles of the Board and the Chief of Police23 The primary factor in setting the standard of review is to examine the respec-

tive roles of the tribunal of first instance (in this case the Chief of Police) and theappellate administrative tribunal (in this case the Board). In this case the Boardfollowed the Unrau decision, in which it was stated at para. 89 that the decisionto be made by the Board was the same as the one to be made by the Chief ofPolice. This is not a supportable interpretation of the scheme of the Act.

24 As discussed in Newton at paras. 58-9, Alberta has adopted a hybrid modelof police discipline. The initial investigation and prosecution of police miscon-duct is done within the police force under the direction of the chief of police.Appeals are then available to the Law Enforcement Review Board, which is acivilian tribunal. The Board misconstrued its role when it concluded it was toplace itself in the position of the Chief of Police and make the decision that theChief was required to make. The primary role of the Board when hearing anappeal is to review for error, and to provide civilian oversight in those caseswhere it is needed.

25 The Act gives the primary authority to decide whether to lay charges to theChief of Police, not the Board. The right of appeal should not be read as trans-ferring that power to the Board: Newton at paras. 53-6. The hybrid model ofpolice discipline, including internal investigation and prosecution, followed bycivilian oversight at the appellate level, does not warrant that approach. Thequestion is not therefore whether the Board “agrees” with the chief of police, asthe Board held in Unrau. As stated in Edwards v. Alberta (Law EnforcementReview Board), 2010 ABCA 77, 477 A.R. 247, 25 Alta. L.R. (5th) 65 (Alta.C.A.) at para. 7, the issue before the Board is only “whether the Chief Constablereasonably concluded the complaint by finding there was no real prospect ofobtaining a conviction.”

26 The respective roles of the Board and the chief of police, as revealed by aproper interpretation of the Act, suggest that the Board should accord deferenceto the decision of the chief of police. The Board should only interfere with the


decision of the chief of police to dismiss a complaint without a hearing wherethe chief’s decision is unreasonable, or where the Board concludes the investiga-tion or proceedings before the chief of police were tainted. It is not sufficientthat the Board might have come to a different conclusion. Because the Boardconcludes that it could have been reasonable to lay charges does not mean that itwas unreasonable for the chief of police to decide not to.

Expertise and the Nature of the Question27 Another important consideration in setting the standard of review is the na-

ture of the question. Under the hybrid system of police discipline in force inAlberta, decisions about whether particular conduct is discreditable, and whetherthere is sufficient evidence to expect a conviction, are within the expertise of thechief of police. This also suggests deference. The legitimate role of the Board inproviding civilian oversight is a countervailing factor in those cases where suchissues arise.

Economy and Integrity of the Proceedings28 The Act gives the chief of police an important and legitimate role to play in

police discipline. Preserving the integrity of his role is a legitimate considerationin setting the standard of review. The Act assumes the competence of the chiefof police to make the decisions assigned to him. There is no indication in the Actthat the chief is to have only an administrative role in deciding whether to hold ahearing, with the real power resting in the Board. By holding a full appeal on ade novo basis, the Board undermined the jurisdiction of the chief of police toinvestigate complaints and direct hearings, and the jurisdiction of the presentingofficer to prosecute the complaints. That extends the role of the complainant farbeyond what is anticipated by the Act.

29 Whatever else, the statute does not contemplate the Board holding a fullhearing into the charges under the guise of deciding whether the chief of policewas reasonable in his decision not to hold a hearing. The holding of initial hear-ings is a function of the presiding officers, not the Board. To hold a full hearingon the merits to decide if a hearing on the merits should be held distorts thestatutory scheme. As counsel for the appellant pointed out, the procedureadopted by the Board contemplates three full hearings. Firstly there would be a“de novo” hearing by the Board to decide if a hearing should be held. The hear-ing would then be held before a presiding officer. If that decision was appealed,there would then be a third de novo hearing before the Board to decide if thepresiding officer was correct. That cannot have been the intention of theLegislature.

30 At some point there must be finality in any quasi-judicial process. For exam-ple, appeals from the Board to the Court of Appeal are permitted under the Actwith leave. But if leave to appeal is denied, there is rarely if ever justification for


an appeal from the decision denying leave: Co-operators General Insurance Co.v. Great Pacific Industries Inc., 1998 ABCA 272, 64 Alta. L.R. (3d) 323, 219A.R. 90 (Alta. C.A.) at paras. 24-5; Higgins v. Camrose No. 22 (County) (1995),29 Alta. L.R. (3d) 160, 169 A.R. 16 (Alta. C.A.); Western Securities Ltd. v.Foothills (Municipal District) (1981), 17 Alta. L.R. (2d) 164, 35 A.R. 480 (Alta.C.A.). It does not make sense to hear an appeal on whether there should be anappeal. This is not because the single judges who deny leave are invariably cor-rect, but rather because at some point the dedication of further resources to theissue is not warranted. Just because a chief of police may from time to time, inerror, fail to direct a hearing in a police disciplinary matter does not warrant theBoard itself holding hearings in all such cases.

31 The hearing held by the Board also had the potential of operating very un-fairly to the appellant and the other police officers contemplated by the com-plaint. They were required to answer to, participate in, and testify at a hearingwithout any precise charge having been laid against them. The hearing took theform of an inquisition to see if any misconduct could be revealed, prior to anycharge actually being laid. The Act contemplates a formal system of police disci-pline which not only protects the public, but extends a level of natural justice topolice officers. The procedure adopted by the Board undermined this carefulbalance.

32 Ensuring that the legitimate role assigned to the chief of police by the Act isnot undermined is a further indication that the Board should extend deference tothe chief’s decisions.

Conclusion on the Standard of Review to be Applied by the Board33 In conclusion, the decision of the Board to conduct a de novo hearing, and to

assume that it owed no deference to the findings of the Chief of Police was inerror. The role of the Board is primarily to sit on appeal from the Chief. TheBoard is not a tribunal of first instance, and cannot simply ignore the proceed-ings before the Chief, and the conclusions reached by him. Deference is owedwhere the primary issue is factual and relates to the adequacy of the evidence,and the standard of review is reasonableness. Unless his decision was unreason-able, or unless the Board decides that the process before the Chief was compro-mised in a way that calls into play the Board’s mandate to provide civilian over-sight, the Board should not intervene.

The Reasonableness of the Decision of the Chief of Police34 Because it decided that its role was to decide if there was sufficient evidence

to warrant a hearing, the Board never answered the true question before it. Inmost circumstances it would be appropriate to refer the matter back to the Boardfor rehearing. However, the events in question took place over five years ago,and in this case is appropriate for this Court to provide an answer.


35 The true issue before the Board was not whether there was sufficient evi-dence to make out a prima facie case of discreditable conduct. Rather, the issuewas whether the decision of the Chief of Police was somehow unreasonable ortainted.

36 The Board’s decision in cases like this should primarily be made based onthe information that was before the Chief of Police when he made his initialdecision. That was the record used by the Chief to decide, and deciding whetherhis decision not to order a hearing was reasonable must primarily be done basedon what he had before him: Sarg Oils Ltd. v. Alberta (Director, LandReclamation Division, Alberta Environmental Protection), 2007 ABCA 215, 75Admin. L.R. (4th) 314 (Alta. C.A.) at para. 15; Edwards v. Alberta (LawEnforcement Review Board), 2009 ABCA 383 (Alta. C.A.) at para. 9; AlbertaLiquor Store Assn. v. Alberta (Gaming & Liquor Commission), 2006 ABQB904, 406 A.R. 104, 69 Alta. L.R. (4th) 98 (Alta. Q.B.) at paras. 42-3. In somecases it might be appropriate for the Board to receive evidence showing thatfresh evidence had been discovered that was not available to the Chief, or thatsomehow the investigation conducted by the police service was compromised. Ifit concludes that the investigation that created the record before the chief of po-lice was tainted, flawed, or grossly inadequate, that would engage its role ofcivilian oversight. In those cases the Board might direct a further investigation,but the Board should avoid usurping the chief’s authority under the Act to decidehow the investigation should be conducted. However, until fresh evidence orsuch an investigation generates new evidence that makes the decision of theChief unreasonable, the Board should not order a new hearing. The Board’sfinding that there “could be” such evidence does not even meet the test theBoard set, and it clearly does not make the Chief’s decision unreasonable.

37 In deciding whether there is sufficient evidence to make a conviction likely,the whole context must be examined. In this case, not one single witness (in-cluding the two members of the Professional Standards Branch) reported seeinganyone wearing the offending T-shirts at the general meeting. There was no evi-dence that the rat T-shirts even existed. The “de novo” evidence presented at theBoard hearing did not bring forward any evidence of that nature, much less anyevidence that was not available to the Chief when he made his decision. Theevidence and arguments before the Board seem to have been primarily directedto the adequacy of the investigation.

38 Further, the appellant and those who wore the T-shirts at the baseball tourna-ment had admitted their responsibility, but had denied seeing anyone wearingthe T-shirts at the general meeting. While not impossible, it seems unlikely thatthe appellant would admit the former, but falsely deny the latter. In the end, theonly evidence consisted of the third-hand rumours reported by Det. Collins, andInspector Bohachyk’s note of his conversation with the appellant, which wasrebutted by the appellant’s contention that the Inspector had mixed up the twoevents: the baseball tournament and the meeting. Det. Collins’ evidence could


not possibly have supported a conviction. If a hearing had been held, it is possi-ble that the presiding officer might have believed Inspector Bohachyk, and notthe appellant, but that does not make the Chief’s decision unreasonable. TheBoard’s conclusion that the Chief “never resolved” this discrepancy in the evi-dence does not make unreasonable his finding that there was no reasonable pros-pect of conviction. The evidence was so tenuous that it was entirely reasonablefor the Chief to conclude that a disciplinary hearing was not warranted.

39 The strength of the case is not the only relevant factor in deciding whether ahearing should be held. The chief is entitled to have regard to the seriousness ofthe offence, and the other circumstances. The tournament and the meeting werethree days apart, and as the Chief of Police noted the two complaints “are essen-tially one and the same”. Since the unacceptability of the T-shirt logos had beenconfirmed in the proceedings relating to the baseball tournament, it was open tothe Chief to decide that the dedication of further resources to investigating thecomplaint about the general meeting was not warranted. A complainant such asthe Criminal Trial Lawyers’ Association does not have a right to have everycomplaint investigated and processed to the fullest extent, regardless of the con-text and seriousness of the incident, and regardless of the resources required.

40 In this case the Board directed that the Chief reinvestigate the complaints.By its comments it obviously felt that there was something inadequate about theinvestigation. Leave was not granted to appeal this aspect of the Board’s deci-sion, but the Criminal Trial Lawyers’ Association argued that since the investi-gation was unreasonable, the decision not to lay charges must also have beenunreasonable. Neither the premise of nor the conclusion reached by this argu-ment are convincing. Not every complaint justifies an investigation that exhaustsevery possible lead, and the Chief is entitled to allocate his limited resources in areasonable way. Simply because the investigation failed to turn over every stonedoes not make it unreasonable. Neither the complainant nor the Board are enti-tled to take over every investigation; the Chief is the one granted jurisdiction toinvestigate complaints. But in any event, absent some clear evidence on the re-cord that a disciplinary offence had been committed, the Board was not entitledto direct that the Chief of Police lay charges against the appellant. In orderingthat a hearing be held, and then directing that a further investigation be con-ducted, the Board put the cart before the horse. Absent sufficient credible evi-dence, the Board’s decision to order a new hearing was unreasonable.

41 In summary, there was nothing unreasonable about the decision of the Chiefof Police to terminate the investigation into the allegations about the generalmeeting without a hearing. The Board was in error in overruling that decision.

Conclusion42 In conclusion, the Board used the wrong procedure, asked the wrong ques-

tion, and came to an unreasonable result. The appeal is allowed, and the direc-

Gateway Charters Ltd. v. Edmonton (City) 201

tion of the Board that the Chief of Police direct a hearing into the allegationsagainst the appellant is set aside.

Keith Ritter J.A.:

I concur:

Patricia Rowbotham J.A.:

I concur:

Appeal allowed.

[Indexed as: Gateway Charters Ltd. v. Edmonton (City)]

Gateway Charters Ltd. carrying on business under the firm name andstyle Sky Shuttle (Applicant) and The City of Edmonton (Respondent)

Alberta Court of Queen’s Bench

J.M. Ross J.

Heard: June 17, 2010

Judgment: September 3, 2010

Docket: Edmonton 1003-04706, 2010 ABQB 567

Darin J. Hannaford for ApplicantCameron J. Ashmore for Respondent

Transportation –––– Carriers — Statutory regulation — Municipal licences — Clas-ses of carriers covered — Miscellaneous –––– Airport shuttle — Company operated air-port shuttle in Edmonton (subject shuttle) — Subject shuttle made several stops inEdmonton and one stop outside Edmonton, at airport — City of Edmonton (city) tookposition that company was operating “shuttle” as defined in Vehicle for Hire By-law (by-law) — City took position that company was therefore required to obtain licences — Cityissued enforcement order prohibiting company from operating unlicensed vehicles — Li-cence appeal committee (committee) confirmed enforcement order — Committee re-jected company’s submission that subject shuttle was “inter-municipal bus service”within meaning of by-law, and was therefore exempt from licence requirement — Com-mittee held that term “inter-municipal bus service” should be read as whole — Commit-tee held that whole term “inter-municipal bus service” implied that there was comparableservice in another jurisdiction — Committee concluded that subject shuttle did not meetthis definition because it did not provide multiple pick-ups in more than one municipal-ity — Company brought application for judicial review — Application granted — Com-mittee’s decision that subject shuttle was not “inter-municipal bus service” reached re-


quired standard of reasonableness — Decision that term “inter-municipal bus service”should be read as whole was reasonable approach to interpreting by-law — Having deter-mined that term should be read as whole, it was not arbitrary for committee to refer tofactor of multiple pick-ups in more than one municipality — Application was allowed onground that company qualified for licence exemption under Traffic Safety Act.

Transportation –––– Carriers — Statutory regulation — Municipal licences — Mis-cellaneous –––– Prohibition against licence fees under Traffic Safety Act — Companywas provincially regulated carrier that operated airport shuttle in Edmonton — Shuttlemade several stops in Edmonton and one stop outside Edmonton, at airport — Companytook position that it was exempt from municipal licence requirements — Company reliedon s. 153(1) of Traffic Safety Act (TSA), which prohibits municipal fees on provinciallyregulated carriers — City of Edmonton (city) took position that company was required toobtain licences — City relied on s. 153(2) of TSA, which exempts application of s.153(1) if carrier operates in urban area and “major portion of that [carrier’s] revenue isobtained within boundaries of that urban area” — City issued enforcement order prohibit-ing company from operating unlicensed vehicles — Licence appeal committee (commit-tee) confirmed enforcement order — Company brought application for judicial review —Application granted — Committee’s decision and city’s enforcement order were setaside — Committee erred in concluding that s. 153(2) of TSA applied to company —Evidence did not demonstrate that major portion of company’s revenue was obtained inEdmonton — This was true regardless of whether term “obtained” referred to financialtransactions or revenue-generating activity — Major portion of company’s financialtransactions took place at airport, which was outside Edmonton — As to revenue-gener-ating activity, relevant fact was that shuttle travelled between airport and Edmonton —This showed that revenue was equally obtained in and out of Edmonton — Fact that shut-tle made different stops in Edmonton was irrelevant.

Transportation –––– Carriers — Statutory regulation — Municipal licences — Re-view of decisions — Miscellaneous –––– Standard of judicial review for decision inter-preting by-law and Traffic Safety Act.

Cases considered by J.M. Ross J.:

Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th)1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1,77 Imm. L.R. (3d) 1, 385 N.R. 206, [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12(S.C.C.) — followed


Pushpanathan v. Canada (Minister of Employment & Immigration) (1998), 43 Imm. L.R.(2d) 117, 226 N.R. 201, (sub nom. Pushpanathan v. Canada (Minister of Citizenship& Immigration)) 160 D.L.R. (4th) 193, (sub nom. Pushpanathan v. Canada (Minister

Gateway Charters Ltd. v. Edmonton (City) 203

of Citizenship & Immigration)) [1998] 1 S.C.R. 982, 11 Admin. L.R. (3d) 1, 6B.H.R.C. 387, [1999] I.N.L.R. 36, 1998 CarswellNat 830, 1998 CarswellNat 831,[1998] S.C.J. No. 46 (S.C.C.) — referred to

Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re)221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1,(sub nom. Adrien v. Ontario Ministry of Labour) 98 C.L.L.C. 210-006, [1998] S.C.J.No. 2 (S.C.C.) — referred to

Shell Canada Products Ltd. v. Vancouver (City) (1994), 1994 CarswellBC 115, 1994CarswellBC 1234, [1994] 3 W.W.R. 609, 20 M.P.L.R. (2d) 1, 20 Admin. L.R. (2d)202, 110 D.L.R. (4th) 1, 88 B.C.L.R. (2d) 145, [1994] 1 S.C.R. 231, 163 N.R. 81, 41B.C.A.C. 81, 66 W.A.C. 81, [1994] S.C.J. No. 15, EYB 1994-67078 (S.C.C.) —considered

United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (2004), 46M.P.L.R. (3d) 1, 236 D.L.R. (4th) 385, [2004] 7 W.W.R. 603, 346 A.R. 4, 320W.A.C. 4, 318 N.R. 170, 18 R.P.R. (4th) 1, [2004] 1 S.C.R. 485, 2004 CarswellAlta355, 2004 CarswellAlta 356, 2004 SCC 19, 26 Alta. L.R. (4th) 1, 12 Admin. L.R.(4th) 1, 50 M.V.R. (4th) 1, [2004] S.C.J. No. 19, REJB 2004-55539 (S.C.C.) — re-ferred to

1254582 Alberta Ltd. v. Edmonton (City) (2009), 1 Alta. L.R. (5th) 1, 52 M.P.L.R. (4th)159, 447 W.A.C. 58, 448 A.R. 58, 306 D.L.R. (4th) 310, 2009 ABCA 4, 2009CarswellAlta 10, [2009] 6 W.W.R. 51 (Alta. C.A.) — followed


Municipal Government Act, R.S.A. 2000, c. M-26Generally — referred tos. 12 — referred tos. 545 — considereds. 545(1) — referred tos. 545(2)(a) — referred tos. 547 — considereds. 547(1) — referred tos. 547(2) — referred tos. 548 — considereds. 548(1) — considereds. 548(1)(b) — considereds. 548(1.1)(a) — considereds. 548(3) — considered

Regional Airports Authorities Act, R.S.A. 2000, c. R-9Generally — referred to

Traffic Safety Act, R.S.A. 2000, c. T-6Generally — referred toPt. 7 — considereds. 1(1)(h) “commercial vehicle” — referred tos. 1(1)(vv) “urban area” — referred tos. 130(1)(b) “carrier” — referred tos. 131(1)(b) — referred to


s. 153 — considereds. 153(1) — considereds. 153(2) — considered

Rules considered:

Alberta Rules of Court, Alta. Reg. 390/68Pt. 56.1 [en. Alta. Reg. 457/87] — referred to

Words and phrases considered

inter-municipal bus service

The majority of the [Community Standards and Licence Appeal Committee (the Commit-tee)] held that the terms “inter-municipal” and “bus service” [in ss. 4(2)(b) of the City ofEdmonton’s Vehicle for Hire Bylaw] must be read in conjunction, and that, as a whole,the term “inter-municipal bus service” implies that there is a comparable service in an-other jurisdiction”. In other words, because it treated the term as a whole, the majority ofthe Committee decided that it is not sufficient that [the applicant’s] service is betweenjurisdictions and has the quality of a bus service in one of those jurisdictions; it musthave the quality of a bus service in each jurisdiction.

In my view, this determination meets the standard of reasonableness in articulation and inoutcome. The majority decision of the Committee, although brief, makes it clear that itwas rejecting [the applicant’s] approach of interpreting “inter-municipal” and “bus ser-vice” as independent elements. The majority decision that the term “inter-municipal busservice” should be read as a whole is a reasonable approach to interpreting the Bylaw.

APPLICATION by operator of airport shuttle for judicial review of decision requiring itsvehicles to be municipally licensed.

J.M. Ross J.:

A. Introduction1 The Applicant (“Gateway”) seeks judicial review of the decision of the

Community Standards and Licence Appeal Committee (the “Committee”), datedFebruary 19, 2010, upholding the Order, dated November 6, 2009, of the Re-spondent (the “City”). The Order, as amended by the Committee, requires Gate-way to “cease accepting orders for and dispatching unlicensed Vehicles for Hireto pick up passengers within the City of Edmonton”.

2 The Order issued on the basis that Gateway operates a “Shuttle” as definedin Bylaw 14700, the City of Edmonton Vehicle for Hire Bylaw, and is thereforerequired to obtain licenses, which it has not done. The Order is an enforcementorder issued under s. 545 of the Municipal Government Act, R.S.A. 2000, c. M-26 (“MGA”). It was reviewed and confirmed by the Committee under MGA s.547.

3 Gateway argued that it is not required to comply with the Bylaw for either oftwo reasons:

Gateway Charters Ltd. v. Edmonton (City) J.M. Ross J. 205

1. Gateway is operating an inter-municipal bus service and is exemptedunder ss. 4(2)(b) of the Vehicle for Hire Bylaw from the licenserequirement;

2. Gateway is a provincially-regulated carrier under s. 153(1) of the TrafficSafety Act, R.S.A. 2000, c. T-6 (“TSA”) and the City is prohibited fromcharging a fee in respect of its operation.

4 The City argued and the Committee held:

1. Gateway is not operating an inter-municipal bus service because it doesnot make multiple pick-ups and drop-offs in more than one municipality.

2. Under TSA s. 153(2), the exemption in TSA s. 153(1) does not applybecause Gateway obtains a major portion of its revenue within the limitsof the City.

5 Gateway claims that the Committee made errors of fact and law in interpret-ing the Vehicle for Hire Bylaw and the TSA.

B. Facts6 Gateway operates the Sky Shuttle bus service under a contract with the

Edmonton Regional Airports Authority from a terminal at the Edmonton Inter-national Airport located in the County of Leduc. Gateway delivers passengersbetween the Airport and a number of locations in Edmonton. The Sky Shuttleservice employs 11 mini-buses (17 to 22 passengers) and 10 vans (15passengers).

7 In addition to the Sky Shuttle service, Gateway operates several charter vehi-cles. Its charter business requires Gateway to obtain provincial operating andsafety certificates under s. 131(1)(b) of the TSA, which it has done.

C. Standard of Review: General Principles8 The first step in any judicial review of an administrative decision is to estab-

lish the appropriate standard of review. Following this determination, the Courtapplies the selected standard to the decision under review.

9 The Supreme Court of Canada in New Brunswick (Board of Management) v.Dunsmuir, 2008 CarswellNB 124, [2008] 1 S.C.R. 190, 291 D.L.R. (4th) 577(S.C.C.) (“Dunsmuir”) revised the law on judicial review with the result that,generally speaking, there are only two standards of review: correctness andreasonableness.

10 Dunsmuir did not deal expressly with a situation where a legislature hasspecified the standard of review. That circumstance was later addressed inKhosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12(S.C.C.) (“Khosa”). The Supreme Court of Canada confirmed pre-existing lawthat “a legislature has the power to specify a standard of review . . . if it


manifests a clear intention do so” (para. 51). However, Dunsmuir has an impactin this context:

[W]here the legislative language permits, the courts (a) will not interpretgrounds of review as standards of review, (b) will apply Dunsmuir principlesto determine the appropriate approach to judicial review in a particular situa-tion, and (c) will presume the existence of a discretion to grant or withholdrelief based on the Dunsmuir teaching of restraint in judicial intervention inadministrative matters (Khosa, at para. 51).

11 Dunsmuir also made it clear that an exhaustive analysis is not required inevery case to determine the standard of review. Where the analysis has beendone already in the existing jurisprudence there is no need to repeat it. Onlywhere the court is unable to conclude that there is existing jurisprudence, is itnecessary to consider the relevant factors to identify the proper standard of re-view (Dunsmuir, at paras. 57-62).

12 In this case, the City argues that the standard of review is set by s. 548(1)(b)of the MGA as patent unreasonableness. Gateway argues that, at least as regardsinterpretation of the TSA, prior jurisprudence has determined that the standard ofreview is correctness: 1254582 Alberta Ltd. v. Edmonton (City), 2009 ABCA 4,[2009] 6 W.W.R. 51 (Alta. C.A.) (“Airport Taxi”).

D. Application of MGA s. 54813 The City’s Order to Gateway to cease operating issued because Gateway had

not obtained a license under the Vehicle for Hire Bylaw. This was an enforce-ment order issued under s. 545 of the MGA:

545(1) If a designated officer finds that a person is contravening this or anyother enactment that the municipality is authorized to enforce or abylaw, the designated officer may, by written order, require the per-son responsible for the contravention to remedy it if the circum-stances so require.

(2) The order may

(a) direct a person to stop doing something.

14 Enforcement orders may be reviewed under MGA s. 547:

547(1) A person who receives a written order under section 545 ... may bywritten notice request council to review the order . . .

(2) After reviewing the order, the council may confirm, vary substituteor cancel the order.

15 The s. 547 review is conducted by the Committee, which is a sub-committeeof City Council with delegated authority (Community Standards and LicenseAppeal Committee Bylaw, City of Edmonton Bylaw 1566).


16 Section 548 of the MGA provides for an appeal of a decision under s. 547:

548 (1) A person affected by the decision of a council under section 547may appeal to the Court of Queen’s Bench if

(a) the procedure required to be followed by this Act is not fol-lowed, or

(b) the decision is patently unreasonable.

(1.1) The appeal must be made,

(a) in the case of an appeal of an order under section 545,within 30 days after the date the decision under section 547is served on the person affected by the decision . . .

(3) The Court may

(a) confirm the decision, or

(b) declare the decision invalid and send the matter back to thecouncil with directions.

17 The Community Standards and License Appeal Committee Bylaw includes aprivative clause, providing that Committee decisions may be reviewed onlyunder MGA, s. 548:

17 Subject only to any right of appeal provided in the Municipal Gov-ernment Act, any decision of this Committee shall be final and bind-ing on the appellant, and no application for judicial review may bemade to the Court of Queen’s Bench from any such decision.

18 In Airport Taxi, a City inspector issued an order under MGA, s. 545 prohibit-ing Airport Taxi Service from picking up passengers in Edmonton. This orderwas confirmed under MGA s. 547 by the Quasi-Judicial Committee, the commit-tee then exercising the authority that is now exercised by the Committee. A judi-cial review application was brought in the Court of Queen’s Bench, challengingthe order as being beyond the City’s territorial jurisdictional limits under s. 12 ofthe MGA, and as conflicting with the Regional Airports Authorities Act, R.S.A.2000, c. R-9. On appeal, it was also argued that the order was inconsistent withTSA, s. 153.

19 The Court of Appeal noted that the application proceeded by judicial reviewrather than the “statutory appeal option” under MGA s. 548. Applying Dun-smuir, the Court concluded that legal decisions relating to the scope of the City’sterritorial jurisdiction are reviewable on a standard of correctness.

20 The within application is also brought as a judicial review application underPart 56.1 of the Alberta Rules of Court and not as a statutory appeal. AirportTaxi confirms that decisions under MGA s. 547 are subject to judicial review.The City argues that the standard of review in MGA s. 548 should be applied,relying on the privative provision in s. 17 of the Community Standards and Li-cense Appeal Committee Bylaw. The City notes that the vires of that provisionhas not been challenged in this proceeding. The lack of a challenge to s. 17 isnot surprising as the City elected to respond on the merits to the judicial review


application, rather than taking the position that judicial review is not availabledue to s. 17. Nonetheless, it is clear to me that the vires of s. 17 is suspect. TheCity has not pointed to any statutory authority that would grant City Council thesomewhat astonishing authority to preclude judicial review of its own decisionsor of decisions which it has delegated to one of its sub-committees.

21 Having elected to respond to the judicial review on its merits, the City is notnow entitled to treat this as a statutory appeal under MGA s. 548. Nor should thestandard of review applicable to a s. 548 appeal be imported into this applica-tion. That would be inconsistent with the direction of the Supreme Court of Can-ada in Khosa that, where “the legislative language permits, the courts . . . (b)will apply Dunsmuir principles to determine the appropriate approach to judicialreview in a particular situation” (para. 51). I conclude therefore, that the stan-dard of review in s. 548 applies only to appeals brought under that section andthat in this judicial review application, MGA s. 548 does not apply and the stan-dard of review must be determined by following the principles Dunsmuir.

E. Application of Airport Taxi22 Under Dunsmuir, it is not necessary to analyse the standard of review where

prior jurisprudence has already determined the issue with regard to a particularquestion. The Airport Taxi case determined that the correctness standard of re-view applied to committee decisions under MGA s. 547 regarding questions ofterritorial jurisdiction of municipalities, provided the challenged decisions areessentially legal and not “much dependent on facts” (para. 12). While the Courtof Appeal commented on TSA s. 153, that provision had not been raised with thecommittee, so that the standard of review for that question did not need to bedetermined. Airport Taxi thus did not determine the standard of review for thequestions raised here, which relate to interpretation of a bylaw and TSA s. 153. Iwill therefore apply the Dunsmuir factors to determine the standard of reviewwith respect to each of the questions before me.

F. Question 1: Is Gateway operating an “inter-municipal” bus serviceunder s. 4(2)(b) of the Vehicle for Hire Bylaw?

23 Before returning to the standard of review, it is helpful to consider in greaterdetail the nature of this question.

24 Section 4 of the Vehicle for Hire Bylaw provides:

4(1) A person shall not operate, cause or permit the operation of a Vehi-cle for Hire unless it is a Taxi, Accessible Taxi, Limousine orShuttle.

(2) This section does not apply to:

(a) a motor vehicle used as part of a transit system operated bya municipality;


(b) a motor vehicle licensed and used as part of an inter-munici-pal or inter-provincial bus service; or

(c) an ambulance.

25 It is agreed between the parties that Gateway is operating Vehicles for Hire,which as Shuttles must comply with the Shuttle Vehicle Licence requirement ins. 32 of the Bylaw, unless the exception in s. 4(2)(b) applies. Two issues wereargued before the Committee regarding the application of s. 4(2)(b): first,whether the Gateway buses are part of an inter-municipal bus service; and sec-ond, whether they are licensed as such. The Committee decided that the SkyShuttle service was not an inter-municipal bus service, and did not go on toconsider whether Gateway buses were licensed.

26 The Committee held:

This is not an inter-municipal operation because the term inter-municipalmust be read in conjunction with the term “bus service.” When you readsection (b) as a whole you must read the provision as a whole. This term readas a whole, implies that there is a comparable service in another jurisdiction.Therefore, a strong factor in favour of an inter-municipal bus service wouldbe multiple pick-ups and destinations in more than one municipality. Thefact that there are multiple pick-up and drop-off locations in Edmonton is nota sufficient analysis of the situation; it must also be considered in context ofthe single location outside Edmonton.

27 A dissenting opinion was filed by one member of the Committee, holdingthat the term “inter-municipal bus service should be considered “on a plain inter-pretation of each of the terms”, and that on that approach, there was “a service . .rendered in more than one jurisdiction” and the service was a “bus service”. Thedissenting member would also have found that Gateway’s buses were licensed,with the result that the exemption is s. 4(2)(b) of the Bylaw applied.

28 There is no dispute regarding the facts underlying either the majority or dis-senting decisions - it is clear that the Sky Shuttle service operates between anumber of scheduled stops in Edmonton and the Edmonton International Airportin the County of Leduc. There are no stops in the County of Leduc other than atthe Airport, and no stops in other municipalities or counties. The majority deci-sion of the Committee summarized its conclusion that “this is not an inter-muni-cipal bus service” under the heading “Finding of Fact”, but I agree with Gate-way that the Committee’s interpretation of what constitutes an “inter-municipalbus service” is a question of law, specifically interpretation of a City bylaw.

29 I turn now to the Dunsmuir analysis of the standard of review, as summa-rized at para. 64 of the decision. This analysis must be contextual and is depen-dent on the application of the relevant factors which include: (1) the presence orabsence of a privative clause; (2) the purpose of the tribunal as determined byinterpretation of enabling legislation; (3) the nature of the question at issue; and(4) the expertise of the tribunal.


(1) The presence or absence of a privative clause30 The City points again to the privative clause in s. 17 of the Community Stan-

dards and License Appeal Committee Bylaw. Given my earlier comments re-garding the suspect validity of this provision, I am not prepared to rely on it. Thesignificance of a privative clause, as noted in Dunsmuir at para. 55, is that is it a“statutory direction from Parliament or a legislature indicating the need for def-erence”. There is no such statutory direction in this case. The MGA gives CityCouncil the responsibility to review enforcement orders under s. 547, and pro-vides an optional appeal from their decisions under s. 548, but does not precludejudicial review of those decisions (Airport Taxi). City Council cannot, in thecourse of delegating its decision-making power to the Committee, shelter theCommittee’s decision from judicial review. This factor does not signify a needfor deference.

(2) The purpose of the tribunal as determined by enabling legislation31 The legislature has provided in MGA s. 545 that bylaws may be enforced by

orders of designated municipal officials, with reviews of these orders directedunder s. 547 to be heard by City Council (or a duly authorized sub-committee ofCouncil). The purpose of elected municipal councils has recently been reflectedupon by the Supreme Court of Canada and the Alberta Court of Appeal.

32 The Supreme Court of Canada held that the “evolution of the modern munic-ipality” has led to a broad and purposive approach to the interpretation of muni-cipal powers. Modern municipalities require flexibility to fulfil their statutorypurposes: United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary(City), 2004 SCC 19, [2004] 1 S.C.R. 485 (S.C.C.), at para. 6 (“United Taxi”),citing McLachlin J., as she then was, in Shell Canada Products Ltd. v.Vancouver (City), [1994] 1 S.C.R. 231 (S.C.C.), at 244-245 (“Shell Canada”).

33 The Alberta Court of Appeal held that courts interpreting the limits of muni-cipal jurisdiction should consider do so “in light of the modern view that regardsmunicipal bylaws as emanations of the will of elected representatives of thepeople”: Airport Taxi, at para. 14. The Court also relied on McLachlin J.’s deci-sion in Shell Canada, quoting the following passage, at para. 15:

Recent commentary suggests an emerging consensus that courts must respectthe responsibility of elected municipal bodies to serve the people whoelected them and exercise caution to avoid substituting their views of what isbest for the citizens for those of municipal councils. Barring clear demonstra-tion that a municipal decision was beyond its power, courts should not sohold. In cases where powers are not expressly conferred but may be implied,courts must be prepared to adopt the “benevolent construction” which thisCourt referred to in Greenbaum, and confer the powers by reasonable impli-cation. Whatever rules of construction are applied, they must not be used tousurp the legitimate role of municipal bodies as community representatives.


34 These comments shed light on the purpose of municipal councils. They arerepresentative bodies entrusted with the task of determining the best interests ofcitizens within their jurisdiction. They require and have been provided withbroad and flexible authority to achieve their statutory purposes. The purpose ofmunicipal councils supports deference to their decisions and to decisions of theirsub-committees.

(3) The nature of the question at issue35 As indicated above, the question at issue is a legal question and not a factual

one. However, the question is not a jurisdictional one, unlike the questions inUnited Taxi and Airport Taxi. While the Committee’s decision has implicationsfor the scope of the licensing authority under the Vehicle for Hire Bylaw, there isno suggestion that it takes that authority beyond the territorial or other limits ofCity Council’s jurisdiction.

36 Where a question of law is not jurisdictional, and where it is closely relatedto the expertise of the tribunal, deference may be appropriate. The Court in Dun-smuir observed that deference “will usually result where a tribunal is interpret-ing its own statute or statutes closely connected to its function, with which itwill have particular familiarity” (at para. 54). I would apply this principle tointerpretation by City Council or a sub-committee of Council of its own bylaws.This factor supports deference.

(4) The expertise of the tribunal37 Council is well versed in the enactment of bylaws, and the City argues that

Council and its sub-committees thereby acquire an expertise in the interpretationof bylaws. As stated by the City, “since members of the Committee are the samemembers that enact municipal bylaws, they are uniquely situated to interpretthose bylaws.” I agree with the logic. This factor, too, supports deference.

(5) Conclusion regarding standard of review38 The purpose and expertise of the tribunal and the nature of the question sup-

port deference to the Committee’s interpretation of the Bylaw. These factorseasily overcome the lack of a privative clause and lead to my conclusion that thereasonableness standard of review applies.

(6) Application of the standard of review39 Dunsmuir’s description of review under the now merged standard of reason-

ableness is found at para. 47:

Reasonableness is a deferential standard animated by the principle that un-derlies the development of the two previous standards of reasonableness: cer-tain questions that come before administrative tribunals do not lend them-selves to one specific, particular result. Instead, they may give rise to a


number of possible, reasonable conclusions. Tribunals have a margin of ap-preciation within the range of acceptable and rational solutions. A court con-ducting a review for reasonableness inquires into the qualities that make adecision reasonable, referring both to the process of articulating the reasonsand to outcomes. In judicial review, reasonableness is concerned mostly withthe existence of justification, transparency and intelligibility within the deci-sion-making process. But it is also concerned with whether the decision fallswithin a range of possible, acceptable outcomes which are defensible in re-spect of the facts and law.

40 Gateway argues that the Committee’s decision that an inter-municipal busservice is one that has “multiple pick-ups and destinations in more than one mu-nicipality” is unreasonable because it imports a requirement that is not found inthe language of the Bylaw and that is inconsistent with the ordinary meaning ofthat language.

41 Neither of the terms “inter-municipal” nor “bus service” is defined in theVehicle for Hire Bylaw or the MGA. Gateway argued before the Committee andon this application that the ordinary meaning of the term “inter-municipal” is“between one city, town or municipal district an another”. Because Gatewaytransports passengers between the County of Leduc and the City of Edmonton, itis providing an inter-municipal service. Further, the service is a “bus service”because it provides regular public transport with scheduled stops operating overa specific route. As noted above, this argument was accepted by the dissentingmember of the Committee.

42 The majority of the Committee held that the terms “inter-municipal” and“bus service” must be read in conjunction, and that, as a whole, the term “inter-municipal bus service” “implies that there is a comparable service in anotherjurisdiction”. In other words, because it treated the term as a whole, the majorityof the Committee decided that it is not sufficient that Gateway’s service is be-tween jurisdictions and has the quality of a bus service in one of those jurisdic-tions; it must have the quality of a bus service in each jurisdiction. This is thesource of the requirement that there be “multiple pick-ups and destinations inmore than one municipality”.

43 In my view, this determination meets the standard of reasonableness in artic-ulation and in outcome. The majority decision of the Committee, although brief,makes it clear that it was rejecting Gateway’s approach of interpreting “inter-municipal” and “bus service” as independent elements. The majority decisionthat the term “inter-municipal bus service” should be read as a whole is a rea-sonable approach to interpreting the Bylaw. I am not suggesting that it is theonly reasonable approach. The dissenting opinion that the term “inter-municipalbus service” should be “considered on a plain interpretation of each of theterms” may also reach the standard of reasonableness. However, this does notdetract from the reasonableness of the decision that the term should be read as awhole.


44 Having determined that the term should be read as a whole, the majoritydecision’s reference to the “factor” of “multiple pick-ups and destinations inmore than one municipality” is not arbitrary, as argued by Gateway; it is a factorthat brings together the otherwise separate elements. Indeed, without this factor,one is left in effect with Gateway’s interpretation, that the terms “inter-munici-pal” and “bus service” are independent. Gateway argues that the Committeefailed to cite judicial or statutory authority for its approach, but Gateway itselfhas not cited any authority for treating the terms independently.

45 As I have found that the Committee decision that Gateway does not operatean “inter-municipal bus service” under s. 4(2) of the Vehicle for Hire Bylawmeets the standard of reasonableness, it is unnecessary to consider whetherGateway buses are “licensed” within the meaning of s. 4(2).

G. Question 2: Does TSA s. 153(1) Apply to Gateway?46 Again, before determining the standard of review, it is helpful to consider in

greater detail the nature of this question.

47 TSA, s. 153 provides:

153 (1) The council of a municipality shall not impose a fee or charge inrespect of the operation of a commercial vehicle by a person who isa carrier, a holder of a permit or an exempted operator . . .

(2) Subsection (1) does not apply to the imposition of a fee or charge bya council of an urban area on a person who is a carrier, a holder of apermit or an exempted operator carrying on business within the lim-its of the urban area if the major portion of that person’s revenue isobtained within the boundaries of that urban area.

48 It is agreed that Gateway is operating a “commercial vehicle” as defined inthe TSA and that Gateway is a licensed “carrier” under the TSA. An “urban area”is defined in TSA s. 1(vv) as including a city, so the “limits of the urban area”and “boundaries of that urban area” refer to the limits or boundaries of the Cityof Edmonton.

49 The Committee decided that TSA s. 153(1) did not apply because the majorportion of Gateway’s revenue was obtained within the boundaries of Edmonton,bringing into play the exception in s. 153(2).

50 The Committee’s reasons commence with its general approach to the inter-pretation of TSA s. 153(1):

In United Taxi, the Supreme Court of Canada ruled that the municipality hasbroad power to create bylaws. This same broad power must also apply to theinterpretation of section 153(1). It would be inconsistent to state that a mu-nicipality has broad powers to create bylaws, but then limit that power by astrict reading of a prohibition on a municipality. This appears to be what theAppellant is attempting to do. It would be an improper reading to state that


the City must prove that the majority of revenue is obtained within the mu-nicipality. This is contrary to the reading of United Taxi.

51 The Committee relied extensively on the majority decision in Airport Taxi,and came to the following interpretation of TSA s. 153(2):

[T]he major portion of the person’s revenue is obtained where the major ser-vice is provided. In the operation of Gateway, that is within the boundariesof the city of Edmonton. The revenue generated and benefit to the customersis obtained by providing service to attendees of Edmonton or Edmontonresidents.

. . . . .

Evidence shows that the major portion of Gateway Charters Ltd. business isconducted within Edmonton as demonstrated by having 68 locations forpick-up/drop-off within Edmonton and one location for pick-up/drop-offoutside Edmonton.

. . . . .

In reviewing these statements from Airport Taxi, the Committee is persuadedthat this situation is very similar to the current operation of Gateway andagrees that subsection 153(1) of the Traffic Safety Act does not apply byvirtue of subsection (2). Therefore, on this basis, the Committee determinedthe major portion of revenue is obtained in Edmonton.

52 Because of this determination, the Committee did not find it necessary todetermine whether the imposition of a “fee or charge” under TSA s. 153(1) isdistinct from the requirement to obtain a licence.

53 There is no dispute regarding the facts referred to by the Committee - thatthe Gateway service had 68 locations for pick-up/drop-off in Edmonton and onelocation for pick-up/drop-off at the Airport. The City on this application charac-terizes the connection of Gateway’s service to the City in a somewhat differentway, arguing that “each and every trip from Gateway Charters involves eitherdropping a passenger off within Edmonton or picking someone up withinEdmonton”. Again, the asserted fact is not in dispute. It is agreed that all SkyShuttle trips travel between the Airport and a location in Edmonton. Gatewayargued before the Committee and on this application that revenue is “obtained”where financial transactions take place, and put uncontradicted evidence beforethe Committee that the majority of Sky Shuttle revenue (58.5% for the periodJuly to December 2009) was generated by tickets sales at its kiosk at the Airport.

54 As the underlying facts are not in dispute, the real question is whether onthose facts TSA s. 153(2) applies. The question is in essence a question of statu-tory interpretation.

55 I turn again to the Dunsmuir analysis of the standard of review.


(1) The presence or absence of a privative clause

(2) The purpose of the tribunal as determined by enabling legislation56 The analysis of the first two factors, the presence or absence of a privative

clause and the purpose of the tribunal as determined by interpretation of ena-bling legislation, is unchanged. As discussed above, the lack of a privativeclause suggests that deference is not required. On the other hand, the purpose ofmunicipal councils, as representative bodies provided with broad and flexibleauthority to achieve their statutory purposes, supports deference.

57 The analysis of the two remaining factors, the nature of the question at issueand the expertise of the tribunal, must be reconsidered in light of the differentquestion under review.

(3) The nature of the question at issue58 The question deals with the interpretation of a statute which is a legal ques-

tion. The legal issue is jurisdictional in the sense that TSA s. 153(1) imposes astatutory limit on municipal powers. The Committee itself viewed the issue asjurisdictional, bringing into play the interpretive approach of United Taxi. Thestatute is not the tribunal’s “own statute”, nor in my view is it particularly“closely connected to its function”. While TSA s. 153 does have an impact onmunicipal powers, the statute as a whole does not deal with municipal issues,but with traffic regulation in the province as a whole. The question at issue hassome similarity to the question of territorial jurisdiction under the MGA that wasdealt with in Airport Taxi, to which the Court of Appeal applied a correctnessstandard of review. This factor does not support deference.

(4) The expertise of the tribunal59 The tribunal’s expertise must be assessed vis-a-vis the issue of concern, and

as compared with the reviewing court (Pushpanathan v. Canada (Minister ofEmployment & Immigration), [1998] 1 S.C.R. 982 (S.C.C.), at 1006-1007).Council and its sub-committees, as compared with the court, cannot be said tohave an expertise in the interpretation of a statute of general application, like theTSA. This factor does not support deference.

(5) Conclusion regarding standard of review60 In relation to this question, only one of the four factors, the purpose of the

tribunal, supports deference to the Committee’s interpretation of the TSA. Thisfactor is outweighed by the other factors, particularly the nature of the questionand the Committee’s relative lack of expertise in relation to this question. I con-clude that the correctness standard of review applies.


(6) Application of the standard of review61 Gateway argues that the Committee made errors of law as follows:

• it erred as to the onus of proof;

• it misinterpreted “obtaining revenue” within City limits as “conductingbusiness” within the city, or having activities “connected with” or “in-volving” the City; and

• it misinterpreted “the major portion” of revenue as “a large proportion”of revenue.

62 The Committee held that it “would be inconsistent to state that a municipal-ity has broad powers to create bylaws [United Taxi], but then limit that power bya strict reading of a prohibition on a municipality.” Therefore, the Committeeruled, “it would be an improper reading to state that the City must prove that themajority of revenue is obtained within the municipality.” Gateway argues thatthis was an incorrect application of United Taxi.

63 The majority decision in Airport Taxi held that “the limits of municipal juris-diction should be considered in light of the modern view that regards municipalbylaws as emanations of the will of elected representatives of the people”, citingUnited Taxi and other cases. So there is no error in the general interpretive ap-proach identified by the Committee. But such an interpretive approach does notmean that the words of the statute can be ignored. The basic rule of statutoryinterpretation requires that “the words of an Act are to be read in their entirecontext, in their grammatical and ordinary sense harmoniously with the schemeof the Act, the object of the Act, and the intention of Parliament”: R. Sullivan,Sullivan on the Construction of Statutes, 5th ed. (LexisNexis Canada Inc, 2008),at 1, citing the first edition of the Construction of Statutes, Elmer Driedger, asapplied in Rizzo & Rizzo Shoes Ltd., Re, [1998] S.C.J. No. 2, [1998] 1 S.C.R. 27(S.C.C.), at 41. The Committee’s statement that it “would be an improper read-ing [of s. 153(2)] to state that the City must prove that the majority of revenue isobtained within the municipality” is problematic when considered in light of thebasic rule of statutory interpretation. Perhaps it was meant simply as a statementthat the onus of proof was on Gateway. But the statement seems to suggest thatthe Committee did not view itself as bound by the words of the statute, whichexpressly provide that s. 153(2) applies if “the major portion of . . . revenue isobtained within” the municipality.

64 Justice Cote, in the dissenting decision in Airport Taxi, made it clear that inhis view the onus of proof is on the City, at para. 155:

The City relies on words which are expressly an exception (s. 153(2)) to themain rule (s. 153(1)). He who asserts must prove. The onus would be on therespondent city . . . It relies on the escape clause of the major revenues beingfrom within its City.


65 Justice Cote also held that meaning must be given to the statutory language,so that “the major portion” of revenue must be “obtained within” City bounda-ries. It is not sufficient to show that “a large proportion” of revenue “involves”activity within the City.

66 Justice Watson, for the majority, declined to “venture an opinion on crucialterms of s. 153 in the abstract” as the issue had not been raised before the com-mittee. However, he did comment that the committee should have been giventhe opportunity to ask whether the “major portion” of the revenue of AirportTaxi was “from passengers who either resided in Edmonton or were tourists orvisitors to Edmonton, or were associated with business or other activities inEdmonton”. Because the “normal or habitual activities of the business of AirportTaxi . . .was largely grounded on a revenue base connected to Edmonton”, henoted that it was arguable that the committee “would have been able to ask or toinfer that the major portion of revenue from the business . . . would be obtainedwithin the boundaries of Edmonton” (emphasis added).

67 Gateway relies on Justice Cote’s decision, and submits that the onus was onthe City to prove that “the major portion” of Gateway’s revenue was “obtained”within the City. Gateway also argues that, regardless of onus, the evidence that itplaced before the Committee demonstrated that the majority of its revenue(58.5% for the period July to December 2009) was generated, or “obtained”,from ticket sales at its kiosk at the Airport in the County of Leduc.

68 The City supports the Committee’s holding, arguing that it would be an ab-surd reading of the legislation, and would defeat the purpose of the legislation,to place an onus on the City to prove “where the revenue is being made for abusiness, when there are no disclosure requirements which would allow forthose records to be available.” The City claims that the Committee’s interpreta-tion is a “common sense view of what it means to have the major portion of therevenue obtained within the boundaries of the municipality”. The City arguesthat the fact that every trip of the Sky Shuttle begins or ends in the City is “asignificant enough connection” to the City to bring s. 153(2) into effect.

69 As to the onus of proof, in my view this was correctly stated by Justice Cote,for the reasons he expressed. I do not accept that the implications of placing theonus on the City would be dire as claimed by the City. Even if there are no pre-hearing disclosure requirements, the City and the Committee would be able toask questions and seek the necessary evidence at the hearing, as suggested byJustice Watson.

70 I note that both the majority and the dissenting opinions in Airport Taxi giveeffect to the express statutory requirement that “the major portion” of revenue be“obtained” within the City. Both Justice Cote and Justice Watson expressed theview that, in order to find that TSA s. 153(2) applied, a committee would have tofind that “the major portion” of business revenue is “obtained” within Cityboundaries.


71 As to whether revenue is “obtained within” the City, Justice Cote held thatthis requires something other than showing a business activity that “involves”the City or is partly within the City. Justice Watson did not define the term,however he did comment that as “normal or habitual activities of the business ofAirport Taxi . . .was largely grounded on a revenue base connected toEdmonton”, it was arguable that the major portion of its revenue would be ob-tained within the boundaries of the city.

72 To “obtain” an object “is to “acquire, secure or have granted to one” thatobject (The Canadian Oxford Dictionary, Oxford University Press, 1998). Iagree with Gateway that revenue may be said to be obtained where funds areacquired, in other words at the location of the financial transactions. But, in myview, this is only one ordinary meaning of the words. Revenue could also besaid to be obtained where the right to the funds is secured or earned, in otherwords, where the revenue-generating activity takes place. This seems to havebeen the sense in which Justice Watson understood the term.

73 TSA, s. 153(1) prohibits municipal fees or charges on the “operation of acommercial vehicle” by a “carrier”, and s. 153(2) contains an exception to thatprohibition. The provision is found in Part 7 of the TSA, titled “CommercialMotor Transport”. This Part regulates the operation of commercial vehicles, in-cluding buses, by carriers. As noted above, Gateway is a carrier and has ob-tained provincial operating and safety certificates for its buses under s. 131(1)(b)of the TSA.

74 In this context, one can see that the purpose of s.153(1) is to shield provin-cially-regulated carriers from being required to pay fees or charges in respect oftheir operation to the municipalities in which they operate. An exception to theshield is provided in s. 153(2). The exception does not apply based on a signifi-cant connection with a municipality (or urban area); if it did, provincially regu-lated carriers might be subject to multiple fees or charges and the shield wouldbecome meaningless. A carrier may be subject to municipal fees in respect of itsoperation, but only where the carrier has a greater connection with one “urbanarea” (city, town or village) than with other parts of the province. This, in myview, is the reason for the statutory requirement that “the major portion” of thecarrier’s revenue be obtained within City limits.

75 While it is essential that the connection reach the level of “the major por-tion” of the carrier’s revenue, there is nothing in this context that would limit themeaning of “obtaining” revenue to collecting or acquiring, as opposed to earningor securing. In my view, a finding that “the major portion” of business revenueis “obtained” in either of these senses within City limits would be sufficient thatthe exception in TSA s. 153(2) would apply.

76 Regardless of the interpretation given to the term “obtained”, the evidence inthis case does not demonstrate that “the major portion” of Gateway’s revenue isobtained in Edmonton. As to the location of financial transactions, Gateway’s


uncontradicted evidence is that the major portion of these took place at the Air-port kiosk, outside City limits. As to the location of revenue-generating activity,the evidence is that each and every Sky Shuttle trip travels between the Airportat one end and a location in Edmonton at the other end. This shows only thatrevenue is equally obtained in and out of Edmonton, not that the major portionof revenue is obtained within City limits. The fact that there are different stopsin Edmonton, is irrelevant in my view. It does not change the fact that each andevery revenue-generating trip begins or ends at the Airport outside of Citylimits.

77 I conclude that the Committee erred in law in its interpretation of TSA s.153(2), and as a result erred in concluding that the statutory exemption appliedto Gateway. The City argued that, should I reach this conclusion, the mattershould be remitted to the Committee to consider the issue that it did not reach,whether the license requirement is a “fee or charge” under TSA s. 153(1). In myview there is no need to remit the matter to the Committee, as the Committee’sinterpretation of s. 153(1) would in any event be reviewable on the standard ofcorrectness, and as the requirements of the Vehicle for Hire Bylaw lead inescap-ably to the conclusion that the shuttle bus licenses in issue involve the paymentof fees within the meaning of s. 153(1).

78 Schedule B of the Bylaw prescribes the “Vehicle for Hire Fees” applicableto Shuttles. A Shuttle Vehicle Licence Issue or Renewal fee is $330.00, a ShuttleDriver’s Licence Issue or Renewal fee is $45.00, and a Shuttle Service LicenceIssue or Renewal fee is $200.00. Payment of these fees is required as a neces-sary precondition to issuance or renewal of the licenses.

79 Justice Cote commented on the City’s arguments relating to this issue in Air-port Taxi, at paras. 151 and 159:

151 It might be debatable whether [s. 153(1)] bans a fee for a taxi bro-ker’s license. . . But it plainly bans a fee for a taxi driver’s or taxiowner’s license. And the impugned Order here forbids the appellantto dispatch or deal with taxis which have not paid such fees. . .

159 The City’s third argument is elusive. It first argues . . . that its feefor taxi licenses is not a fee. I need not comment on that. Then itargues that it did not refuse the licenses because a fee was not paid. .. though there is no evidence of that. If and when the City amends itsbylaw to drop license fees for out-of-town taxis, this Court couldconsider that question. But at present, that argument by the respon-dent is entirely academic.

80 I conclude that TSA s. 153(1) bans fees for shuttle bus owner’s and opera-tor’s licenses, including the fees imposed by the license requirements of the Ve-hicles for Hire Bylaw. The impugned Order forbids Gateway to accept orders foror dispatch unlicensed shuttle buses to pick up passengers in the City, and thusin its effect imposes a fee in violation of s. 153(1).


H. Conclusion81 On the first question, I conclude that the Committee’s decision that Gateway

is not operating an inter-municipal bus service and is not exempted under ss.4(2)(b) of the Vehicle for Hire Bylaw from the license requirement, reaches therequired standard of reasonableness.

82 On the second question, I conclude that the Committee’s decision is review-able on the standard of correctness, and that the Committee erred in law in itsinterpretation of the exemption in TSA s. 153(2). Gateway’s Sky Shuttle servicewas not demonstrated to come within the exemption. The City is prohibitedunder s. 153(1) from imposing a fee in respect of the operation by Gateway ofits Sky Shuttle service. The licensing provisions of the Vehicle for Hire Bylawimpose such a fee, and therefore may not be applied to Gateway. The Commit-tee’s decision upholding the Order is set aside, as is the Order itself.

83 The parties may speak to me regarding costs if they are unable to agree.

Application granted.

Macdonald v. Institute of Chartered Accountants 221

[Indexed as: Macdonald v. Institute of Chartered Accountants(British Columbia)]

D. Stuart Macdonald (Appellant / Petitioner) and Institute of CharteredAccountants of British Columbia (Respondent / Respondent)

British Columbia Court of Appeal

Finch C.J.B.C., K. Smith, Kirkpatrick JJ.A.

Heard: October 8, 2010

Judgment: November 5, 2010

Docket: Vancouver CA037763, 2010 BCCA 492

D.B. Wende for AppellantG.E.H. Cadman, Q.C., H. Craig for Respondent

Professions and occupations –––– Accountants — Organization and regulation ofprofession — Discipline — Appeal –––– Petitioner accountant was member of respon-dent institute — Respondent initiated professional conduct investigation of petitioner dueto his failure to provide access to his practice files — Respondent’s professional conductenquiry committee made determination and recommendation that complaint not be issuedon condition that petitioner accept anonymous reprimand, pay fine and expenses, andimmediately provide requested files to respondent — Petitioner complied with all condi-tions except for provision of requested files — Committee consequently delivered state-ment of complaint to respondent’s discipline tribunal — Tribunal found that petitionercontravened respondent’s by-law requiring cooperation with practice review officer andprofessional conduct rules requiring similar cooperation as well as behaviour that main-tains good reputation of profession — Petitioner’s membership in respondent was conse-quently cancelled — Petitioner unsuccessfully appealed tribunal’s decision — Chambersjudge found that petitioner could not argue that tribunal violated rule against double jeop-ardy on basis that he had already been disciplined for his contraventions by reason of hisacceptance of committee’s determination and recommendation — Chambers judge alsofound that petitioner could not argue that tribunal’s findings that he violated by-law andtwo professional conduct rules transgressed rule against multiple convictions for samedelict — Chambers judge noted that rule against multiple convictions was inapplicablebecause findings made against petitioner under by-law and rules amounted to tribunallooking at same acts through three different legal lenses — Chambers judge concludedthat tribunal’s refusal to adjourn hearing at request of petitioner so that he could retaincounsel did not breach duty of fairness, and tribunal took reasonable view that adjourn-ment could prejudice respondent — Petitioner appealed — Appeal dismissed — Cham-bers judge did not err in law as alleged by petitioner — It could not reasonably be saidthat petitioner was penalized twice for same delict, nor was he denied procedural fairness.

Cases considered by Kirkpatrick J.A.:

Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1,[1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 Car-


swellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39(S.C.C.) — considered

C. (K.) v. College of Physical Therapists (Alberta) (1999), 244 A.R. 28, 209 W.A.C. 28,72 Alta. L.R. (3d) 77, [1999] 12 W.W.R. 339, 1999 ABCA 253, 1999 CarswellAlta775, [1999] A.J. No. 973 (Alta. C.A.) — considered

Carruthers v. College of Nurses (Ontario) (1996), 1996 CarswellOnt 4620, 31 O.R. (3d)377, 96 O.A.C. 41, 141 D.L.R. (4th) 325, [1996] O.J. No. 4275 (Ont. Div. Ct.) —considered

Krebs v. Minister of National Revenue (1977), [1978] 1 F.C. 205, 1977 CarswellNat 92,17 N.R. 70, 1977 CarswellNat 92F (Fed. C.A.) — considered

Mervilus c. Canada (Ministre de la Citoyennete & de l’Immigration) (2004), 2004 CF1206, 2004 CarswellNat 3104, 2004 CarswellNat 5673, 262 F.T.R. 186, 32 Admin.L.R. (4th) 18, 2004 FC 1206, [2004] F.C.J. No. 1460 (F.C.) — considered

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R.(4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C.220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns-wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th)577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1,(sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008]A.C.S. No. 9 (S.C.C.) — considered

Rundel v. British Columbia (Commissioner of Inquiry) (2009), (sub nom. Rundel v.Braidwood) 279 B.C.A.C. 215, (sub nom. Rundel v. Braidwood) 473 W.A.C. 215,(sub nom. Rundel v. British Columbia (Commission of Inquiry into the Death ofRobert Dziekanski)) 314 D.L.R. (4th) 317, 2009 BCCA 604, 2009 CarswellBC 3514,100 B.C.L.R. (4th) 95, [2010] 6 W.W.R. 164, (sub nom. Rundel v. British Columbia(Commission of Inquiry into the Death of Robert Dziekanski)) 250 C.C.C. (3d) 421, 2Admin. L.R. (5th) 61 (B.C. C.A.) — considered

Stolove v. College of Physicians & Surgeons (Ontario) (1988), 30 O.A.C. 236, 1988CarswellOnt 817, [1988] O.J. No. 1426 (Ont. Div. Ct.) — considered

Williams v. University of British Columbia (2007), 2007 BCSC 996, 2007 CarswellBC1587 (B.C. S.C.) — considered


Accountants (Chartered) Act, R.S.B.C. 1996, c. 3s. 3(b) — considereds. 8(2)(f) — referred tos. 8(2)(f)(iii) — referred tos. 8(2)(g) — referred tos. 8(2)(k) — referred tos. 8(2)(m) — referred tos. 20 — considereds. 20(1) — considereds. 24 — considereds. 24(2) — considered

Macdonald v. Institute of Chartered Accountants Kirkpatrick J.A. 223

s. 24.1 [en. 2003, c. 67, s. 15] — referred to

APPEAL by petitioner from judgment reported at Macdonald v. Institute of CharteredAccountants (British Columbia) (2009), 2009 BCSC 1630, 2009 CarswellBC 3225, 2 Ad-min. L.R. (5th) 82 (B.C. S.C.).

Kirkpatrick J.A.:

1 The appellant Stuart Macdonald is an accountant. He appeals from the Su-preme Court order that dismissed his application to quash the 30 July 2009 deci-sion of the Discipline Tribunal Panel of the respondent Institute of CharteredAccountants of British Columbia (the “Institute”). The Discipline Tribunal Panelordered the cancellation of Mr. Macdonald’s membership in the Institute, thereturn of his membership certificate to the Institute, and the publication of anotice of his expulsion from the Institute. In consequence, Mr. Macdonald nolonger holds the designation of chartered accountant.

2 Mr. Macdonald appealed the discipline decision to the Supreme Court pursu-ant to s. 24.1 of the Accountants (Chartered) Act, R.S.B.C. 1996, c. 3 [Act],which permits appeals to the Supreme Court on a question of law or jurisdiction.

3 On the appeal to this Court, Mr. Macdonald seeks to set aside the SupremeCourt order and quash the decision of the Discipline Tribunal Panel, an order ofprohibition preventing the Discipline Tribunal Panel from proceeding with thecomplaint against him, and the return of costs paid by Mr. Macdonald to theInstitute.

Background4 The Institute is a self-regulated body responsible for the regulation of all

matters related to the practice of accounting by its members, including the estab-lishment, regulation, and enforcement of standards. Thus, under s. 3 of the Act,the objects of the Institute include:

(b) to regulate all matters relating to the practice of accounting by itsmembers and students, including competency, fitness, moral charac-ter and professional conduct, and, to that end, to establish and en-force standards.

5 The Institute may, through its council, make bylaws relative to the manage-ment and objects of the Institute. For the purposes of this appeal, it is relevant tonote that the council may make bylaws respecting a committee for the appoint-ment and removal of members (s. 8(2)(f)), including the procedures to be fol-lowed by the committee (s. 8(2)(f)(iii)). The council may also make bylaws con-cerning the procedures for making and conducting reviews (s. 8(2)(g)), theconduct of an investigation or a practice review (s. 8(2)(k)), and the conduct ofan inquiry (s. 8(2)(m)).


6 Investigations and practice reviews are authorized under s. 20 of the Act:

20(1) An officer or committee of the institute or a person designated bythe council may

(a) investigate the conduct of a current or former member or astudent to determine whether grounds exist for disciplinaryaction against that person under section 24, and

(b) conduct a practice review of a member by inspecting themember’s professional practice for the purpose of identify-ing any deficiencies in the practice or the competence orconduct of the member.

7 Bylaw 650 provides:

650 Members, students, licensed firms, and approved organizations shallcooperate with practice review officers and the Committee and, inparticular, they shall

(i) allow a practice review officer to enter their office asauthorised by Bylaw 645(iii) or (v)(1),

(ii) answer requests of a practice review officer for informationrelevant to the practice review of a member or licensed firm,and

(iii) permit a practice review officer to examine and to take cop-ies of books, documents and working papers, including cli-ent files, as authorised by Bylaw 645(iv) or (v)(2).

8 Rule 105 of the Institute’s Rules of Professional Conduct requires membersto cooperate with practice review officers and Professional Conduct EnquiryCommittee investigations.

9 The Professional Conduct Enquiry Committee is governed under Part 7 ofthe Bylaws, the mandate of which is described in Bylaw 710 to include the in-vestigation of “matters involving any alleged incompetence, lack of fitness topractise, professional misconduct, conduct unbecoming, or contravention of theAct, Bylaws or rules of Professional Conduct, as may be brought to itsattention”.

10 Following an investigation or review under Bylaw 710, the Committee isgoverned by Bylaw 730 which provides:

730 Upon completion of an investigation or review under Bylaw 710concerning a member, former member, student, licensed firm or for-merly licensed firm, the Committee shall make a determination that

(i) no grounds exist for a complaint against themember, former member, student or firm, or

(ii) grounds do exist for a complaint that the mem-ber, former member, student or firm

(1) is incompetent,

(2) is unfit to practise,


(3) has committed professionalmisconduct,

(4) has, as a member, engaged in conductunbecoming a member,

(5) has, as a licensed firm, engaged in con-duct that, if engaged in by a member,would have been conduct unbecominga member,

(6) has contravened the Act, Bylaws, orRules of Professional Conduct, or

(7) any combination of the foregoing.

11 Under Bylaw 733, if the Committee makes a determination under Bylaw730(ii), it must either make a recommendation that the member

(1) accept a reprimand,

(2) complete one or more courses of instruction prescribed by theCommittee,

(3) pay a fine to the Institute not exceeding the amounts specified inSection 24(2)(f) of the Act, or such lesser amount as may be speci-fied in Appendix A,

(4) pay all or any part of the expenses reasonably incurred by the Insti-tute in respect of the investigation or review, including all actual feespaid or payable to investigators, legal counsel and witnesses,

(5) take such corrective or remedial action as the Committee considersappropriate, or

(6) do any combination of the foregoing actions;

or deliver a Statement of Complaint to the Discipline Tribunal.

12 The member to whom a Determination and Recommendation is deliveredmust either accept or reject the Determination and Recommendation or requestthat the Committee refer it to the Discipline Tribunal for a binding opinion.

13 Bylaw 735 provides that if the Determination and Recommendation is ac-cepted by the member, the member must comply with its terms and conditions.If the member accepts the Determination and Recommendation but fails to com-ply with its terms and conditions, the Committee may deliver a Statement ofComplaint to the Discipline Tribunal.

14 Part 8 of the Bylaws governs the Discipline Tribunal, including its composi-tion, pre-hearing procedures, and panel counsel. Pursuant to Bylaw 830, the Dis-cipline Tribunal Panel has considerable latitude in the manner in which it con-ducts the hearing:

830 The Panel, in conducting the hearing shall

(i) allow the parties to be represented by a member or a mem-ber of the Law Society of British Columbia;


(ii) admit any person or persons who wish to attend unless thePanel, on application by one of the parties to the hearing, orof its own motion, decides that it is in the interests of justiceto deny admission to any person for the purpose of avoidingunwarranted disclosure of confidential information or forany other reason;

(iii) inform Council of any member, student or licensed firmwho, having been given proper notice and from whom noreasonable explanation is received, fails to attend the hear-ing, or, in the case of a licensed firm, fails to have a repre-sentative attend the hearing;

(iv) hear and receive all evidence presented to it with respect tothe subject matter of the hearing which it deems proper inthe circumstances;

(v) provide the member, former member, student, or a represen-tative of the firm, or counsel for the member, former mem-ber, student or firm, the opportunity to speak to the ques-tions of penalty and costs before the conclusion of thehearing;

(vi) cause the proceedings to be recorded in full; and

(vii) subject to the Act and the Bylaws, have general authority togovern the procedure for the hearing, and to order adjourn-ments thereof.

15 Rule 201.1 of the Institute’s Rules of Professional Conduct requires thatmembers “act at all times in a manner which will maintain the good reputationof the profession and its ability to serve the public interest.” Section 24 of theAct allows the Committee to inquire into the competence, fitness to practise, orprofessional conduct of a member. Section 24(2) sets out the sanctions availableto the Committee, including cancellation of membership in the Institute.

16 The genesis of these proceedings was a practice review of Mr. Macdonald,authorized under s. 20 of the Act and scheduled by the Institute for 8 May 2007,of which he was given notice on 18 April 2007. Mr. Macdonald was required tocomplete two questionnaires and make available a client list in advance of thereview. Mr. Macdonald failed to deliver the questionnaires and client list andcancelled the review with less than 24 hours’ notice, not the minimum 7 days’notice required for rescheduling. The practice review was rescheduled fourtimes due to Mr. Macdonald’s failure to provide the questionnaires and clientlist.

17 On 17 September 2007, a review officer attended at Mr. Macdonald’s officeand requested that certain files be produced. Notwithstanding assurances that therequested files would be produced, Mr. Macdonald did not deliver them. Mr.Macdonald was warned several times between 9 November 2007 and 9 January


2008 that if the practice review was not completed, the matter would be referredto the Director of Practice Review and Licensing.

18 When Mr. Macdonald had not complied by 29 January 2008, he was advisedin writing that an investigation into his conduct had been authorized.

19 Between February 2008 and 21 July 2008, numerous attempts were made toconclude the investigation, including obtaining Mr. Macdonald’s written re-sponse to the Institute’s concerns and a draft investigation report.

20 Ultimately, the Professional Conduct Enquiry Committee determined thatgrounds existed for a complaint under the Institute’s Bylaw 650 and Rule 105that require members to cooperate with a practice review. Rather than proceedwith a complaint, the Committee proposed to resolve the matter by way of aDetermination and Recommendation which was eventually signed by Mr. Mac-donald on 21 July 2008. Mr. Macdonald agreed to the terms of the Determina-tion and Recommendation, one of which was that he immediately provide therequested files to the practice review officer.

21 Mr. Macdonald failed to provide the files.

22 The Professional Conduct Enquiry Committee met on 9 December 2008, de-termined that the terms of the Determination and Recommendation had not beenmet, and referred the matter to the Discipline Tribunal.

23 On 11 December 2008, the chair of the Professional Conduct Enquiry Com-mittee notified Mr. Macdonald in writing that a Statement of Complaint wouldbe delivered to the Discipline Tribunal due to Mr. Macdonald’s failure to com-ply with all of the terms of the Determination and Recommendation but that theCommittee would reconsider its position if he produced the requested files by 9January 2009. If Mr. Macdonald did not produce the files, he was told that theDiscipline Tribunal would proceed with the hearing of the complaint and that heshould consider engaging a lawyer to represent his interests.

24 Numerous attempts were made by various officials of the Institute to contactMr. Macdonald between January and March 2009, without success.

25 On 20 March 2009, a copy of the complaint was delivered to Mr. Macdon-ald. It stated that it was the position of the Committee that Mr. Macdonald’sconduct amounted to a breach of Bylaw 650 and Rules 105 and 201.1. He wasagain advised to seek legal counsel. A hearing date was scheduled for 15 June2009 with a pre-hearing conference scheduled for 6 May 2009. The chair of theDiscipline Tribunal contacted Mr. Macdonald by telephone on 9 April 2009 re-garding the dates and to inquire whether Mr. Macdonald would be representedby counsel. Although Mr. Macdonald promised to get back to the chair the fol-lowing week, he did not do so. He failed to attend the pre-hearing conference.

26 On 12 June 2009, the chair of the Discipline Tribunal telephoned Mr. Mac-donald who asked for an adjournment of the 15 June hearing date. The chair


advised that it was not within his authority to grant an adjournment but that Mr.Macdonald should put his request to the panel hearing the complaint.

27 The hearing of the complaint was convened on 15 June 2009 at which timethe Discipline Tribunal Panel refused Mr. Macdonald’s request for a four to fiveweek adjournment to permit him to retain counsel and proceeded to hear themerits of the complaint.

Discipline Tribunal Decision28 In its decision, the Discipline Tribunal Panel reviewed Mr. Macdonald’s re-

quest for an adjournment and the Panel’s reasons for refusing the request:

During the hearing, the Panel withdrew and deliberated on the request for anadjournment. It concluded that the relevant test required it to weigh theprejudice to the member if the adjournment were not granted against theprejudice to the Institute if the adjournment were granted (which prejudicecould not be dealt with by an award of costs). It concluded that the requestfor the adjournment ought to be denied. It noted that the correspondencefrom the Institute on file confirmed that Mr. Macdonald had been advised bymeans of registered mail of the possibility that at the hearing the Institutewould seek his expulsion from the profession as penalty; in that correspon-dence, Mr. Macdonald had been encouraged to obtain legal counsel. ThePanel concluded that since Mr. Macdonald is a professional person and wasgiven ample notice of the hearing date and apprised of its potential conse-quences, further delay was not warranted in these circumstances.

The Panel recognized that under the common law, while counsel is generallypermitted to participate at disciplinary hearings, this is by no means an abso-lute right. The Courts have held that in considering the participation of coun-sel, the totality of the circumstances must be examined. While the right tocounsel is considered a component of administrative fairness, particularlywhere serious consequences were at issue, in the present case the memberwas afforded ample notice and had ample time to retain and instruct counsel.Although duly notified, he chose not to attend a pre-hearing conference atwhich such procedural matters were canvassed. Considered in the context ofthe evidence presented, the Panel did not believe that the member’s requestfor an adjournment in order to instruct counsel was genuine. This was not acase in which a decision-maker was denying a member a general right oflegal representation in disciplinary proceedings. Rather, the Panel was shownevidence that the Institute had encouraged Mr. Macdonald to seek counsel inlight of the possible consequences of this disciplinary hearing. He was givenample time to consult counsel and secure representation at the hearing. ThePanel concluded on the basis of the evidence before it that the member wasusing an argument concerning the right to counsel in order to achieve a fur-ther delay in the proceedings and so on that basis, the request for an adjourn-ment was denied. However, the Panel instructed its counsel, Mr. Rankin, toensure that Mr. Macdonald was afforded adequate time during the hearing tomake his case and to cross-examine witnesses. In addition Mr. Rankin was


instructed to play a more active role than would have been the case if themember had counsel and to advise him of his rights and options during thehearing process.

29 The Panel reviewed Mr. Macdonald’s explanations for his failure to complywith Bylaw 650 and Rules 105 and 201.1. The Panel concluded:

In his mind, he seemed to believe that he was ‘doing his best’. However, notonce during the hearing did he indicate any recognition as to the conse-quences of his behaviour upon the profession and ultimately upon its abilityto serve the public interest. Certainly as a professional, Mr. Macdonald isunable to base his deficient conduct upon ignorance of the professional Rulesand Bylaws governing his profession. The consequences of his failure tocomply were conveyed to him in writing. He took no action to learn more ifand when he did not understand letters or their import, nor did he seek theadvice of counsel on how to proceed. Mr. Macdonald seems to have contin-ued to perceive his circumstances as immutable and impossible to change;therefore, he seems to be looking for the profession to excuse his behaviourfor what could be an indefinite period, until his ‘logistics’ are sorted out.Moreover, at no time did he attempt to set up a meeting with the Institute andattempt to find a solution to the problem at hand. The Panel has not heardany evidence that his attitude has changed nor that his behaviour has shifted.

30 The Panel ordered that Mr. Macdonald’s membership be cancelled.

Supreme Court Decision31 On appeal to the Supreme Court, Mr. Macdonald argued that the Institute

wrongfully imposed double jeopardy upon him by conducting a hearing and im-posing a second penalty on the basis of the same facts and evidence that werethe basis of the Determination and Recommendation. He further argued that theInstitute acted contrary to the principles of natural justice and its duty of fairnessin denying Mr. Macdonald an adjournment to obtain legal counsel. He also com-plained that the chair of the Discipline Tribunal was called to give evidenceconcerning the adjournment, giving rise, he says, to a reasonable apprehensionof bias.

32 The chambers judge, in reasons indexed as 2009 BCSC 1630 (B.C. S.C.),dismissed Mr. Macdonald’s appeal. He first observed that the double jeopardyargument was not raised before the Discipline Tribunal Panel and there was con-sequently no ruling from the Panel from which an appeal could properly betaken.

33 The chambers judge nevertheless expressed the opinion that the Statement ofComplaint and the resultant decision did not offend the rule against double jeop-ardy because the Statement of Complaint was carefully structured to rest onevents subsequent to the July 2008 Determination and Recommendation which“stopped short” of delivery of a Statement of Complaint.


34 The chambers judge correctly observed that:

[25] Before the rule can bar a multiplicity of findings against a memberof the Institute such as Macdonald both the same act must groundeach of the findings against the member and there must be a suffi-cient legal nexus between the offences.

35 The chambers judge also rejected Mr. Macdonald’s argument that the find-ings against him of violating Bylaw 650, Rule 105, and Rule 201.1 transgressedthe rule against multiple convictions for the same delict.

36 As to the Panel’s refusal to adjourn the hearing, the chambers judge held:

[35] The short point is that the Panel was confronted with a case inwhich it could reasonably take the view that an adjournment wouldprejudice the Institute and, on the other side, that Macdonald hadhad reasonable notice of with exactly what he was charged, and ofthe extent of his jeopardy, and of the wisdom of seeking legal coun-sel and had responded by ignoring the proceedings even unto failingto attend a pre-hearing conference and doing nothing of significancein connection with possibly retaining counsel until just before thehearing. It was, in my respectful opinion, within the range of accept-able outcomes that the Panel conclude, as it did, that Macdonald’srequest for an adjournment to seek counsel was not “genuine”.

[36] I add only that the way in which the hearing proceeded is the oppo-site of a case in which it is manifest that unfairness to the memberwas the upshot of the decision not to adjourn the hearing. Quite thecontrary. Every reasonably available assistance was given toMacdonald.

37 Lastly, the chambers judge found that the conversation between the chair ofthe Discipline Tribunal and Mr. Macdonald to which the chair testified was ob-viously benign. He held:

[40] In my opinion there is nothing connected with this June 12, 2009conversation had between Bedford and Macdonald, or the communi-cating of the gist of the conversation to the Panel by Bedford, or thePanel’s not aggressively and affirmatively at the outset of the hear-ing placing on the record that the email had been received by thePanel, that could possibly bottom a successful attack on the proceed-ings below whether the attack invokes the law as to a reasonableapprehension of bias, abuse of process, the requirement that justicenot only be done but be seen to be done or any other rubric invokedby counsel for Macdonald in his written submission or in his sub-mission before me on November 10.

On Appeal38 Mr. Macdonald contends that the chambers judge erred in finding that the

refusal to grant an adjournment did not violate his right to procedural fairness or


principles of natural justice and further erred in his application of the law on theissue of double jeopardy.

Adjournment Issue39 Mr. Macdonald first asserts that the chambers judge erred in applying the

reasonableness standard of review to the question of procedural fairness and nat-ural justice in the Discipline Tribunal’s refusal to grant an adjournment to allowMr. Macdonald time to retain counsel, citing Baker v. Canada (Minister ofCitizenship & Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 (S.C.C.)[Baker], and more particularly, the passage from Donald J.M. Brown & John M.Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto:Canvasback Publishing, 1998) at 9:9210:

Although the power to adjourn is generally discretionary, and while it is gen-erally accepted that an administrative agency is the master of its own proce-dure, the issue in each instance is whether the decision to adjourn, or morecommonly, refusing to adjourn, is in breach of the duty of fairness. And to-day it is clearly established that whether there has been a breach of the dutyof fairness is for the court to decide, so that there is no issue as to the appli-cable standard of review. Nevertheless, in the past it was not uncommon fora reviewing court to analyze the matter in terms of the standard generallyapplicable to the exercise of discretionary powers. For example, an exerciseof discretion to refuse an adjournment was found to constitute a breach of theduty of fairness where the tribunal failed to consider relevant factors, orweighted the relevant considerations so unreasonably that its decision maybe characterized as “clearly wrong,” “arbitrary,” “flagrantly unjust,” or basedon a “patently unreasonable error” or a “wrong principle of law,” or withoutregard to the totality of the evidence, or considered irrelevant factors. Never-theless, underlying these conclusions lies the judgment of the reviewingcourt that there had been a breach of the duty of fairness or a violation ofnatural justice. [Footnotes omitted.]

40 In Mervilus c. Canada (Ministre de la Citoyennete & de l’Immigration),2004 FC 1206 (F.C.) at para. 25, (2004), 262 F.T.R. 186 (F.C.), the FederalCourt summarized the applicable principles respecting adjournments to enable aparty to be represented by counsel:

The following principles can therefore be drawn from the case law: althoughthe right to counsel is not absolute in an administrative proceeding, refusingan individual the possibility to retain counsel by not allowing a postpone-ment is reviewable if the following factors are in play: the case is complex,the consequences of the decision are serious, the individual does not have theresources – whether in terms of intellect or legal knowledge – to properlyrepresent his interests.

41 At the hearing before the chambers judge, both counsel for Mr. Macdonaldand for the Institute submitted that the appropriate standard of review was rea-


sonableness, relying on New Brunswick (Board of Management) v. Dunsmuir,2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.).

42 In my opinion, the chambers judge did not err in law as alleged by the appel-lant. The chambers judge acknowledged counsels’ submission as to the agreedstandard of review, but properly applied the correctness standard of review (al-beit without explicitly referring to it as such):

[30] What matters here is that the standard of review may be reasonable-ness as agreed by counsel but the law recognizes that this court’sleaving an inferior tribunal to control its own procedures is essentialto the maintenance of the rule of law and, in this case, respect for thelegislature’s decision to leave the disciplining of the members of theInstitute to the Institute and not to this court.

. . . . .

[32] The result of the case law is that in a case such as this I must not,under the guise of assessing “reasonableness”, substitute my opinionfor that of the Panel. Instead I must restrict myself to decidingwhether the record reveals that the decision not to permit an adjourn-ment for the retaining of counsel was “... ‘exercised in a mannerwhich the court considers unreasonable, a fraud upon the law, a fla-grant injustice or characterized by a patently unreasonable error’. Putin yet other terms, an exercise of discretion to refuse an adjournmentwill be found to constitute a breach of the duty of fairness only if thetribunal failed to consider relevant factors, or weighed the relevantconsiderations so unreasonably that its decision may be character-ized as ‘clearly wrong’, ‘arbitrary’, ‘flagrantly unjust’ or based on a‘patently unreasonable error’ or a ‘wrong principle of law or withoutregard to the totality of the evidence’”.

Judicial Review of Administrative Actions in Canada, Brown & Ev-ans 2008 9:9210

43 The chambers judge’s remarks reflect the appropriate standard of review asrecently expressed by this Court in Rundel v. British Columbia (Commissionerof Inquiry), 2009 BCCA 604 (B.C. C.A.) at paras. 59-60, (2009), 314 D.L.R.(4th) 317 (B.C. C.A.) [Bentley]:

[59] There is difficulty in applying the language of standard of review,‘correctness’ and ‘reasonableness’, to issues of procedural fairness.Whether the tribunal has the alleged duty, in respect to proceduralfairness, is a matter on which the courts have the final say. However,subject to any express statutory requirements, a tribunal typically en-joys broad discretion as to how it will fulfill the requirements of pro-cedural fairness, and there will rarely be a single correct answer.

[60] This distinction is important to an understanding of this Court’streatment of the issue in Martin v. Vancouver (City), 2008 BCCA197, 293 D.L.R. (4th) 37. In Martin Madam Justice Levine said,


concerning a challenge to rescission of appointments of the City ofVancouver Board of Variance, at para. 46:

The abolition of the “patent unreasonableness” standardof review by the Supreme Court of Canada in Dunsmuirdoes not change the analysis of the issues arising on thisappeal. The issues before the chambers judge were mat-ters of jurisdiction, procedural fairness, and bad faith.On any analysis, the proper standard of review by a re-viewing court for such issues is correctness. The cham-bers judge did not expressly refer to the standard of re-view, but he properly applied the correctness standard.

44 Thus, in para. 35 of his reasons reproduced above, the chambers judge ex-amined the record before him to determine whether the appropriate level of pro-cedural fairness was accorded Mr. Macdonald. The factors considered includednotice of the charges against him, the extent of his jeopardy, the relativeprejudice to the parties, the opportunity to retain counsel, and the availability oflegal assistance from counsel retained by the Discipline Tribunal. Furthermore,as the chambers judge explained in para. 36 of his reasons, the hearing pro-ceeded in a manner that was manifestly fair to Mr. Macdonald.

45 Where a litigant challenges an administrative decision on the grounds that itwas made in the breach of the duty of fairness (which includes the right to coun-sel), the reviewing court must decide whether the duty applies, and where itdoes, whether it was breached (Brown & Evans at 14:42:11). In conducting thisreview, a court will not defer to an agency’s view of the fairness of its proce-dure, its lack of bias or independence, or its duty to give adequate reasons for itsdecisions, and in that sense the standard of review is “correctness” (Brown &Evans, at 14:42:11) and is consistent with this Court’s decision in Bentley.

46 In Baker, the Supreme Court held at 836, that: “[t]he fact that a decision isadministrative and affects ‘the rights, privileges or interests of an individual’ issufficient to trigger the application of the duty of fairness.” The Court then wentto hold at 837:

The existence of a duty of fairness, however, does not determine what re-quirements will be applicable in a given set of circumstances.... All of thecircumstances must be considered in order to determine the content of theduty of procedural fairness.... Although the duty of fairness is flexible andvariable, and depends on an appreciation of the context of the particular stat-ute and the rights affected, it is helpful to review the criteria that should beused in determining what procedural rights the duty of fairness requires in agiven set of circumstances. I emphasize that underlying all these factors isthe notion that the purpose of the participatory rights contained within theduty of procedural fairness is to ensure that administrative decisions aremade using a fair and open procedure, appropriate to the decision beingmade and its statutory, institutional, and social context, with an opportunity


for those affected by the decision to put forward their views and evidencefully and have them considered by the decision-maker.

47 The factors to be considered under the Baker analysis of procedural fairnessand natural justice include the nature of the decision and the process followed inmaking it; the nature of the statutory scheme and the terms of the statute pursu-ant to which the body operates; the importance of the decision to the individualaffected; the legitimate expectations of the person challenging the decision; andthe choices of procedure made by the agency itself.

48 There can be little doubt that the decision in this case was very important toMr. Macdonald, concerned as it was with his ability to carry on practice as achartered accountant. However, he was subject to a discipline hearing in thecontext of a professional body established to regulate all matters of accountingpractice and professional conduct. As can be seen from the earlier review of theInstitute’s Rules and Bylaws, there is a comprehensive procedural scheme inplace for disciplinary matters. The Discipline Tribunal Panel has general author-ity to govern its procedures. The legitimate expectations of Mr. Macdonald mustbe weighed against his lengthy history of inaction and non-compliance with theInstitute’s procedures. In my opinion, the chambers judge did not err in findingthat the Discipline Tribunal Panel, in exercising its discretion to refuse to ad-journ the proceedings, did not breach the duty of fairness owed to Mr. Macdon-ald. He had clear notice of the disciplinary hearing and the opportunity to retaincounsel. He was afforded the assistance of the Tribunal’s counsel.

49 In the context of professional discipline, Brown and Evans state at 10:3430that:

A person whose livelihood or reputation is at stake as a result of professionaldisciplinary proceedings will be entitled to counsel, and failure to grant anadjournment due to a lawyer’s unavailability has been held to vitiate thedecision.

50 However, at 9:9340 Brown and Evans note that, “[o]n the other hand, refusalof an adjournment may not be a breach of the duty of fairness where the appli-cant has ample time to retain counsel but fails to do so”. Thus, in Krebs v.Minister of National Revenue (1977), [1978] 1 F.C. 205, 17 N.R. 70 (Fed. C.A.),the Federal Court of Appeal found that the duty of fairness was complied withwhere an adjournment was refused on the basis that the applicants had beengiven ample notice of a hearing and had delayed seeking legal advice. Similarly,in Stolove v. College of Physicians & Surgeons (Ontario) (1988), 30 O.A.C. 236(Ont. Div. Ct.) at 238, [1988] O.J. No. 1426 (Ont. Div. Ct.), the Ontario Divi-sional Court held:

The Committee had the right to govern its own proceedings. Dr. Stolove hadbeen told long in advance that the matter was peremptory. ... While it mayhave been desirable for Dr. Stolove to be represented by counsel, the proce-dure adopted by the Committee did not deny him that right. Dr. Stoloveknew in April that the hearing was peremptory and, on September 15th, he


knew that the Committee would not adjourn the hearing. He had ample timeto retain other counsel who could represent him. He did not do so. I believethat the Committee acted properly throughout. There was no denial of naturaljustice.

51 Finally, in Williams v. University of British Columbia, 2007 BCSC 996(B.C. S.C.) at para. 35, (2007), 160 A.C.W.S. (3d) 1002 (B.C. S.C.), Loo J. forthe British Columbia Supreme Court found:

I have not been provided with any authority that suggests that where a deci-sion making body provides adequate notice that a person who may be af-fected by a decision is entitled to representation at a hearing, it would beprocedurally unfair to proceed with the hearing when the person decides toappear without representation. I cannot find that the President’s AdvisoryCommittee failed to act in a procedurally fair manner by ensuring that itwould not proceed until or unless Ms. Williams had representation.

52 The Panel found, as it was entitled to do, that Mr. Macdonald’s request foran adjournment to permit him to retain counsel was not genuine but simply afurther attempt to delay the already prolonged process. That conclusion is essen-tially a credibility finding by the Panel and not one with which a reviewing courtwould lightly interfere.

53 I would not accede to this ground of appeal.

Double Jeopardy54 The concept of multiple convictions for the same conduct, or double jeop-

ardy, was succinctly stated in the administrative law context in C. (K.) v.College of Physical Therapists (Alberta), 1999 ABCA 253 (Alta. C.A.) at para.63, (1999), 244 A.R. 28 (Alta. C.A.):

[63] Multiple convictions for the same conduct are prohibited. In a crim-inal context, a verdict of guilty on two counts, with the same or sub-stantially the same elements making up the offences charged in bothcounts, results in the application of the rule against multiple convic-tions: R. v. Kienapple, [1975] 1 S.C.R. 729 at 751. The relevant in-quiry is whether the same cause, matter or delict, rather than thesame offence, is the foundation for both charges: Kienapple at 750.The rule does not bar several convictions if they are in respect ofdifferent factual events. The rule against multiple convictions ap-plies when the counts arise from the same transaction: R. v. Prince,[1986] 2 S.C.R. 480 at 490. Therefore in order for the rule to applythere must be both a legal nexus, that is no additional or distinguish-ing elements in the second offence, and a factual nexus, that is thesame act must ground each of the charges. The rule against multipleconvictions applies to allegations of professional misconduct madeagainst members of a self-regulated profession: Richmond v. Collegeof Optometrists of Ontario (1995), 25 O.R. (3d) 448 at 460 (Div.


Ct.); Re Carruthers and College of Nurses of Ontario (1996), 31O.R. (3d) 377 at 398 (Div. Ct.).

55 The rule is only engaged where the impugned conduct arises from the sametransaction and applies in disciplinary proceedings taken against members of aself-regulated profession. Thus, in Carruthers v. College of Nurses (Ontario)(1996), 31 O.R. (3d) 377 (Ont. Div. Ct.) at 398, [1996] O.J. No. 4275 (Ont. Div.Ct.), the Ontario Divisional Court noted:

... The rule erects no bar to a multiplicity of findings of guilt, each recordedin respect of a different factual event. What it seeks and does do, however, isto bar multiple findings of guilt where the same or substantially the sameelements make up the offence. There would seem no reason in principle topermit the application of the doctrine in respect of “regulatory” offencesunder provincial law, yet deny it to members of self-regulated professions inthe case of prosecutions for alleged misconduct. There is about such prosecu-tions, after all, a “public” aspect. The discipline and/or disqualification ofmembers of a self-regulated profession affords protection to members of thepublic who, by choice or otherwise, engage their services. Prosecutions forprofessional misconduct ensure that those who undertake the regulated activ-ity are fit to do so. The public is protected by disqualification of those whofail to achieve or maintain such standards. There can be no quarrel with theproposition that a registrant/member ought be held liable for each breach ofthe governing rules of the profession. No one, however, should be twice pun-ished for the same delict or matter. It is as much the case for professionaldiscipline as it is for a regulatory offence.

56 In my opinion, the decision of the Discipline Tribunal Panel does not offendthe rule. The Statement of Complaint was careful in stating that the events giv-ing rise to the Determination and Recommendation were pleaded “to providebackground and context” and were provided “for that reason alone”. Indeed, ab-sent such background, the Panel’s decision would have appeared to be hasty andinexplicable. The background provides the full context of Mr. Macdonald’s mis-conduct and explained why his ultimate failure to comply with the Determina-tion and Recommendation was sufficiently egregious to warrant his expulsionfrom the Institute.

57 The Determination and Recommendation simply stated that “grounds existto establish” a contravention of Rule 105 and Bylaw 650, but stopped short ofthe issuance of a Statement of Complaint. The Discipline Tribunal Panel’s deci-sion and the penalty imposed were based on Mr. Macdonald’s failure to complywith the terms and conditions of the Determination and Recommendation. Thesewere distinct factual events. They are also legally distinct because the DisciplineTribunal Panel’s decision contained the added element of Mr. Macdonald’stransgressions related to Rule 201.1 concerning the Institute’s maintenance ofthe good reputation of the profession. That Rule was not considered in the De-termination and Recommendation.

Macdonald v. Institute of Chartered Accountants K. Smith J.A. 237

58 Mr. Macdonald was penalized for his failure to comply with a term of theDetermination and Recommendation. The term happened to be the same –pro-duction of files – but the non-compliance giving rise to the Panel’s penaltypostdated the earlier conditions agreed to by Mr. Macdonald. It cannot reasona-bly be said that Mr. Macdonald has been penalized twice for the same delict.

59 I would not accede to this ground of appeal.

60 It follows that I would dismiss the appeal and would find that the Institute isentitled to its costs of the appeal, with thanks to counsel for their ablesubmissions.

Finch C.J.B.C.:

I agree.

K. Smith J.A.:

I agree.

Appeal dismissed.


[Indexed as: British Columbia (Attorney General) v. New DenverSurvivors Collective]

Her Majesty the Queen in Right of the Province of British Columbiaas represented by the Ministry of Attorney General and MinistryResponsible for Treaty Negotiations (now called The Ministry of

Attorney General and the Minister Responsible for Multiculturalism)(Petitioner) And Walter Swetlishoff on behalf of the New Denver

Survivors Collective and the British Columbia Human Rights Tribunal(Respondents)

British Columbia Supreme Court [In Chambers]

E.J. Adair J.

Heard: July 27, 2010

Judgment: August 6, 2010

Docket: Vancouver S083127, 2010 BCSC 1252

L. Greathead, R.L. Horricks for PlaintiffL.A. Waddell, M. McCubbin (Articled Student) for DefedantJ. Connell, D.E. Paluck for B.C. Human Rights Tribunal

Human rights –––– Practice and procedure — Judicial review — Availability —General principles –––– Prematurity — Complainants were group of people who, aschildren, were forcibly confined in sanatorium — Complainants alleged that provincediscriminated against them in its attempts to make reparations — Representative com-plainant brought application for preliminary ruling from Human Rights Tribunal as towhether it had jurisdiction over certain aspects of complaint — Tribunal declined to pro-vide advanced ruling on specific questions regarding jurisdiction — Province brought ap-plication for judicial review arguing that since questions concerned Tribunal’s jurisdic-tion and questions of law, court should therefore answer complainants’ questions —Application dismissed — Difficulty with province’s argument was that before Tribunal,province never directly challenged its jurisdiction either in its responses or by way ofapplication under s. 27(1) of Human Rights Code — Province had argued that complain-ants’ questions be answered in negative, it did not ask for dismissal of complaint — Hadprovince clearly and directly challenged jurisdiction and sought dismissal by means ofapplication under s. 27, there would have been no doubt about context in which Tribunalwas being called on to rule on jurisdiction — Province’s application for review was pre-mature — Tribunal’s decision to defer ruling on questions was not patently unreasonable.

Administrative law –––– Prerequisites to judicial review — Jurisdiction of court toreview — Provincial superior courts — General principles –––– Prematurity — Com-plainants were group of people who, as children, were forcibly confined in sanatorium —Complainants alleged that province discriminated against them in its attempts to makereparations — Representative complainant brought application for preliminary rulingfrom Human Rights Tribunal as to whether it had jurisdiction over certain aspects ofcomplaint — Tribunal declined to provide advanced ruling on specific questions regard-

BC v. New Denver Survivors Collective 239

ing jurisdiction — Province brought application for judicial review arguing that sincequestions concerned Tribunal’s jurisdiction and questions of law, court should thereforeanswer complainants’ questions — Application dismissed — Difficulty with province’sargument was that before Tribunal, province never directly challenged its jurisdiction ei-ther in its responses or by way of application under s. 27(1) of Human Rights Code —Province had argued that complainants’ questions be answered in negative, it did not askfor dismissal of complaint — Had province clearly and directly challenged jurisdictionand sought dismissal by means of application under s. 27, there would have been nodoubt about context in which Tribunal was being called on to rule on jurisdiction —Province’s application for review was premature — Tribunal’s decision to defer ruling onquestions was not patently unreasonable.

Cases considered by E.J. Adair J.:

Asad v. Kinexus Bioinformatics Corp. (2010), 2010 CarswellBC 38, 2010 BCSC 33, (subnom. Kinexus Bioinformatics Corp. v. Asad) 2010 C.L.L.C. 230-010 (B.C. S.C.) —followed

Crockford v. British Columbia (Attorney General) (2005), 2005 CarswellBC 1113, 2005BCSC 663, 40 B.C.L.R. (4th) 313, 53 C.H.R.R. D/96, 29 Admin. L.R. (4th) 286(B.C. S.C.) — considered

Crockford v. British Columbia (Attorney General) (2006), [2006] 9 W.W.R. 1, (sub nom.British Columbia v. Crockford) 271 D.L.R. (4th) 445, (sub nom. British Columbia v.Crockford) 379 W.A.C. 114, (sub nom. British Columbia v. Crockford) 229 B.C.A.C.114, 2006 BCCA 360, 2006 CarswellBC 1875, 55 B.C.L.R. (4th) 282, 46 Admin.L.R. (4th) 295, (sub nom. British Columbia v. Crockford) 57 C.H.R.R. D/383 (B.C.C.A.) — referred to

Hayes v. Barker (2008), 65 C.C.E.L. (3d) 47, 80 B.C.L.R. (4th) 241, 2008 CarswellBC666, 2008 BCCA 148, (sub nom. Vancouver Police Dept. v. Hayes) 62 C.H.R.R.D/357, [2008] 7 W.W.R. 16, 254 B.C.A.C. 90, 426 W.A.C. 90 (B.C. C.A.) —considered

Insurance Corp. of British Columbia v. Yuan (2009), 2009 BCCA 279, 2009 CarswellBC1919, [2009] 10 W.W.R. 252, 94 B.C.L.R. (4th) 95, 56 C.B.R. (5th) 79, 78 C.C.L.I.(4th) 1, (sub nom. Yuan v. Insurance Corp. of British Columbia) 310 D.L.R. (4th)421, 272 B.C.A.C. 198, 459 W.A.C. 198 (B.C. C.A.) — considered

Kelowna (City) v. British Columbia (Human Rights Commission) (1999), 1999 Car-swellBC 1785, 35 C.H.R.R. D/22, [1999] B.C.J. No. 1848 (B.C. S.C.) — followed

McGrath v. British Columbia (Ministry of Children & Family Development) (2009), (subnom. British Columbia (Children & Family Development) v. McGrath) 66 C.H.R.R.D/376, 67 R.F.L. (6th) 407, 2009 BCSC 180, 2009 CarswellBC 338 (B.C. S.C.) —considered

Swetlishoff v. British Columbia (Ministry of Attorney General) (2008), 2008 BCHRT 83(B.C. Human Rights Trib.) — referred to

Vancouver (City) v. British Columbia (Assessment Appeal Board) (1996), 39 Admin.L.R. (2d) 129, 20 B.C.L.R. (3d) 79, 135 D.L.R. (4th) 48, 76 B.C.A.C. 42, 125W.A.C. 42, 1996 CarswellBC 991, [1996] B.C.J. No. 1062 (B.C. C.A.) — considered


Administrative Tribunals Act, S.B.C. 2004, c. 45s. 59 — considered


s. 59(3) — considereds. 59(4) — considered

Human Rights Code, R.S.B.C. 1996, c. 210Generally — referred tos. 7 — pursuant tos. 7(1)(a) — considereds. 7(1)(b) — considereds. 8 — pursuant tos. 27 — referred tos. 27(1) — referred tos. 27(1)(a) — considereds. 27(1)(b) — considereds. 27(1)(c) — considereds. 27(2) — considereds. 27.3 [en. 2002, c. 62, s. 12] — considereds. 27.3(1) [en. 2002, c. 62, s. 12] — referred tos. 27.3(2) [en. 2002, c. 62, s. 12] — referred tos. 27.3(3) [en. 2002, c. 62, s. 12] — considereds. 37 — referred to

APPLICATION by province for judicial review of Human Rights Tribunal decision find-ing that complainants’ questions regarding jurisdiction were premature.

E.J. Adair J. (orally):

1 The petitioner (the “Province”) applies for a judicial review of a decision ofthe B.C. Human Rights Tribunal (the “Tribunal”) dated March 3, 2008, and in-dexed at [Swetlishoff v. British Columbia (Ministry of Attorney General)] 2008BCHRT 83 (B.C. Human Rights Trib.) (the “Decision”), in proceedings broughtbefore the Tribunal by Mr. Swetlishoff on behalf of the “New Denver SurvivorsCollective.” (The members of the Collective refer to themselves as “Survivors,”and, accordingly, I will do likewise.)

2 The Decision was rendered in relation to an application brought by Mr.Swetlishoff, on behalf of the Survivors, pursuant to s. 27.3 of the Human RightsCode, R.S.B.C. 1996, c. 210. Mr. Swetlishoff sought a preliminary ruling fromthe Tribunal as to whether it had jurisdiction over certain aspects of the Com-plaint. The specific questions posed in the application were:

(a) Can erecting a monument and/or constructing a memorial site con-stitute activity proscribed under s. 7 of the Code?

(b) Is erecting a monument and/or constructing a memorial site a servicewhich the government customarily makes available to the publicpursuant to s. 8 of the Code?

(c) Does addressing historical wrongdoings by the government againstan ethnic minority constitute a service customarily available to thepublic pursuant to s. 8 of the Code?

BC v. New Denver Survivors Collective E.J. Adair J. 241

(d) Does the Tribunal have jurisdiction to order the government to im-plement all or any of the recommendations of the Ombudsman,Dulcie McCallum, set out in her Public Report No. 38, “Righting theWrong – The Confinement of Sons of Freedom Doukhobor Chil-dren,” dated April 1999?

3 In the result, the Tribunal declined to provide an advanced ruling on theSurvivors’ questions.

4 The Province now seeks an order quashing the Decision, or parts of the De-cision, and an order dismissing parts of the Complaint. In essence, the Provinceargues that the decision not to rule on the jurisdictional questions raised by theSurvivors, and to await full evidence at a hearing, was both wrong in law andpatently unreasonable. It argues that the concept of prematurity does not applyhere, because the questions raised by the Survivors’ application and on this re-view are questions concerning the jurisdiction of the Tribunal and questions oflaw for which the standard of review is correctness. The Province says that,since the questions concerning the Tribunal’s jurisdiction have already been putto the Tribunal, and since they are questions of law, the court should now an-swer them.

5 The Survivors say that the petition should be dismissed because the applica-tion for judicial review is premature. They argue further that the only issuewhich can properly be considered on judicial review is whether the Tribunal’sdecision to defer ruling on the questions raised in the Survivors’ application ispatently unreasonable, and, in their submission, it was not.

6 The Tribunal confined its submissions to addressing the record, whether theapplication for judicial review is premature, the role of the court, and the stan-dard of review. The Tribunal supported the Survivors’ position that the applica-tion is premature, and submitted that the standard of review is patentunreasonableness.

7 I have concluded that the petition has been brought prematurely, and it wasnot patently unreasonable for the Tribunal to defer answering the questionsraised in the Survivors’ application. In my view, this result follows from thecircumstances and context in which the Decision was rendered. I will now setout that background.

8 The Survivors are a group of people who, as children, were forcibly confinedin a sanatorium in New Denver, B.C. during the 1950s. They were apprehendedby the RCMP because their parents were identified as Sons of FreedomDoukhobors. Once confined to the New Denver sanatorium, the Survivors hadseverely limited or no access to their parents and were prohibited from speakingtheir mother tongue (Russian). A report from the Province’s ombudsperson re-leased in 1999 refers to the systemic and historic abuse of these children result-ing from their confinement. The Complaint concerns whether, more recently, theProvince has discriminated against the members in the Province’s attempts to


reconcile or make reparation for what the Survivors call the “Historic Wrong,”namely, the Survivors’ confinement some 50 years ago and the systemic abusethey suffered as a result.

9 The original complaint, dated September 28, 2004, alleged discriminationwith respect to a publication, contrary to s. 7 of the Code. In its response datedFebruary 9, 2005, the Province simply denied any discrimination and denied anybreach of ss. 7(1)(a) and 7(1)(b) of the Code. It did not raise any issue concern-ing the Tribunal’s jurisdiction, and, in answer to question H on the form, whichreads, “Are you filing any applications with Form 3 – Response to ComplaintForm?”, the Province indicated “No.”

10 The Survivors amended their complaint in February 2005 to add discrimina-tion on the basis of a service customarily available to the public (s. 8 of theCode), and, in August 2005, provided a statement of the remedies they wereseeking, in particular that the Province implement the recommendations madeby the ombudsperson in 1999. In response to the statement of remedies, theProvince again denied that any of the actions or omissions alleged in the Com-plaint constituted a violation of the Code and denied that the remedies soughtshould be granted. The Province submitted further that s. 37 of the Code was notbroad enough to permit the Tribunal to order the implementation of the ombud-sperson’s 1999 recommendations. The Province did not assert any challenge tothe jurisdiction of the Tribunal. In its response dated October 21, 2005 to theSurvivors’ amended complaint, the Province again denied discriminating againstthe Survivors, and denied any breach of the relevant parts of ss. 7 and 8 of theCode. Again, the Province’s answer to question H was “No.”

11 The Survivors submitted their formal statement of remedy in April 2006 andprovided further particulars in respect of the Complaint in May 2006.

12 Thus, the Complaint (as amended and particularized) concerns both positiveactions the Province took to make reparation in and around the time of theombudsperson’s report (for example, steps to erect a monument, a statement ofregret issued in the legislature, and subsequent comments made on the radio bythe then Attorney General about the Survivors), and the Province’s alleged fail-ure to treat the Survivors similarly to other groups of institutionalized children.In particular, the Survivors say that the Province implemented similar recom-mendations made by the ombudsperson for other groups of institutionalized chil-dren but failed to implement recommendations in relation to the Survivors, inlarge part because of their race, ancestry and religion. The Survivors do not saythat the Province must always implement every recommendation made to it bythe ombudsperson. However, they say that, if and when the service of reparationis offered by the Province, it must be delivered in a non-discriminatory manner.

13 The Survivors brought their application for a preliminary ruling in May2006, using Form 8. They sought a “preliminary from the Tribunal as to whetherit has the jurisdiction concerning certain aspects of the Complaint,” and posed


the questions set out in para. 2 above. The questions are posed in the abstract.Section F of the form contains a heading “I have taken the following steps toresolve this issue,” and under this heading, the Survivors stated, “These are ju-risdictional issues upon which the B.C. Human Rights Tribunal must rule.”

14 Both the Survivors and the Province made written submissions on the appli-cation and there was no oral hearing.

15 In its written submissions, the Province asserted there were “difficulties”with how both the first and second questions were expressed and revised thesequestions. It also recast the third question. The Province submitted in its conclu-sion that its revised questions (a) and (b) and the original questions (c) and (d)should all be answered “No.” The Province did not ask for dismissal of theComplaint.

16 Moreover, the Province never made an application under s. 27 of the Code,which provides in relevant part:

27(1) A member or panel may, at any time after a complaint is filed andwith or without a hearing, dismiss all or part of the complaint if thatmember or panel determines that any of the following apply:

(a) the complaint or that part of the complaint is not within thejurisdiction of the tribunal;

(b) the acts or omissions alleged in the complaint or that part ofthe complaint do not contravene this Code;

(c) there is no reasonable prospect that the complaint willsucceed

. . . . .

(2) If a member or panel dismisses a complaint or part of a complaintunder subsection (1), that member or panel must inform the follow-ing persons of the decision in writing and give reasons for the deci-sion:

(a) the complainant;

(b) the person against whom the complaint was made, if thatperson had been given notice of the complaint;

(c) any other party;

(d) an intervenor.

The Province’s written submissions did not mention s. 27.

17 Thus, on the basis of the written submissions, the Tribunal was not asked byeither party to consider whether or not it should exercise its discretion to dismissthe Complaint if any of the four questions was answered in the negative.

18 The Decision addressed two issues. The first issue was whether the Survi-vors alleged a continuing complaint; if so, was it timely; and if not, should itnevertheless be accepted. The Tribunal ruled in the Survivors’ favour on this


issue. Most of the Tribunal’s reasons are devoted to addressing the first issue,which is not the subject of this application for review.

19 The second issue concerned the jurisdictional questions set out in the Survi-vors’ application. The Tribunal’s reasons on this issue are brief, and I set themout in full:

[53] In the second part of this application, the Survivors seek advancerulings from the Tribunal in regard to whether it has jurisdictionover four particular aspects of the complaint. The questions asked bythe Survivors are:

a) Can erecting a monument and/or constructing a memorialsite constitute activity proscribed under s. 7 of the Code?

b) Is erecting a monument and/or constructing a memorial sitea service which the Government customarily makes availa-ble to the public pursuant to s. 8 of the Code?

c) Does addressing the historical wrongdoings by the Govern-ment against an ethnic minority constitute a service custom-arily available to the public pursuant to s. 8 of the Code?

d) Does the Tribunal have jurisdiction to order the Governmentto implement all or any of the recommendations of theOmbudsman, Dulcie McCallum set out in her Public ReportNo. 38 “Righting the Wrong – The Confinement of Sons ofFreedom Doukhobor Children”, dated April 1999?

[54] The parties filed a substantial amount of material giving a detailedhistorical background, a chronology of current events, and legal sub-missions. Given the volume of materials, all of which have been re-viewed, it took a substantial time to seriously consider all of the is-sues and, unfortunately, this request for an advanced ruling hasdelayed the progress of this complaint to a hearing.

[55] After considering all of the materials filed, I have decided that itwould not be appropriate for me to answer the questions posed bythe Survivors in a preliminary way, without the benefit of full evi-dence produced at a hearing.

[56] A pre-hearing conference will be scheduled to discuss disclosure,witness lists and hearing dates.

VI Conclusion

[57] The Survivors have alleged a timely continuing complaint. I declineto provide an advance ruling on the questions posed by theSurvivors.

20 The Tribunal did not elaborate on the benefits of “full evidence produced ata hearing.”

21 In its petition, the Province sets out four grounds on which it seeks relief, asfollows:


(a) the Tribunal erred in law and/or exceeded its jurisdiction in finding thatit had the jurisdiction to proceed with the Complaint;

(b) the Tribunal erred in law and/or exceeded its jurisdiction in finding thatit needed evidence to determine whether the Complaint engaged a ser-vice customarily available to the public as required by the Code;

(c) the Tribunal erred in law and/or exceeded its jurisdiction in finding thatit needed evidence to determine whether the Complaint involved s. 7 ofthe Code; and

(d) the Tribunal erred in law in not providing any, or sufficient reasons whyit needed evidence to determine the jurisdictional questions before it.

22 At the hearing, the Province abandoned the first ground, because the Tribu-nal had not made any finding that it had jurisdiction; rather, it had declined torule on the questions raised by the Survivors’ application. The Province also didnot rely on the fourth ground, insufficiency of reasons. Accordingly, in argu-ment and at the hearing, the Province confined its request for review to the sec-ond and third grounds set out in the petition.

23 There is no real disagreement among the parties that, as a general rule, judi-cial review of preliminary or interlocutory decisions are appropriate only in lim-ited circumstances. The general rule is that a tribunal should be permitted tocomplete its process and render its final decision before judicial review is enter-tained. The rule is founded in the time-honoured principle that a tribunal is es-tablished to fulfil the statutory functions it is assigned. The tribunal should beseen as the master of its own process, and that process should not be interferedwith by the courts until a final decision is rendered, lest there be one court appli-cation after another, which would clearly frustrate the tribunal’s mandate and itslegislative purpose: see Vancouver (City) v. British Columbia (AssessmentAppeal Board) (1996), 20 B.C.L.R. (3d) 79 (B.C. C.A.), at para. 26.

24 There are a number of reasons why the court will be reluctant to interferewith a tribunal’s work by way of judicial review before the tribunal has com-pleted its function, for example:

(a) Judicial intervention may fragment the tribunal’s proceedings.

(b) The tribunal may resolve the dispute to the party’s satisfaction.

(c) The court’s decision may be rendered moot because of the tribunal’s rul-ing on some other aspect of the proceedings.

(d) It is helpful for the court to have an evidentiary record and the tribunal’sanalysis of the dispute, especially in areas where the tribunal has specialexpertise.


(e) Courts avoid deciding constitutional or Charter issues on hypotheticalfacts or in a factual vacuum.

See: Kelowna (City) v. British Columbia (Human Rights Commission),[1999] B.C.J. No. 1848 (B.C. S.C.), at para. 11.

25 However, the general rule is not an absolute one. While the general practiceis that a court will not hear a judicial review petition before a tribunal has ren-dered its final decision, there are many situations in which demands of justiceand efficiency will weigh in favour of early intervention by the courts. Prematu-rity is not an absolute bar to judicial review but a discretionary one. See:Insurance Corp. of British Columbia v. Yuan, 2009 BCCA 279 (B.C. C.A.), atpara. 24.

26 One of the situations where early intervention by the courts is or may bewarranted is where a respondent to a complaint (in this case, the Province) chal-lenges the jurisdiction of the tribunal. This type of situation is described by Mr.Justice Joyce in Crockford v. British Columbia (Attorney General), 2005 BCSC663 (B.C. S.C.), at paras. 64 and 65 (underlining added):

[64] It is my opinion that where the respondent to a complaint challengesthe Tribunal’s jurisdiction on the ground that the actions do not fallwithin s. 8(1)(b) the Tribunal must determine the legal questionwhether those actions do or do not represent services available to thepublic. In my view, the Tribunal cannot defer that decision on theground that it does not have a sufficient evidentiary basis. It is onlyif the actions meet the legal test that it may be necessary to considerevidence relating to the nature and extent of the custom before deter-mining whether the actions complained of offend the section of theCode.

[65] In this case the Tribunal Member deferred the decision about juris-diction not on the grounds that she lacked evidence relating to cus-tom but on the ground that she lacked a sufficient evidentiary recordto determine whether the activities of prosecutors constitute a “ser-vice”. In my opinion that is a question of pure law, which the Tribu-nal Member lacked any discretion to defer. The petitioner havingraised the question of law, the Tribunal Member was bound to an-swer it one way or the other and having declined to do so, this courtis in just as good a position as the Tribunal to make thatdetermination.

Mr. Justice Joyce’s decision was appealed. However, on appeal, neitherparty raised any issue with respect to this aspect of his decision: see 2006 BCCA360 (B.C. C.A.), at paras. 29 and 30.

27 However, in contrast to the situation in this case, in Crockford, the Provincefiled a response to the complaint in which it took the position that the HumanRights Tribunal did not have jurisdiction to hear the complaint. Along with itsresponse, the Province filed an application under s. 27(1)(a) and (c) of the Code,


seeking dismissal of the complaint on the grounds that (1) it was not within thejurisdiction of the tribunal and (2) there was no reasonable prospect that thecomplaint would succeed. See Crockford, paras. 10 to 12. In those circum-stances, there could be no doubt that the jurisdiction of the tribunal had in factbeen challenged by the respondent to the complaint. The challenge, contained inthe response and in the s. 27(1) application, was clear, unequivocal and direct,and sought a specific remedy, namely, dismissal of the complaint. The challengeraised a question of law that the tribunal member could not defer.

28 McGrath v. British Columbia (Ministry of Children & Family Development),2009 BCSC 180 (B.C. S.C.), contains another example where the respondent tocomplaints (described as Fox/McGrath and Verkerk) challenged directly the ju-risdiction of the Tribunal by means of applications under s. 27(1)(a) of the Code.See McGrath at paras. 9, 16, 20 and 23. The tribunal member in theFox/McGrath matter deferred her response while the tribunal member in theVerkerk matter ruled on the application. Mr. Justice Brown concluded at para.53 that (underlining added):

. . . the Tribunal Member in Fox/McGrath erred in deferring her responseuntil a full evidentiary hearing to the Province’s direct jurisdictional chal-lenge [that was] based on the grounds that the complaint did not involve aservice customarily available to the public. (The Verkerk Tribunal Member,on the other hand, acted correctly in making a decision about the jurisdictionquestion at the preliminary assessment stage.)

29 In Yuan, the question whether judicial review was premature also camebefore the court following an application by the respondent to the complaint tohave the complaint dismissed under s. 27(1) of the Code. That application hadbeen dismissed by the tribunal. ICBC sought judicial review, and the chambersjudge quashed the tribunal’s decision. Mr. Yuan then appealed. The Court ofAppeal upheld the order quashing the decision and substituted an order dis-missing Mr. Yuan’s complaint (as well as his appeal).

30 Mr. Justice Groberman observed (at para. 19) that it was obvious Mr. Yuan’scomplaint had no reasonable prospect of success, and, indeed, it had no prospectof success at all but was entirely misconceived. However, that was not the issuebefore the chambers judge on the judicial review. Mr. Justice Groberman said, atparas. 20 and 21:

[20] The first issue for the court on judicial review was whether or not toentertain the petition, given that the Tribunal had not completed itswork. . . .

[21] Even if the Supreme Court was correct in hearing the petition, itwas required to pay strict attention to its limited supervisory roleover the Human Rights Tribunal. The fact that the Human RightsTribunal could have struck the claim on a preliminary applicationdoes not mean that it was required to do so. Section 27 of the HumanRights Code gives the Tribunal discretionary powers. In order to


overturn the Tribunal’s refusal to exercise those powers, the Su-preme Court had to find that the discretion itself was exercisedimproperly.

31 The Court of Appeal concluded that the chambers judge correctly appliedthe applicable standard of patent unreasonableness, and that the tribunal’s deci-sion not to dismiss the complaint was patently unreasonable.

32 This then brings me to the Province’s arguments that review at this time isnot premature, and that the court should now answer the questions posed by theSurvivors’ application. In other words, the Province says that the court shouldnow do the work that the Province asserts the Tribunal should have done on thethreshold legal/jurisdictional questions when the Survivors brought their appli-cation. The Province says that the questions can be decided on the basis of thecontents of the Complaint and the case law, as was done in Crockford and Mc-Grath. The Province also says that the court should now dismiss parts of theComplaint.

33 The difficulty I have with the Province’s arguments is that, before the Tribu-nal, the Province never directly challenged the Tribunal’s jurisdiction, either inthe Province’s responses or by way of an application under s. 27(1), and neversought dismissal from the Tribunal. The Province certainly had opportunities todo so. The Province’s formal responses were filed long before the Survivorsbrought their preliminary application, and the responses would have been aplace for the Province to raise, clearly and directly, a challenge to the Tribunal’sjurisdiction. The Province had ample time to bring an application under s. 27(1),prior to the Survivors making their application under s. 27.3 of the Code. Atleast twice, the Province had to consider specifically whether or not it was goingto bring any application: once when it delivered its original response and againwhen it delivered its amended response. Both times, the Province said no.

34 The Survivors’ application certainly cannot be considered a “challenge” tothe Tribunal’s jurisdiction. By responding to the application, the Province mightbe said to be challenging the Tribunal’s jurisdiction, although not directly. Evenin responding, the Province was not content to make its arguments based on theabstract questions framed by the Survivors, but submitted the questions neededrevision and clarification. While the Province argued the questions should beanswered in the negative, it did not ask for dismissal of the Complaint.

35 In my view, the combination of the Province’s formal responses to the Com-plaint (none of which challenged the Tribunal’s jurisdiction), the way in whichthe Province responded to the Survivors’ application, and the absence of a clearchallenge by way of the Province’s own application to dismiss under s. 27(1) ofthe Code created the situation where the Tribunal concluded that deferral was anavailable and appropriate option. Had the Province clearly and directly chal-lenged jurisdiction, as it did in Crockford, for example, and sought dismissal bymeans of an application under s. 27, there would and could have been no doubt


about the context in which the Tribunal was being called on to rule on jurisdic-tion. The Tribunal would also have had clear guidance from the courts on how aTribunal ought to approach such an application. However, the Province createdan ambiguous situation by failing both to challenge, clearly and directly, thejurisdiction of the Tribunal over the Complaint, and to seek dismissal from theTribunal.

36 I therefore conclude that the Province’s application for review is, in the cir-cumstances of this case, premature. In my view, it would be inconsistent withthe limited supervisory role of the courts to now take over the Tribunal’s work,as the Province asks, unless the Tribunal has acted in a patently unreasonablemanner in deferring answering the questions posed by the Survivors’application.

37 I noted above that the Survivors’ application was brought pursuant to s. 27.3of the Code. It provides in ss. 1 that “the tribunal may make rules respectingpractice and procedure to facilitate just and timely resolution of complaints,”and in ss. (3) that “In order to facilitate the just and timely resolution of a com-plaint, a member or panel, on their own initiative or on application of a party oran intervenor, may make any order for which a rule could be made under sub-section (1) or (2).” The section gives the Tribunal broad, discretionary, powersto make rules and orders respecting its practice and procedure to facilitate justand timely resolution of complaints: see Hayes v. Barker, 2008 BCCA 148 (B.C.C.A.), at para. 39. The section is permissive, not directive. There is nothing inthe section, or in the Tribunal’s Rules of Practice and Procedure, that compelsthe Tribunal to answer questions such as those raised by the Survivors, in ad-vance of a full hearing.

38 Section 59 of the Administrative Tribunals Act sets out the standard of re-view to be applied by a court in reviewing a decision of the Tribunal. Section59(3) directs that a court must not set aside a discretionary decision of the Tribu-nal unless it is patently unreasonable. Section 59(4) provides that a discretionarydecision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith;

(b) is exercised for an improper purpose;

(c) is based entirely or predominantly on irrelevant factors; or

(d) fails to take statutory requirements into account.

39 The court is not permitted to set aside a decision of a statutory tribunalmerely because it would have reached a different conclusion. The court does notsit as an appellate court, and does not retry the matters decided by the tribunal. Itis not the court’s role to review the wisdom of the tribunal’s decision. Thecourt’s role is limited to determining whether the tribunal has acted, and madeits decision, within its statutory authority or jurisdiction. The court must deter-mine whether its intervention is warranted having regard to the applicable prin-ciples, including the principle of restraint concerning judicial intervention in ad-


ministrative matters. See Asad v. Kinexus Bioinformatics Corp., 2010 BCSC 33(B.C. S.C.), at paras. 12-14.

40 As compared with Hayes v. Barker, for example, it may be somewhat moredifficult in this case (especially given the brevity of the Tribunal’s reasons) toappreciate the areas in which “full evidence” will provide the anticipated bene-fit. However, the explanation may well lie in the abstract nature of the questionsposed in the Survivors’ application. In that light, and in the context of an appli-cation under s. 27.3 of the Code, the question for the Tribunal was whether itshould answer abstract questions in advance, or await evidence at a full hearing.The Tribunal concluded it should wait.

41 I do not think there is evidence before me that would permit me to concludethat, in deferring a determination of the issues relating to the Survivors’ ques-tions, the Tribunal exercised its discretion arbitrarily, in bad faith, for an im-proper purpose, or on irrelevant factors, or that it failed to take statutory require-ments into account. I conclude therefore that, in the circumstances in which thequestions were brought before the Tribunal, its decision to defer answering thosequestions is not patently unreasonable.

42 The petition is, accordingly, dismissed. Each party will bear his or its owncosts.

43 Is there anything further we need to deal with this morning?

44 MR. HORRICKS: No, My Lady. Thank you.

45 MS. WADDELL: No, My Lady.

46 THE COURT: All right. Thank you.

Application dismissed.

NB (AG) v. Dominion of Canada Gen. Ins. Co. 251

[Indexed as: New Brunswick (Attorney General) v. Dominion ofCanada General Insurance Co.]

Attorney General of New Brunswick (Appellant) and The Dominionof Canada General Insurance Company (Respondent)

New Brunswick Court of Appeal

Ernest Drapeau C.J.N.B., J.T. Robertson, Bradley V. Green JJ.A.

Heard: September 14, 2010

Judgment: November 25, 2010

Docket: 18-10-CA, 2010 NBCA 82

William A. Anderson, Q.C., for AppellantRichard J. Scott, Q.C., for Respondent

Insurance –––– Regulation of insurance industry — Superintendents of insurance —Premium rates –––– Insurer sought approval from insurance board of its annual applica-tion for rate increase — Attorney General objected to insurer’s application — Board ap-proved insurer’s rate application — Board did not allow Attorney General to pose ques-tions that required insurer to generate new information — Board did not explain why itrejected Attorney General’s objections — Attorney General appealed board’s decisionapproving insurer’s rate application — Appeal allowed — Matter remitted for reconsider-ation — Board breached its fairness duty — Board unduly limited scope of questions At-torney General could submit to insurer — Attorney General’s questions were appropriateand in public interest — Board failed in its duty to provide reasons that adequately ad-dressed issues — Board had duty to provide reasons to assure public that board used itsexpertise to determine whether insurer’s proposed rate was just and reasonable — Tran-script of boards’ post-hearing deliberations was not accepted as part of appeal record —Court had power to set aside board’s decision and remit matter for reconsideration —Power to remit matter was necessary so there could be final determination on merits.

Administrative law –––– Requirements of natural justice — Right to hearing —Duty of fairness –––– Insurer sought approval from insurance board of its annual applica-tion for rate increase — Attorney General objected to insurer’s application — Board ap-proved insurer’s rate application — Board did not allow Attorney General to pose ques-tions that required insurer to generate new information — Board did not explain why itrejected Attorney General’s objections — Attorney General appealed board’s decisionapproving insurer’s rate application — Appeal allowed — Matter remitted for reconsider-ation — Board breached its fairness duty — Board unduly limited scope of questions At-torney General could submit to insurer — Legislation did not support board’s justifica-tion for limiting Attorney General’s right to pose interrogatories — Board erred byfailing to determine whether new information which Attorney General sought was rele-vant to adjudication of proposed rate hike — Attorney General was denied proceduralfairness when board ruled that insurer did not have to produce evidence which was other-wise relevant to primary task at hand — Attorney General’s questions were appropriateand in public interest.


Administrative law –––– Requirements of natural justice — Right to hearing — Pro-cedural rights at hearing — Reasons for decision –––– Insurer sought approval frominsurance board of its annual application for rate increase — Attorney General objectedto insurer’s application — Board approved insurer’s rate application — Board did not ex-plain why it rejected Attorney General’s objections — Attorney General appealedboard’s decision approving insurer’s rate application — Appeal allowed — Matter remit-ted for reconsideration — Board failed in its duty to provide adequate reasons — Onepage decision accepting insurer’s rate application was merely conclusionary declarationof entitlement — Insurance Act did not expressly require board to provide reasons — Su-preme Court of Canada had held that administrative board may need to provide reasonseven if not required by enabling legislation — Board needed to provide reasons in caseswhere rate application required further investigation in form of hearing — Board hadduty to provide reasons to assure public that board used its expertise to determinewhether insurer’s proposed rate was just and reasonable — Transcript of boards’ post-hearing deliberations was not accepted as part of appeal record — Transcript did not meetthreshold test of “justification, transparency and intelligibility” — Transcript could not beused to bolster board’s inadequate reasons.

Civil practice and procedure –––– Practice on appeal — Powers and duties of appel-late court — Miscellaneous –––– Power to remit matter for reconsideration — Insurersought approval from insurance board of its annual application for rate increase — Attor-ney General objected to insurer’s application — Board approved insurer’s rate applica-tion — Board did not explain why it rejected Attorney General’s objections in one pagedecision — Attorney General appealed board’s decision approving insurer’s rate applica-tion — Appeal allowed — Matter remitted for reconsideration — Board breached its fair-ness duty — Court had power to set aside board’s decision and remit matter for reconsid-eration — Court had statutory power to reverse decision — By necessary implication,power to reverse included power to remit matter for reconsideration — Power to remitmatter was necessary so there could be final determination on merits.

Cases considered by J.T. Robertson J.A.:

Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1,[1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 Car-swellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39(S.C.C.) — followed

Burke v. N.L.A.P.P.E. (2010), (sub nom. Burke v. Newfoundland & Labrador Associationof Public & Private Employees) 294 Nfld. & P.E.I.R. 230, (sub nom. Burke v.Newfoundland & Labrador Association of Public & Private Employees) 908 A.P.R.230, 2010 C.L.L.C. 220-018, 2010 NLCA 12, 2010 CarswellNfld 48, [2010] N.J. No.62 (N.L. C.A.) — followed

Congregation des Temoins de Jehovah de St-Jerome-Lafontaine c. Lafontaine(Municipalite) (2004), (sub nom. Congregation des temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village)) 241 D.L.R. (4th) 83, 323 N.R. 1, 2004SCC 48, 2004 CarswellQue 1545, 2004 CarswellQue 1546, 49 M.P.L.R. (3d) 157,(sub nom. Congregation des temoins de Jehovah de St-Jerome-Lafontaine v.Lafontaine (Village)) [2004] 2 S.C.R. 650, 17 Admin. L.R. (4th) 165, 121 C.R.R.(2d) 261, [2004] S.C.J. No. 45, REJB 2004-66514 (S.C.C.) — followed

NB (AG) v. Dominion of Canada Gen. Ins. Co. 253

Fundy Linen Service Inc. v. New Brunswick (Workplace Health, Safety & CompensationCommission) (2009), 2009 CarswellNB 61, 2009 CarswellNB 62, 2009 NBCA 13,341 N.B.R. (2d) 286, 876 A.P.R. 286, 308 D.L.R. (4th) 53, 90 Admin. L.R. (4th)243, [2009] N.B.J. No. 41 (N.B. C.A.) — considered

I.W.A., Local 2-69 v. Consolidated Bathurst Packaging Ltd. (1990), 42 Admin. L.R. 1, 68D.L.R. (4th) 524, 105 N.R. 161, 38 O.A.C. 321, 90 C.L.L.C. 14,007, [1990] O.L.R.B.Rep. 369, 73 O.R. (2d) 676 (note), (sub nom. I.W.A. v. Consolidated-BathurstPackaging Ltd.) [1990] 1 S.C.R. 282, 1990 CarswellOnt 2515, 1990 CarswellOnt821, EYB 1990-67694, [1990] S.C.J. No. 20 (S.C.C.) — followed


New Brunswick (Department of Social Development) v. New Brunswick (Human RightsCommission) (2010), 320 D.L.R. (4th) 270, 2010 NBCA 40, 360 N.B.R. (2d) 283,2010 CarswellNB 277, 2010 CarswellNB 278, [2010] N.B.J. No. 186, [2010] A.N.B.No. 186 (N.B. C.A.) — considered

Prud’homme c. Prud’homme (2002), [2002] 4 S.C.R. 663, 2002 SCC 85, 2002 Carswell-Que 2710, 2002 CarswellQue 2711, [2003] R.R.A. 2, 221 D.L.R. (4th) 115, 297 N.R.331, 37 M.P.L.R. (3d) 1, [2002] S.C.J. No. 86, REJB 2002-36356 (S.C.C.) — re-ferred to

Quebec (Commission des affaires sociales) c. Tremblay (1992), 1992 CarswellQue 114, 3Admin. L.R. (2d) 173, [1992] 1 S.C.R. 952, 47 Q.A.C. 169, 136 N.R. 5, 90 D.L.R.(4th) 609, 1992 CarswellQue 108, EYB 1992-67795, [1992] S.C.J. No. 20(S.C.C.) — followed

Smith v. Agnew (2001), 2001 CarswellNB 275, 2001 NBCA 83, 240 N.B.R. (2d) 63, 622A.P.R. 63, 16 M.V.R. (4th) 246, 33 C.C.L.I. (3d) 196, [2001] N.B.J. No. 282 (N.B.C.A.) — referred to

Stone v. Woodstock (Town) (2006), 2006 CarswellNB 362, 2006 NBCA 71, 784 A.P.R.165, 302 N.B.R. (2d) 165, 2006 CarswellNB 393, [2006] N.B.J. No. 277 (N.B.C.A.) — referred to


Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982, c. 11

s. 2(a) — referred toInsurance Act, R.S.N.B. 1973, c. I-12

Generally — referred tos. 19.1 [en. 2004, c. 36, s. 2] — considereds. 19.3 [en. 2004, c. 36, s. 2] — considereds. 19.41(a) [en. 2004, c. 36, s. 2] — considereds. 19.41(b) [en. 2004, c. 36, s. 2] — considereds. 19.41(c) [en. 2004, c. 36, s. 2] — considereds. 19.41(d) [en. 2004, c. 36, s. 2] — considered


s. 19.41(e) [en. 2004, c. 36, s. 2] — considereds. 19.7(1) [en. 2004, c. 36, s. 2] — referred tos. 19.71(1) [en. 2004, c. 36, s. 2] — considereds. 19.71(2) [en. 2004, c. 36, s. 2] — considereds. 19.71(3) [en. 2004, c. 36, s. 2] — considereds. 19.71(4) [en. 2004, c. 36, s. 2] — considereds. 19.8(4) [en. 2004, c. 36, s. 2] — considereds. 267.1- s.267.8 [en. 1975, c. 81, s. 2] — considereds. 267.1(1) “rates” [en. 1975, c. 81, s. 2] — considereds. 267.2(1) [en. 1975, c. 81, s. 2] — considereds. 267.2(1.1) [en. 1997, c. 46, s. 3] — considereds. 267.5(1) [en. 1975, c. 81, s. 2] — considereds. 267.11 [en. 1975, c. 81, s. 2] — considered

APPEAL by Attorney General from insurance board’s decision approving insurer’s rateapplication.

J.T. Robertson J.A.:

I. Introduction1 Ultimately, this administrative law appeal is about fairness and transparency

in the adjudicative process surrounding the decision of the New Brunswick In-surance Board to approve an insurer’s rate application with respect to car insur-ance (private passenger vehicles). Under the Insurance Act, R.S.N.B. 1973, c. I-12, the Board may only approve rates which are just and reasonable. In caseswhere the Board decides to hold a hearing, the onus is on insurers to satisfy theBoard this threshold has been met. However, the Attorney General of the Prov-ince has the right to intervene and make representations in the public interest. Insuch cases, it is the role of the Board to adjudicate on competing views as towhether a proposed rate is just and reasonable, and to do so in a manner thatrespects the established tenets of the fairness doctrine applicable to administra-tive decision-makers.

2 The Dominion of Canada General Insurance Company (“Dominion”) wasone of 20 companies seeking Board approval with respect to their annual appli-cation for rate approval. The Attorney General singled out the application ofDominion and one other company as warranting intervention. With respect toDominion’s application, the Attorney General raised two principal grounds ofobjection. First, Dominion’s anticipated 18.1% rate of return on equity exceededthe 12% benchmark established in a 2005 Board decision. Second, the actuarialassumptions upon which Dominion based its calculations were “unsound”. Ac-cording to the Attorney General, once the proper actuarial assumptions are ap-plied, the expected rate of return on equity would climb well above 18.1%. Thegeneral thrust of the Attorney General’s argument is that present rates are al-ready excessive. The Board approved Dominion’s rate application, but withoutexplaining why the Attorney General’s objections and supporting rationales

NB (AG) v. Dominion of Canada Gen. Ins. Co. J.T. Robertson J.A. 255

were rejected. In response to the one-page decision, the Attorney General exer-cised his unqualified and unfettered right of appeal to this Court. Although noless than seven grounds of appeal were advanced, they can be regrouped underthree umbrellas: (1) the Board approved a rate of return on equity which farexceeded its established benchmark; (2) the Board based its decision on unsoundactuarial principles; and (3) the Board breached the duty of fairness by limitingthe types of questions the Attorney General could submit to Dominion and byfailing to provide adequate reasons for its final decision.

3 Factually, I conclude the Board’s 2005 decision did not establish a 12%benchmark for the rate of return on equity. I also affirm that we are in no posi-tion to rule on the relative validity of competing actuarial assumptions. How-ever, I find the Board did breach the fairness duty. Accordingly, I would allowthe appeal and remit the matter to a differently constituted panel of the Board fora determination in a manner consistent with these reasons.

4 Not only did the Board unduly limit the scope of the “interrogatories”, itfailed in its duty to provide reasons that adequately addressed issues properlyraised by the Attorney General: reasons that would meet the general thresholdtest of “justification, transparency and intelligibility” articulated in NewBrunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R.190 (S.C.C.), at para. 47. Without motivated reasons, there is no way of main-taining public confidence in an administrative scheme designed to ensure NewBrunswick drivers are not paying excessive rates for car insurance. Moreover,the general duty of every adjudicative tribunal, presented with intelligent andcompeting arguments surrounding the merits of a dispute of immense preceden-tial significance, is to explain why one argument prevailed over the other. Thisis one more reason why this Court is in no position to rule on the validity ofcompeting actuarial assumptions or principles.

5 The fact that a transcript of the Board’s post-hearing deliberations made itsway onto our Bench is of no moment and no substitute for the crafting of areasoned decision. While both Dominion and the Attorney General rely on thattranscript to bolster their respective positions, it cannot form part of the appealrecord. Introduction of the transcript for purposes of “bootstrapping” materiallydeficient reasons for decision is an imprudent abdication of a tribunal’s right todeliberative secrecy in the administrative decision-making process. To be blunt,it is pure folly to believe that a transcript of disjointed questions, observations,musings and even expressions of opinion by individual decision-makers andtheir experts is an acceptable substitute for a set of reasons that should be ascogent as they are persuasive, while representing the collective views of onlythose who have the statutory right to decide.


II. The Statutory Framework6 While the general powers and functions of the Board are set out in s. 19.3 of

the Insurance Act, the framework for regulating rates for automobile insuranceis set out from s. 267.1 to s. 267.8. Pursuant to s. 267.11, the Board is responsi-ble for the general supervision of rates an insurer may charge or proposes tocharge for automobile insurance. Pursuant to s. 267.1(1), the word “rates” isdefined to mean “rates, surcharges, premiums or any other amount payable byan insured for automobile insurance”. Section 267.2(1) requires each insurer tofile with the Board the rates which it proposes to charge for automobile insur-ance at least once every 12 months from the date of the insurer’s last filing.Section 267.2(1.1) goes on to require the insurer to provide the Board with suchinformation when requested. The Board’s power to “investigate” proposed ratesis contained in s. 267.5(1). That section states that if the Board considers that theproposed rate may not be “just and reasonable” the Board may investigate. Inconsidering whether to conduct an investigation, the Board must first advise theSuperintendent of Insurance and consider any information which the Superinten-dent provides. Section 267.5(3.1) goes on to provide that should the Board de-cide to investigate a proposed rate, the burden is on the insurer to prove that therate is just and reasonable. Pursuant to s. 267.5(5) the Board is obligated to con-sider those factors which are prescribed by regulation when determining whethera proposed rate is just and reasonable. To date, no such regulation has beenadopted.

7 As stated earlier, the general powers of the Board are set out in s. 19.3 of theInsurance Act. For example, the Board is empowered to investigate or inquireinto rates of insurance for other classes of insurance, as may be prescribed byregulation. However, with respect to the other classes of insurance, the Boardmay only make recommendations to the Minister responsible for the Act. Sec-tion 19.1 outlines three ways of conducting an investigation/inquiry: (1) an elec-tronic hearing; (2) an oral hearing; or (3) a written hearing. The first embracestelephone conferencing and the use of other electronic technology (video confer-encing). The second embraces an oral hearing at which the parties or their coun-sel attend before the Board in person. Finally, a written hearing is defined as ahearing held by the exchange of documents whether in written or electronicform. Section 19.41(a) empowers the board to determine its own procedure andto give directions about the process and procedure that it considers appropriatein the circumstances, including a direction for one of the three types of hearingidentified above. Section 19.41(b) authorizes the Board to request anyone toprovide it with relevant information. Section 19.41(c) states the Board need nothold an oral hearing unless the Board considers it necessary to “act in a proce-durally fair manner”. Section 19.41(d) outlines the Board’s obligation to ensureprocedural fairness to all affected persons. While s. 19.41(e) provides that theBoard is not bound by any common law rule of evidence, the section also statesthat any evidence the Board accepts must be relevant, material and trustworthy.


At the same time, insurers are obligated under s. 19.7(1) to comply with anyBoard request for documents and information. By implication, the informationrequested must be relevant, material and trustworthy.

8 Unless the Board orders otherwise, s. 19.71(1) of the Insurance Act dictatesthat the Board must provide the public with notice of any hearing by publishingan advertisement in one or more newspapers published in the Province. Section19.71(2) goes on to provide that the Attorney General of the Province and theConsumer Advocate for Insurance must be notified. Under s. 19.71(3) the Boardmust provide the Attorney General with copies of all documents relevant to thehearing if the Attorney General so requests. It is s. 19.71(4) that authorizes theAttorney General to intervene at the hearing and make representations that he orshe considers in the public interest.

9 In summary, the Board has the jurisdiction to decide whether to conduct aninvestigation or inquiry into a proposed rate. If after consulting with the Super-intendent of Insurance the Board concludes that a hearing is warranted, it mustthen decide on the type of hearing. Specifically, an oral hearing is not requiredunless the Board considers it necessary to act in a procedurally fair manner. Aswould be expected, the Board possesses the general right to determine its proce-dures. The Board also has the power to direct the insurer to provide the Boardwith information which is relevant, material and trustworthy. Of course, the ex-ercise of any discretion is fettered to the extent that it must be exercised in goodfaith and in a principled fashion. The Attorney General is empowered to inter-vene as of right and to make representations he or she considers in the publicinterest.

III. Factual Background10 The standard application form for rate approval requires all insurers to iden-

tify the change in the insurance rate that would achieve an after tax return onequity of 12%. The filing guidelines also require each insurer to disclose its aftertax return on equity based on the insurance rate for which approval is beingsought. Also required are the insurer’s calculated past frequency, severity, losscosts claims for all coverage including bodily injury, collision and accident be-nefits, together with what it has selected for the past loss costs, and to identifyits assumptions as to the future trends rates for all types of coverage. Finally, theapplicant must identify the assumptions upon which it bases its calculations ofthe return on investments on its premium income and on surplus retained by thecompany, the ratio of premium income to surplus, and all other income of theapplicant. In order to determine a provision for profit in the rate it is also neces-sary to consider the income tax rate and the after tax return on equity target.

11 In September 2009, Dominion filed a rate application which targeted a12.5% return on equity rate [ROE]. Having regard to this ROE, Dominionwould have had to reduce its present premium rates by 2.79%. Instead, Domin-


ion asked that there be no change to its present premium rates. Subsequently, theBoard asked Dominion to resubmit its application to show a 12% ROE. Domin-ion complied with the request. The recalculation showed that a premium reduc-tion of 3.25% would generate a ROE of 12%. Once again, however, Dominionsought only to maintain its existing premium rates. Dominion would then resub-mit its application one more time, and ask for a .49% increase in premium ratesbecause of recently obtained information released by the insurance industry. Theappeal record shows that increase would produce an ROE of 18.1%.

12 On November 13, 2009, the Board advised the Attorney General that itwould be conducting a hearing to consider Dominion’s rate application. The At-torney General asked for the relevant portions of the application and the Boardobliged. In an email dated November 19, 2009, the Board informed the AttorneyGeneral that he would be entitled to submit written information requests to Do-minion and that the latter would have to respond in writing within the time spec-ified as per an attached filing schedule. By further email of November 25, 2009,the Board indicated to the Attorney General that a paper hearing (written materi-als only) would be conducted. All “interrogatories” had to be completed six cal-endar days before the hearing. Written submissions were to be received fourcalendar days in advance.

13 On November 27, 2009, the Attorney General’s actuary emailed a series of11 questions to Dominion based on its application. Some of the questions askedDominion to explain the rationale used for selecting certain figures (ex., futuretrends for bodily injury and accident benefits). Other questions involved Domin-ion providing alternative rate level indications by using other figures or amountsbased on alternative actuarial assumptions. Those questions required Dominionto “generate new information”. On November 30, 2009, the Board emailed theAttorney General’s actuary, advising her that many of the questions went be-yond the scope of what was contemplated by the legislation and, therefore, thatDominion would not be required to respond to all questions posed. The actuaryreplied immediately, asking for an explanation as to what is contemplated by thelegislation. On December 1, 2009, Board staff replied that the legislation doesnot contemplate interveners making any requests for information. In the circum-stances, the Board would not require Dominion to answer any questions thatwould require the generation of new information. On December 3, 2009, counselfor the Attorney General forwarded a letter to the Board prepared by the Attor-ney General’s actuary setting forth the rationale for the questions posed. Furtheremail exchanges ensued in the following days. On December 7, 2009 Dominionanswered some of the questions but declined to answer those that would requirethe generation of new information.

14 Finally, on December 8, 2009, the Attorney General’s actuary provided theBoard with a written submission addressing issues of concern, and, in particular,the loss trend assumptions of Dominion. The submission concludes with the fol-lowing sentence: “As presented and calculated by Dominion in its rates filing,


its proposed rate change (0%) is higher than its indicated change of -3.25% andresults in an after tax return on equity of +17.7%”. On the same date, Dominionamended its application in order to adopt the “2009 CLEAR rate group table”which had just been released by “VICC”. The amendment resulted in a requestfor a .49% premium rate increase which translates into a +18.1% after tax ROEonce the actuarial assumptions of Dominion are accepted.

15 The Board rendered its decision to approve Dominion’s rate application onJanuary 11, 2010. Following the Board’s approval of the .49% rate increase,Dominion tendered a document which showed another ROE rate, but one whichis less than the already approved 18.1%. Dominion states that the resubmissionwas done in response to and in accordance with the Board’s one-page decision.For purposes of deciding this appeal, I need not decide whether the Board’s finaldecision authorized the revision of actuarial assumptions which we are told hadthe effect of reducing the anticipated ROE rate.

IV. Issues and Standard of Review16 The Attorney General raises five primary grounds of appeal and two alterna-

tive grounds. The primary grounds can be reduced to two. First, the AttorneyGeneral argued the Board approved a rate increase which would produce anROE rate far exceeding the Board’s 12% benchmark. Second, the Board permit-ted Dominion to use unsound actuarial assumptions. With respect to thesegrounds of appeal, the Attorney General asked this Court to vary the Board’sdecision by approving a premium rate which reflected the actuarial assumptionsadvanced by the Attorney General and which produce a 12% ROE rate. In sup-port of this relief, the Attorney General relied on s. 19.8(4) of the Insurance Act,which states that this Court may “confirm, modify, vary or reverse” a decisionor order of the Board. During the appeal hearing, we advised the Attorney Gen-eral that this Court was in no position to rule on the relative soundness of com-peting actuarial assumptions. The record before us is materially deficient and wedo not have the benefit of the Board’s reasoned opinion for which the reviewstandard of reasonableness would most likely apply. At the same time, thisCourt is faced with another task: to decide whether the power to “reverse” in-cludes the power to set aside a decision and to remit the matter back to theBoard for a rehearing. Eventually, I answer that question in the positive.

17 The Attorney General also advances two alternative grounds of appeal. First,in failing to give adequate reasons, the Board frustrated the Attorney General’sstatutory right of appeal. Second, the Board’s ruling that Dominion did not haveto answer those questions that generated new information, posed by the AttorneyGeneral’s actuary, frustrated the Attorney General’s attempt to question Domin-ion’s actuarial assumptions. These two grounds do not require this Court to be-gin on the premise that deference on the review standard of reasonableness isapplicable. Inevitably, tribunal decisions involving allegations of a breach of thefairness duty are reviewed on the standard of correctness (see New Brunswick


(Department of Social Development) v. New Brunswick (Human Rights Commis-sion), 2010 NBCA 40, [2010] N.B.J. No. 186 (N.B. C.A.), and specificallyFundy Linen Service Inc. v. New Brunswick (Workplace Health, Safety &Compensation Commission), 2009 NBCA 13, 341 N.B.R. (2d) 286 (N.B. C.A.),where the Court states that “when it comes to the fairness duty, correctness isthe proper review standard” (para. 13)).

18 The following analysis addresses three issues which I believe reflect the le-gal realities of this case. The first issue is whether, in fact, the Board did estab-lish a 12% benchmark rate of return on equity. Second, we must decide whetherthe Attorney General was denied procedural fairness when the Board ruled thatDominion need not answer questions which required the generation of new in-formation. This issue brings into question the decision of the Board to conduct awritten hearing and to grant the Attorney General the right to pose interrogato-ries of Dominion. The third debate is whether the Board was under a duty toprovide more substantial reasons for its decision to approve Dominion’s pre-mium rate increase. On the first issue, I find in favour of Dominion. As a matterof fact, the Board did not establish a 12% benchmark in its 2005 decision. Withrespect to the remaining two issues, I find in favour of the Attorney General.However, I do not accept his concession that, on the facts of the present case, theappeal record may be augmented with a copy of the transcript of the Board’spost-hearing deliberations.

V. The 2005 Board Decision and the Alleged 12% Benchmark19 In 2005 the Board issued a decision in which it considered several matters

pertaining to applications for rate approval: (1) the appropriate ROE rate forautomobile insurance companies; (2) the appropriate premium to surplus ratio;and (3) the investments and related returns that should be credited to policyhold-ers. The Board also asked whether the rates managed by the Facility Associationshould include a recovery of “Cost of Capital” and, if so, what should be consid-ered a proper rate of return to recover this cost. To address those questions theBoard held a public hearing.

20 The Board’s 2005 decision touches the issue of the appropriate premium tosurplus ratio in a summary fashion. Based on federal regulations governing thematter, the Board accepted the proper premium to surplus ratio should rangefrom 1.5 to 2.2. As to the proper ROE rate, the Board noted that most compa-nies’ ROE requests ranged from a low of 12% to a high of 17%. Some compa-nies requested the Board not set a rate while others suggested a range from 8.5%to 10%. The Insurance Bureau of Canada introduced a graph showing the Pro-perty and Casualty Industry return from 1975 to 2004. The latest yield was8.73%. From 1975 to 1983, the highest return was 11.2%. The Board was pre-sented with competing approaches to determine an appropriate rate of return onequity. Both the Board’s expert and that of the Attorney General agreed that theCAPM model provided the proper method for calculating the ROE. The Board


agreed and accepted its expert’s opinion that the Board need not specify a spe-cific rate for all insurers. The Board’s expert also stated that the Board shouldsend a signal to insurers that it had a range in mind (e.g., 9% to 13%) and that itwould be requiring “outliers” to justify a rate which falls outside the range. Hereis what the expert said in response to the question of whether it would be betterto look at the ROE on a case by case basis:

Yes, that’s what I would say. And that you send a signal that you have somerange in mind that might be, you know, 9 to 12, 13 something in that zone aswhat people — what are they targeting for. And require for people who arethe outliers to justify.

I think it would be a waste of resources to have everyone coming forward tojustify well, we are doing 11 percent and here is why, and we are doing 11.5,and here is why and so on.

But I think what the Board should be concerned with is the outliers. And,you know, that’s a good use of your time and also a better use for the timesof the people, submitting for rate claims.

21 The Board interpreted the above passage in the following manner. While theBoard’s expert thought the setting of a range of rates would facilitate the ap-proval process by requiring those insurers outside the range to justify their rateof return, the Board decided not to establish a prima facie range of acceptablerates. The Board held:

The Board agrees with the recommendations of [the Board’s expert]. TheBoard will not abdicate its responsibilities by creating a fixed rate or range ofreturn on equity. The Board will review the requested rate of return on eachapplication and decide what the rate should be based on the criteria of setting“just and reasonable rates” for the policy holders of New Brunswick.

22 In summary, it is clear that the Board’s 2005 decision did not fix a 12%benchmark for the rate of return on equity and, therefore, the Attorney Generalremains in error on this point. At the same time, the Board’s 2005 statement thatit was accepting the recommendations of its expert is confusing if not mistaken.The Board’s expert believed that the Board should fix a range for the ROE rate.Insurers whose ROE rates fell outside the range would have their applicationssubjected to greater scrutiny. The Board’s decision, however, does not expresslyadopt this approach. Curiously, regardless of what the Board stated in its 2005decision, it appears that all insurers are being required to file a rate applicationwhich shows the impact on premium rates assuming a ROE rate of 12%. Giventhe fact that Dominion was seeking a ROE rate in excess of 18%, the decision ofthe Board to investigate further and hold a hearing into the rate application isperfectly consistent with the Board’s 2005 decision and, in particular, the opin-ion of its expert, even though the Board has never fixed a range of percentagerates which will attract less scrutiny. In short, Dominion filed an applicationwhich rendered it an “outlier” and the Board duly responded. So far so good.


VI. The Decisions to Hold a Written Hearing and to Limit Interrogatories23 Once the Board consulted with the Superintendent of Insurance and decided

to investigate Dominion’s rate application, the Board had to settle on which ofthe three hearing formats should be adopted. As noted earlier, the Board is notobligated to hold an oral hearing unless the Board considers it necessary to “actin a procedurally fair manner”. Since the Board ordered a written hearing wemust assume that the Board consciously decided that a written hearing with in-terrogatories, as between Dominion and the Attorney General, would be compli-ant with the common law understanding of procedural fairness. In any event, theAttorney General took no objection to the decision to hold a written hearing asopposed to an oral hearing. But the question that lingers in my mind is whetheran oral hearing would have better suited the Board’s adjudicative task by givingpanel members the opportunity to question directly the actuarial opinions beingtendered by the respective parties. This is a matter for the Board to reflect on infuture cases after seeking the views of those who will be participating in thehearing. At that point, the Board is entitled to make its ruling.

24 I am left to ask whether the Board denied the Attorney General proceduralfairness when the Board limited his right to pose questions by eliminating thosethat required Dominion to generate new information. The Board’s formal re-sponse to the Attorney General’s objection to limiting the interrogatories wasthat the questions “go far beyond what is contemplated by the legislation”. Thisleads one to ask what is contemplated by the legislation. As noted earlier, s.19.41(a) authorizes the Board to determine its own procedure and to give direc-tions about the process and procedure that it considers appropriate in the circum-stances. Moreover, s. 19.41(b) authorizes the Board to request a party to provideit with relevant information; that is to say, information which is relevant, mate-rial and trustworthy. However, there is nothing in the legislation to support theBoard’s justification for limiting the Attorney General’s right to pose interroga-tories to Dominion. The question facing the Board was whether the new infor-mation which the Attorney General sought from Dominion was relevant to theBoard’s task of adjudicating on the proposed rate hike. The Board never ad-dressed that question. As a result, the Board fell into error. Let me explainfurther.

25 The Attorney General was asking Dominion to recalculate the ROE rate byusing alternative actuarial assumptions; that is to say, ones that were differentthan those which Dominion had adopted. More importantly, one would havethought that the Board would have been interested to learn how different actua-rial assumptions would impact on the percentage rate of return on equity and theinsurance rate to be approved. Yet, the Board’s curiosity was not piqued, norcould it offer this Court a reason why the so-called new information beingsought was not relevant, material and trustworthy.


26 The above analysis leads me to conclude that the Attorney General was de-nied procedural fairness when the Board ruled that Dominion did not have toproduce (generate) evidence which was otherwise prima facie relevant to theprimary task at hand. Certainly, the legislation does not hinder the Board fromrequiring an insurer to make recalculations based on different actuarial assump-tions. The Attorney General’s questions were appropriate and in the “public in-terest” and the Board should have exercised its discretion to demand evidencethat on its face appears relevant to a material issue.

VII. The Duty to Give Reasons for Final Decision27 The Board’s one-page decision begins with a recitation of the facts leading

up to the hearing of the application, and an acknowledgement that the Boardconsidered all of the relevant submissions, together with the actuarial advice ofthe Board’s firm of consulting actuaries. The Board’s formal reasoning for ac-cepting Dominion’s rate application is found in the following passage:

The Board finds that the Company’s proposed rates are supported by soundactuarial principles and were within a range of reasonableness. It is the deci-sion of the Board to approve the Company’s rate revision application asamended. The impact of the rate revision application is estimated to re-present an overall change from the rate level currently in effect of +0.49%.

28 Obviously, the above passage does not qualify as reasons for decision. It issimply a conclusionary declaration of entitlement. This leads one to considerwhether the Board was under a duty to provide reasons. The Insurance Act doesnot contain an express obligation to do so and, hence we are left to decidewhether such an obligation arises under common law principles.

29 Traditionally, there was no common law obligation on statutory decision-makers to provide written reasons for their decisions and, therefore, the failureto do so was not regarded as a breach of the duty of procedural fairness. It wasnot until 1999 that the Supreme Court of Canada recognized that an administra-tive decision-maker could be obligated to provide reasons even though the ena-bling legislation did not mandate such a requirement. In the absence of an ex-press statutory direction, the obligation to provide reasons for a decisiondepended on the application of the analytical framework which the SupremeCourt first set out in Baker v. Canada (Minister of Citizenship & Immigration),[1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (S.C.C.), and more recently appliedin Congregation des Temoins de Jehovah de St-Jerome-Lafontaine c. Lafontaine(Municipalite), 2004 SCC 48, [2004] 2 S.C.R. 650 (S.C.C.). That frameworkbegins with the acceptance of the general principle that the content of the duty offairness, including the duty of procedural fairness, which is imposed on all ad-ministrative decision-makers, varies according to five factors: (1) the nature ofthe decision and the decision-making process employed by the decision-maker;(2) the nature of the statutory scheme and the precise statutory provisions pursu-ant to which the public body operates; (3) the importance of the decision to the


individuals affected; (4) the legitimate expectations of the party challenging thedecision; and (5) the nature of the deference accorded to the decision-maker (seegenerally Jones and DeVillars, Principles of Administrative Law (Toronto:Thomson Reuters Canada Ltd., 2009) [Jones & DeVillars], at p. 368 et seq.).

30 The essential facts of Baker are straightforward. Ms. Baker, a woman withfour Canadian-born dependent children, was subject to a deportation order thatissued in 1992. She had arrived on a visitor’s visa in 1981. To avoid deportation,Ms. Baker applied for an exemption, based on humanitarian and compassionategrounds, from the requirement that an application for permanent resident statusbe made from outside Canada. Ms. Baker’s application was denied in a letterwritten by a senior immigration officer. That letter did not provide reasons.However, Ms. Baker’s counsel requested and received the written notes of theinvestigating immigration officer. The one issue relevant to this appeal iswhether the senior immigration officer was under an obligation to provide rea-sons for the rejection of Ms. Baker’s application. Understandably, the issue wasof immense precedential significance because it involved the obligation of allcivil servants vested with a statutory power or discretion to provide reasons fortheir decision. The Supreme Court ruled that, on the facts of the case, the immi-gration officer was required to provide reasons. However, the Court went on tohold that the investigating officer’s “notes” could be used inferentially to meetthat requirement. It was on the basis of those notes that the Supreme Court heldthe immigration officer to be biased. As to the legal rationale for holding that theimmigration officer was under a duty to provide reasons for his decision, theSupreme Court did not go through each of the five factors outlined above. TheCourt’s reasoning is as follows: “The strong arguments demonstrating the ad-vantages of written reasons suggest that, in cases such as this where the decisionhas important significance for the individual, when there is a statutory right ofappeal, or in other circumstances, some form of reasons should be required”(para. 43).

31 The most recent decision of the Supreme Court addressing the issue of theobligation of an administrative decision-maker to provide reasons for decision isCongregation des Temoins de Jehovah de St-Jerome-Lafontaine c. Lafontaine(Municipalite); see also Prud’homme c. Prud’homme, 2002 SCC 85, [2002] 4S.C.R. 663 (S.C.C.). The essential facts involved the persistent refusal of a mu-nicipality to rezone land that would allow the Congregation to erect a place ofworship. Under the zoning by-law places of worship could only be built in aregional community use zone, but the Congregation felt that no land was availa-ble in this zone and thus bought a parcel of land in a residential zone only tohave their application for a rezoning denied after the municipality accepted thenegative recommendation of a consultative body. The Congregation purchasedanother lot in a commercial zone and their two applications for rezoning weredenied without the municipality providing reasons and without being in receiptof a recommendation from the consultative body. The essence of the Congrega-


tion’s lawsuit was that the municipality had infringed their s. 2(a) Charter rightto freedom of religion.

32 The majority of the Supreme Court in Lafontaine (Municipalite) held thatthe municipality had breached the fairness duty by failing to give reasons basedon the application of the five factors articulated earlier in these reasons. In brief,reasons for decision were needed for judicial oversight to ensure against arbi-trary municipal decision making, as there was no right to appeal the rezoningrefusal. The Congregation’s right to practice their religion militated in favour ofheightened protection. The Congregation had a right to expect that their applica-tion would be thoroughly vetted as had been done on the application to rezoneland in a residential area. Finally, although the municipality’s zoning decisionswould require deference because of the municipality’s relative expertise, thefailure to provide reasons meant that there was no record to indicate that themunicipality had actually engaged its expertise in evaluating the applications.

33 Just as Baker was of immense precedential significance, so too wasLafontaine (Municipalite). The notion that a municipal council in New Bruns-wick could be required to produce reasons for its decision to reject a rezoningapplication might come as a surprise to many. However, the finding that theNew Brunswick Insurance Board may be under a duty to provide reasons forone of its decisions should not. My formal reasoning is as follows.

34 In regard to private passenger vehicles, the primary function of the Board isto ensure that insurance premiums are just and reasonable. This objective cameabout as a result of the 2003 reforms to the Insurance Act which saw, for exam-ple, a cap being placed on the damages that could be awarded for certain typesof personal injury. That amendment alone had a significant impact on the ex-isting right of all New Brunswickers to obtain compensation for personal injurybased on common law principles. Eventually, the legislature wanted to ensurethat the interests of all New Brunswickers would be further protected by permit-ting the Attorney General to intervene in cases where the Board decided to sub-ject a rate application to further scrutiny by ordering a hearing. Hence, theBoard’s failure to provide reasons undermines public confidence that the Boardwill attempt to balance the interests of insurers and policy-holders alike.

35 How is the public to be assured that the Board is not engaged in arbitrarydecision-making? How does the Attorney General obtain a meaningful right ofappeal to this Court if the Board has failed to demonstrate that it grasped theissues at hand? The answer to those questions is obvious. The Board must pro-vide reasons for its decision. Otherwise, this Court would be effectively grantingdeference to the Board when there is no evidence of the Board actually engagingits expertise by deciding discrete issues of precedential significance. Withoutreasons for decision, the public cannot be assured that Dominion’s proposed ratewas just and reasonable. The Attorney General’s allegation that Dominion’s ap-plication did not meet this threshold test went unanswered and that is all that is


required to undermine public confidence in the administrative scheme imple-mented for the purpose of ensuring that the rate approval process remains bothfair and transparent to all concerned.

36 There is one other reason why the Board’s failure to provide reasons shouldnot be sanctioned. Recall that s. 267.5(5) of the Insurance Act obligates theBoard to consider those factors which are prescribed by regulation when deter-mining whether a proposed rate is just and reasonable. Recall also that, to date,no such regulation has been adopted. In the circumstances, surely the obligationrests on the Board to fill that gap by ruling on what factors it considers relevantto the rate-decision-making process. Without reasons for decision the gap willnever be filled. Whether the Legislature is partially responsible for this lacuna isa question I need not address.

37 I do not wish these reasons for judgment to be misinterpreted. They do notstand for the bald proposition that the Board is required to provide reasons withrespect to all of its decisions. Each year the Board is required to rule on hun-dreds of applications. Many, if not most, do not involve the kinds of questionsbeing raised in this appeal. What I am saying is that, in cases where the Boardrules that the rate application is one which requires further investigation in theform of a hearing, thereby triggering the Attorney General’s right to intervene,and where in fact he or she so elects, the Board is obligated to provide reasonswith respect to issues properly raised before the Board and intelligently pursuedby the parties. If the case is one in which the issues raised are of precedentialsignificance, the need for reasons is inevitable and it makes no differencewhether the Board elects to proceed by electronic, paper or oral hearing. Whatmatters is that two adversaries have posed factual and legal questions which re-quire adjudication by an adjudicative tribunal. Within this narrow framework, itis not difficult to justify the imposition of an obligation to provide reasons.

38 This leads me to consider whether the transcript of the Board’s post-hearingdeliberations should be accepted as part of the appeal record and, if so, whetherthe transcript satisfies the requirement for reasons for decision. The transcriptappears to have been tendered on the assumption that, just as the investigatingofficer’s notes in Baker were deemed admissible for the purpose of satisfyingthe requirement for reasons, so too should the transcript of the Board’s delibera-tions be deemed to satisfy the reasons requirement. In my view, any analogybetween the present case and Baker is misguided.

39 My first task is to explain how the transcript of the post-hearing delibera-tions made it up and onto our Bench. Apparently, a disc of the transcript wasprovided on the hearing of the motion held in this Court dealing with theBoard’s application for intervener status. The motion for intervener status, as aFriend of the Court, was granted. Following the filing of the appeal record andsubmissions, a transcript of the deliberations was prepared by Dominion andsent to the Registrar and, subsequently, distributed to the panel hearing the pre-


sent appeal. At no time has the Attorney General or the Board objected to theintroduction of the transcript. Indeed, the Attorney General relies on the docu-ment to identify other errors of the Board.

40 I offer two reasons why this Court should not accept the transcript of theBoard’s deliberations as part of the appeal record. First, as a matter of policy, noCourt should be privy to the deliberations of an adjudicative tribunal except inthe circumstances prescribed by law. Second, as one might expect, the disjointedinterjections of Board members interlaced with extensive commentary by theBoard’s lead actuary does not meet the general threshold test of “justification,transparency and intelligibility” articulated in Dunsmuir. I shall elaborate onthese points further.

41 The duty of fairness does not cease at the end of the tribunal’s hearing. Is-sues may arise post-hearing that require consideration. Since the topic is dealtwith comprehensively in Jones & DeVillars at p. 340 et seq., I need only focuson the circumstances in which the courts are permitted to delve into the post-hearing process. The two lead decisions of the Supreme Court are I.W.A., Local2-69 v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, [1990]S.C.J. No. 20 (S.C.C.), and Quebec (Commission des affaires sociales) c. Trem-blay, [1992] 1 S.C.R. 952, [1992] S.C.J. No. 20 (S.C.C.). Those cases focus onthe extent to which non-panel members were involved in the decision-makingprocess (illegal sub-delegation), thereby impinging, but only so slightly, on thetribunal’s right to insist on deliberative secrecy with respect to the decision-making process. Jones & DeVillars state: “The process of adjudication is gener-ally not required to be an open process: parties are not allowed to inquire aboutthe actual thinking process or consideration about the issues in the decision bythe decision-maker. Deliberative secrecy is not absolute, but it is nonethelessheavily protected” (p. 346). In support of that statement, the authors citeGonthier J. in Tremblay at para. 25 where he distinguishes between review bythe court of the “formal process” for consultation and “matters of substance orthe decision makers’ thinking on such matters”.

42 Understandably, I was unable to uncover any decision in which a court wasprepared to compel an adjudicative tribunal to reveal the actual exchange ofpost-hearing views of individual tribunal members. This leads me to ask whetherit makes a difference that the tribunal voluntarily offers into evidence a tran-script of its deliberations. Of course not. The principle of deliberative secrecycannot be transgressed at the whim of the adjudicative tribunal in order to over-come its failure to offer cogent reasons for its decision. Bluntly stated, tran-scripts of post-hearing deliberations cannot simply be used as spare tires for in-adequate reasons.

43 My second reason for refusing to accept the transcript of the Board’s deliber-ations as part of the appeal record is umbilically tied to the first. Not only is thetranscript being used for purposes of “bootstrapping” materially deficient rea-


sons for decision, it is being introduced on the mistaken assumption that theviews exchanged by panel members and the Board’s actuary could pass thethreshold test of “justification, transparency and intelligibility” articulated inNew Brunswick (Board of Management) v. Dunsmuir and discussed most re-cently in Burke v. N.L.A.P.P.E., 2010 NLCA 12, [2010] N.J. No. 62 (N.L. C.A.).As one would expect, the transcript is simply a compilation of disjointed ex-changes between panel members and relatively lengthy discourses tendered bythe Board’s actuaries with respect to several discrete issues. The Attorney Gen-eral uses the transcript as evidence of misguided ruminations by misguided adju-dicative decision-makers. In my respectful view, it is pure folly to believe that atranscript of disjointed questions, observations, musings and even expressions ofopinion by individual decision-makers and their experts, is an acceptable substi-tute for a set of reasons that should be as cogent as they are persuasive andrepresent the collective views of only those who have the statutory right todecide.

44 I wish to make one final point with respect to the “transcript” issue. Whilethe presence of the Board’s independent actuaries during the post-hearing delib-erations does not invite negative comment, it is worth stating that the role of anyexpert is to outline and explain the competing arguments advanced by eachparty. The expert may explain the pros and cons of each position and may ulti-mately express an opinion on a discrete issue. In the present case, the expert hasalready expressed an opinion, and just as the Board panel that deliberated on theDominion application is disqualified from hearing the matter anew, so too arethe actuaries who advised the Board with respect to Dominion’s application.This direction should not be regarded as a negative reflection on their part. Dis-qualification simply avoids the allegation that without such a direction the deci-sion-makers may be unable to fairly and objectively distance themselves fromtheir initial decision or, in the case of the actuaries, from the advice originallygiven.

VIII. The Proper Relief45 As noted earlier, this Court has to grapple with the question of whether it has

the power to set aside the Board’s decision to approve Dominion’s applicationand to remit the matter to the Board for a hearing in accordance with these rea-sons for judgment. The question arises because the English version of s. 19.8(4)of the Insurance Act provides that this Court may “confirm, modify, vary orreverse” the order or decision of the Board. This leads one to ask whether thepower to “reverse” was meant to include the power to set aside and remit thematter to the Board for a redetermination. But I cannot address that questionwithout first turning to the French version of s. 19.8(4) which states that theCourt has the power to “confirmer, modifier ou infirmer” the order or decisionof the Board. In short, the English version outlines four remedial options whilethe French version offers three. Frankly I do not see any substantive difference

NB (AG) v. Dominion of Canada Gen. Ins. Co. Bradley V. Green J.A. 269

between the words “modify” and “vary” as used in the English version. Ac-cepting this to be so, the only difference between the English and French ver-sions is that the English version uses the word “reverse”, while the French ver-sion uses the word “infirmer” which means to invalidate, annul or quash.

46 Obviously, the interpretative issue at hand does not turn on the differencebetween the two language versions of s. 19.8(4). Neither expressly states thisCourt has the power to set aside a Board decision and to remit the matter forrehearing. Hence, we must decide whether such a power may be inferred. In myview, a positive response is warranted on the ground of practical necessity. Letme explain.

47 Assume for the sake of argument, this Court does not have the power toremit the matter to the Board for a rehearing in order to remedy the breaches ofthe fairness duty. One remedial option is simply to “quash” or “infirmer” theBoard’s decision in which case Dominion is left in the dark as to whether it mayresubmit its application as the Insurance Act is silent on this point. Another op-tion is to “reverse” the decision of the Board. This would mean that we wouldhave to rule that the Board erred in not rejecting the application. This makes nosense because there has been no final ruling on the merits of the application.Because of these ambiguities, I am prepared to hold that the words “reverse” and“infirmer” must, by necessary implication, have the extended meaning beingproposed. This interpretation is consistent with the position of the parties, thejurisprudence of this Court, and the objectives of the Insurance Act. As to thejurisprudence of this Court and the need for reading words into a statute seeStone v. Woodstock (Town), 2006 NBCA 71, 302 N.B.R. (2d) 165 (N.B. C.A.)and Smith v. Agnew, 2001 NBCA 83, 240 N.B.R. (2d) 63 (N.B. C.A.).

48 In summary, I would allow the appeal, set aside the Board’s decision to ap-prove Dominion’s rate application and remit the matter to a differently consti-tuted panel of the Board for a determination in a manner consistent with thesereasons for judgment. This is not a case where costs should be ordered. Neitherparty is at fault for the omission and, by order of a judge of this Court, theBoard’s intervener status is as a Friend of the Court and not as a party.

J. Ernest Drapeau C.J.N.B.:

I CONCUR:

Bradley V. Green J.A.:

I CONCUR:

Appeal allowed; matter remitted for reconsideration.


[Indexed as: Hart v. Roman Catholic Episcopal Corp. of theDiocese of Kingston]

REVEREND BRIAN HART (Plaintiff) and ROMAN CATHOLICEPISCOPAL CORPORATION OF THE DIOCESE OF KINGSTON,

IN CANADA (Defendant)

Ontario Superior Court of Justice

Robert N. Beaudoin J.

Heard: June 18, 2010

Judgment: August 31, 2010

Docket: Belleville CV-08-0068-00, 2010 ONSC 4709

R. Steven Baldwin for PlaintiffAndrea Risk for Defendant

Civil practice and procedure –––– Disposition without trial — Stay or dismissal ofaction — Grounds — Action frivolous, vexatious or abuse of process — Jurisdictionand discretion of court –––– Employee Roman Catholic priest was appointed pastor oftwo churches in archdiocese — Archbishop of archdiocese raised concerns about priest’sability to continue as pastor — Archdiocese disciplined priest three times by way of ad-ministrative action — Priest did not challenge administrative actions under Canon law, ashe was advised to do — Third administrative decision was removal of priest as pastor —Priest brought action against archdiocese for constructive dismissal — Archdiocesebrought application to stay proceedings of constructive dismissal action — Applicationgranted — Proceedings were abuse of process and were stayed — Court had no jurisdic-tion over dispute because essence of claim was ecclesiastical in nature — Office of pastorwas created by and governed by Canon law — Canon law dictated circumstances underwhich office of pastor could be terminated — Priest could have appealed under Canonlaw — Priest had not been dismissed from cleric state — Courts would interfere in relig-ious disputes where requirements of natural justice had not been satisfied by internalprocesses or where internal processes had been satisfied — There had been no denial ofnatural justice — Priest did not attempt to pursue internal remedies under Canon law.

Religious institutions –––– Jurisdiction of civil and criminal courts — Discipline ofclergy –––– Employee Roman Catholic priest was appointed pastor of two churches inarchdiocese — Archbishop of archdiocese raised concerns about priest’s ability to con-tinue as pastor — Archdiocese disciplined priest three times by way of administrativeaction — Priest did not challenge administrative actions under Canon law, as he was ad-vised to do — Third administrative decision was removal of priest as pastor — Priestbrought action against archdiocese for constructive dismissal — Archdiocese brought ap-plication to stay proceedings of constructive dismissal action — Application granted —Proceedings were abuse of process and were stayed — Court had no jurisdiction overdispute because essence of claim was ecclesiastical in nature — Office of pastor was cre-ated by and governed by Canon law — Priest’s removal as pastor was not justicable bycourts — Administrative acts could have been appealed by priest under Canon law —

Hart v. Roman Catholic Diocese of Kingston 271

Canon law dictated circumstances under which office of pastor can be terminated —Courts would interfere in religious disputes where requirements of natural justice had notbeen satisfied by internal processes or where internal processes had been satisfied —There had been no denial of natural justice — Priest did not attempt to pursue internalremedies under Canon law.

Administrative law –––– Requirements of natural justice — Right to hearing — Pro-cedural rights at hearing — Opportunity to respond and make submissions –––– Em-ployee Roman Catholic priest was appointed pastor of two churches in archdiocese —Archbishop of archdiocese raised concerns about priest’s ability to continue as pastor —Archdiocese disciplined priest three times by way of administrative action — Priest didnot challenge administrative actions under Canon law, as he was advised to do — Thirdadministrative decision was removal of priest as pastor — Priest brought action againstarchdiocese for constructive dismissal — Archdiocese brought application to stay pro-ceedings of constructive dismissal action — Application granted — Proceedings wereabuse of process and were stayed — Courts would interfere in religious disputes whererequirements of natural justice had not been satisfied by internal processes or where inter-nal processes had been satisfied — There had been no denial of natural justice — Basicrequirements of natural justice, including notice, opportunity to make representations,and unbiased tribunal, were set out in canons — Priest received reasons for each adminis-trative action — Priest received advice from canonical lawyer — Priest did not appeal toimpartial tribunal under Canon law — Priest did not make use of Canon law remedies,which were broad and included monetary compensation.

Administrative law –––– Prerequisites to judicial review — No other avenues of re-lief –––– Employee Roman Catholic priest was appointed pastor of two churches in arch-diocese — Archbishop of archdiocese raised concerns about priest’s ability to continue aspastor — Archdiocese disciplined priest three times by way of administrative action —Priest did not challenge administrative actions under Canon law, as he was advised todo — Third administrative decision was removal of priest as pastor — Priest brought ac-tion against archdiocese for constructive dismissal — Archdiocese brought application tostay proceedings of constructive dismissal action — Application granted — Proceedingswere abuse of process and were stayed — Court had no jurisdiction over dispute becauseessence of claim was ecclesiastical in nature — Courts would interfere in religious dis-putes where requirements of natural justice had not been satisfied by internal processes orwhere internal processes had been satisfied — Priest did not attempt to pursue internalremedies under Canon law — Priest failed to exercise his rights although he was advisedof processes on ongoing basis — There were no statistics to prove that prospect of timelydisposition of priest’s complaints through provisions of Canon law was “virtually un-heard of”.

Labour and employment law –––– Employment law — Termination and dismissal —Termination of employment by employer — Constructive dismissal — Miscellane-ous –––– Removal of priest as pastor of church.

Cases considered by Robert N. Beaudoin J.:

Brewer v. Anglican Church of Canada (Incorporated Synod of the Diocese of Ottawa)(1996), 1996 CarswellOnt 757, [1996] O.J. No. 634 (Ont. Gen. Div.) — referred to


Davis v. United Church of Canada (1991), 1991 CarswellOnt 1076, 8 O.R. (3d) 75, 92D.L.R. (4th) 678 (Ont. Gen. Div.) — considered

Gruner v. McCormack (2000), 2000 CarswellOnt 707, 45 C.P.C. (4th) 273, [2000]O.T.C. 143, [2000] O.J. No. 789 (Ont. S.C.J.) — considered

Kaddoura v. Hammoud (1998), 1998 CarswellOnt 4747, 168 D.L.R. (4th) 503, 44 R.F.L.(4th) 228, 83 O.T.C. 30, [1998] O.J. No. 5054 (Ont. Gen. Div.) — referred to

Lakeside Colony of Hutterian Brethren v. Hofer (1992), [1993] 1 W.W.R. 113, [1992] 3S.C.R. 165, 142 N.R. 241, 81 Man. R. (2d) 1, 30 W.A.C. 1, 1992 CarswellMan 138,97 D.L.R. (4th) 17, 1992 CarswellMan 221, [1992] S.C.J. No. 87, EYB 1992-67140(S.C.C.) — referred to

Levitts Kosher Foods Inc. v. Levin (1999), 42 C.P.C. (4th) 302, 1999 CarswellOnt 2293,45 O.R. (3d) 147, 175 D.L.R. (4th) 471, 87 C.P.R. (3d) 505, [1999] O.J. No. 2785(Ont. S.C.J.) — followed

Melnyk v. Wiwchar (2007), 57 C.C.E.L. (3d) 306, 2007 CarswellSask 173, 2007 SKQB118, [2007] 7 W.W.R. 156, 295 Sask. R. 125, 58 C.P.C. (6th) 371 (Sask. Q.B.) —considered

Moustakis v. Hellenic Orthodox Soc. of Peabody & Salem (1928), 159 N.E. 453, 261Mass. 462 (U.S. Mass. Sup. Jud. Ct.) — referred to

Pedersen v. Fulton (1994), 111 D.L.R. (4th) 367, 1994 CarswellOnt 814, [1994] O.J. No.168 (Ont. Gen. Div.) — distinguished


Courts of Justice Act, R.S.O. 1990, c. C.43s. 106 — considered

Roman Catholic Bishops of Toronto and Kingston, in Canada, in each Diocese, Act toincorporate the, S.U.C. 1845, c. 82

Generally — referred to

Rules considered:

Rules of Civil Procedure, R.R.O. 1990, Reg. 194R. 20 — referred toR. 21.01(3) — consideredR. 21.01(3)(a) — consideredR. 21.01(3)(c) — consideredR. 21.01(3)(d) — considered

APPLICATION by defendant archdiocese for stay of proceedings of constructive dismis-sal action.

Robert N. Beaudoin J.:

1 The defendant Roman Catholic Episcopal Corporation of the Diocese ofKingston, in Canada (“the Archdiocese”), seeks a stay of these proceedings pur-suant to s. 106 of the Courts of Justice Act, or, in the alternative, an order stay-ing or dismissing this proceeding pursuant to Rule 21.01(3) of the Rules of CivilProcedure. This motion arises as the result of civil proceedings brought by Fa-ther Brian Hart (“Father Hart”) against the Archdiocese. While it is not stated as

Hart v. Roman Catholic Diocese of Kingston Robert N. Beaudoin J. 273

such in the Statement of Claim, Father Hart’s counsel confirmed that the actionis limited to a claim for damages for constructive dismissal.

2 In its Factum, the Archdiocese also made reference to Rule 20 (SummaryJudgment), however, since this relief was not sought in its Notice of Motion Irefused to consider the motion on the basis of Rule 20.

3 Rule 21.01 (3) provides:

21.01((3) A defendant may move before a judge to have an action stayed ordismissed on the ground that,

(a) the court has no jurisdiction over the subjectmatter of the action;

. . . . .

(c) another proceeding is pending in Ontario or an-other jurisdiction between the same parties inrespect of the same subject matter; or

(d) the action is frivolous or vexatious or is other-wise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly.

4 Section 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43. provides:

106. A court, on its own initiative or on motion by any person, whetheror not a party, may stay any proceeding in the court on such terms asare considered just.

5 The issues that arise on this motion are:

A. Whether this Court has jurisdiction over the subject matter of Fa-ther Hart’s claim; and

B. If not, whether the claim should be dismissed or stayed.

Background6 The facts are set out in the Affidavit of Reverend Monsignor Joseph Lynch,

Vicar General, Chancellor and Associate Judicial Vicar of the Archdiocese.

7 The Archdiocese is a corporation incorporated pursuant to a special act ofParliament in 1845, being an Act to Incorporate the Roman Catholic Bishops ofToronto and Kingston, in Canada, in each Diocese. The senior priest and eccle-siastical authority of the Archdiocese is the Archbishop.

8 Father Hart is an ordained Roman Catholic priest. In 2004 he was appointedpastor of two churches in Prince Edward County, Ontario; St. Gregory the GreatParish in Picton and St. Frances of Rome in Wellington.

9 In 2004 and 2005, Archbishop Meagher raised concerns about Father Hart’sability to continue in this appointment. These concerns first involved the use ofcheques drawn on parish funds to business organizations to which Father Hart


was affiliated. On December 13, 2004, Father Hart was directed by the Arch-bishop to resign as an officer and director of these business organizations.

10 In 2006, employees of the parish of St. Gregory the Great raised concernsabout Father Hart’s association with a young man named Garrett Seberras andSeberras’ fraudulent use of parish funds. It was reported that Father Hart wasgoing to enter into a business arrangement with Seberras and two others. InApril, 2006 Father Hart was advised by the Archbishop to end any businessrelationships with Seberras and to not let Seberras in or around church property.

11 In 2006 Archbishop Meagher had a number of meetings with Father Hart. InJune of that year, parish employees again reported that Father Hart continued toallow Seberras on church property. Archbishop Meagher advised Father Hartthat he considered his actions to constitute a flouting of his vow of obedi-ence.Father Hart was instructed to take a 30 day retreat to consider if he wishedto continue as a parish priest.

12 On July 10, 2006 Father Hart wrote to Archbishop and requested a meetingof his own devise to challenge the criticisms of the parishioners and others. Hethen wrote and provided an explanation about the cheques written by Seberrasbut did not respond to the other concerns raised.

13 On July 21, 2006, Father Hart was first placed on administrative leave forhis failure to terminate his relationship with Seberras. Monsignor Lynch charac-terizes this as an administrative act that could be challenged under Canon Law.Father Hart did not challenge that decision.

14 On September 21, 2006, Father Hart used a small meeting of parishioners todescribe his relationship with Seberras and to challenge the instruction of theArchbishop. He continued to be involved in a business relationship with Seber-ras. He held this meeting in the absence of the Archbishop or anyone from theArchdiocese.

15 The Archbishop then wrote to Father Hart and advised him that he consid-ered his behaviour to be unacceptable. Father Hart responded, outlined his disa-greement with the Archbishop and asked for a hearing of his own devise. TheArchbishop subsequently contacted Father Hart, outlined his concerns and askedthat he attend a psychological assessment at the Southdown Institute, a healthcentre specializing in the assessment and support of members of the clergy. Thatassessment did take place and the assessor, Dr. Philip Dodgson, advised thatFather Hart presented a serious risk and recommended that Father Hart undergoa four to six month residential treatment before being returned to activeMinistry.

16 Father Hart refused to undergo the treatment until he had been given an op-portunity to confront those parish employees who had conveyed their concernsto the archdiocese. Archbishop Meagher died in January 2007 and was replacedby Reverend Brian Price as temporary administrator. Reverend Price suspendedFather Hart’s faculties to exercise sacramental ministry on May 21, 2007 until


treatment had been received. Monsignor Lynch describes this decision as a sec-ond administrative act that could be challenged under Canon Law. Father Hartdid not challenge it. He retained counsel to pursue a remedy in the civil courts.

17 Archbishop O’Brien was appointed in July 2007. He had subsequent meet-ings with Father Hart. He advised Father Hart that if did not resign as pastorsteps would be taken to remove him. On March 5, 2008, Father Hart was ad-vised that the first step in the canonical process to remove him as pastor hadbeen initiated. Father Hart was advised of the grounds for the removal and wasasked for a response. He did not reply nor did he respond to a subsequent lettersent by the Archbishop.

18 On June 2, 2008 Archbishop O’Brien issued a decree of removal removingFather Hart as pastor. A detailed version of the decree was given to Father Hartsetting out the reasons for his removal and his right to appeal the decree underCanon Law. This is described by Monsignor Lynch as a third administrativedecision. In response, Father Hart commenced these proceedings.

19 At around the same time the Archdiocese was named as a co-defendant,along with Father Hart, in a legal action brought by Seberras, wherein heclaimed damages for intimidation, sexual assault and breach of fiduciary duty. Iam advised that this proceeding has been abandoned by that plaintiff.

20 Although Father Hart was removed as pastor, he remains a priest and theArchdiocese has an obligation to support him. He can also be appointed as pas-tor elsewhere.

Canon Law21 Two experts in Canon Law provided opinions to the Court. Reverend Doug-

las Stamp gave evidence on behalf of the diocese. John K. Murphy provided anopinion on behalf of Father Hart. Their qualifications as experts were not chal-lenged. Each of them was cross-examined on their affidavits.

22 According to Rev. Stamp, the code of Canon Law of the Roman CatholicChurch (the “Canon Law”) is the oldest continuously functioning legal systemin the western world, predating the common and civil laws. It provides an inter-nal ecclesiastical law that governs the church and its members.

23 When individuals enter the seminary to become members of the clergy, theyundergo several years of training. The training includes instruction in the CanonLaw. In addition, prior to ordination into the deaconate and priesthood, candi-dates present petitions and swear declarations in which they state that they desireof their own free will to be ordained and to abide and be governed by theprecepts of their superiors and the tenets of the canons.

24 Administrative acts may be appealed under Canon Law and the code on Ca-non Law sets out the procedure (canons 1732 to 1739). Canon 1733 provides forrecourse against these acts through the form of alternate dispute resolution. Ac-


cording to Rev. Stamp the right to appeal is quite broad as are the remedies thatmight be granted on appeal, these include awards of monetary damages.

25 Both the expert retained by the Archdiocese and the expert retained by Fa-ther Hart on this motion agree that the office of pastor is one that can be createdonly by way of the Canon Law. The Canon Law also provides for the term ofoffice and stipulates the duties and responsibilities associated with fulfilling thatoffice for the term for which it is held. Finally, the Canon Law dictates the cir-cumstances under which an office of pastor can be brought to an end.

26 Mr. Murphy notes that the Church recognizes that it is necessary to utilizethe civil law in certain matters. He gives as an example an action for possessionof property. He then states “One can argue that the ‘possession’ in question isFather Hart’s ecclesiastical office.” He argues further that the relationship be-tween a bishop and a priest is analogous to the Church’s position on marriage.While the Church will rule on the validity of the marriage, it leaves it to the civillaw as to how the assets of the parties are to be divided. When the relationshipbetween a bishop and a priest is compromised, he suggests that the relationshipis reduced to that of employer and an employee. He admitted incross–examination however that the core of the office of pastor is sacramentaland is defined by the canon law.1

27 The Roman Catholic Church addresses the departures of priests by way ofthe tenets of canon law. Mr. Murphy confirmed that, in his prior experience asChancellor in the Archdiocese of Toronto, none of the disputes between priestsand bishops were litigated in the civil courts. His own departure from the Arch-diocese was not handled in the civil courts.

28 As noted above, although Father Hart has been removed as pastor, he re-mains a priest with the Archdiocese and, unless he is laicized or “de-frocked”,the Archdiocese continues to be responsible for him. This responsibility includesan obligation to support Father Hart until his death.

The Law29 In Levitts Kosher Foods Inc. v. Levin, [1999] O.J. No. 2785 (Ont. S.C.J.)

Justice Benotto dealt with an action that was brought by a supplier of Koshermeat who had sued three Toronto rabbis. The rabbis maintained that the disputewas religious in nature and that the courts ought not to intervene and they soughta stay of the proceedings. Justice Benotto noted that a stay of proceedings israrely granted and she carefully reviewed the justicability of the claim before

1the Cross-examination of John Murphy, Q. 239 and 246


her. She canvassed a number of authorities2 and summarized the applicable lawat para 31:

The courts are understandably reluctant to intervene in the internal matters ofa religious body. To do so would deprive the religious organization of theright to interpret its own doctrine. Our courts have consistently held that it isnot appropriate for civil courts to decided questions of religious doctrine.The Supreme Court of Canada has held that the courts are slow to exercisejurisdiction over religious groups. In adjudicating church disputes, the Courtwill not look to the merits of the decision, but rather looks at the adherenceto the rules, procedural fairness and the absence of mala fides and naturaljustice. The courts will intervene, however, where the matter is one of pro-perty or civil rights and the dispute can be resolved according to applicablecivil law principles.

30 Benotto J. noted that it was first necessary to identify the real issue in aclaim before determining the appropriateness of court involvement. Althoughthe Plaintiff’s claim in that action was couched in property and civil rightsterms, she concluded that the essence of the claim was an attack on religiouspolicies. She concluded at para. 45:

The issue here is one of religious belief and conscience. I conclude that theaction is one where continuance would work an injustice to the defendantsbecause the claims are not justicable and are thus oppressive, vexatious, andan abuse of process.

31 In this proceeding, although the plaintiff has framed his action as a wrongfuldismissal claim, and his expert has tried to characterize the proceeding as onethat involves property and civil rights. Mr. Murphy conceded that the office ofPastor is ecclesiastic in nature.3 He agreed that office of pastor was created byand governed by Canon law. Canon Law dictates the circumstances under whichthe office of pastor can be brought to an end. For these reasons, I conclude thatFather Hart’s removal as pastor is not justicable by our courts.

32 In an earlier decision relied upon by both parties, namely, Pedersen v.Fulton, [1994] O.J. No. 168 (Ont. Gen. Div.), Justice Cavarzan accepted thedefendant’s arguments that the suspension of a Roman Catholic priest from of-fice and from the administration of the sacraments had to be addressed beforethe Ecclesiastical Court through the provisions of Canon Law.

2Moustakis v. Hellenic Orthodox Soc. of Peabody & Salem, 159 N.E. 453 (U.S. Mass.Sup. Jud. Ct. 1928), at 455; Kaddoura v. Hammoud, [1998] O.J. No. 5054 (Ont. Gen.Div.); Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165 (S.C.C.);Brewer v. Anglican Church of Canada (Incorporated Synod of the Diocese of Ottawa),[1996] O.J. No. 634 (Ont. Gen. Div.)3Cross-examination p. 20, q.109


33 Justice Cavarzan reviewed the relevant case law at that time and noted thedecision of Greer, J. in Davis v. United Church of Canada (1991), 8 O.R. (3d)75 (Ont. Gen. Div.) at 88 where she concluded that our courts will not intervenein ecclesiastical matters unless the rules of natural justice have been breached. InPedersen, the court stayed the proceeding and held at para. 21:

Even if the requirements of natural justice were not satisfied in these circum-stances, I have concluded, for two reasons, that this court should not inter-vene. The first is that the procedure contemplated by the Revised Code ofCanon Law ensures that the suspension can be challenged at a full hearingbefore an independent tribunal. An appeal under Canon 1353 has the practi-cal effect of nullifying (suspending) the suspension imposed by the defen-dant pending the outcome of a hearing before an in ecclesiastic tribunalwhich would not include the defendant as a member. The second reason isthat there is an obligation on the plaintiff, in these circumstances, to exhausthis remedies under the Revised Code of Canon Law.

34 The plaintiff relies on this case because the motions judge went on to con-clude that the claim for damages for wrongful dismissal and slander could not bedealt with by a stay of proceedings and were considered under the summaryjudgment branch of the motion before him. In his Factum, Father Hart maintainsthat the argument of the church that the matters of a priest’s employment areecclesiastical in nature and beyond the jurisdiction of the civil court was rejectedby the court in Pedersen. I don’t share that view. Cavarzan, J. clearly directedthat the suspension of a priest from office was to be challenged before an eccle-siastical tribunal. He stayed that part of the claim.

35 As I noted at the outset, the defendant did not rely on Rule 20 in its Notice ofMotion and I refused to deal with the motion on that basis. There is no claim forslander here as there was in Pedersen. The only claim is one of constructivedismissal. Perhaps Cavarzan J. was not directed to those provisions of CanonLaw that allow monetary compensation. Although he relied on Rule 20 in dis-missing the claim for damages he based his decision on the uncontradicted evi-dence before him that Canon Law governed the plaintiff’s claim. Just like theplaintiff in that case, Father Hart remains a cleric and has not been dismissedfrom the cleric state. In my view, on that basis, there was no need for CavarzanJ. to consider the issue of damages that flow from the removal from priestlyoffice.

36 Plaintiff’s counsel submitted two other decisions for consideration. InGruner v. McCormack, 2000 CarswellOnt 707 (Ont. S.C.J.), Justice Epstein al-lowed a claim for damages for libel to proceed. In that case, the alleged defama-tory statements were published not only to Archdiocese of Toronto but also inthe secular media throughout North America. She concluded that the essence ofthe claim went well beyond internal matters of the church. That motion was alsomade seven years after a statement of defence was delivered and the matter had


been set down for trial. There is no claim for libel here and the motion has beenbrought promptly.

37 In Melnyk v. Wiwchar, 2007 SKQB 118 (Sask. Q.B.), the SaskatchewanCourt of Queen’s Bench dealt with a claim where the plaintiff priest was unableto carry out his duties as a pastor by reason of disability. He sued the UkrainianCatholic Episcopal Corporation of Saskatchewan and the Archbishop andclaimed a violation of that province’s Human Rights legislation. The only issuein that decision was the Bishop’s personal liability apart from the Corporation.In my view, Justice Wilkinson’s comments that religious societies have no spe-cial status at law are obiter and are not binding.

38 Having regard to the essential religious nature of the relationship betweenFather Hart and the defendant, our courts will only interfere in religious disputesin two circumstances: (1) where the requirements of natural justice have notbeen satisfied by the internal processes; or (2) where those internal processeshave been exhausted.

Natural Justice39 When each of the administrative acts was taken by the Archdiocese, reasons

for the concerns were communicated to Father Hart, he was given an opportu-nity to respond, and he had access to Canon Law remedies if he wished to chal-lenge them. Father Hart refused to avail himself of those remedies

40 In Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165(S.C.C.), the Supreme Court of Canada said that the content of the principle ofnatural justice is flexible and depends on the circumstances in which the issuearises. The basic requirements are notice, an opportunity to make representationsand an unbiased tribunal. These requirements are set out in the canons.

41 Prior to both decisions being made, Father Hart was provided with details ofthe concerns both in meetings with the Archbishop and with others, and in nu-merous letters that were sent. He had an opportunity to respond. Father Hartcould have appealed these administrative decisions to an impartial tribunal. Bothexperts agreed that the remedies that could have been awarded to Father Hart onan appeal are quite broad and include monetary compensation.

42 Instead, Father Hart tried to impose his own process and requested a hearingof his own devise involving parishioners and others whose criticisms he soughtto challenge. His request was denied. Despite this, however, Father Hart ar-ranged and held his meeting. Mr. Murphy agreed that there is no right under theCanon Law to a hearing in the absence of an adverse decision such as an admin-istrative decree and that there would be no need for such a hearing. He went onto agree that a hearing can be obtained, but only after a decree is issued and ifthe priest appeals that decree under the Canon Law and subsequently requests ahearing before the Congregation of the Clergy.


43 Finally, although the expert retained by Father Hart criticized the Archdio-cese in his affidavit for not appointing legal counsel for Father Hart, he agreedunder cross-examination that the canons on which he relied are not applicablehere as they pertain to penal charges. The Canon Law only requires such counselto be appointed if the priest is not represented and the superior (i.e., the Arch-bishop) considers such representation to be necessary. In a letter dated June 8,2008, Father Hart advised the Archbishop that he had received advice from acanonical lawyer. There was therefore no need to appoint counsel. I concludethat there was no denial of natural justice

Internal Processes not Exhausted44 Father Hart has made no attempt to pursue any remedy under Canon Law.

He has failed to exercise his rights although he was advised of the processes onan ongoing basis. While the plaintiff’s expert offers the opinion that the prospectof a timely disposition of Father Hart’s complaints through the provisions ofCanon Law “is virtually unheard of” he admitted that he had no statistics tosupport that statement and that this was strictly his opinion.4

Conclusion45 The essence of the claim between Father Hart and the Archdiocese is eccle-

siastic in nature and this court has no jurisdiction over that dispute. Moreover,the internal processes that are designed to deal with that dispute do not offendthe principles of natural justice and Father Hart has not exhausted the internalprocesses available to him. For these reasons, these proceedings constitute anabuse of process and are stayed. The parties may make brief submissions as tocosts within 20 days of the release of this decision.

Application granted.

4Cross-examination Q. 328 and 331

Gatineau (Ville) c. Abramowitz 281

[Indexed as: Gatineau (Ville) c. Abramowitz]

Fraternite des policieres et policiers de Gatineau inc., Appelante-miseen cause, c. Ville de Gatineau, Intimee-requerante, et Mark

Abramowitz, es qualites d’arbitre de griefs, Mis en cause-intime

Cour d’appel du Quebec

Gendreau, Dalphond, Giroux, JJ.C.A.

Heard: 14 avril 2010

Judgment: 23 aout 2010

Docket: C.A. Montreal 500-09-019674-092, 2010 QCCA 1503

Me Guy M. Belanger, pour l’appelanteMe Rene Piotte, pour l’intimee

Droit administratif –––– Norme de controle — Divers –––– Normes de controlerevisees - decision raisonnable — En 2007, un inspecteur de police a l’emploi d’un ser-vice de police municipal a effectue un sondage parmi les partenaires du service afind’evaluer la facon dont le service etait percu dans la communaute — Un des com-mentaires affirmait que la police n’avait eu aucun probleme a recourir a des actescriminels comme moyens de pression lors des dernieres negociations collectives — Com-mentaire a ete inclus dans le rapport final qui a ete envoye a 22 personnes, y compris ladirection de la fraternite des policiers — Fraternite des policiers a tres difficilement ac-cueilli le commentaire et a exige qu’il soit exclu du rapport final — Inspecteur de police ademande a tous ceux a qui il avait envoye le rapport de ne pas le rendre public —Toutefois, le rapport s’est retrouve a la cafeteria du poste de police et a meme ete discutea la radio — Fraternite a depose un grief au nom de tous ses membres et du personnel del’executif visant a obtenir de la municipalite des dommages-interets pour atteinte a lareputation ainsi que des dommages-interets exemplaires — Arbitre a conclu que seul lepersonnel de l’executif a subi un prejudice et a condamne la municipalite a payer desdommages-interets — Municipalite a obtenu gain de cause dans sa demande en controlejudiciaire de la decision de l’arbitre et le syndicat a interjete appel — Appel rejete —Depuis une recente decision de la Cour supreme du Canada, il n’y a plus que deuxnormes de controle : la norme de la decision correcte et la norme de la decision raison-nable — Dans cette decision, la Cour supreme du Canada a fait observer que la questionde droit qui revet une importance capitale pour le systeme juridique et qui est etrangereau domaine d’expertise du decideur administratif appelle toujours la norme de la decisioncorrecte — Cette situation s’applique tout aussi bien aux tribunaux judiciaires qu’auxtribunaux administratifs — En l’espece, la Cour etait d’avis que la question ne revetaitpas une importance capitale pour le systeme juridique — Par consequent, la norme de ladecision raisonnable s’appliquait.

Droit administratif –––– Recours de droit prive — Dommages pour action adminis-trative illegale — Principes generaux –––– En 2007, un inspecteur de police a l’emploid’un service de police municipal a effectue un sondage parmi les partenaires du serviceafin d’evaluer la facon dont le service etait percu dans la communaute — Un des com-


mentaires affirmait que la police n’avait eu aucun probleme a recourir a des actescriminels comme moyens de pression lors des dernieres negociations collectives — Com-mentaire a ete inclus dans le rapport final qui a ete envoye a 22 personnes, y compris ladirection de la fraternite des policiers — Fraternite des policiers a tres difficilement ac-cueilli le commentaire et a exige qu’il soit exclu du rapport final — Inspecteur de police ademande a tous ceux a qui il avait envoye le rapport de ne pas le rendre public —Toutefois, le rapport s’est retrouve a la cafeteria du poste de police et a meme ete discutea la radio — Fraternite a depose un grief au nom de tous ses membres et du personnel del’executif visant a obtenir de la municipalite des dommages-interets pour atteinte a lareputation ainsi que des dommages-interets exemplaires — Arbitre a conclu que seul lepersonnel de l’executif a subi un prejudice et a condamne la municipalite a payer desdommages-interets — Municipalite a obtenu gain de cause dans sa demande en controlejudiciaire de la decision de l’arbitre et le syndicat a interjete appel — Appel rejete —Question etait de savoir si l’inspecteur de police avait commis une faute et, si oui, quelimpact cela avait-il eu sur les membres du syndicat et le personnel de son executif —Cour a fait observer que l’arbitre reconnaissait que personne ne savait comment le rap-port s’etait retrouve dans la sphere publique, que le personnel actuel de l’executif n’avaitsubi aucune consequence negative a la suite du commentaire et qu’il n’etait pas evidentque l’inspecteur de police avait commis une faute — Par consequent, on ne devrait pasattribuer de dommages-interets et l’appel devrait etre rejete.

Reparations –––– Dommages — Dommages fondes sur la responsabilite delic-tuelle — Prejudice personnel — Principes relatifs aux pertes non-pecuniaires —Principes generaux –––– En 2007, un inspecteur de police a l’emploi d’un service depolice municipal a effectue un sondage parmi les partenaires du service afin d’evaluer lafacon dont le service etait percu dans la communaute — Un des commentaires affirmaitque la police n’avait eu aucun probleme a recourir a des actes criminels comme moyensde pression lors des dernieres negociations collectives — Commentaire a ete inclus dansle rapport final qui a ete envoye a 22 personnes, y compris la direction de la fraternite despoliciers — Fraternite des policiers a tres difficilement accueilli le commentaire et a ex-ige qu’il soit exclu du rapport final — Inspecteur de police a demande a tous ceux a qui ilavait envoye le rapport de ne pas le rendre public — Toutefois, le rapport s’est retrouve ala cafeteria du poste de police et a meme ete discute a la radio — Fraternite a depose ungrief au nom de tous ses membres et du personnel de l’executif visant a obtenir de lamunicipalite des dommages-interets pour atteinte a la reputation ainsi que des dom-mages-interets exemplaires — Arbitre a conclu que seul le personnel de l’executif a subiun prejudice et a condamne la municipalite a payer des dommages-interets — Municipal-ite a obtenu gain de cause dans sa demande en controle judiciaire de la decision del’arbitre et le syndicat a interjete appel — Appel rejete — Question etait de savoir sil’inspecteur de police avait commis une faute et, si oui, quel impact cela avait-il eu sur lesmembres du syndicat et le personnel de son executif — Cour a fait observer que l’arbitrereconnaissait que personne ne savait comment le rapport s’etait retrouve dans la spherepublique, que le personnel actuel de l’executif n’avait subi aucune consequence negativea la suite du commentaire et qu’il n’etait pas evident que l’inspecteur de police avaitcommis une faute — Par consequent, on ne devrait pas attribuer de dommages-interets etl’appel devrait etre rejete.


Delits civils –––– Diffamation — Actions concernant de la diffamation — Propos dif-famatoires –––– En 2007, un inspecteur de police a l’emploi d’un service de police muni-cipal a effectue un sondage parmi les partenaires du service afin d’evaluer la facon dontle service etait percu dans la communaute — Un des commentaires affirmait que la policen’avait eu aucun probleme a recourir a des actes criminels comme moyens de pressionlors des dernieres negociations collectives — Commentaire a ete inclus dans le rapportfinal qui a ete envoye a 22 personnes, y compris la direction de la fraternite despoliciers — Fraternite des policiers a tres difficilement accueilli le commentaire et a ex-ige qu’il soit exclu du rapport final — Inspecteur de police a demande a tous ceux a qui ilavait envoye le rapport de ne pas le rendre public — Toutefois, le rapport s’est retrouve ala cafeteria du poste de police et a meme ete discute a la radio — Fraternite a depose ungrief au nom de tous ses membres et du personnel de l’executif visant a obtenir de lamunicipalite des dommages-interets pour atteinte a la reputation ainsi que des dom-mages-interets exemplaires — Arbitre a conclu que seul le personnel de l’executif a subiun prejudice et a condamne la municipalite a payer des dommages-interets — Municipal-ite a obtenu gain de cause dans sa demande en controle judiciaire de la decision del’arbitre et le syndicat a interjete appel — Appel rejete — Question etait de savoir sil’inspecteur de police avait commis une faute et, si oui, quel impact cela avait-il eu sur lesmembres du syndicat et le personnel de son executif — Cour a fait observer que l’arbitrereconnaissait que personne ne savait comment le rapport s’etait retrouve dans la spherepublique, que le personnel actuel de l’executif n’avait subi aucune consequence negativea la suite du commentaire et qu’il n’etait pas evident que l’inspecteur de police avaitcommis une faute — Par consequent, on ne devrait pas attribuer de dommages-interets etl’appel devrait etre rejete.

Delits civils –––– Diffamation — Dommages-interets — Types de dommages-interetsapplicables — Dommages-interets generaux –––– En 2007, un inspecteur de police al’emploi d’un service de police municipal a effectue un sondage parmi les partenaires duservice afin d’evaluer la facon dont le service etait percu dans la communaute — Un descommentaires affirmait que la police n’avait eu aucun probleme a recourir a des actescriminels comme moyens de pression lors des dernieres negociations collectives — Com-mentaire a ete inclus dans le rapport final qui a ete envoye a 22 personnes, y compris ladirection de la fraternite des policiers — Fraternite des policiers a tres difficilement ac-cueilli le commentaire et a exige qu’il soit exclu du rapport final — Inspecteur de police ademande a tous ceux a qui il avait envoye le rapport de ne pas le rendre public —Toutefois, le rapport s’est retrouve a la cafeteria du poste de police et a meme ete discutea la radio — Fraternite a depose un grief au nom de tous ses membres et du personnel del’executif visant a obtenir de la municipalite des dommages-interets pour atteinte a lareputation ainsi que des dommages-interets exemplaires — Arbitre a conclu que seul lepersonnel de l’executif a subi un prejudice et a condamne la municipalite a payer desdommages-interets — Municipalite a obtenu gain de cause dans sa demande en controlejudiciaire de la decision de l’arbitre et le syndicat a interjete appel — Appel rejete —Question etait de savoir si l’inspecteur de police avait commis une faute et, si oui, quelimpact cela avait-il eu sur les membres du syndicat et le personnel de son executif —Cour a fait observer que l’arbitre reconnaissait que personne ne savait comment le rap-port s’etait retrouve dans la sphere publique, que le personnel actuel de l’executif n’avaitsubi aucune consequence negative a la suite du commentaire et qu’il n’etait pas evident


que l’inspecteur de police avait commis une faute — Par consequent, on ne devrait pasattribuer de dommages-interets et l’appel devrait etre rejete.

Reparations –––– Dommages — Dommages-interets exemplaires, punitifs etmajores — Principes generaux –––– En 2007, un inspecteur de police a l’emploi d’unservice de police municipal a effectue un sondage parmi les partenaires du service afind’evaluer la facon dont le service etait percu dans la communaute — Un des com-mentaires affirmait que la police n’avait eu aucun probleme a recourir a des actescriminels comme moyens de pression lors des dernieres negociations collectives — Com-mentaire a ete inclus dans le rapport final qui a ete envoye a 22 personnes, y compris ladirection de la fraternite des policiers — Fraternite des policiers a tres difficilement ac-cueilli le commentaire et a exige qu’il soit exclu du rapport final — Inspecteur de police ademande a tous ceux a qui il avait envoye le rapport de ne pas le rendre public —Toutefois, le rapport s’est retrouve a la cafeteria du poste de police et a meme ete discutea la radio — Fraternite a depose un grief au nom de tous ses membres et du personnel del’executif visant a obtenir de la municipalite des dommages-interets pour atteinte a lareputation ainsi que des dommages-interets exemplaires — Arbitre a conclu que seul lepersonnel de l’executif a subi un prejudice et a condamne la municipalite a payer desdommages-interets — Municipalite a obtenu gain de cause dans sa demande en controlejudiciaire de la decision de l’arbitre et le syndicat a interjete appel — Appel rejete —Dommages-interets exemplaires ne sont attribues que lorsque la preuve demontre qu’il ya eu atteinte illicite et intentionnelle a un droit ou a une liberte protege par la Chartequebecoise des droits et libertes de la personne — Preuve en l’espece ne demontrait pascela — Il etait manifeste qu’il n’etait pas dans l’intention de l’inspecteur de police denuire a la reputation du syndicat — Par consequent, on ne devrait pas attribuer de dom-mages-interets exemplaires.

Delits civils –––– Diffamation — Dommages-interets — Types de dommages-interetsapplicables — Dommages-interets majores et punitifs –––– En 2007, un inspecteur depolice a l’emploi d’un service de police municipal a effectue un sondage parmi lespartenaires du service afin d’evaluer la facon dont le service etait percu dans la com-munaute — Un des commentaires affirmait que la police n’avait eu aucun probleme arecourir a des actes criminels comme moyens de pression lors des dernieres negociationscollectives — Commentaire a ete inclus dans le rapport final qui a ete envoye a 22 per-sonnes, y compris la direction de la fraternite des policiers — Fraternite des policiers atres difficilement accueilli le commentaire et a exige qu’il soit exclu du rapport final —Inspecteur de police a demande a tous ceux a qui il avait envoye le rapport de ne pas lerendre public — Toutefois, le rapport s’est retrouve a la cafeteria du poste de police et ameme ete discute a la radio — Fraternite a depose un grief au nom de tous ses membreset du personnel de l’executif visant a obtenir de la municipalite des dommages-interetspour atteinte a la reputation ainsi que des dommages-interets exemplaires — Arbitre aconclu que seul le personnel de l’executif a subi un prejudice et a condamne lamunicipalite a payer des dommages-interets — Municipalite a obtenu gain de cause danssa demande en controle judiciaire de la decision de l’arbitre et le syndicat a interjeteappel — Appel rejete — Dommages-interets exemplaires ne sont attribues que lorsque lapreuve demontre qu’il y a eu atteinte illicite et intentionnelle a un droit ou a une liberteprotege par la Charte quebecoise des droits et libertes de la personne — Preuve enl’espece ne demontrait pas cela — Il etait manifeste qu’il n’etait pas dans l’intention de


l’inspecteur de police de nuire a la reputation du syndicat — Par consequent, on nedevrait pas attribuer de dommages-interets exemplaires.

Administrative law –––– Standard of review — Miscellaneous –––– Revised standardof review - reasonableness — In 2007, police inspector employed at municipal police ser-vice conducted survey among service’s partners to assess how service was perceived incommunity — One comment stated that police had had no problem resorting to criminalactivities as means of pressure during last collective bargaining — Comment was in-cluded in final report that was sent to 22 people, including head of police union — Policeunion reacted strongly against comment and demanded that comment be omitted fromfinal report — Police inspector asked everyone to whom he had sent report not to releaseit publicly — However, report was found at cafeteria of police station and was even dis-cussed on radio — Union filed grievance on behalf of all its members and executive staffseeking general and punitive damages from municipality for loss of reputation — Arbi-trator found that only executive staff had suffered prejudice and ordered municipality topay damages — Municipality successfully sought judicial review of that decision andunion appealed — Appeal dismissed — Since recent decision of Supreme Court of Can-ada, only two standards of review remain: correctness and reasonableness — In that deci-sion, Supreme Court of Canada noted that question of law that is of central importance tolegal system and outside specialized area of expertise of administrative decision makerwill always attract correctness standard — That situation applies to both judicial and ad-ministrative tribunals — Here, Court was of view that issue was not of central importanceto legal system — Therefore, reasonableness standard applied.

Administrative law –––– Private law remedies — Damages for unlawful administra-tive action — General principles –––– In 2007, police inspector employed at municipalpolice service conducted survey among service’s partners to assess how service was per-ceived in community — One comment stated that police had had no problem resorting tocriminal activities as means of pressure during last collective bargaining — Commentwas included in final report that was sent to 22 people, including head of police union —Police union reacted strongly against comment and demanded that comment be omittedfrom final report — Police inspector asked everyone to whom he had sent report not torelease it publicly — However, report was found at cafeteria of police station and waseven discussed on radio — Union filed grievance on behalf of all its members and execu-tive staff seeking general and punitive damages from municipality for loss of reputa-tion — Arbitrator found that only executive staff had suffered prejudice and ordered mu-nicipality to pay damages — Municipality successfully sought judicial review of thatdecision and union appealed — Appeal dismissed — Issue was whether police inspectorcommitted fault and, if so, what impact it had on union members and executive staff —Court noted that arbitrator admitted that no one knew how report came to be releasedpublicly, that current executive staff were not adversely affected by comment and that itwas unclear whether police inspector had committed fault — Therefore, no damagesshould have been awarded and appeal should be dismissed.

Remedies –––– Damages — Damages in tort — Personal injury — Principles relat-ing to non-pecuniary loss — General principles –––– In 2007, police inspector em-ployed at municipal police service conducted survey among service’s partners to assesshow service was perceived in community — One comment stated that police had had noproblem resorting to criminal activities as means of pressure during last collective bar-


gaining — Comment was included in final report that was sent to 22 people, includinghead of police union — Police union reacted strongly against comment and demandedthat comment be omitted from final report — Police inspector asked everyone to whomhe had sent report not to release it publicly — However, report was found at cafeteria ofpolice station and was even discussed on radio — Union filed grievance on behalf of allits members and executive staff seeking general and punitive damages from municipalityfor loss of reputation — Arbitrator found that only executive staff had suffered prejudiceand ordered municipality to pay damages — Municipality successfully sought judicial re-view of that decision and union appealed — Appeal dismissed — Issue was whether po-lice inspector committed fault and, if so, what impact it had on union members and exec-utive staff — Court noted that arbitrator admitted that no one knew how report came tobe released publicly, that current executive staff were not adversely affected by commentand that it was unclear whether police inspector had committed fault — Therefore, nodamages should have been awarded and appeal should be dismissed.

Torts –––– Defamation — Actions related to defamation — Injurious statements ––––In 2007, police inspector employed at municipal police service conducted survey amongservice’s partners to assess how service was perceived in community — One commentstated that police had had no problem resorting to criminal activities as means of pressureduring last collective bargaining — Comment was included in final report that was sentto 22 people, including head of police union — Police union reacted strongly againstcomment and demanded that comment be omitted from final report — Police inspectorasked everyone to whom he had sent report not to release it publicly — However, reportwas found at cafeteria of police station and was even discussed on radio — Union filedgrievance on behalf of all its members and executive staff seeking general and punitivedamages from municipality for loss of reputation — Arbitrator found that only executivestaff had suffered prejudice and ordered municipality to pay damages — Municipalitysuccessfully sought judicial review of that decision and union appealed — Appeal dis-missed — Issue was whether police inspector committed fault and, if so, what impact ithad on union members and executive staff — Court noted that arbitrator admitted that noone knew how report came to be released publicly, that current executive staff were notadversely affected by comment and that it was unclear whether police inspector had com-mitted fault — Therefore, no damages should have been awarded and appeal should bedismissed.

Torts –––– Defamation — Damages — Types of damages available — General dam-ages –––– In 2007, police inspector employed at municipal police service conducted sur-vey among service’s partners to assess how service was perceived in community — Onecomment stated that police had had no problem resorting to criminal activities as meansof pressure during last collective bargaining — Comment was included in final reportthat was sent to 22 people, including head of police union — Police union reactedstrongly against comment and demanded that comment be omitted from final report —Police inspector asked everyone to whom he had sent report not to release it publicly —However, report was found at cafeteria of police station and was even discussed on ra-dio — Union filed grievance on behalf of all its members and executive staff seekinggeneral and punitive damages from municipality for loss of reputation — Arbitratorfound that only executive staff had suffered prejudice and ordered municipality to paydamages — Municipality successfully sought judicial review of that decision and union


appealed — Appeal dismissed — Issue was whether police inspector committed faultand, if so, what impact it had on union members and executive staff — Court noted thatarbitrator admitted that no one knew how report came to be released publicly, that currentexecutive staff were not adversely affected by comment and that it was unclear whetherpolice inspector had committed fault — Therefore, no damages should have beenawarded and appeal should be dismissed.

Remedies –––– Damages — Exemplary, punitive and aggravated damages — Gen-eral principles –––– In 2007, police inspector employed at municipal police service con-ducted survey among service’s partners to assess how service was perceived in commu-nity — One comment stated that police had had no problem resorting to criminalactivities as means of pressure during last collective bargaining — Comment was in-cluded in final report that was sent to 22 people, including head of police union — Policeunion reacted strongly against comment and demanded that comment be omitted fromfinal report — Police inspector asked everyone to whom he had sent report not to releaseit publicly — However, report was found at cafeteria of police station and was even dis-cussed on radio — Union filed grievance on behalf of all its members and executive staffseeking general and punitive damages from municipality for loss of reputation — Arbi-trator found that only executive staff had suffered prejudice and ordered municipality topay damages — Municipality successfully sought judicial review of that decision andunion appealed — Appeal dismissed — Punitive damages are only awarded when evi-dence shows intentional interference with right or freedom recognized by Quebec Charterof Human Rights and Freedoms — Here, no evidence showed that such thing occurred —Clearly, it was not police inspector’s intent to adversely affect union’s reputation —Therefore, no punitive damages should be awarded.

Torts –––– Defamation — Damages — Types of damages available — Aggravatedand punitive damages –––– In 2007, police inspector employed at municipal police ser-vice conducted survey among service’s partners to assess how service was perceived incommunity — One comment stated that police had had no problem resorting to criminalactivities as means of pressure during last collective bargaining — Comment was in-cluded in final report that was sent to 22 people, including head of police union — Policeunion reacted strongly against comment and demanded that comment be omitted fromfinal report — Police inspector asked everyone to whom he had sent report not to releaseit publicly — However, report was found at cafeteria of police station and was even dis-cussed on radio — Union filed grievance on behalf of all its members and executive staffseeking general and punitive damages from municipality for loss of reputation — Arbi-trator found that only executive staff had suffered prejudice and ordered municipality topay damages — Municipality successfully sought judicial review of that decision andunion appealed — Appeal dismissed — Punitive damages are only awarded when evi-dence shows intentional interference with right or freedom recognized by Quebec Charterof Human Rights and Freedoms — Here, no evidence showed that such thing occurred —Clearly, it was not police inspector’s intent to adversely affect union’s reputation —Therefore, no punitive damages should be awarded.


Cases considered by Dalphond, J.C.A.:

ADISQ c. Genex Communications inc. (2009), 71 C.C.L.T. (3d) 211, 2009 CarswellQue11790, 2009 QCCA 2201, [2009] R.J.Q. 2743, [2009] R.R.A. 961, EYB 2009-166376 (Que. C.A.) — considered

Canada (Attorney General) v. Mossop (1993), 93 C.L.L.C. 17,006, 13 Admin. L.R. (2d)1, 1993 CarswellNat 1365, 1993 CarswellNat 1377, 46 C.C.E.L. 1, 149 N.R. 1,[1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658, 17 C.H.R.R. D/349, [1993] S.C.J. No. 20,EYB 1993-68604 (S.C.C.) — referred to

Chambly (Commission scolaire regionale) c. Bergevin (1994), 4 C.C.E.L. (2d) 165, 21Admin. L.R. (2d) 169, (sub nom. Commission scolaire regionale de Chambly c.Syndicat de l’enseignement de Champlain) 169 N.R. 281, (sub nom. Syndicat del’Enseignment de Champlain v. Commission Scolaire Regionale de Chambly) 94C.L.L.C. 17,023, (sub nom. Commission scolaire regionale de Chambly c. Syndicatde l’enseignement de Champlain) 62 Q.A.C. 241, (sub nom. Commission scolaireregionale de Chambly v. Bergevin) [1994] 2 S.C.R. 525, 115 D.L.R. (4th) 609, (subnom. Regionale de Chambly, Commission scolaire c. Bergevin) 22 C.H.R.R. D/1,1994 CarswellQue 78, 1994 CarswellQue 114, EYB 1994-67796, [1997] S.C.J. No.57 (S.C.C.) — considered

Collines-de-l’Outaouais (MRC) c. Mallette (2010), 4 Admin. L.R. (5th) 74, 2010 Car-swellQue 3822, 2010 QCCA 816, D.T.E. 2010T-319, EYB 2010-173056 (Que.C.A.) — considered

Domtar Inc. c. Quebec (Commission d’appel en matiere de lesions professionnelles)(1993), 15 Admin. L.R. (2d) 1, 49 C.C.E.L. 1, 154 N.R. 104, (sub nom. Domtar Inc.v. Quebec (Commission d’appel en matiere de lesions professionnelles)) [1993] 2S.C.R. 756, (sub nom. Domtar Inc. v. Quebec (Commission d’appel en matiere delesions professionnelles)) 55 Q.A.C. 241, (sub nom. Domtar Inc. v. Quebec(Commission d’appel en matiere de lesions professionnelles)) 105 D.L.R. (4th) 385,1993 CarswellQue 145, 1993 CarswellQue 159, EYB 1993-67877 (S.C.C.) — re-ferred to

Guinn v. Manitoba (2009), 466 W.A.C. 57, 245 Man. R. (2d) 57, 2009 CarswellMan 373,2009 MBCA 82, [2009] 9 W.W.R. 1, 98 Admin. L.R. (4th) 68, [2009] M.J. No. 279(Man. C.A.) — considered

I.A.M. & A.W., Local 99 v. Finning International Inc. (2008), 2008 ABCA 400, 2008CarswellAlta 1882, (sub nom. International Association of Machinists & AerospaceWorkers, Local Lodge No. 99 v. Finning International Inc.) 442 W.A.C. 20, (subnom. International Association of Machinists & Aerospace Workers, Local LodgeNo. 99 v. Finning International Inc.) 446 A.R. 20, (sub nom. Finning InternationalInc. v. I.A.M., Local 99) 162 C.L.R.B.R. (2d) 69, (sub nom. I.A.M.A.W., Local LodgeNo. 99 v. Finning International Inc.) 304 D.L.R. (4th) 642, 98 Alta. L.R. (4th) 201,[2009] 2 W.W.R. 215, 2009 C.L.L.C. 220-007, [2008] A.J. No. 1311 (Alta. C.A.) —considered

Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th)1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1,77 Imm. L.R. (3d) 1, 385 N.R. 206, [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12(S.C.C.) — considered

Levis (Ville) c. Cote (2007), 2007 CarswellQue 1926, 2007 CarswellQue 1927, (sub nom.Levis (City) v. Fraternite des policiers de Levis Inc.) 359 N.R. 199, (sub nom. Levis


(Ville) v. Fraternite des Policiers de Levis Inc.) 278 D.L.R. (4th) 577, 64 Admin.L.R. (4th) 1, 2007 SCC 14, (sub nom. Levis (Ville) v. Fraternite des policiers deLevis Inc.) 160 L.A.C. (4th) 1, 35 M.P.L.R. (4th) 1, (sub nom. Levis v. Fraternite despoliciers de Levis Inc.) [2007] 1 S.C.R. 591, [2007] S.C.J. No. 14 (S.C.C.) — re-ferred to

Mills v. Ontario (Workplace Safety & Insurance Appeals Tribunal) (2008), 2008 Cars-wellOnt 3184, 2008 ONCA 436, 237 O.A.C. 71, [2008] O.J. No. 2150 (Ont. C.A.) —considered


Telfer v. Canada (Revenue Agency) (2009), [2009] D.T.C. 5046, 2009 CarswellNat 655,(sub nom. CRA v. Telfer) 2009 D.T.C. 5697 (Eng.), [2009] 4 C.T.C. 123, 386 N.R.212, 2009 CarswellNat 5698, 2009 CAF 23, 2009 FCA 23, [2009] F.C.J. No. 71(F.C.A.) — considered

Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, 9 Admin. L.R. (4th)161, [2003] 3 S.C.R. 77, 17 C.R. (6th) 276, 2003 SCC 63, 2003 CarswellOnt 4328,2003 CarswellOnt 4329, 311 N.R. 201, 2003 C.L.L.C. 220-071, 179 O.A.C. 291, 120L.A.C. (4th) 225, 31 C.C.E.L. (3d) 216, [2003] S.C.J. No. 64, REJB 2003-49439(S.C.C.) — considered


Charte des droits et libertes de la personne, L.R.Q., c. C-12en general — referred toart. 49 — considered

Code civil du Quebec, L.Q. 1991, c. 64en general — referred to

Code du travail, L.R.Q., c. C-27en general — referred toart. 100.12(a) [ad. 1983, c. 22, art. 74] — considered

Normes du travail, Loi sur les, L.R.Q., c. N-1.1en general — referred to

APPEL du syndicat a l’encontre d’une decision publiee a Gatineau (Ville) c. Abramowitz(2009), EYB 2009-158029, 2009 QCCS 1742, 2009 CarswellQue 3878, D.T.E. 2009T-373 (Que. S.C.), ayant infirme une sentence arbitrale condamnant la municipalite a payerdes dommages-interets pour atteinte a la reputation ainsi que des dommages-interetsexemplaires.


La Cour:

1 Statuant sur l’appel d’un jugement rendu le 27 avril 2009 par la Cour super-ieure, district de Hull (l’honorable Louis-Philippe Landry), qui a accueilli unerequete en revision judiciaire et annule une sentence arbitrable rendue le 26 mai2008;

2 Apres avoir etudie le dossier, entendu les parties et delibere;

3 Pour les motifs du juge Dalphond, auxquels souscrivent les juges Gendreauet Giroux :

4 REJETTE l’appel avec depens.

Dalphond J.C.A.:

5 L’appelante, un syndicat representant les policiers de Gatineau, se pourvoit al’encontre d’un jugement en revision judiciaire qui casse une sentence con-damnant la ville intimee, l’employeur, a payer 25 000 $ en dommages moraux et5 000 $ en dommages-interets punitifs aux cinq membres de son executif pourdiffamation.

6 Le premier juge a conclu que la sentence arbitrale etait deraisonnable. Je suisd’accord.

LES FAITS7 Au printemps 2007, dans le cadre d’un exercice visant a connaıtre la percep-

tion externe du Service de police de Gatineau, Dany Montmigny, un de ses in-specteurs, effectue un sondage aupres de partenaires du service. Par la suite, ilcollige les questionnaires completes, recus de 33 personnes, dans un documentde 10 pages intitule « Sondage aupres des partenaires - Resume », lequelreproduit a l’item 7, p. 9, quelques-uns des commentaires recus, dont le suivant :

Dans le cadre du renouvellement de la convention collective, lorsque lespoliciers suivent les mots d’ordre de leur executif syndical et vont memejusqu’a commettre des infractions criminelles pour faire avancer leur causeet enfreindre des reglements qu’ils sont charges d’appliquer, je considere quede telles actions ternissent l’image et la reputation du Service, ce qui laisseun gout amer aux citoyennes et citoyens et entache le professionnalisme de lafonction.

8 Montmigny, qui ignore l’auteur du commentaire, reconnaıt qu’il a hesite al’inclure, mais le fait finalement afin de donner un portrait plus complet de laperception du service de police par les partenaires. Ce commentaire fait refer-ence a un incident survenu pendant la negociation de la convention collectiveprecedente. Deux voitures de police avaient alors ete volees, endommagees,recouvertes de gouache et laissees devant la residence du maire. Malgre une

Gatineau (Ville) c. Abramowitz Dalphond J.C.A. 291

enquete de la Surete du Quebec, les coupables n’ont jamais ete identifies.L’evenement a fait l’objet d’une couverture mediatique entre 2002 et 2004.

9 Le 13 juin 2007, a 14 h 29, le document est envoye par courriel a 22 person-nes : 17 cadres du service, deux policiers syndiques (Claude Vaillancourt etJean-Robert Bourgouin), un criminologue-cadre, un conseiller-cadre aux res-sources humaines et un cadre analyste en criminalite. Montmigny et cinq de cespersonnes, dont un representant syndical, sont membres d’un comite dit de pilot-age devant se reunir le 18 juin 2007.

10 Un des policiers syndiques en transmet une copie au president de laFraternite Roch Legault1. Ce dernier est indigne par le commentaire cite plushaut. A la demande de l’executif, le 15 juin, vers midi trente, les avocats de laFraternite telecopient une mise en demeure au directeur general de la ville,l’intimant de faire le necessaire pour que le commentaire litigieux soit retire dudocument et ne soit pas diffuse et « de proceder a un dementi aupres de toutepersonne qui aurait ete informee de ces allegations » qualifiees de « fausses etdiffamatoires », causant un tort a la Fraternite et a ses representants. Peu apres,vers 14 h 39, Montmigny avise par courriel les 22 destinataires du document« qu’aucune diffusion interne ou externe de ces documents n’est permise » etrappelle qu’il s’agit d’un document de travail qui doit etre valide par le comitede pilotage a sa reunion, trois jours plus tard.

11 Neanmoins, le document se retrouve a la cafeteria du poste de police de Hullle samedi 16 juin 2007. De plus, Legault affirme avoir entendu a la radio localele 15 juin 2007 que la Fraternite incitait ses membres a commettre des actescriminels. La preuve ne revele pas comment le document s’est retrouve a la caf-eteria ou dans les mains d’un journaliste.

12 Lors de la reunion du comite le 18 juin, il est convenu de retirer le com-mentaire litigieux. Le lendemain, Montmigny envoie aux 22 destinataires dudocument original, une version amendee avec une note demandant la destructionde la version precedente.

13 Le 3 juillet 2007, lors d’une assemblee generale extraordinaire des membresde la Fraternite, on discute du commentaire litigieux et des negociations de lanouvelle convention. Le 18 juillet 2007, la Fraternite depose un grief syndical etcollectif alleguant que la diffusion par l’employeur du commentaire litigieux,« irresponsable, mensonger et pernicieux » a porte atteinte a l’honneur et a lareputation de tous les membres de la Fraternite (304 a temps plein et 70 a tempspartiel) et aux membres de l’executif syndical, « tant aupres des personnes a quile document a ete transmis qu’a celles qui en ont pris connaissance ou qui en ont

1Le president affirme dans une declaration sous serment produite en Cour superieurel’avoir recue de Bourgouin; l’arbitre retient que Vaillancourt l’a remise a l’executifsyndical.


entendu parler ». Il est demande comme reparation 100 000 $ en dommagescompensatoires, plus 50 000 $ en dommages punitifs. Lors de l’audition devantl’arbitre, la Fraternite justifie ainsi les 100 000 $ : 2 000 $ pour chaque membreet 5 000 $ pour chaque membre de l’executif accuse d’avoir encourage des actescriminels.

LE DIFFEREND14 L’essence du differend peut se resumer ainsi : l’employeur a-t-il commis une

faute entraınant sa responsabilite en diffusant le document contenant le com-mentaire litigieux? Si oui, les membres et l’executif de la Fraternite ont-ils subiun prejudice, et dans l’affirmative, de quel ordre?

SENTENCE ARBITRALE15 L’arbitre considere que le commentaire litigieux est diffamatoire pour

l’executif syndical en place en juin 2007, mais non pour l’ensemble despoliciers. Puis, il ecrit au par. 74 de la sentence : « je considere que les cinqmembres de l’executif ont ete leses par ces mots et, malgre le fait qu’il n’y aitaucune preuve de l’impact personnel sur ces personnes (a part du fait que deuxmembres de l’executif ont trouve ces remarques offensives et honteuses), il estraisonnable d’indemniser ces cinq personnes en consequence ». Il leur accorde5 000 $ chacune. Quant aux dommages punitifs, il s’exprime ainsi au par. 75 :« c’est avec beaucoup d’hesitation que j’accorde une somme nominale de5 000 $ a l’ensemble du groupe des cinq membres de l’executif du syndicatimpliques par ces mots imprudents ». Cette hesitation, il l’explique comme suit :le sondage etait destine a l’usage interne; il s’agit d’un document de travail legi-time; le but n’etait pas de critiquer l’executif syndical; deux jours apres l’envoidu premier courriel, Montmigny en a envoye un deuxieme demandant de ne pasdiffuser le document; et le passage litigieux a ete retire le 18 juin 2007.

JUGEMENT DE LA COUR SUPERIEURE 16 Le juge est d’avis que l’arbitre, bien que competent pour entendre le grief,

n’exerce pas alors sa competence specialisee puisqu’il applique les regles dedroit civil en matiere de diffamation et d’attribution de dommages et celles de laCharte des droits et libertes de la personne en matiere de dommages punitifs.Pour ce motif, il est d’avis que « la Cour ne doit a l’arbitre qu’un degre dedeference restreint », sans pour autant appliquer la norme de la decision cor-recte. Puis, il analyse la sentence arbitrale. Il trouve raisonnable la conclusion del’arbitre que le commentaire litigieux etait diffamatoire. Par contre, il trouvederaisonnable la conclusion de faute de la ville puisqu’il n’y a aucune preuveque la diffusion du document (a la cafeteria du service de police et a la radio) estattribuable a Montmigny. Au contraire, la seule preuve de transmission du docu-ment hors le cercle restreint des 22 personnes membres du comite ou de la direc-tion de la ville est attribuable a un membre de l’executif syndical. Sur les dom-


mages, il trouve aussi deraisonnable l’octroi des dommages moraux en raison del’absence totale de preuve d’un prejudice aux membres de l’executif en place enjuin 2007 (alors que l’incitation alleguee aurait eu lieu plusieurs annees plus tota une epoque ou l’executif etait compose d’autres personnes, sauf une). Sur lesdommages punitifs, il conclut que, faute d’une atteinte illicite et intentionnellepar Montmigny, rien ne les justifie.

MOYENS D’APPEL17 La Fraternite soutient que le juge a opte pour une norme de controle in-

termediaire, comme si la norme de la decision raisonnable comprenait plusieursdegres de deference, ce qui est errone en droit. Fort de cette erreur, il s’estautorise a substituer son opinion a celle de l’arbitre sur des questions de fait etdes questions mixtes, ce qui est contraire aux enseignements de la Cour supremedans New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190,2008 SCC 9 (S.C.C.). Selon la Fraternite, la decision de l’arbitre fait partie dessolutions possibles et acceptables en vertu de la preuve et du droit et le juge nepouvait intervenir. De plus, la preuve etablit qu’un dommage a ete subi par lesmembres de l’executif syndical, contrairement a l’opinion du juge, puisque deuxrepresentants ont affirme avoir trouve le commentaire litigieux offensif ethonteux.

18 L’employeur retorque que la question soumise a l’arbitre en etait une dedroit civil requerant la demonstration d’une faute, d’un prejudice et d’un liencausal, exercice pour lequel un arbitre ne possede pas plus d’expertise qu’unjuge; par consequent, la norme de la decision correcte s’appliquait. Il ajoutequ’il est manifeste que l’arbitre eprouvait de la difficulte a cerner une faute dansle comportement de Montmigny et a retenir un prejudice subi par les membresde l’executif syndical. Par voie de consequence, rien ne justifiait l’octroi de25 000 $ en dommages moraux et encore moins de 5 000 $ en dommagespunitifs.

ANALYSE

I. La norme de controle :19 Depuis l’arret Dunsmuir, deux normes de revision s’appliquent au controle

judiciaire des decisions d’un decideur specialise : la decision correcte et la deci-sion raisonnable. Ces normes s’appliquent tant au controle judiciaire effectuedans le cadre d’une revision judiciaire devant une cour superieure qu’a celui parvoie d’un appel a un tribunal judiciaire a vocation elargie ne jouissant pas d’uneexpertise comparable a celle du decideur par rapport a la question en litige.

20 La norme de la decision raisonnable exprime une attitude de respect al’egard des decideurs administratifs ayant developpe une expertise dansl’organisation et le fonctionnement d’un regime legislatif particulier. Puisqueplusieurs questions qui leur sont soumises « [...] n’appellent pas une seule solu-


tion precise, mais peuvent plutot donner lieu a un certain nombre de conclusionsraisonnables » (Dunsmuir, par. 47), la cour de revision doit se limiter a etudierles justifications offertes par le decideur afin de determiner si sa decision estraisonnable. La Cour supreme resume ainsi cet exercice au par. 47 de l’arretDunsmuir :

La cour de revision se demande des lors si la decision et sa justification pos-sedent les attributs de la raisonnabilite. Le caractere raisonnable tientprincipalement a la justification de la decision, a la transparence et al’intelligibilite du processus decisionnel, ainsi qu’a l’appartenance de la deci-sion aux issues possibles acceptables pouvant se justifier au regard des faitset du droit. [soulignements ajoutes]

21 Au contraire, la norme de la decision correcte ne commande aucune defer-ence a l’egard de la decision du decideur ou de sa justification. Le juge appele acontroler la decision se livre a sa propre analyse et peut « [substituer] sa propreconclusion et [rendre] la decision qui s’impose » (Dunsmuir, par. 50).

22 Pour ce qui est du choix de la norme applicable, la Cour supreme enseigneau par. 51 « qu’en presence d’une question touchant aux faits, au pouvoir discre-tionnaire ou a la politique, et lorsque le droit et les faits ne peuvent etre aisementdissocies, la norme de la raisonnabilite s’applique generalement ». C’est en pres-ence de questions de droit que l’exercice de determination de la norme se com-plique. La norme de la decision correcte s’applique aux questions constitution-nelles, d’interpretation d’une charte des droits (Canada (Attorney General) v.Mossop, [1993] 1 S.C.R. 554 (S.C.C.)) et de competence stricto sensu (ou vires),mais les questions de droit touchant directement le regime confie au decideursont generalement associees a la norme de la decision raisonnable, a plus forteraison lorsque le legislateur a expressement enonce sa volonte que les decisionsdu decideur fassent l’objet de deference par l’adoption d’une clause privative.

23 Toujours dans Dunsmuir, la Cour supreme enseigne qu’il faut d’abordetudier la jurisprudence afin de deceler si elle offre une solution en matiere duchoix de la norme de controle a l’egard de la question de droit en litige. Si ellen’offre pas de reponse satisfaisante, une analyse doit etre faite a l’aide descriteres suivants, en gardant a l’esprit qu’il n’est pas necessaire d’accorder lameme importance a chacun :

55. Les elements suivants permettent de conclure qu’il y a lieu de deferer a ladecision et d’appliquer la norme de la raisonnabilite :

• Une clause privative : elle traduit la volonte du legislateur que ladecision fasse l’objet de deference.

• Un regime administratif distinct et particulier dans le cadre duquel ledecideur possede une expertise speciale (p. ex., les relations detravail).

• La nature de la question de droit. Celle qui revet « une importancecapitale pour le systeme juridique [et qui est] etrangere au domained’expertise » du decideur administratif appelle toujours la norme de


la decision correcte [...]. Par contre, la question de droit qui n’a pascette importance peut justifier l’application de la norme de la raison-nabilite lorsque sont reunis les deux elements prece-dents.[soulignements ajoutes]

24 En l’espece, nous sommes en presence d’un arbitre de griefs, nomme envertu du Code du travail pour interpreter le regime des relations de travail etdont la competence est protegee par une clause privative qualifiee de « relative-ment rigoureuse » (Levis (Ville) c. Cote, [2007] 1 S.C.R. 591, 2007 SCC 14(S.C.C.), par. 20). Pour accomplir sa mission, l’arbitre est investi du pouvoird’interpreter toute loi pertinente aux relations de travail (art. 100.12 a) CT). Celacomprend, bien evidemment, le Code du travail, la Loi sur les normes du travailet les dispositions du Code civil en matiere de contrat, responsabilite civile etdommages. Tous ces facteurs militent pour la norme de la decision raisonnable,comme le soutient la Fraternite.

25 L’employeur suggere que la norme de la decision correcte aurait pus’appliquer car la question en litige en est une de droit civil, faisant appel a desprincipes generaux et d’application universelle. Avec egards, cela n’est pas con-forme aux enseignements de la Cour supreme. Outre les questions constitution-nelles, d’interpretation d’une charte des droits et de competence stricto sensu(ou vires), n’echappe a la norme de la raisonnabilite qu’une decision d’undecideur specialise et protege par une clause privative sur une question de droit« qui revet une importance capitale pour le systeme juridique [et qui est]etrangere [a son] domaine d’expertise ». C’etait le cas dans Toronto (City) v.C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 (S.C.C.), par. 62, ou etaiten jeu la valeur probante d’une condamnation criminelle ayant acquis force dechose jugee et le pouvoir d’un arbitre de conclure autrement.

26 Dans notre dossier, l’arbitre devait simplement determiner s’il y avait eu despropos diffamatoires ou injurieux et, le cas echeant, les dommages en resultant,s’il en est. Une telle determination n’est pas d’importance capitale pour le sys-teme juridique, contrairement, par exemple, a l’interpretation d’une dispositionde la Charte des droits et libertes de la personne.

27 Meme dans ce dernier cas, il ne faut pas confondre interpretation de laCharte et application d’une de ses dispositions claire et nullement contestee auxfaits d’une espece, comme le soulignaient dans des motifs concordants les jugesL’Heureux-Dube et Gonthier dans Chambly (Commission scolaire regionale) c.Bergevin, [1994] 2 S.C.R. 525 (S.C.C.), aux pages 553 et 554.

28 Il faut aussi se rappeler qu’une sentence arbitrale, contrairement a un juge-ment de la Cour superieure, ne souleve pas l’application du principe du staredecisis. L’objectif de la coherence doit se poursuivre dans le respect del’autonomie et l’independance decisionnelle du decideur. Ainsi, une sentencedans une matiere confiee a un arbitre qui differe de la jurisprudence dominantedes tribunaux judiciaires sur la meme matiere, lorsqu’elle releve d’eux, si


raisonnablement possible, ne provoquera pas l’intervention de la cour de revi-sion (Domtar Inc. c. Quebec (Commission d’appel en matiere de lesions profes-sionnelles), [1993] 2 S.C.R. 756 (S.C.C.), p. 799).

29 J’en viens donc a la conclusion qu’il faut appliquer la norme de la decisionraisonnable a la decision de l’arbitre.

30 Avant de passer a l’analyse de la sentence arbitrale, il me faut traiter d’undernier point. Selon le premier juge, « [...]sans exiger l’application du critere dela decision correcte, la Cour ne doit a l’arbitre qu’un degre de deferencerestreint ». Dans son jugement autorisant l’appel, mon collegue le juge Dufresnesouligne que ce passage merite l’attention de la Cour.

31 Parlant d’une approche similaire avancee par une juge de la Cour superieure,mon collegue le juge Morissette ecrit dans Collines-de-l’Outaouais (MRC) c.Mallette, J.E. 2010-872, 2010 QCCA 816 (Que. C.A.), au par. 13 : « Cette faconde poser le probleme est erronee ». Puis, citant les commentaires des juges Bin-nie et Rothstein dans l’arret Khosa v. Canada (Minister of Citizenship & Immi-gration), [2009] 1 S.C.R. 339, 2009 SCC 12 (S.C.C.), il fait ressortir que lanorme de la raisonnabilite est unique et n’inclut pas de variables en terme dedegres de deference.

32 Avec les plus grands egards pour le premier juge, je tiens a reaffirmer que lasimplification voulue par la Cour supreme en reduisant a deux les normes decontrole ne saurait etre court-circuitee par l’introduction dans la norme de laraisonnabilite d’un spectre de degre de deference ou l’on trouverait a une ex-tremite, peu de deference, a l’autre, la plus grande deference, et ce, en passantpar une certaine deference, puis par beaucoup de deference. Tout cela ne feraitque complexifier le processus d’application de la norme de raisonnabilite etnous menerait a de longues dissertations toutes aussi utiles que celles sur le sexedes anges.

33 Comme le rappelle le juge Binnie dans Khosa, au par. 4 : « [...] le controlejudiciaire devrait accorder moins d’importance a la formulation de differentesnormes de controle et s’interesser davantage au fond, en particulier a la naturede la question soumise au tribunal administratif en cause ». Autrement dit,l’accent de la revision judiciaire doit etre sur la nature de la question qu’avait atrancher le decideur. Si celle-ci est assujettie a la norme de la raisonnabilite,comme c’est generalement le cas, l’exercice de revision se limite a determiner sila reponse du decideur a la question en litige est intelligible et fait partie desissues possibles acceptables pouvant se justifier au regard des faits et du droit(Dunsmuir, par. 47).

34 Les cours d’appel des autres provinces l’ont aussi compris. Ainsi, dans Millsv. Ontario (Workplace Safety & Insurance Appeals Tribunal), [2008] O.J. No.2150, 2008 ONCA 436 (Ont. C.A.), aux par. 22 et 23, la Cour d’appel de


l’Ontario a conclu que Dunsmuir enonce qu’il n’y a pas de degres de deferencedans la norme de la decision raisonnable :

[22] My conclusion does not signal that factors such as the nature andmandate of the decision-maker and the nature of the question beingdecided are to be ignored. Applying the reasonableness standard willnow require a contextual approach to deference where factors suchas the decision-making process, the type and expertise of the deci-sion-maker, as well as the nature and complexity of the decision willbe taken into account. Where, for example, the decision-maker is aminister of the Crown and the decision is one of public policy, therange of decisions that will fall within the ambit of reasonableness isvery broad. In contrast, where there is no real dispute on the factsand the tribunal need only determine whether an individual breacheda provision of its constituent statute, the range of reasonable out-comes is, perforce, much narrower.

[23] My interpretation on this issue is strengthened by the majoritydescription of « reasonableness ». The description provided by themajority did not articulate varying degrees of deference, but insteadreferred simply to a deferential standard that mandates respect forthe « decision-making process of adjudicative bodies with regard toboth the facts and the law. » Dunsmuir at para. 48. The concept ofreasonableness does not turn on a detailed analysis of whether thetribunal’s decision is subject to a high or low degree of deference.[...] [soulignements ajoutes]

35 Cet arret a ete suivi par la Cour d’appel federale dans Telfer v. Canada(Revenue Agency), [2009] D.T.C. 5046, 2009 FCA 23 (F.C.A.), par la Courd’appel du Manitoba dans Guinn v. Manitoba, [2009] 9 W.W.R. 1, 2009 MBCA82 (Man. C.A.) et par la Cour d’appel de l’Alberta dans I.A.M. & A.W., Local 99v. Finning International Inc. (2008), [2009] 2 W.W.R. 215, 2008 ABCA 400(Alta. C.A.).

36 Il ne fait plus de doute maintenant : ces enseignements s’imposent.

II. La decision de l’arbitre etait-elle deraisonnable?37 L’arbitre considere que le commentaire litigieux etait diffamatoire, conclu-

sion que le juge de la Cour superieure n’a pas trouve deraisonnable. Jen’exprime quant a moi aucune opinion a cet egard puisque cela n’est pas enlitige devant nous.

38 Le debat porte plutot sur l’existence d’une faute de Montmigny (la diffusiondu commentaire) et les consequences de celle-ci, s’il en est.

39 D’entree de jeu, je suis d’accord avec le premier juge pour dire que l’octroide dommages punitifs n’etait pas une des issues possibles acceptables pouvantse justifier au regard des faits et du droit. La seule assise juridique pouvant justi-fier l’octroi de tels dommages est l’art. 49 de la Charte qui requiert non seule-


ment une conduite fautive, mais aussi l’intention de porter atteinte a un droitprotege. Dans ADISQ c. Genex Communications inc., [2009] R.J.Q. 2743, 2009QCCA 2201 (Que. C.A.)2, j’ecris :

[91] L’octroi de dommages punitifs en vertu de la Charte n’est pas tributaired’un sentiment de reprobation chez le juge ou le public, mais plutot d’unepreuve d’un etat d’esprit de l’auteur de la faute qui denote une volonte decauser l’atteinte au droit protege ou une indifference a l’atteinte que cet au-teur sait des plus probables. Dans l’arret St-Ferdinand, precite, la Cour su-preme precise les conditions devant exister pour qu’il y ait « une atteinteillicite et intentionnelle » au sens du second alinea de l’article 49 de laCharte :

[121] En consequence, il y aura atteinte illicite et intentionnelleau sens du second alinea de l’art. 49 de la Charte lorsquel’auteur de l’atteinte illicite a un etat d’esprit qui denote un desir,une volonte de causer les consequences de sa conduite fautiveou encore s’il agit en toute connaissance des consequences, im-mediates et naturelles ou au moins extremement probables, quecette conduite engendrera. Ce critere est moins strict quel’intention particuliere, mais depasse, toutefois, la simple negli-gence. Ainsi, l’insouciance dont fait preuve un individu quantaux consequences de ses actes fautifs, si dereglee et temerairesoit-elle, ne satisfera pas, a elle seule, a ce critere.

40 L’extrait suivant de la sentence arbitrale demontre que tel n’etait pas le cas :

[75] Quant aux dommages exemplaires et punitifs, etant donne que la publi-cation de ces commentaires etait destinee a rester a l’interne pour servircomme document d’un travail legitime et non pas pour critiquer publique-ment les membres de l’executif du syndicat; vu que M. Montmigny a envoyeun courriel deux jours plus tard aux memes personnes leurs demandant de nepas diffuser ces commentaires et ce, avant la reception d’une mise endemeure, et vu qu’ils ont ete retires rapidement, c’est avec beaucoupd’hesitation que j’accorde une somme nominale de 5 000 $ a l’ensemble dugroupe des cinq membres de l’executif du syndicat implique par ces motsimprudents. Il aurait ete possible de soulever la question de pression inac-ceptable durant les negociations d’une convention collective pour discussionavec plus de soins, au lieu de citer les commentaires tels que rediges par undes repondants du sondage. [soulignements ajoutes]

41 En effet, comment peut-on concilier la conclusion factuelle de l’arbitre quele document poursuivait une fin legitime et n’etait pas destine a critiquer publi-quement le syndicat avec une volonte de causer une atteinte a un droit protege?Manifestement Montmigny n’avait aucune intention de porter atteinte a la repu-tation de l’executif syndical. Certes, il a hesite avant d’inserer le commentairelitigieux, mais il a juge bon de l’inclure afin que le document de travail con-

2Requete pour autorisation de pourvoi a la Cour supreme, 2010-01-19, C.S.C. # 33535.


tienne des commentaires tant positifs que negatifs, favorisant ainsi une reflexionplus complete. De meme, il n’a pas demontre une indifference a une atteinte desplus probables a la reputation du syndicat et de ses dirigeants; au contraire, ladistribution du document etait restreinte et etait accompagnee d’une note qui eninterdisait la communication a toute autre personne.

42 Dans ce contexte, les faits retenus par l’arbitre appliques au droit nepouvaient pas justifier l’octroi de dommages punitifs et cette conclusion de lasentence arbitrale est deraisonnable.

43 Je passe maintenant aux dommages moraux. L’arbitre conclut que les mem-bres de l’executif syndical ont ete assujettis au mepris public, notamment enraison du reportage radiophonique. Cependant, il n’y a aucune indication de lafrequence de diffusion du reportage et sur les cotes d’ecoute. De plus, l’arbitreprecise qu’on ignore comment le document a pu se retrouver a une cafeteria ou aune station de radio locale. La seule preuve de diffusion hors du cercle des 22destinataires est le fait d’un representant syndical qui a communique le docu-ment a l’executif de la Fraternite. Finalement, en retenant la premisse que lecommentaire litigieux est diffamant, il demeure qu’il l’est essentiellement al’egard des membres de l’executif syndical de l’epoque ou les incidents de-nonces se sont produits, les seuls dirigeants qu’une personne qui prend connais-sance du commentaire litigieux peut considerer blamables, de mauvais conseilou incapables de respecter les lois. Quant aux membres actuels de l’executif dela Fraternite, l’arbitre reconnaıt l’absence d’impact personnel, sans parler del’existence d’une faute par Montigny, s’il en est.

44 Dans ces circonstances, a l’instar du juge de revision, je ne vois pas com-ment l’arbitre pouvait raisonnablement conclure a un prejudice en faveur desmembres de l’executif actuel et octroyer a chacun des dommages moraux de5 000 $.

CONCLUSION 45 Pour ces motifs, je propose de rejeter le pourvoi avec depens.

Appel rejete.


[Indexed as: Saskatchewan Federation of Labour v. Saskatchewan(Attorney General)]

Saskatchewan Federation of Labour, Saskatchewan Joint Board, Retail,Wholesale and Department Store Union, and Canadian Union of

Public Employees (Appellants) and The Government of Saskatchewan(Attorney General, Department of Advanced Education, Employment

and Labour), and Saskatchewan Labour Relations Board (Respondents)and United Food and Commercial Workers Union, Local 1400

(Intervenor)

Saskatchewan Court of Appeal

Klebuc C.J.S., Cameron, Richards JJ.A.

Heard: December 1, 2009

Judgment: March 3, 2010*

Docket: 1729, 1730, 1732, 2010 SKCA 27

Larry Kowalchuk, Juliana Saxberg for Appellants, Saskatchewan Federation ofLabour and The Saskatchewan Joint Board Retail, Wholesale and Depart-ment Store Union

Peter J. Barnacle for Appellant, Canadian Union of Public EmployeesB.J.Hornsberger, Q.C., Graeme Mitchell, Q.C., Charita N. Ohashi for Respon-

dent, the Government of SaskatchewanH.R. Kloppenberg, Q.C. for The Saskatchewan Labour Relations Board (Watch-

ing Brief)Drew S. Plaxton for Intervenor, United Food and Chemical Workers Local 1400

Labour and employment law –––– Public service employees — Appointment to posi-tion — Appointment, deployment or assignment –––– Lieutenant Governor in Councilpassed order terminating appointments of chair and two vice-chairs of labour relationsboard — Unions applied for order declaring order null and void — Application was dis-missed on grounds that Lieutenant Governor in Council was empowered to make orderby ss. 19 and 20 of Interpretation Act, 1995 (“Act”) and that it did not exceed that powerby making order for impermissible purpose or improper motive — Unions appealed —Appeal dismissed — Lieutenant Governor in Council was not empowered to terminateappointments of those persons on basis that they served “at pleasure” — Relevant powerof appointment resided in Trade Union Act (“TUA”) — Section 19 of Act created pre-sumption that public officers held office during pleasure only unless otherwise providedfor — Presumption did not apply to chair and vice-chairs because they fell within excep-tion under s. 19(a) of Act — Chairs were appointed pursuant to TUA which expressed“contrary intention” within meaning of s. 19 of Act — Exception in s. 19 of Act was

*A corrigendum issued by the court on March 10, 2010 has been incorporated herein.

Saskatchewan Federation of Labour v. Saskatchewan 301

interpreted to exclude chair and vice-chairs from presumption of section as interpretationeliminated element of disharmony that would otherwise prevail between s. 19 of Act ands. 4 of TUA — Interpretation also preserved principle of natural justice and degree ofindependence and impartiality it required of board — Applications judge held that s. 20of Act applied notwithstanding any other enactment and therefore it applied notwith-standing s. 4 of TUA — There was no tenable basis for interfering with conclusionreached by applications judge that order was not invalid by reason of being driven byimpermissible purpose or improper motive.

Public law –––– Public authorities — Public officers — Exercise of authority — Gen-eral principles –––– Lieutenant Governor in Council passed order terminating appoint-ments of chair and two vice-chairs of labour relations board — Unions applied for orderdeclaring order null and void — Application was dismissed on grounds that LieutenantGovernor in Council was empowered to make order by ss. 19 and 20 of InterpretationAct, 1995 (“Act”) and that it did not exceed that power by making order for impermissi-ble purpose or improper motive — Unions appealed — Appeal dismissed — LieutenantGovernor in Council was not empowered to terminate appointments of those persons onbasis that they served “at pleasure” — Relevant power of appointment resided in TradeUnion Act (“TUA”) — Section 19 of Act created presumption that public officers heldoffice during pleasure only unless otherwise provided for — Presumption did not applyto chair and vice-chairs because they fell within exception under s. 19(a) of Act — Chairswere appointed pursuant to TUA which expressed “contrary intention” within meaning ofs. 19 of Act — Exception in s. 19 of Act was interpreted to exclude chair and vice-chairsfrom presumption of section as interpretation eliminated element of disharmony thatwould otherwise prevail between s. 19 of Act and s. 4 of TUA — Interpretation alsopreserved principle of natural justice and degree of independence and impartiality it re-quired of board — Applications judge held that s. 20 of Act applied notwithstanding anyother enactment and therefore it applied notwithstanding s. 4 of TUA — There was notenable basis for interfering with conclusion reached by applications judge that order wasnot invalid by reason of being driven by impermissible purpose or improper motive.

Labour and employment law –––– Public service employees — Termination of em-ployment — Dismissal — Miscellaneous –––– Lieutenant Governor in Council passedorder terminating appointments of chair and two vice-chairs of labour relations board —Unions applied for order declaring order null and void — Application was dismissed ongrounds that Lieutenant Governor in Council was empowered to make order by ss. 19and 20 of Interpretation Act, 1995 (“Act”) and that it did not exceed that power by mak-ing order for impermissible purpose or improper motive — Unions appealed — Appealdismissed — Lieutenant Governor in Council was not empowered to terminate appoint-ments of those persons on basis that they served “at pleasure” — Relevant power of ap-pointment resided in Trade Union Act (“TUA”) — Section 19 of Act created presump-tion that public officers held office during pleasure only unless otherwise provided for —Presumption did not apply to chair and vice-chairs because they fell within exceptionunder s. 19(a) of Act — Chairs were appointed pursuant to TUA which expressed “con-trary intention” within meaning of s. 19 of Act — Exception in s. 19 of Act was inter-preted to exclude chair and vice-chairs from presumption of section as interpretationeliminated element of disharmony that would otherwise prevail between s. 19 of Act ands. 4 of TUA — Interpretation also preserved principle of natural justice and degree of


independence and impartiality it required of board — Applications judge held that s. 20of Act applied notwithstanding any other enactment and therefore it applied notwith-standing s. 4 of TUA — There was no tenable basis for interfering with conclusionreached by applications judge that order was not invalid by reason of being driven byimpermissible purpose or improper motive.

Cases considered by Cameron J.A.:

Bell Canada v. C.T.E.A. (2003), 227 D.L.R. (4th) 193, 2003 CarswellNat 2427, 2003CarswellNat 2428, 2003 C.L.L.C. 230-021, [2004] 1 W.W.R. 1, 2003 SCC 36, 3Admin. L.R. (4th) 163, (sub nom. Bell Canada v. Canadian Telephone EmployeesAssn.) 306 N.R. 34, 109 C.R.R. (2d) 65, 46 C.H.R.R. D/495, 242 F.T.R. 318 (note),(sub nom. Bell Canada v. Canadian Telephone Employees Assn.) [2003] 1 S.C.R.884, REJB 2003-43800, [2003] S.C.J. No. 36 (S.C.C.) — considered

Hewat v. Ontario (1998), 37 O.R. (3d) 161, 41 C.L.R.B.R. (2d) 54, 108 O.A.C. 117, 98C.L.L.C. 220-037, 1998 CarswellOnt 806, 35 C.C.E.L. (2d) 32, 156 D.L.R. (4th)193, 7 Admin. L.R. (3d) 257, [1998] O.J. No. 802 (Ont. C.A.) — referred to

Knight v. Indian Head School Division No. 19 (1990), [1990] 1 S.C.R. 653, 69 D.L.R.(4th) 489, [1990] 3 W.W.R. 289, 30 C.C.E.L. 237, 90 C.L.L.C. 14,010, 43 Admin.L.R. 157, 83 Sask. R. 81, 1990 CarswellSask 146, 1990 CarswellSask 408, 106 N.R.17, [1990] S.C.J. No. 26, EYB 1990-67929 (S.C.C.) — referred to

Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control &Licensing Branch) (2001), 2001 SCC 52, 2001 CarswellBC 1877, 2001 CarswellBC1878, (sub nom. Ocean Port Hotel Ltd. v. Liquor Control & Licensing Branch(B.C.)) 155 B.C.A.C. 193, (sub nom. Ocean Port Hotel Ltd. v. Liquor Control &Licensing Branch (B.C.)) 254 W.A.C. 193, [2001] 10 W.W.R. 1, 34 Admin. L.R.(3d) 1, 204 D.L.R. (4th) 33, 274 N.R. 116, 93 B.C.L.R. (3d) 1, [2001] 2 S.C.R. 781,[2001] S.C.J. No. 17, REJB 2001-25683 (S.C.C.) — considered

Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324 (2003),2003 CarswellOnt 3500, 2003 CarswellOnt 3501, 2003 SCC 42, (sub nom. SocialServices Administration Board (Parry Sound) v. Ontario Public Service EmployeesUnion, Local 324) 308 N.R. 271, (sub nom. Social Services Administration Board(Parry Sound District) v. Ontario Public Service Employees Union, Local 324) 177O.A.C. 235, 47 C.H.R.R. D/182, (sub nom. Parry Sound (District) Social ServicesAdministration Board v. O.P.S.E.U., Local 324) [2003] 2 S.C.R. 157, 31 C.C.E.L.(3d) 1, 2003 C.L.L.C. 220-062, (sub nom. Parry Sound (District) Social ServicesAdministration Board v. O.P.S.E.U., Local 324) 230 D.L.R. (4th) 257, 7 Admin. L.R.(4th) 177, REJB 2003-47356, [2003] S.C.J. No. 42 (S.C.C.) — referred to

Pointe-Claire (Ville) c. Syndicat des employees & employes professionnels-les & debureau, local 57 (1997), 1997 CarswellQue 86, [1997] L.V.I. 2841-1, (sub nom.Pointe-Claire (City) v. Quebec (Labour Court)) 97 C.L.L.C. 220-039, (sub nom.Pointe-Claire (Ville) v. Syndicat des employees & employes professionnels-les & debureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.)) 211 N.R. 1, 28C.C.E.L. (2d) 177, (sub nom. Pointe-Claire (City) v. Quebec (Labour Court)) 146D.L.R. (4th) 1, (sub nom. Pointe-Claire (City) v. Quebec (Labour Court)) [1997] 1S.C.R. 1015, 46 Admin. L.R. (2d) 1, 1997 CarswellQue 87, [1997] S.C.J. No. 41(S.C.C.) — referred to

Saskatchewan Federation of Labour v. Saskatchewan 303

Preston v. British Columbia (1994), 92 B.C.L.R. (2d) 298, 116 D.L.R. (4th) 258, 46B.C.A.C. 161, 75 W.A.C. 161, 6 C.C.E.L. (2d) 114, 24 Admin. L.R. (2d) 145, 1994CarswellBC 249, [1994] B.C.J. No. 1416 (B.C. C.A.) — referred to

R. v. Campbell (1997), (sub nom. Reference re Remuneration of Judges of the ProvincialCourt (P.E.I.)) 156 Nfld. & P.E.I.R. 1, (sub nom. Reference re Remuneration ofJudges of the Provincial Court (P.E.I.)) 121 Man. R. (2d) 1, 11 C.P.C. (4th) 1, (subnom. Reference re Public Sector Pay Reduction Act (P.E.I.), s. 10) 150 D.L.R. (4th)577, 118 C.C.C. (3d) 193, (sub nom. Provincial Court Judges Assn. (Manitoba) v.Manitoba (Minister of Justice)) 46 C.R.R. (2d) 1, (sub nom. Reference reRemuneration of Judges of the Provincial Court (P.E.I.)) 206 A.R. 1, (sub nom.Reference re Remuneration of Judges of the Provincial Court (P.E.I.)) 156 W.A.C. 1,217 N.R. 1, (sub nom. Reference re Remuneration of Judges of the Provincial Court(P.E.I.)) 483 A.P.R. 1, 1997 CarswellNat 3038, 1997 CarswellNat 3039, (sub nom.Reference re Remuneration of Judges of the Provincial Court of Prince Edward Is-land) [1997] 3 S.C.R. 3, [1997] 10 W.W.R. 417, 49 Admin. L.R. (2d) 1, [1997]S.C.J. No. 75 (S.C.C.) — referred to

Ridge v. Baldwin (1963), [1964] A.C. 40, [1963] 2 All E.R. 66, [1963] 2 W.L.R. 935(U.K. H.L.) — referred to

Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re)221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1,(sub nom. Adrien v. Ontario Ministry of Labour) 98 C.L.L.C. 210-006, [1998] S.C.J.No. 2 (S.C.C.) — followed

Thorne’s Hardware Ltd. v. R. (1983), 1983 CarswellNat 530F, [1983] 1 S.C.R. 106, 143D.L.R. (3d) 577, 46 N.R. 91, 1983 CarswellNat 530, [1983] S.C.J. No. 10(S.C.C.) — referred to

Wuttunee v. Merck Frosst Canada Ltd. (2008), 435 W.A.C. 90, 314 Sask. R. 90, 2008CarswellSask 650, 2008 SKCA 125 (Sask. C.A.) — referred to


Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982, c. 11

s. 2(d) — referred toConstitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11,reprinted R.S.C. 1985, App. II, No. 44

s. 52(1) — referred toConstitutional Questions Act, R.S.S. 1978, c. C-29

Generally — referred tos. 8 — referred to

Construction Industry Labour Relations Act, 1992, S.S. 1992, c. C-29.11Generally — referred to

Government Organization Act, S.S. 1986-87-88, c. G-5.1Generally — referred to

Interpretation Act, 1995, S.S. 1995, c. I-11.2s. 3 — referred tos. 10 — referred tos. 19 — considered


s. 19(a) — considereds. 20 — considereds. 20(2) — referred to

Police Act, 1990, S.S. 1990-91, c. P-15.01Generally — referred to

Public Service Essential Services Act, S.S. 2008, c. P-42.2Generally — referred to

Saskatchewan Gaming Corporation Act, S.S. 1994, c. S-18.2Generally — referred to

Saskatchewan Health Research Foundation Act, S.S. 2002, c. S-21.1Generally — referred to

Saskatchewan Watershed Authority Act, 2005, S.S. 2005, c. S-35.03Generally — referred to

Trade Union Act, R.S.S. 1978, c. T-17Generally — referred tos. 4 — referred tos. 4(1) — considereds. 4(1.1) [en. 1994, c. 47, s. 4(2)] — considered

APPEAL by unions from judgment reported at Saskatchewan Federation of Labour v.Saskatchewan (Attorney General) (2009), 323 Sask. R. 115, [2009] S.J. No. 28, 305D.L.R. (4th) 280, 2009 CarswellSask 35, 2009 SKQB 20, [2009] 4 W.W.R. 691 (Sask.Q.B.), concerning validity of order-in-council terminating appointments of chair andvice-chairs of Labour Relations Board.

Cameron J.A.:

1 Following the Saskatchewan general election held on November 7, 2007,which saw a change of government, the Lieutenant Governor in Council madean order effectively terminating the appointments of the chairperson and vice-chairpersons of the Labour Relations Board and appointing a new chairperson.

2 Shortly afterwards, the Saskatchewan Federation of Labour and two unions,namely the Saskatchewan Joint Board Retail, Wholesale and Department StoreUnion and the Canadian Union of Public Employees, applied to the Court ofQueen’s Bench for judicial review and a declaration declaring the order-in-coun-cil void. They claimed it was void because the Lieutenant Governor in Councillacked the power to make it, or made it for an impermissible purpose or im-proper motive. The Court dismissed the application.

3 The Saskatchewan Federation of Labour and the two unions then broughtthis appeal, contending the judge who heard their application erred in dismissingit. He dismissed it on the premises the Lieutenant Governor in Council (i) wasempowered to make the order on the bases of each of sections 19 and 20 of TheInterpretation Act, 1995, S.S. 1995, c. I-11.2, and (ii) did not exceed that powerby making the order for the impermissible purpose or improper motive of influ-encing the decisions of the Board and undercutting its independence and impar-

Saskatchewan Federation of Labour v. Saskatchewan Cameron J.A. 305

tiality. The question on appeal, then, is whether the judge erred in one or theother of these respects.

I. The Background4 As might be expected, the impugned order-in-council, O.C. 98/2008, was

made in both political and legal contexts. Each forms part of the background. Sodoes the government’s explanation for the order-in-council.

1. The political context5 The general election held on November 7, 2007 resulted in the resignation of

the existing government led by Premier Lome Calvert, the leader of the NewDemocratic Party, and the installation of a new government led by Premier BradWall, the leader of the Saskatchewan Party. Soon after the election, the newgovernment introduced, or announced its intention to introduce, legislation toamend The Trade Union Act, R.S.S. 1978, c. T-17; revamp The ConstructionIndustry Labour Relations Act, 1992, S.S. 1992, c. C-29.11; and bring in ThePublic Service Essential Services Act, S.S. 2008, c. P-42.2. Each is administeredby the Labour Relations Board. Premier Wall said the new government was in-tent on these changes being made to ensure “a balance in the province betweenthe interests of unions and the interests of management” and an “economy com-petitive with other jurisdictions”.

6 With these legislative changes in the offing, the government turned its atten-tion to the composition of the Labour Relations Board. The role of the Boardconsists primarily of adjudicating labour-management disputes arising out ofthese enactments. With that in mind it seems fair to say the government, whileunconcerned about what members of the Board might make of the changes,lacked confidence in the willingness or ability of the chairperson and vice-chairpersons to give effect to the legislative policy choices embodied in thechanges. Hence, the government initiated O.C. 98/2008.

7 The Lieutenant Governor in Council made O.C. 98/2008 on March 6, 2008,or about four months after the election. The order-in-council served to (i) termi-nate the terms of office of the then chairperson and two vice-chairpersons; (ii)appoint a new chairperson to hold office at pleasure and for a term of five years;and (iii) increase the remuneration of the chairperson from $120,000 per year to$180,000 per year.

2. The legal context8 To the extent the order-in-council terminated the terms of office of the

chairperson and vice-chairpersons, it is expressed to have been made on the au-


thority of section 20 of The Interpretation Act, 1995. This section, and section19, read thus:

19 Subject to section 20, every public officer appointed before or after thecommencement of this. Act holds office during pleasure only, unless a con-trary intention is expressed in:

(a) the enactment by or pursuant to which he or she is appointed; or

(b) the public officer’s commission or appointment.

20(1) Subject to subsection (2), notwithstanding any other enactment or anyagreement, if a person is a member of a board, commission or other ap-pointed body of the Government of Saskatchewan or any of its agencies orCrown Corporations on the day on which the Executive Council is first in-stalled following a general election as defined in The Election Act, the termof office for which that person was appointed is deemed to end on the earlierof:

(a) the last day of the term for which that person was appointed; or

(b) a day designated by the Lieutenant Governor in Council or the per-son who made the appointment

(2) Subsection (1) does not apply to a person whose appointment is expresslystated in an Act to be subject to termination by the Legislative Assembly.

9 To the extent the order-in-council appointed a new chairperson for a term offive years and increased this person’s remuneration, it is expressed to have beenmade on the authority of section 4 of The Trade Union Act:

4(1) There shall continue to be a board known as the Labour Relations Boardcomposed of members appointed by the Lieutenant Governor in Council atsuch salaries and or remuneration as he deems fit; the Lieutenant Governorin Council shall name a chairperson and not more than two vice-chairpersonsof the board; the members of the board shall be selected so that employersand organized employees are equally represented.

(1.1) The members of the board:

(a) shall be appointed to hold office for terms not exceeding:

(i) five years in the case of the chairperson and vice-chairper-sons; and

(ii) three years in the case of other members; and

(b) may be reappointed for additional terms.

10 It might be noted that the chairperson whose term of office was brought toan end by the impugned order-in-council had been appointed at the instance ofthe former government to hold office at pleasure for a term ending on October 1,2008. His appointment was made on August 14, 2007. The two vice-chairper-sons had been appointed on the same day. They too had been appointed to holdoffice at pleasure but for longer terms, terms expiring on July 1, 2009, in thecase of the one, and on May 16, 2012, in the case of the other.


11 Contemporaneous with these appointments, several other persons, eighteenin all, had been appointed as members of the Board. They had also been ap-pointed to hold office at pleasure and for various terms, terms not exceedingthree years. Half were appointed as members “representing employees” and halfas “representing employers”. Their appointments were unaffected by O.C.98/2008, which served only to bring an end to the term of office of the chairper-son and each of the two vice-chairpersons.

3. The government’s explanation for O.C. 98/200812 Following release of the order-in-council, Premier Wall was asked about it

by the news media. He said the government had introduced a series of changesto the province’s labour legislation to ensure a “balance between employers andemployees”, adding that the government was “constantly searching for the rightpeople” to achieve that balance. “We are signaling change”, he observed, and “itmakes sense that we would...try to ensure that there’s renewal in terms of thebody that interprets” the province’s labour legislation. Pressed further, he re-sponded at a turn or two as follows:

Well, we want the Labour Relations Board — and remember, there aremany, — I think 18 who are unchanged, 18 members of the Labour Rela-tions Board not changed. Yes, we’ve made some changes with respect tochair, but our government has clearly signalled that we just...want a balancebetween the interests of unions and the interests of business. And we alsowant to make sure we’re competitive with other provinces in Canada interms of the economy....

. . . . .

This is an opportunity to send a signal that we’re going to renew these posi-tions. There are 18 that are staying on and so that’s the fact of the matter andwe also have introduced significant labour changes and legislation and essen-tial services legislation. These changes we have made shouldn’t surprise any-one. We think it’s going to provide for a fair and balanced labour legislativeagenda for the province...

. . . . .

Do we think this new appointment can...help in terms of value add, to actu-ally lead us to the point where there’s possibly that balance as we interpret abrand new Trade Union Act together with the 18 people on the Board that arestill there, which is — seems pretty reasonable. I think, yes, that’s — the an-swer to that is yes as well....

. . . . .

We’re going to have people who are able to interpret the laws...as they’repassed by the legislature, and again what we have said publically, and Iwould expect that Labour Relations Board members will...consider what thegovernment has said publically, in opposition and in government, that wejust seek [that] balance...between the two sides.


. . . . .

We want to set a new direction in terms of balanced labour legislation inSaskatchewan. So that’s going to require legislative change, changes in thebodies that are interpreting the law...”

13 Other ministers made other comments, but the Premier’s remarks serve toexplain what the government had in mind regarding the impugned order-in-council.

II. The Decision in Queen’s Bench14 The application by the Saskatchewan Federation of Labour and the two un-

ions to quash O.C. 98/2008 was heard by Mr Justice Zarzeczny. His decisiondismissing their application appears, at 2009 SKQB 20 (Sask. Q.B.) and is re-ported at (2009), 323 Sask. R. 115 (Sask. Q.B.). He found both branches of theircase lacking, which is to say he found that (i) the Lieutenant Governor in Coun-cil was possessed of the power to make the order and (ii) did not exceed thatpower by making it for an impermissible purpose or improper motive.

15 As for the first branch, he found that, so far as O.C. 98/2008 terminated theappointment of the then chairperson and vice-chairpersons, the Lieutenant Gov-ernor was empowered to make it because these persons had been appointed tohold office “at pleasure”, both as expressed in the order-in-council making theappointments and as contemplated by section 19 of The Interpretation Act,1995.

16 He also found that the Lieutenant Governor in Council was empowered bysection 20 of The Interpretation Act, 1995 to make the order. Section 20, hesaid, “provides an overriding and special limited right to terminate the appoint-ment of public officers in the specific circumstances addressed by the section”.He then said this:

[35] The rights embodied in s. 20 apply “notwithstanding any other enact-ment or any agreement” [emphasis in the original] and this would includes. 4(1.1) of the Trade Union Act. Section 20 is applicable to the circum-stances in this case and it provides that the term of office for which a personwho is a member of a board — of the Government of Saskatchewan is“deemed to end on the earlier of ...the last day of the term for which theperson was appointed...or a day designated by the Lieutenant Governor inCouncil....

[37] It is indisputable that the past chair and vice-chairs, whether they servedat pleasure, or as the applicants argue were serving a fixed term, neverthelesswere susceptible to termination in either of the two circumstances specifiedin. subparagraphs 20(1)(a) and (b). That being the case, the Lieutenant Gov-ernor in Council clearly had the statutory authority to terminate their ap-pointments or “terms of office” pursuant to section 20 of the InterpretationAct, an authority which it exercised through O.C. 98/2008.


17 As for the second branch of the case, questioning the purpose and motive ofthe government, he observed that it was not open to the Court to inquire into themotives underlying the making of the order-in-council. The Court was only em-powered to inquire into whether the statutory preconditions to its making weresatisfied: Thorne’s Hardware Ltd. v. R., [1983] 1 S.C.R. 106 (S.C.C.). He alsoobserved that the Court could declare an order-in-council invalid as being incon-sistent with the purpose of the enabling legislation but only in egregious cases.And this, he said, was not such a case.

18 Even so, he went on to consider whether the impugned order-in-councilmight be declared invalid on the ground it constituted interference by the newgovernment with the independence and impartiality of the Board, leaving theBoard vulnerable to the perception it was subject to government influence andwas institutionally biased. In considering the matter, he acknowledged that theBoard, in its adjudicative role, constituted a quasi-judicial body entitled to insti-tutional assurances of both independence and impartiality — not to the same de-gree as the courts perhaps, but to a significant degree.

19 Turning to the idea the Board might be perceived as being biased in conse-quence of the actions of the government, he expressed the opinion an informedperson, viewing the matter realistically and practically, and having thought itthrough, would not conclude that the Board was apt to be partial or biased. Sucha person would recognize the distinction between political rhetoric and publicpolicy, would understand that significant legislative changes were being made,and would appreciate that the Board was bound to interpret and apply the newlegislation in compliance with the law.

20 As for the independence of the Board, he observed that, while independenceis in significant part a function of security of tenure, the degree of independenceenjoyed by a tribunal depends on the tribunal’s enabling legislation: Ocean PortHotel Ltd. v. British Columbia (General Manager, Liquor Control & LicensingBranch), 2001 SCC 52, [2001] 2 S.C.R. 781 (S.C.C.). He regarded that case asparticularly significant because it featured legislation providing for appointment“at pleasure” of members of a tribunal with an adjudicative role, and because theSupreme Court deferred to the legislation, held that the tribunal did not lackindependence by reason of its members having been appointed to serve “at plea-sure”, and in doing so said this:

[24] ...the degree of independence required of a particular tribunal is a matterof discerning the intention of Parliament or the legislature and, absent consti-tutional restraints, this choice must be respected.

21 So, he thought the fact the present and past appointments to the Board, in-cluding those of the chairperson, were made “at pleasure” was of no conse-quence because this was in keeping with section 19 of The Interpretation Act,1995. In other words, that was the intention of the Legislature.


22 He also observed that The Trade Union Act contains a number of built-inassurances of independence and impartiality, citing its provisions’ for equal rep-resentation on the Board of employee and employer representatives, for collec-tive decision-making, and for oaths of office designed to ensure faithful and im-partial service. In addition, he observed that the decisions of the Board aresubject to the supervisory jurisdiction of the Superior Courts and that pastchairpersons had acted independently, impartially, and often with distinction.So, he concluded that the applicants’ apprehensions regarding the independenceand impartiality of the Board were misplaced.

23 For these reasons, then, he dismissed both branches of the case presented bythe Saskatchewan Federation of Labour and the two unions.

III. THE APPEAL

1. The Issues24 It is important to state at the outset that the appellants, in pleading their case

in the Court of Queen’s Bench, did not challenge the validity of O.C. 98/2008on the basis the statutory authority upon which it was made was unconstitu-tional. More particularly, they did not allege that sections 19 and 20 of The In-terpretation Act, 1995, to the extent they purport to apply to persons holdingoffice as members of the Labour Relations Board, run contrary to the unwrittenconstitutional principle of judicial independence mentioned in R. v. Campbell,[1997] 3 S.C.R. 3 (S.C.C.), and are therefore inconsistent with section 52(1) ofthe Constitution Act, 1982 and of no force or effect.

25 Had they desired to challenge the validity of the order-in-council on this ba-sis, it would have been necessary to have first served the Attorney General withwritten notice to that effect as required by section 8 of The Constitutional Ques-tions Act, R.S.S. 1978, c. C-29. They did not do so, though they did allege theorder-in-council offended section 2(d) of the Charter of Rights and Freedomsand its constitutional guarantee of employee freedom of association. However,they abandoned this allegation along the way.

26 Despite the foregoing, the Saskatchewan Federation of Labour, and the Sas-katchewan Joint Board Retail, Wholesale and Department Store Union, soughton appeal to challenge the constitutional validity of sections 19 and 20 of TheInterpretation Act, 1995. They applied to this Court by notice of motion return-able on the day of the hearing of the appeal for an order permitting short serviceupon the Attorney General of notice under The Constitutional Questions Act no-tifying him of their intention to mount their challenge. The Attorney Generalopposed the motion on the bases the issue had not been developed in the Courtof Queen’s Bench, was raised for the first time on appeal, and came as some-thing of a surprise. In the circumstances, including the lack of timeliness associ-ated with the motion, we dismissed the application. We did so in keeping with


the practice mentioned in Wuttunee v. Merck Frosst Canada Ltd., 2008 SKCA125, 314 Sask. R. 90 (Sask. C.A.).

27 Hence, the issues on appeal are confined to those alluded to at the outset:

• Was the Lieutenant Governor in Council empowered by sections 19 or20 of The Interpretation Act, 1995 to make O.C. 98/2008 and end theterms. of office of each of the then chairperson and two vice-chairper-sons of the Labour Relations. Board?

• If so, did the Lieutenant Governor in Council exceed that power by mak-ing O.C. 98/2008 for the impermissible purpose, or with the impropermotive, of influencing the decisions of the Board and subverting its inde-pendence and impartiality?

2. The Analysis of the Issues

(1) The Power in Issue

28 As noted, Justice Zarzeczny held that the Lieutenant Governor in Councilwas empowered to terminate the appointments of the then chairperson and vice-chairpersons of the Labour Relations Board on the two-fold basis: (a) that thesepersons held office “at pleasure”, as stated in the order-in-council pursuant towhich they were appointed and as contemplated by section 19 of The Interpreta-tion Act, 1995; and (b) that, section 20 of this Act specifically authorized theLieutenant Governor in Council to do so.

29 Let us consider these in turn, beginning with the first.

(a) Section 19 of The Interpretation Act, 1995: “at pleasure”

30 With respect, we do not agree with the proposition the Lieutenant Governorin Council was empowered to terminate the appointments of these persons onthe basis they served “at pleasure.” True, the order-in-council appointing themstates they were appointed to hold office on this basis as well as for terms ofvarying duration. This suggests that the Lieutenant Governor in Council, if em-powered to appoint them to hold office “at pleasure”, was empowered to termi-nate their appointments as though they held office on this basis. However, theLieutenant Governor in Council did not have that power.

31 The relevant power of appointment resides in The Trade Union Act. Unlikeother enactments, such as The Police Act, 1990, S.S. 1990-91, c. P-15.01,1

which provide for appointment for terms of office as well as during pleasure,The Trade Union Act only confers power on the Lieutenant Governor in Council

1See, for further example, The Saskatchewan Watershed Authority Act, 2005, S.S. c.S-35.03, The Saskatchewan Gaming Corporation Act, c. S-18.2, and The SaskatchewanHealth Research Foundation Act, S.S. c. S-21.1.


to appoint a chairperson and vice-chairpersons for terms of office not to exceedfive years, as in subsection 4(1.1). The length of the terms must, of course, befixed at the time of appointment, meaning in effect that these persons can onlybe appointed for fixed terms of office.

32 Judging from the likes of The Police Act, 1990, it seems that when the Legis-lature intends to empower the Lieutenant Governor in Council to appoint per-sons to hold office for a fixed term as well as during pleasure it says so. Other-wise it leaves the matter to section 19 of The Interpretation Act, 1995.

33 The only remaining basis, then, for supposing the Lieutenant Governor inCouncil might have been empowered to appoint these persons to hold office “atpleasure” lies in section 19 of this Act:

19 Subject to section 20, every public officer appointed before or after thecommencement of this Act holds office during pleasure only, unless a con-trary intention is expressed in:

(a) the enactment by or pursuant to which he or she is appointed...

However, this section is not empowering but declaratory. As such, it does notempower the Lieutenant Governor in Council to appoint someone to hold officeon this basis. Rather, it creates a presumption that public officers hold officeduring pleasure only unless otherwise provided for.

34 Hence, this section did not empower the Lieutenant Governor in Council toappoint the former chairperson and vice-chairpersons of the Board to hold officeat pleasure. The order-in-council pursuant to which they were appointed seemsto have drawn upon the section as though it did so, and drawn upon it as thoughthe presumption necessarily applied to the appointment of these persons. Notthat this is especially significant, though it should be understood that if the for-mer chairperson and vice-chairpersons served “at pleasure”, thus exposing theirappointments to termination on this basis, it was not because the order-in-coun-cil by which they were appointed said so, but because section 19 in effect saysso. The point is that only if the section 19 presumption applied to these personswas the Lieutenant Governor in Council able to terminate their appointments onthis basis.

35 However, we are of the opinion this presumption — that public officialshold office during pleasure only — does not apply to the chairperson and vicechairpersons of the Labour Relations Board, because they fall within the excep-tion found in section 19, paragraph (a). More precisely, we are of the opinionthese persons were appointed pursuant to an enactment, namely The TradeUnion Act, which expresses “a contrary intention” within the meaning of section19 of The Interpretation Act, 199.5.

36 This is essentially a matter of interpreting these enactments with a view todetermining legislative intent, a matter that engages Driedger’s modern rule of


statutory interpretation adopted by the Supreme Court of Canada in Rizzo &Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), at 41:

Today, there is only one principle or approach, namely, the words of an Actare to be read in their entire context, in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the in-tention of Parliament.

37 The modern rule is attended by an extensive set of principles, rules andguides that emerged over a very long time, are known to legislative drafters andjudges alike, and inform the work of each. In other words the legislative andjudicial branches of government share a set of common understandings when itcomes to expressing and determining legislative intent. Among those under-standings are these. First, the Legislature, when enacting legislation, is presumedto be cognizant of existing legislation and to legislate coherently, meaning that,when it comes to legislation touching the same or similar subject matter, harmo-nious interpretations should prevail over discordant ones: Pointe-Claire (Ville)c. Syndicat des employees & employes professionnels-les & de bureau, local 57,[1997] 1 S.C.R. 1015 (S.C.C.). Second, the Legislature is presumed to be cogni-zant of existing common law and is presumed, unless it clearly states otherwise,not to legislate in derogation of pre-existing common law principles: ParrySound (District) Welfare Administration Board v. O.P.S.E.U., Local 324, [2003]2 S.C.R. 157 (S.C.C.).

38 This, then, is the basic framework of principle bearing upon the determina-tion of the intended relationship between section 19 of The Interpretation Act,1995 and subsection 4(1.1) of The Trade Union Act.

39 As we have seen, subsection 4(1.1) of The Trade Union Act states that mem-bers of the Labour Relations Board “shall” be appointed to hold office for“terms” not exceeding five years in the case of the chairperson and vice-chairpersons, meaning they must be appointed for fixed terms of office. Andthere is no power here to appoint them to hold office at pleasure or during plea-sure only. Generally speaking, this is not surprising for two reasons.

40 First, because it would appear, even on a casual reading of The Trade UnionAct, that the legislature intended something of an arm’s length relationship be-tween the Labour Relations Board and the government. Yet the expression “dur-ing pleasure only” signifies that the appointment of a person by the LieutenantGovernor in Council on this basis can be terminated for no reason other than thedispleasure of the Lieutenant Governor in Council: Ridge v. Baldwin, [1963] 2All E.R. 66 (U.K. H.L.); Knight v. Indian Head School Division No. 19, [1990]1 S.C.R. 653 (S.C.C.). This means the displeasure of the government, since theLieutenant Governor in Council is the Lieutenant Governor acting on the recom-mendation and with the approval of the cabinet. In light of this, one would notordinarily expect to find the Legislature providing, on the one hand, that thechairperson and vice-chairpersons of the Board shall be appointed to hold office


for fixed terms of office as long as five years, and providing, on the other hand,that they should be presumed to hold office at the pleasure of the cabinet. Theformer implies something in the way of an arm’s length relationship, whereasthe latter implies nothing of the kind. Even allowing for the distinction between“term” and. “tenure”, few would fail to see in this an element of contradiction ordisharmony.

41 Second, and more importantly to be sure, the Labour Relations Board, asconstituted and empowered by The Trade Union Act, is primarily an adjudica-tive tribunal entrusted by the Legislature with quasi-judicial powers to be exer-cised in a quasi-judicial procedural setting. Thus the Board is bound by the com-mon law principle of natural justice and all this implies about its independenceand impartiality, including independence from government: Bell Canada v.C.T.E.A., [2003] 1 S.C.R. 884 (S.C.C.). As that case tells us, independence inthis context is a function in significant part of security of tenure. To speak ofsecurity of tenure as a hallmark of quasi-judicial independence is to speak ofsomething other than serving “during pleasure only”. Few would quarrel withthis proposition.

42 However, these are only general observations, and it cannot be doubted thatthe relationship between the Board and the government is a matter for the Legis-lature to determine in the absence of constitutional restraints. And the Legisla-ture can certainly override common law principle: Ocean Port Hotel Ltd. v.British Columbia (General Manager, Liquor Control & Licensing Branch),supra. But to suppose the Legislature intended by section 19 of The Interpreta-tion Act, 1995 that the chairperson and vice-chairpersons of the Board should bepresumed to hold office during pleasure only is to suppose an awful lot. It is tosuppose the Legislature, cognizant of both the mandate of the Board under TheTrade Union Act and the common law principle of natural justice and all it im-plies regarding the independence and impartiality of the Board, intended to sooverride common law principle as to divest the Board of virtually the whole ofits independence from the government.

43 To ascribe such an intention to the Legislature would require clear legisla-tive expression to that effect. Nowhere is this better illustrated than in Preston v.British Columbia (1994), 116 D.L.R. (4th) 258 (B.C. C.A.) and Hewat v. On-tario (1998), 156 D.L.R. (4th) 193 (Ont. C.A.). It would also require a restrictiveinterpretation of those provisions of section 19 of The Interpretation Act, 1995designed to except certain public officers from the presumption of the section.But such interpretation would run counter to the statutory requirement that anenactment be given the fair, large and liberal interpretation that best ensures theattainment of its object.2 The object of these provisions is to ensure that thepresumption does not conflict with the enactment pursuant to which the person

2See, sections 3 and 10 of The Interpretation Act, 1995.


was appointed. If such enactment contains a “contrary intention”, the person isnot to be presumed to hold office during pleasure only.

44 There is much to suggest, consistent with proper determination of legislativeintent, that section 4 of The Trade Union Act, read in the context of the whole ofthe Act, contains such “contrary intention.”

45 As we have seen, the primary mandate of the Board under The Trade UnionAct is quasi-judicial, implying a meaningful degree of independence in theBoard and therefore a meaningful measure of security of tenure. More specifi-cally, the Act requires that the members of the Board be appointed to hold officefor fixed terms of office, suggesting something in the way of security of tenure.It also requires that they take oaths of fidelity and impartiality. In addition, andthis is particularly significant, the Act confers upon the Board exclusive jurisdic-tion to decide interests of vital importance to organized employees and employ-ers, major interests that in many respects have historically generated, and stillgenerate, deep-seated tensions, tensions potentially productive of serious socialand economic disruption. Finally, the parties that regularly appear before theBoard include, by way of telling example, the Government of Saskatchewan asemployer.

46 There is a strong suggestion in all of this that the exception found in section19 of The Interpretation Act, 1995 should be so interpreted as to exclude thechairperson and vice-chairpersons of the Board from the presumption of the sec-tion. Moreover, such an interpretation would serve to eliminate the element ofdisharmony that would otherwise prevail between section 19 of this Act and sec-tion 4 of The Trade Union Act. It would also serve to preserve the common lawprinciple of natural justice and the degree of independence and impartiality itrequires of the Board, including its independence from government. This is es-pecially significant when it comes to the chairperson because this person: (i)stands apart from the requirement that members of the Board be selected so thatemployers and employees are equally represented; (ii) must be present to form aquorum; and (iii) possesses a casting vote in the event of a tie. This is also trueof a vice-chairperson when acting in place of the chairperson.

47 Now, all of this is of no consequence if The Trade Union Act, being theenactment pursuant to which these persons are appointed, should have to containan explicit “contrary intention” before displacing the presumption of section 19of The Interpretation Act, 1995. It is of no consequence because The TradeUnion Act, including subsection 4(1.1), does not contain an explicit contrary in-tention. However, section 19 does not require this, not when read in its gram-matical and ordinary sense. Why? Because it does not use the adjective “ex-press” in modification of the term “contrary intention”, as though such intentionhas to be expressly stated in the enactment pursuant to which the person is ap-pointed. Rather, it uses the verb “expressed in” when referring to such enact-ment. It must not be thought, then, that section 19 is incapable of recognizing an


implicit intention to the contrary, especially one arising by necessary implicationfrom the enactment pursuant to which the person is appointed. And such is theintention expressed in The Trade Union Act, including subsection 4(1.1). That isour opinion of the matter.

48 Based on the sum of the foregoing we are convinced that the presumption ofsection 19 of The Interpretation Act, 1995 does not apply to persons appointedto hold office as the chairperson or vice-chairperson of the Labour RelationsBoard. Hence, our disagreement with Justice Zarzeczny’s conclusion that theLieutenant Governor in Council was empowered to terminate the appointmentsof these persons on the basis they held office “at pleasure” or “during pleasureonly”, as contemplated by section 19.

49 Nor, we may add, is the present chairperson of the Board to be regarded ashaving been appointed to hold office “at pleasure”, as stated in O.C. 98/2008, or“during pleasure only”, in the words of section 19.

50 With that, we turn to the other basis upon which the Lieutenant Governor inCouncil was held to be empowered to pass O.C. 98/2008, namely section 20 ofThe Interpretation Act, 1995.

(b) Section 20 of The Interpretation Act, 1995

51 Justice Zarzeczny was of the view section 20 clearly applied in the circum-stances. He noted with emphasis that the section is expressed to apply notwith-standing any other enactment and therefore took it to apply notwithstanding TheTrade Union Act and section 4 thereof. Thus, he was satisfied section 20 appliedto the former chairperson and vice-chairpersons of the Labour Relations Boardand was satisfied, in consequence, that the Lieutenant Governor in Council wasempowered to make the impugned order-in-council terminating their appoint-ments. We agree.

52 We agree in light particularly of the scope of section 20, of the only excep-tion recognized by the section, and of the purpose of the section. To better illus-trate the point it might be well to repeat the section:

20(1) Subject to subsection (2), notwithstanding any other enactment orany agreement, if a person is a member of aboard, commission orother appointed body of the Government of Saskatchewan or any ofits agencies or Crown Corporations on the day on which the Execu-tive Council is first installed following a general election as definedin The Election Act, the term of office for which that person wasappointed is deemed to end on the earlier of:

(a) the last day of the term for which that person was appointed;or

(b) a day designated by the Lieutenant Governor in Council orthe person who made the appointment


(2) Subsection (1) does not apply to a person whose appointment is ex-pressly stated in an Act to be subject to termination by the Legisla-tive Assembly.

53 The scope of the section is extraordinary but clear. Expressed to apply “not-withstanding any other enactment”, the section extends to every board, commis-sion, agency, and other appointed body of the Government of Saskatchewan. Italso extends to every person who, having been appointed a member by the Lieu-tenant Governor in Council or a minister, is a member on the day a new govern-ment comes to power.

54 The only exception is a person whose appointment is expressly stated in anAct to be subject to termination by the Legislative Assembly. One such person isthe provincial auditor, who can only be removed from office by resolution of theAssembly. Another is the ombudsman, who can only be removed on resolutionof the Assembly.

55 The purpose of section 20 is equally clear. The surest and most informativeidentification of its purpose lies in the remarks of the Attorney General whointroduced the bill that ultimately led to the enactment of the section. He intro-duced the bill shortly after a new government had come to power in 1982. Inspeaking to the bill before the Legislative Assembly during second reading onJuly 5th, 1982, he said this of the purpose of the section:

Mr. Speaker, the purpose of the amendment is quite clear. When any newgovernment is elected, it cannot have its hands tied by the previous govern-ment’s actions. This amendment will assist any new government...to move-toimplement its policies through its various boards, commissions, and agen-cies, by changing memberships on those bodies as is necessary.3

56 Now, given the scope of the section, together with its limited exception andits purpose, there is only one conceivable basis upon which it might be thoughtthe Legislature did not intend the section to apply to members of the LabourRelations Board. This lies in the character of the Board’s function relative to thefunction of other appointed bodies. There are scores of such bodies, fromboards, to commissions, to agencies, and so on. The function of many is classi-cally and purely administrative, placing them at the executive end of the spec-trum, whereas the function of a few is adjudicative and quasi-judicial, placingthem at the judicial end of the spectrum: Bell Canada v. C.T.E.A., supra.

57 The Labour Relations Board is, of course, on the latter end of the spectrumand, given its quasi-judicial mandate, it is bound by the common law principleof natural justice and all this implies in relation to its independence and imparti-ality. Bound, that is, unless and to the extent the Legislature clearly states other-wise. Based on this, it might be thought that, since section 20 is potentially pro-

3Legislative Assembly of Saskatchewan, Debates and Proceedings (Hansard) (5 July1982), p. 491.


ductive of interference with the independence of the Board (in the sense theLieutenant Governor in Council can terminate the fixed terms of office of itsmembers for no other reason than a change of government following a generalelection), the. Legislature did not intend the section to extend to persons holdingoffice as members of the Board. In other words, it might be thought the sectioncontains an implied exception removing the Board and its members from thepurview of the section.

58 There is, however, no room for this. There is no room for it because theLegislative Assembly explicitly rejected this idea during debate on the bill thatled to the enactment of section 20. During debate the opposition moved anamendment to the exception appearing in subsection 20(2). The amendmentsought to enlarge the exception by adding the following:

Subsection (1) does not apply to a person whose appointment is to the labourrelations board pursuant to The Trade Union Act

The amendment was defeated on a vote of 7 in favour and 33 against.4

59 This serves to sound the death of an implied exception in favour of personsholding office as members of the Labour Relations Board. As the Supreme ofCanada observed in Ocean Port Hotel Ltd. v. British Columbia (GeneralManager, Liquor Control & Licensing Branch), supra;

...the degree of independence required of a particular tribunal is a matter ofdiscerning the intention of Parliament or the legislature and, absent constitu-tional restraints, this choice must be respected.

60 For these reasons, then, we are of the opinion Justice Zarzeczny was correctin concluding that in the circumstances of the case section 20 empowered theLieutenant Governor in Council to make O.C. 98/2008 effectively terminatingthe appointments of the then chairperson and vice-chairpersons of the LabourRelations Board

61 It should be noted that the order-in-council was made on March 6, 2008, orfour months after the general election in which the government came to power.In view of this, and based on the wording of section 20, including in particularthe phrase “on the day the Executive Council is first installed following a gen-eral election”, the appellants suggested that the Lieutenant Governor in Council,even if empowered by the section to make the impugned order-in-council, had tohave made it on the day the Executive Council was installed following the gen-eral election, not four months later. This is not so. Grammatically speaking, thisphrase modifies the expression “if a person is a member of a board, commission,or other appointed body” on that day. It serves therefore to identify the personswhose appointments are subject to termination under the section. The phrasedoes not serve to dictate that the section can only be invoked on that day.

4Debates and Proceedings (Hansard) (15 July 1982) p. 842.


62 This much is clear, but the phrase is otherwise obscure. It is an importantone, however, for it imposes limits on the operation of the section. First, it limitsthe operation to certain persons, namely those who are members of boards, com-missions, and the like “on the day” the Executive Council is first installed fol-lowing a general election. Second, it limits the operation to certain circum-stances, namely a change of government following a general election.

63 The latter requires explanation. In the words of the phrase, the “ExecutiveCouncil” is not “installed” following every general election, but only a generalelection in which the party in power is defeated and another asked to form agovernment. The rationale for this lies in some of the basic elements of thestructure of government, elements which tend to get obscured when addressed inthe vernacular of practical politics. For example, it is common to speak of theelection and defeat of governments. But the government, in the sense of the ex-ecutive government, is not elected or defeated as such. It is appointed and re-signs, and when it resigns another is appointed in its stead.

64 To elaborate, the Executive Council is composed of the cabinet, being thePremier and the ministers. These persons are appointed by the Lieutenant Gov-ernor to serve during pleasure (the premier as president of the Executive Counciland the ministers as officers).5 And since they are responsible to the LegislativeAssembly in the exercise of their executive power, they must enjoy the supportof a majority of the members of the Assembly to continue in office.

65 Once appointed, these persons continue in office even after the LegislativeAssembly is dissolved on the calling of a general election. They continue inoffice during the election and, if the party in power wins, after the election, forin that event they can still command the support of the majority of the membersof the Assembly. In that event, the Premier continues to be the Premier; theAttorney General continues to be the Attorney General; and so on down the line.Subject, that is, to such individual changes as the Premier may decide to make.The point is this: Following a general election in which the, party in power re-tains power, the Executive Council is not “installed”. It was installed earlier andsimply carries on as the government.

66 If the party in power loses the election, however, the members of the Execu-tive Council appointed by the Lieutenant Governor must collectively resign,bearing in mind they were appointed during pleasure and must enjoy the confi-dence of the Legislative Assembly. When that happens, the Lieutenant Governorappoints another member as president of the Council, namely the new Premier,and other members as minsters of the departments of the government. Thus, inthe words of the phrase under consideration, the “Executive Council” comes to

5See, The Government Organization Act, S.S. 1986-87-88, c. G-5.1.


be “first installed” following a general election resulting in a change of govern-ment, but not otherwise.6

67 To be sure, this is not a particularly nuanced account, but it serves to explainthe meaning of the phrase “on the day on which Executive Council is first in-stalled following a general election”, and it serves to illustrate the limits thisphrase imposes on the operation of the section. It also serves to explain the At-torney General’s description of the purpose of the section during debate in theLegislative Assembly, Speaking in the vernacular of practical politics he said thepurpose lay in the idea that “when a new government is elected it cannot have itshands tied by the previous government’s actions” but must be able to “imple-ment its policies through its various boards, commissions, and agencies bychanging the memberships of those bodies as is necessary.”

68 In this way, the purpose of the section ties into the phrase “on the day onwhich Executive Council is first installed following a general election”. Thissuggests the section may require the Lieutenant Governor in Council, once thesection becomes operative, to move reasonably quickly in relation to personsholding office as members of quasi-judicial tribunals such as the Labour Rela-tions Board. Otherwise, the potential exists for ongoing interference with theirindependence and impartiality at the hands of the government. However, thismatter is not before us and therefore nothing will be said of it beyond observingthat in this instance the government moved with dispatch.

69 That, then, brings us to the second branch of the case: Whether the Lieuten-ant Governor in Council exceeded the power conferred on him by section 20 byreason of having made the impugned order-in-council for the impermissible pur-pose, or with the improper motive, of influencing the decisions of the Board andsubverting its independence and impartiality.

(2) The Purpose and Motive in Issue.

70 We can see no tenable basis for interfering with the conclusion reached byJustice Zarzeczny that O.C. 98/2008 is not invalid by reason of being driven byan impermissible purpose or an improper motive.

71 To begin with, the government’s purpose, as reflected in the object of theorder-in-council, can hardly be seen to be at odds with the purpose of section 20.As distasteful as this may be to the appellants, this is the very thing sanctionedby section 20.

72 As for the motive of the government, it seems fair to say, as we observed atthe outset, that the new government lacked confidence in the willingness or abil-ity of the then chairperson and vice-chairpersons of the Board to give effect tothe legislative policy choices embodied in the, proposed legislative changes.

6Debates and Proceedings (Hansard), (15 July 1982), p. 829.

Saskatchewan Federation of Labour v. Saskatchewan Richards J.A. 321

Seen in the light of the purpose of section 20, particularly as described by thethen Attorney General in the legislature, there is nothing legally offensive aboutthis. This is what section 20 envisions.

73 While the appellants contended otherwise, based on the remarks of the Pre-mier in particular, we are of the view his point on the whole was that the newgovernment was concerned to ensure that the Board interpreted and applied theanticipated statutory changes in keeping with legislative intent. This is not in-consistent with section 20, as is evident from the purpose of the section.

74 It might be noted that the Legislature chose to enact this law almost thirtyyears ago, expressly rejecting the idea members of the Labour Relations Boardshould be excluded from the scope of the law. And the Legislature has not sincealtered or repealed the law despite intervening changes of government. As muchas the appellants contended against the actions of the present government, theLegislature allowed for this very thing in the limited circumstances in whichsection 20 applies, namely after a general election resulting in a change ofgovernment.

75 For these reasons, then, the appeal on this branch of the case must fail.

76 It follows, that the case as a whole fails in the result. In other words we, too,are satisfied the Lieutenant Governor in Council was empowered by section 20of The Interpretation Act, 1995 to bring to an end the terms of office of theformer chairperson and vice-chairpersons of the Labour Relations Board. Andwe, too, are satisfied the Lieutenant Governor in Council did not exceed thatpower in making O.C. 98/2008. Accordingly, there will be judgment dismissingthe appeal.

77 In light of the divided success regarding the issues raised on appeal, thoughnot its outcome, the parties may wish to speak to costs. If so, they may do thisby way of written submission.

Klebuc C.J.S.:

I concur.

Richards J.A.:

I concur.

Appeal dismissed.

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