Canadian Forum on Civil Justice Winter 2022 Newsletter

The non-profit Canadian Forum on Access to Justice (CFCJ) publishes a regular newsletter on access to justice issues.

The latest issue includes news about:

• an upcoming Indigenous Access to Civil Justice Conference
• a new project about access to justice via administrative tribunals and panels
• the Accessibility for Ontarians with Disabilities Act
• and more

The CFCJ is a national non-profit organization that works to advance civil justice reform through research and advocacy. 

New and Updated Globalex Research Guides on Foreign and International Law Topics

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, has published and updated a number of research guides recently:

• A Brief Introduction to the Right to Privacy – An International Legal Perspective: "In course of time, the personal data market has become global due to the constant increase of the access and use of the Internet. Eventually, personal data has evolved as the main fuel of the 4th Industrial Revolution era. In such an atmosphere, ordinary citizens, being private individuals, or consumers desire to have adequate legal protections for their privacy rights. Thus, the worldwide debate on privacy concerns has become apparent. Keeping this in mind, this article aims to explore some basic aspects of privacy, including the meaning, value, historical development, challenges, and legal protections as ensured in international, regional, and national legal frameworks."
• United Nations Administrative Law: "The United Nations (UN) Secretariat has a staff of over 35,000 employees and is by far the largest administrative body of the UN system. Naturally, an organization with this many employees will see a variety of disputes related to the rights and obligations of those staff members. The goal of this research guide is to present the sources of law that govern those employment disputes and the research tools and strategies useful for examining those sources. While the direct application of this body of law is limited to the staff of the UN, it is highly influential on the administrative law of other inter-governmental organizations, and the field in general may be relevant as a model for domestic administrative and labor law."
• UPDATE: Legal Research in Germany Between Print and Electronic Media – An Overview: "Starting with a brief introduction to the German legal system and legal tradition, this article looks at legal research from a practitioner's point of view and provides an overview of the major sources for German legal research with a focus on business and commercial law, both print and online. Due to the wealth of German legal literature, it presents but a selection of the most essential sources and does not make a claim to comprehensive portrayal or completeness. Most of the materials mentioned here are in German, as any substantive law research will need to be conducted in the vernacular. To assist the foreign researcher though, references have included the translations of German laws and cases as well as select literature and websites on German law in English. Kommentare (commentaries) and Festschriften as forms of publication specific to German legal research are highlighted as is the way German case law is published and the issues this involves. Extensive coverage is given to legal databases and their growing importance to the researcher."

Blog Series for 10th Anniversary of Supreme Court Dunsmuir v New Brunswick Decision

Dunsmuir v. New Brunswick, 2008 SCC 9 has become the most cited Canadian court decision ever.

It will soon the 10th anniversary of what many scholars believe is the decision that rewrote Canadian administrative law.

To mark the occasion, the blogs Double Aspect and Administrative Law Matters will be publishing a series of posts by major scholars between now and the anniversary date (March 7):

"These contributions will subsequently be published in the Canadian Journal of Administrative Law & Practice, the overall goal being to enrich discussion of Canadian administrative law and to blend new and old forms of legal writing. Contributors will be encouraged to edit their contributions in light of comments received from blog readers and other discussants on social media ― so don’t be shy!"

 Posts will cover:

• The Background to Dunsmuir 
• The Philosophy of Dunsmuir 
• Correctness Review 
• Reasonableness Review 
• Dunsmuir and Fairness 
• Dunsmuir and the Constitution 
• Indigenous Peoples and Dunsmuir 
• Teaching Dunsmuir 
• Judicial Perspectives 
• Comparative Perspectives 
• The Effects of Dunsmuir

New Additions to Free Quebec Law Online

This week saw two additions of free Quebec legal sources online.

1) CanLII (Canadian Legal Information Institute) and CAIJ (Centre d'accès à l'information juridique, the network of courthouse law libraries associated with the Québec Bar Association) have signed a deal to expand the coverage of Quebec administrative law on CanLII.

2) And CAIJ has a partnership agreement with Éditions Revue de droit de l'Université de Sherbrooke to make some of the University of Sherbrooke's textbooks available online on the CAIJ website.

Their material will be added to a collection that already includes full-text commentary and textbooks including the Développements récents (annual reviews of areas of law), the Collection de droit (Bar School materials), proceedings of the annual Quebec Bar Association congresses, a growing number of treatises from publisher Wilson & Lafleur, numerous annotated acts, case law, and a list of thousands of legal questions with their corresponding answers.

March Reports from the Law Reform Commission of Saskatchewan

The Law Reform Commission of Saskatchewan published three final reports in March 2012:

• Renewing The Privacy Act: "The recommendations made in this report are relatively simple, and few in number. However, the Commission believes that they may be sufficient to renew The Privacy Act, making it more attractive to potential litigants as well as more effective. To make the Act a part of the regime for protection of privacy that is evolving in the province, it may be as important to reaffirm it as to reform it. Revision of the legislation may amount to a relaunching of the tort of invasion of privacy in the province."
• Appeals from the Exercise of Statutory Powers of Decision: "Saskatchewan legislation often delegates authority to make decisions directly affecting the rights of individuals to boards, commissions and public officials. These statutory powers of decision are necessary tools for regulation of a wide range of public and private activities. They confer authority to grant licenses and permits, authorize disciplinary hearings by professional associations, grant permission to undertake regulated activities, resolve disputes with government agencies and enforce regulations (...) Most statutory powers of decision are subject to judicial review, an authority vested in the courts by common law rather than by statute. However, the scope of judicial review is uncertain. Most commentators on administrative law agree that judicial review is a complex and difficult branch of the law. Largely for this reason, legislators have supplemented judicial review with statutory rights to appeal from decisions made by tribunals and officials exercising statutory powers. Clearly stated appeal provisions can supersede judicial review, making resort to it unnecessary in most cases. The right of appeal from a decision must be expressly stated in the statute that creates the power of decision. This report is concerned with such rights of appeal (...) The Commission believes that administrative fairness requires that rights to appeal from statutory powers of decision should conform to consistent principles. The first goal of the Commission’s recommendations is principled consistency. The second is clarification of appeal rights. We believe that administrative law litigation can be simplified and reduced if these goals are implemented. A properly developed appeals system would make the difficulty and uncertainty of judicial review unnecessary in most cases. "
• Administrative Penalties: "Administrative penalties are a mechanism for enforcing compliance with regulatory legislation. They are monetary penalties assessed and imposed by a regulator without recourse to a court or independent administrative tribunal. In most cases, administrative penalties are imposed on individuals and businesses that have been licensed to undertake regulated activities. Advocates of administrative penalties suggest that it is neither necessary nor appropriate to make regulation of licensees a matter for the courts. The delay and cost of court proceedings are avoided, and decisions are made by officials acquainted with the purposes of the regulations in issue, rather than by judges who lack such specific expertise. If they are to be an acceptable part of the regulatory framework, administrative penalties must be applied fairly and impartially. Because they are imposed without a hearing in a court, and usually without any other formal hearing, other procedural protections must be in place to ensure that the process for determination of the administrative penalty is fair, and is seen to be fair. The Law Reform Commission undertook an examination of administrative penalties to identify ways in which fairness could be ensured. "
  

New Book on the McLachlin Court's First Decade

Canadian legal publisher Irwin Law has published a new book on the con­stitutional and administrative law decisions by the Supreme Court of Canada in the first decade of Beverley McLachlin's leadership as Chief Justice of Canada:

"It includes contributions in both English and French from leading scholars who examine the Court’s legacy in areas such as federalism, Aboriginal rights, Charter rights such as equality and freedom of association, criminal law, and public international law. The book provides authoritative insight into the many important judgments that helped to define or redefine the Canadian legal landscape in the first decade of the 21^st century as well as glimpse into what Canadians might expect from our highest Court in the years ahead."

It is edited by Adam Dodek (Associate Professor at the Faculty of Law, Common Law Section, University of Ottawa) and David A. Wright (Associate Chair, Human Rights Tribunal of Ontario).

The introduction and table of contents are available for free on the Social Science Research Network website.

[Source: Slaw.ca]

Lawyers Weekly Article on Expansion of Administrative Tribunals' Charter Powers

The most issue of The Lawyers Weekly features an article on the Supreme Court of Canada's June 11, 2010 R. v. Conway ruling. (The ruling can be found on the LexUM website).

The ruling greatly simplified the procedure for determining whether administrative boards or tribunals are to be considered courts of competent jurisdiction with the power to grant remedies under s. 24(1) of the Charter of Rights and Freedoms:

"Justice Rosalie Abella’s June 11 ruling in R. v. Conway is a must-read for administrative law practitioners because its effect may be to extend Charter powers to a significant, but as yet unknown, number of administrative boards and tribunals which currently claim they don’t (or have been held by courts not to) have jurisdiction to resolve constitutional issues, including granting Charter remedies (...)"

"Toronto’s Marlys Edwardh told The Lawyers Weekly the decision will enable people to use the Charter to obtain remedies from administrative boards and tribunals that are not expressly barred by the relevant statutory schemes."

"It will 'open up Charter relief in many kinds of administrative tribunals which have not had it, or not exercised it,' predicted Edwardh, counsel for Paul Conway, the appellant who unsuccessfully sought Charter remedies from the Ontario Review Board."

"Whatever its future fallout, Conway certainly is a clear and succinct primer on the past 25 years of intense judicial debate at the Supreme Court about the scope of Charter jurisdiction of administrative boards and tribunals."

Law Commission of England Report on Administrative Redress: Public Bodies and the Citizen

The Law Commission of England published a report last week entitled Administrative Redress: Public Bodies and the Citizen.

The report examines when and how an individual should be able to obtain redress against
a public body that has acted wrongfully.

According to the press release:

"In examining court-based remedies, the Commission concludes that there are good arguments for reform but, given the level of opposition to its earlier proposals and the absence of available data on the costs of compensation paid by public bodies, work will not be taken forward on reviewing this area of the law. The report does, however, recommend that government should establish a process for collecting and publishing information on the cost of public compensation."

"The Commission is taking forward its review of the public sector ombudsmen, following a favourable response to its proposals. The scope of the review will be extended and include suggestions for:

• improving citizens’ access to the public sector ombudsmen, and
• increasing the powers of ombudsmen to refer points of law to the courts."
  

"The Commission will consult on its proposals for reform of public sector ombudsmen later in 2010 and expects to make final recommendations to government the following year."

Manitoba Law Reform Commission Report on Appointments to Administrative Agencies

The Manitoba Law Reform Commission has just released a report entitled Improving Administrative Justice in Manitoba: Starting with the Appointments Process.

As I like to point out, one of the most interesting things to me about law reform reports is the fact that they frequently provide a comparative perpective about the issue studied and this report is no exception:

"Manitoba has about 160 administrative agencies, boards and commissions (often referred to as 'ABCs') that operate outside the line departments of government. The government relies on administrative boards to regulate and adjudicate, to give advice, to administer substantial financial and other assets and to provide goods and services. Other administrative boards are appointed to take on roles that emerge as governments assume regulatory functions. In the last decade most Canadian provinces and the federal government have reviewed their board appointments processes and most have implemented changes to ensure that the processes are more open, transparent and accountable and less partisan and more merit-based. Manitoba is one of the few provinces not to have made some change to its appointments process. The first step towards ensuring quality performance of administrative boards in Manitoba is to examine the quality of the appointments process."

"This report discusses the difficult issue of what role, if any, partisanship (in the sense of appointees’ known sympathies with the government’s political leanings) should play in the appointments process. This report outlines the formal mechanisms for making board appointments in Canadian common law jurisdictions and outlines the issues that arise with the less formal mechanisms. It examines how concerns with appointments have emerged in Canadian jurisdictions and how governments have changed their appointments processes in response to those concerns. This report describes publicly available information on the current appointments process in Manitoba, and reviews developments and reforms in appointments policies in Canada and other jurisdictions. The final part of this report examines more closely the elements of appointments policies and makes recommendations on a new appointments policy for Manitoba."

University of Toronto Symposium on Future of Administrative Justice

In January 2008, the Faculty of Law of the University of Toronto hosted a symposium on the future of administrative justice that brought together academics, participants in the tribunal sector and government policy makers.

A 28-page report on the symposium has now been released.

A webcast and background documents from the symposium are also available.

Thoughts of a Supreme Court Justice on Deference in Judicial Review

At a recent Administrative Law conference organized in November by the Continuing Legal Education Society of British Columbia, Supreme Court of Canada Justice Louis LeBel made a presentation entitled Some Properly Deferential Thoughts on Deference:

"An understanding of the reasons for and operation of deference in judicial review proceedings is important for both theoretical and practical reasons. At the level of theory, exploring the notion of deference provides insight into the purpose of judicial review and its constitutional roots. The concept of deference assists us in defining the relationship between courts and other decision making bodies. As I will explain, deference is central to understanding the situation of the various decision makers in our constitutional model, both judicial and non-judicial. Our legal system, which I would describe as one of legal pluralism, is one that is only possible if judges adhere to a proper conception of deference and its role in judicial review".

"In this regard, exploring the notion of deference also has practical relevance. Courts must understand their duties when performing deferential review; administrative decision makers must know what actions will be respected by courts and what exercises of power will be scrutinized; and counsel must be aware, when bringing judicial review applications, of the aspects of a decision or its process that demand judicial attention".

In his presentation, Justice LeBel explains the Supreme Court of Canada’s evolving view of the role of administrative bodies (regulators, municipalities, boards, tribunals) and its approach on how to achieve a balance between the need for both judicial review of administrative action and restraint in its exercise.