Date: 20100927
Docket: A-384-09
Citation: 2010 FCA 246
Present: STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
RUDY QUADRINI
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
This
application for judicial review concerns a decision made by the Public Service
Labour Relations Board. The Board has brought a motion seeking leave to
intervene under Rule 109 of the Federal Courts Rules.
[2]
The
applicant, the Attorney General of Canada, concedes that the Board has a right
to intervene in this application. This is an appropriate concession. Under the Public Service Labour Relations
Act, S.C.
2003, c. 22, the Board has a statutory right to
intervene:
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51. (1) Subject to
this Part, every order or decision of the Board is final and may not be
questioned or reviewed in any court, except in accordance with the Federal
Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b)
or (e) of that Act.
(2) The Board has standing to appear in proceedings
referred to in subsection (1) for the purpose of making submissions regarding
the standard of review to be used with respect to decisions of the Board and
the Board’s jurisdiction, policies and procedures.
|
51. (1) Sous réserve des autres dispositions de la présente partie,
les ordonnances et les décisions de la Commission sont définitives et ne sont
susceptibles de contestation ou de révision par voie judiciaire qu’en
conformité avec la Loi sur les Cours fédérales et pour les motifs
visés aux alinéas 18.1(4) a), b) ou e) de cette loi.
(2) La Commission a qualité pour comparaître dans les
procédures visées au paragraphe (1) pour présenter ses observations à l’égard
de la norme de contrôle judiciaire applicable à ses décisions ou à l’égard de
sa compétence, de ses procédures et de ses lignes directrices.
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[3]
Accordingly,
the Board will be granted leave to intervene in this judicial review proceeding.
A. The
central issue in this motion: what limits should be placed on the arguments to
be made by the Board?
[4]
The
Board requests only the right to file an intervener’s memorandum of fact and
law. But what arguments can the Board make in that memorandum? The Board
recognizes that it has already spoken in its decision and, as a result, it should
be subject to limits on what it can say in the judicial review of that decision.
However, the Board and the Attorney General of Canada disagree on how far those
limits should go.
B. The
issues in this application for judicial review
[5]
This
judicial review concerns a decision that the Board made during a hearing into
an unfair labour practice complaint: 2009 PSLRB 104. Mr. Quadrini made the
complaint against the Canada Revenue Agency and one of its assistant
commissioners.
[6]
During
the hearing, Mr. Quadrini sought disclosure of a particular document. The
Canada Revenue Agency and the assistant commissioner refused to disclose it.
They submitted that the document was protected by solicitor-client privilege. Further,
they submitted that the Board has neither the power to investigate whether the
document is subject to solicitor-client privilege nor the power to order that
the document be disclosed.
[7]
The
Board rejected these submissions. It ordered that the Canada Revenue Agency and
the assistant commissioner provide the Board with an affidavit describing the
contents of the document and the reasons why the document is privileged.
[8]
In
this judicial review, the Attorney General seeks to set aside the Board’s order,
making submissions similar to those that the Canada Revenue Agency and the
assistant commissioner made to the Board. The only respondent is Mr. Quadrini,
who is not presently represented by counsel. Mr. Quadrini did not make any submissions
on this motion.
C. The
Board’s submissions on this motion
[9]
The
Board asks only to file written submissions in the judicial review. It says that
its submissions, informed by its specialized knowledge and expertise, will
assist this Court. It also says that this Court’s decision in the judicial
review will directly affect the Board’s practice and procedure. It adds that, at
present, no party before this Court will present the Board’s “unique point of
view.”
[10]
As
for the Board’s “unique point of view,” the Board says very little and at an
unhelpful level of generality. In its notice of motion, the Board proposes to
make submissions in the judicial review on “the appropriate procedure to deal
with a claim of solicitor-client privilege” and “the importance of efficient
rules of procedure to the functioning of the Board.” It gives no explanation of
the relevance of these submissions to the judicial review, contrary to Rule
109(2).
[11]
In
its written submissions in support of its motion, the Board says that it will
“clarify exactly what is at issue before the Court in this matter” but it is
silent about exactly what clarification is needed. It says that it does not
agree with all of the legal positions taken by the Attorney General of Canada but
it is silent about what the issues of disagreement are. The most particular
statements offered by the Board about the proposed submissions are as follows:
(a) “procedural
considerations need to be taken into account in deciding how a quasi-judicial
tribunal should deal with a claim of solicitor-client privilege”;
(b) “there
is a public interest” in the “expeditious resolution of the issues that arise
before the Board”;
(c) Board
proceedings should not be interrupted while privilege issues are dealt with
elsewhere, with resulting costs and delays;
(d) in
its order, the Board adopted the least intrusive means to investigate the
existence of the privilege without breaching it; and
(e) the
manner in which the Board handles solicitor-client issues will have a direct
impact on the Board’s operations and procedures.
[12]
The
Board has not asked to respond to the legal submissions made by the Attorney
General of Canada concerning the standard of review, and whether the decision
of the Board should be quashed on the basis of that standard of review. Further,
putting aside the matters described above, the Board has not asked to address in
a broad way the legal issue of whether it had the express or implied power to do what it did.
D. The
response of the Attorney General of Canada
[13]
Noting
the lack of particularity in the Board’s proposed submissions, the Attorney
General of Canada warns that the Board may seek in this judicial review to
defend the correctness of its decision, enter deeply into the merits of the decision,
and supplement the reasons for decision that it has already given. It adds that
the sole issue in this judicial review is one of statutory interpretation, suggesting
that many of the Board’s proposed submissions are irrelevant or not useful. It says
that the legal principles that govern the scope of intervention by tribunals
require that the Board’s participation in this judicial review be significantly
restricted. On its view of the legal principles, it says that the Board should
be allowed only to attend at the hearing to respond to any technical questions posed
by the Court concerning the Board’s jurisdiction and procedures.
E. The legal principles
that govern the scope of intervention by tribunals
(1) Subsection 51(2) of
the Act
[14]
Subsection
51(2) of the Act, set out above, allows the tribunal to make submissions regarding “the
standard of review to be used with respect to decisions of the Board and the
Board’s jurisdiction, policies and procedures.” Existing alongside subsection
51(2) of the Act are two common law restrictions on the scope of the submissions
a tribunal can make in a judicial review proceeding. The words of subsection
51(2) do not oust these two common law restrictions.
(2) The common
law restrictions on the scope of the submissions a tribunal can make on
judicial review
[15]
The first
restriction is common to all parties in applications for judicial review: the
submissions must be relevant to the issues in the judicial review and useful to
the Court. Useful includes the concept that the intervener will do more than simply restate what
others will be arguing, for example “by assisting the Court by bringing an
additional or a different perspective to the proceeding”: Chrétien v. Canada
(Attorney General), 2005 FC 591 at paragraph 19, 273 F.T.R. 219, per Prothonotary Aronovitch. This Court can enforce standards
of relevance and usefulness based on its power to control its own processes and
Rule 109.
[16]
The second
restriction aims at careful regulation of the tribunal when it appears as a
party or as an intervener on judicial review. This careful regulation is
grounded on two fundamental principles in the common law:
(a) The principle
of finality. Once a tribunal has decided the issues before it and has
provided reasons for decision, absent a power to vary its decision or rehear
the matter, it has spoken finally on the matter and its job is done: Chandler
v. Alberta Association of Architects, [1989] 2 S.C.R. 848. A judicial
review is not an opportunity for the tribunal to amend, vary, qualify or
supplement its reasons. Accordingly, attempts by the tribunal to speak further
by making submissions in the judicial review have to be carefully regulated.
(b) The principle
of impartiality. When a court allows an application for judicial review, it
has a broad discretion in the selection and design of remedies: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. One
remedy, quite common, is to remit the matter back to the tribunal for
redetermination. If that happens, the tribunal must redetermine the matter, and
appear to redetermine it, impartially, with an open mind. Submissions by the
tribunal in a judicial review proceeding that descend too far, too intensely,
or too aggressively into the merits of the matter before the tribunal may
disable the tribunal from conducting an impartial redetermination of the merits
later. Further, such submissions by the tribunal can erode the tribunal’s
reputation for evenhandedness and decrease public confidence in the fairness of
our system of administrative justice. In the classic words of the Supreme Court
of Canada in Northwestern Utilities Ltd. and al. v. Edmonton, [1979] 1
S.C.R. 684 at page 709:
Such active and even aggressive
participation can have no other effect than to discredit the impartiality of an
administrative tribunal either in the case where the matter is referred back
to it, or in future proceedings involving similar interests and issues or the
same parties. The Board is given a clear opportunity to make its point in its
reasons for its decision, and it abuses one's notion of propriety to
countenance its participation as a full-fledged litigant in this Court, in
complete adversarial confrontation with one of the principals in the contest
before the Board itself in the first instance.
[17]
In
engaging in careful regulation based on the principles of finality and
impartiality, courts have made a number of general statements. For example,
tribunals should not make submissions to the reviewing court that, in
substance, amend, vary, qualify or supplement the reasons for decision of the
tribunal: United Brotherhood of Carpenters and Joiners of America, Local
1386 v. Bransen Construction Ltd., 2002 NBCA 27 at paragraphs 26 and 33, 39
Admin. L.R. (3d) 1. Courts should not allow tribunals to participate in judicial
reviews when they bring to bear no particular expertise on the issue, when their
jurisdiction and power is not in issue, and when they have had ample
opportunity to express themselves in their reasons: Ferguson Bus
Lines v. Amalgamated Transit Union, Local 1374 (1990), 68
D.L.R. (4th) 699 at pages 702-703 and 708, 108 N.R. 293
(F.C.A.), leave to appeal to the SCC refused, [1990] S.C.C.A. No. 223.
Tribunals
should not descend into the merits of the case or make arguments that go to the
heart of the litigation stemming from their decisions: Li v. Canada
(Minister of Citizenship and Immigration), 2004 FCA 267 at paragraph 5, 327 N.R.
253, leave to appeal to SCC refused, [2005] S.C.C.A. No. 119; Bell Canada v.
Communications, Energy and Paperworkers Union of
Canada, [1998] F.C.J. No. 1141, 82 A.C.W.S.
(3d) 1107 (F.C.A.). However, tribunals can make submissions on judicial
review about whether they had jurisdiction to make their decisions and what the
appropriate standard of review should be: Canadian Association of
Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989]
2 S.C.R. 983; Northwestern Utilities, supra at page 709. Further,
tribunals can make submissions explaining the evidentiary record or the
procedures that they followed: Paccar, supra; Northwestern
Utilities Ltd., supra at page 709; Genex Communications Inc. v.
Canada (Attorney General), 2005 FCA 283 at paragraph 65, 260 D.L.R. (4th) 45, leave to appeal to
SCC refused, [2005] S.C.C.A. No. 485. Finally, some courts have recognized that where
a tribunal’s submissions are necessary and useful, and there are no other
concerns about the tribunal’s participation, the tribunal can be allowed to
review the evidence in the case with a view to showing that its decision should
be upheld as reasonable: Children’s Lawyer for Ontario v. Goodis (2005),
75 O.R. (3d) 309 at paragraphs 21 to 24 (C.A.); Paccar, supra at
page 1016. Often “the tribunal is in the best position to draw the attention of
the court to those considerations, rooted in the specialized jurisdiction or
expertise of the tribunal, which may render reasonable what would otherwise
appear unreasonable to someone not versed in the intricacies of the specialized
area”: British Columbia Government Employees’ Union v. British Columbia (Industrial
Relations Council) (1988), 32 Admin. L.R. 78, 26 B.C.L.R. (2d) 145 (B.C.C.A.), cited
with approval in Paccar, supra at page 1016.
[18]
However,
these general statements have to be seen, and increasingly are seen, not as
hard and fast rules but rather as exercises of discretion based on particular
circumstances. A couple of examples illustrate this:
(a) As
we have seen in paragraph 17, above, some courts have ruled that a tribunal, defending
its decision under reasonableness review, can come close to or touch on the
merits by discussing the evidence and the conclusions that the tribunal could
reasonably draw from the evidence. But later cases show that this is not a hard
and fast rule. On occasion, courts have found that tribunals have descended too
far into the task of defending the substantive merits of the administrative
case, offending the principles of finality and impartiality: see, for example,
the concerns expressed by my colleague, Justice Pelletier, in Air Canada v.
Canada (Canadian Transportation Agency), 2008 FCA 168 at paragraph 11, 82
Admin L.R. (4th) 225 and see also United Brotherhood, supra, at
paragraph 31.
(b) There
is further difficulty associated with a tribunal defending its decision under
reasonableness review. The Supreme Court has told us that a decision can be
upheld on the basis of the “reasons…which could be offered in support of a
decision” and not just on the basis of the reasons themselves: Dunsmuir v. New Brunswick, 2008 SCC 9 at
paragraph 48, [2008] 1 S.C.R. 190. Submissions by a tribunal about what reasons
could have been offered by the tribunal come dangerously close to amending,
varying, qualifying or supplementing the reasons for its decision, thereby
offending the finality principle. Courts, using their discretion, will have to
impose limits on just how far a tribunal can go, if at all, with this sort of
submission.
[19]
I
note that the Court of Appeal for Ontario in Children’s Lawyer for Ontario, supra, has held that
the general statements in the case law are not hard and fast rules, and that
this is an area for the exercise of judicial discretion. That Court regarded previously
decided cases “as sources of the fundamental considerations that should inform
the court’s discretion in the context of a particular case” rather than as “a
set of fixed rules”: Children’s Lawyer for Ontario, supra at
paragraphs 35 and 43; Canada (Attorney General) v. Canada
(Human Rights Tribunal), (1994) 76 F.T.R. 1 at paragraph
49, 19 Admin. L.R. (2d) 69
(T.D.);
David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at page
459.
[20]
I
agree with this approach. In my view, the discretion as to the permissible
scope of a tribunal’s submissions on a judicial review of its own decision should
be based on:
(a) an
appreciation of the issues that will arise in the reviewing court;
(b) an
assessment of the relevance and usefulness of the tribunal’s proposed submissions
to the determination of those issues; and
(c) a
consideration of whether, and the extent to which, the principles of finality
and impartiality will be offended by the tribunal’s proposed submissions.
The Court’s exercise of discretion will also be
guided by the cases summarized in paragraph 17, above, and other previously decided
cases. These cases serve as examples of prudent regulation of the particular
circumstances before them, based upon the principles of relevance, usefulness, finality
and impartiality.
[21]
It
is neither necessary nor advisable at this time to enumerate all of the factors
that might be relevant to this discretionary assessment and when particular
factors should receive significant weight; these will emerge from future
decisions involving particular circumstances. However, like the Court of Appeal
for Ontario in Children’s Lawyer for Ontario, supra, I found the
discussion of various factors in Mullan, supra at pages
452-460 and Laverne A. Jacobs & Thomas S. Kuttner, "Discovering What
Tribunals Do: Tribunal Standing before the Courts" (2002) 81 Canadian Bar
Review 616 to be illuminating.
[22]
The
tribunal seeking to intervene must assist the Court in its discretionary
assessment. The Court must have a fairly detailed description of the submissions
that the tribunal proposes to advance and how they will assist the determination
of the factual or legal issues in the judicial review. Rule 109(2) requires
that this be stated in the notice of motion for intervention. Vague or sweeping
descriptions of the intended submissions can create concerns that the tribunal will
go too far, prompting the court to impose restrictions. In some cases, the
descriptions of the proposed submissions can be so inadequate that the court has
no choice but to refuse intervention: Canada (Attorney General) v. Georgian
College of Applied Arts and Technology, 2003 FCA 123 at paragraphs 5-7, 121 A.C.W.S. (3d) 196.
[23]
The
Court will need the tribunal’s assistance in another respect. In trying to
define in advance of the hearing the extent of the tribunal’s participation,
the Court can only provide general limits. It cannot descend much into
specifics. Therefore, counsel to the tribunal, crafting the specifics of the
tribunal’s submissions, not only should obey the general limits set by the
Court but also should try to ensure that the detail of the submissions do not
offend the rationales behind those limits, namely the principles of relevance,
usefulness, finality and impartiality. This calls for circumspection and
prudence.
[24]
Finally,
it goes without saying that the panel of the Court at the oral hearing of the
application for judicial review is the master of its own proceedings and can
exercise its discretion concerning the propriety of the tribunal’s submissions
depending on the circumstances that present themselves in the courtroom.
F. Applying
the legal principles to this case
[25]
At
the outset, this Court again notes that subsection 51(2) of the Act entitles
the Board to intervene and speak to “the standard of review to be used with respect
to decisions of the Board and the Board’s jurisdiction, policies and
procedures.” As is evident from paragraphs 10 and 11, above, the Board has
proposed a somewhat narrower level of participation than is possible under
subsection 51(2). Further, this Court notes that the only party presently opposing
the Attorney General of Canada in this judicial review proceeding is the
respondent, Mr. Quadrini, and he does not have legal representation. If this
Court unduly restricts the scope of the Board’s intervention in this case, the
Court may be deprived of the benefit of legal counsel articulating legal
submissions that respond to the legal position of the Attorney General of
Canada. Without the Board present before the Court, certain relevant and useful
submissions may not be made. Finally, the interests and perspectives of the Board
on the issues in this judicial review are quite different from those of the Attorney
General of Canada. All of these factors support a relatively favourable response
to the Board’s motion. Therefore, there will be a number of matters on which
the Board will be permitted to make submissions in this judicial review.
[26]
In
this proceeding, the Court will review the Board’s decision that it has the
power to rule on the existence of solicitor and client privilege and to order
the disclosure of documents where necessary. Putting aside any standard of
review issues, I agree with the Attorney General that this is primarily an
issue of statutory interpretation. The Attorney General also seems to suggest
that the task of interpreting the Board’s powers under the statute is a relatively
narrow one, involving an examination of the words in the statute. As a result,
says the Attorney General, the scope of the Board’s intervention should also be
narrow.
[27]
I
do not accept this. In interpreting statutory provisions, this Court also
examines the words of an Act “in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament”: Bell ExpressVu Limited Partnership v.
Rex, 2002 SCC 42 at paragraph 26, [2002] 2 S.C.R. 559. In making
submissions on these matters, often parties usefully explore the implications
associated with particular interpretations and discuss whether those
implications are consistent with the scheme and object of the Act and the
intention of Parliament. In my view, such submissions by the Board would be
relevant and useful. Further, in the circumstances of this case, such
submissions by the Board would not prompt concerns regarding the principles of
finality and impartiality, provided that the Board advances them with
circumspection and prudence.
[28]
Accordingly,
the Board may explore the implications associated with this Court granting the
application for judicial review and accepting the positions taken by the
Attorney General in its memorandum of fact and law. However, in discussing these
implications, the Board should restrict itself to its ability to have matters
heard in a just, timely and orderly way, and the possible effects that granting
the application for judicial review could have on the Board’s operations and
procedures. No other implications have been articulated with sufficient
particularity.
[29]
As
mentioned in paragraph 11, above, the Board would also like to submit that it
adopted the least intrusive means to investigate the existence of privilege
without breaching it. Phrased in this way, this submission smacks of an attempt
to defend the Board’s decision purely on its merits or to supplement the
Board’s written reasons, contrary to the principles of finality and
impartiality. The Board has not suggested that this is a part of a broader
submission that the Board’s decision should be upheld in light of the standard
of review. Accordingly, the Board is not allowed to advance this submission.
[30]
The
remaining matters proposed by the Board, such as “clarify[ing] exactly what is at
issue before the Court in this matter,” are phrased too vaguely and too broadly
to be considered relevant or useful to the application.
[31]
Overall,
this Court is concerned about the Board’s rather general and vague description
of its proposed submissions. There is a danger that the Board might make
submissions that offend the principles of finality and impartiality. Accordingly, this Court will
prohibit the Board from attempting, in substance, to amend, vary, qualify or
supplement the reasons for decision of the Board. It will also prohibit the
Board from embarking into the merits of the Board’s decision in such a way as
to call into question its ability to hear, impartially, any redetermination in
the event that this matter is remitted back to it.
G. Additional terms
[32]
The
Board has proposed a number of additional terms in this Court’s order
permitting it to intervene. It proposes that it will not add to the evidentiary
record or participate in any cross-examinations on affidavits, appeal any
decision, or participate in any interlocutory matters except for those that
pertain to its participation as an intervener. It has also agreed that it
shall not seek or be awarded costs, or be subject to an award of costs against
it. Finally, it has asked that its written submissions be served and filed on
the parties no later than 30 days after the date of this order.
[33]
The
Attorney General of Canada does not oppose any of these terms. The respondent
has not filed any submissions on this motion opposing these terms. This Court
has the power to impose these terms under Rules 53 and 109 and considers them
to be appropriate and fair. Accordingly, the Court will add these terms to its order.
[34]
The
Board has not asked for a right to make oral submissions. However, it would be
useful for the Board to attend at the hearing of the application, to be
available to answer any questions posed by the Court. Therefore, the Board may
attend for that purpose if it wishes to do so.
[35]
The
Attorney General of Canada has submitted that if the Board is permitted to file
written submissions, it should be granted a right to file a reply. It is not
clear at this time whether a reply memorandum is needed. After the Board has
filed its memorandum, the Attorney General may bring a motion under Rule 369
requesting a right of reply.
[36]
Given
the relatively narrow nature of the issues to be addressed by the Board, the
Board’s memorandum of fact and law shall be limited to 15 pages, exclusive of
schedules.
[37]
If
the applicant or the respondent form the view that the Board’s memorandum of
fact and law contains impermissible submissions, the parties (including the
Board) may serve and file submissions of no more than two pages in length on
this issue. The panel hearing the judicial review may determine the matter.
[38]
Nothing
in the order or these reasons should be taken to interfere with the discretion of the
panel hearing this judicial review to rule on the propriety of any of the
tribunal’s submissions or to invite further submissions from the tribunal. The
panel is free to regulate the involvement of the tribunal as it sees fit based on
the circumstances that present themselves.
"David Stratas"
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