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CBA NB ADMINISTRATIVE LAW SECTION
FALL MEETING OF THE NATIONAL ADMINISTRATIVE LAW SECTION OF THE CANADIAN BAR ASSOCIATION
By
Sarina McKinnon, Section Chair
The National Section Meeting on November 17, 2007 was held and commenced around 12:40 PM. In attendance from the National Section were the Chair, Maureen Baird; the Vice-Chair, Nancy Forbes; the Treasurer, Michèle Hurteau; the Secretary, Mathieu Bouchard, and an Executive member, Martin Masse. Also in attendance were the Branch Chairs: Arman Chak (Alberta); Judith Ashbourne (British Columbia); Joelle Aylward (Manitoba); Donna Strong (Newfoundland & Labrador); Brian Awad (Nova Scotia); Andrew Wray (Ontario); Murray Murphy (Prince Edward Island); and myself, Sarina McKinnon (New Brunswick). Also in attendance was CBA staff, Holly Doerksen (Director, National Sections and Conferences).
The Chair welcomed everyone to the meeting and introduced a guest, Jean-Daniel Bélanger from the office of the Public Sector Integrity Commissioner. He provided the Section with an overview of the Commissioner’s role, which office was created by the Public Servants Disclosure Protection Act adopted by Parliament in April 2007. He noted that the Commissioner is an agent of Parliament and his or her tasks are to investigate complaints made by public servants and to protect them from reprisal. The Section was also informed that a Public Servants Disclosure Protection Tribunal, with four judges of the Federal Court of Canada, has also been created with Mr. Justice Pierre Blais as its Chair. The Office of the Commissioner will act as the complainant before that Tribunal. He also noted that the first Commissioner appointed is Christiane Ouimet.
Me Bélanger noted that if the Section was interested in a presentation by representatives of the Commissioner and the Tribunal at a future CLE, certain university professors, including Paul Thomas, have strong opinions on the topic and could also be part of a eventual panel.
The Chair then turned to her Report to the Section. She thanked the organizers of the 2007 CLE and then she welcomed the new executive members, Martin Masse and Simon Ruel. The Chair also thanked Holly for all of her hard work for the Section. The Chair raised concern that once she retires as Chair, there will be no national officers from the western provinces. She noted that she will be personally approaching candidates from the West that she knows and she will also be attending the mid-winter CBA meeting in Yellowknife and will try to get the Northwest Territories Branch to be more active.
The meeting then turned to reports from branch sections starting with British Columbia’s Chair, Judith Ashbourne. The British Columbia Section held several meetings and CLEs starting in January 2007 which was a presentation of a paper by the Executive Director of the Administrative Justice Office focusing on the BC Administrative Tribunals Act and ending with a meeting of the BC Administrative Law Section meeting with the Circle of Chairs at the offices of the Human Rights Tribunal. She noted that important case law included the Court of Appeal decision in McKenzie v. Minister of Public Safety and Solicitor General et al 2007 BCCA 507 which was a case that dealt with important questions including constitutional protection of independence to tribunal members acting in an adjudicative capacity.
She then noted that in June 2007 there were recent legislative developments in that the Public Inquiry Act, SBC 2007, Chapter 9 brought into force on June 21, 2007 clarifies the powers and functions of public inquiries, consistent with the modern standards of administrative justice set by the Administrative Tribunals Act. As well, in October 2007 amendments to the Administrative Tribunals Act came into force that were designed to improve the flexibility for the temporary appointment of tribunal members and to clarify the tribunals’ jurisdiction and discretion to decide Human Rights Code issues.
She also noted that in July 2007 the BC Justice Reform Task Force Civil Justice Reform Working Group proposed new rules of Civil Procedure. This working group was established as part of an initiative by the Law Society of BC to make the justice system more responsive, accessible and cost-effective, and it recommended the adoption of new rules in order to provide a more streamlined, accessible Supreme Court system in BC.
Alberta’s Arman Chak, the current Treasurer of that Branch section, provided his report. He started with a discussion of the CLEs that were held over the last year, including talks by David Jones, Q.C., and by Raj Anand, who practices in the areas of human rights, constitutional law and was the former Chief Commissioner of the Ontario Human Rights Commission.
Arman then discussed several cases that he is involved in including Calgary Health Region v. Alberta (Human Rights and Citizenship Commission) 2007 ABCA 121 and Amalgamated Transit v. City of Calgary 2007 ABCA 120. He noted that the significance of the two cases deals with and preserves the Human Rights Commission’s jurisdiction with regard to their specialized area of human rights. He stated that had the Court of Appeal agreed that arbitration boards have exclusive jurisdiction, unionized Albertans would no longer have the individual right to take their complaint through the human rights process and the decision as to whether or not discrimination issues would be addressed and argued would be in the hands of the union.
He then briefly discussed another case, The Director of the AHRCC and Chiasson v. Kellogg, Brown & Root 2006 ABQB 302, a case wherein the complainant, Chiasson, was advised, during an employment interview that because he was a non-unionized employee he was required to take and pass a pre-employment drug test. Arman also briefly discussed other cases.
Manitoba Chair, Joelle Aylward, provided a verbal report as she had not prepared a written report. She noted that for the time being, the committee that she chairs is fairly small. They are organizing a seminar at the end of January 2008 at the mid-winter meeting of the Manitoba Branch followed a few weeks later by a wine and cheese in order to recruit new members. The Branch is also thinking of creating a directory of administrative law professionals. In terms of legislation, a new Employment Standard Code was adopted favouring the labour side as well as new workplace legislation. She noted that in both cases employers are concerned.
Ontario’s Chair, Andrew Wray, went over his written report. He noted that they had several CLEs coming up starting on November 20, 2007 with a dinner program wherein Christopher Brett will moderate a conference entitled “Practice before the Divisional Court, Everything you wanted to know but were afraid to ask,” with guest speakers Justice Then and Justice Swinton. He provided case summaries of several cases (11 cases) and then provided a document outlining the Ontario’s administrative law section’s membership list. He noted that the Administrative Law section is one of the largest and most active in the OBA branch of the CBA with over 500 members from all parts of Ontario. Andrew indicated that the branch’s executive meetings are always held both in person and by conference call to allow members from outside of Toronto to participate.
Andrew indicated that he’s not allowed to distribute the newsletter prepared by the Ontario branch outside the OBA as this is against OBA’s policy.
Martin Masse gave a brief report on the branch’s activities in Ottawa, noting that numerous lawyers practice before federal tribunals in the area and that it can also count on Justice Canada’s lawyers. Martin stated that they tried to organize OBA events with this in mind and that they’ve generally had very good attendance, but that there is no formal way to inform Justice Canada’s lawyers of the activities.
Quebec’s member at large, Mathieu Bouchard, provided his report. Mathieu also reported that the branch has been having certain problems recruiting a distinct chair for the Administrative Law Section, as the current chair is also chair of the Constitutional Law Section. New members of the executives, especially two from Quebec City, are now active and this has not stopped the branch from holding between two and four activities relating to administrative law per year. Mathieu indicated that there are three activities already scheduled for the winter and spring of 2008, namely a conference on the Western Canadian Bank and Lafarge Canada decisions of the Supreme Court on February 21st, 2008 where the speaker will be Guy Tremblay, a professor at Laval University in Québec City, a conference on judicial notice before courts and tribunals to be held on March 27, 2008, where the speaker will be Danielle Pinard, professor at University of Montreal, and a third conference on practice before an administrative tribunal to be held on April 24, 2008 with Me Madeleine Lemieux, Me Daniel Durbas and Me Michel Hurteau as speakers.
New Brunswick- I then provided my report from New Brunswick. I noted that in February, David Jones, Q.C, will speak at our Mid-Winter and that another CLE is planned for April 2008 to cover the topic of the use of mediation in administrative law. As well, we will be planning a rapid fire session on administrative law. I also noted that we have been successful in recruiting new members to the section’s executive.
Prince Edward Island’s Chair, Murray Murphy, provided his report. He noted that they held a CLE in May 2007 wherein the CEO of the PEI Labour Board was the speaker. He also noted that there have been no legislative updates since the last meeting or any noteworthy case law.
Nova Scotia’s Chair, Brian Awad, provided his report. He noted that his section plans to hold between four to six CLEs over the 2007-2008 year. He then discussed the case of Nova Scotia (Director of Assessment) v. Knickle 2007 NSCA 104, which dealt with the property assessment of the Knickles’ property. This case raised several issues including the standard of review on an appeal from a decision of the URB, issues regarding procedural fairness, the burden of proof in an assessment appeal and the nature of a de novo appeal. He also provided a copy of other case summaries in his written report. He also noted that his section attempts to alternate between private sector and public sector chairs.
Newfoundland & Labrador’s Chair, Donna Strong, provided her report. She noted that David Jones, Q.C will be speaking in St. John’s for a half day on November 19, 2007 and that her section is planning a CLE lunch and learn early in the New Year with a guest speaker, the Legislative Consultant with Health and Community Services. As well, her section is working on a CLE on E- Discovery. She briefly discussed the case, Newfoundland and Labrador Association of Public and Private Employees v. Newfoundland and Labrador (Treasury Board) [2007] N.J. No. 262, which dealt with the issue of whether technicians who stayed at the hospital on standby awaiting results of specific testing were entitled to be compensated separately for the subsequent testing under the callback provision of the Collective Agreement.
She also noted new legislation came into effect on October 1, 2007- Mental Health Care and Treatment Act, SNL 2006, C.M-9.1, which deals with the delivery of mental health care services to persons who are involuntary certified with a mental disorder.
Next, the meeting turned to the Branch/National Section Liaison. Nancy Forbes reported on the latest executive conference call. All branches were in pretty good shape except Quebec, where there’s no designated provincial chair for the section. Holly indicated that the next conference call will be held in March 2008.
The Section Budget was then discussed. Holly noted that the CBA has adopted a new policy, which will come into force in August 2009, pursuant to which the sections that will have accumulated more than $20,000 will see the surplus transferred to the National Executive.
The meeting then turned to the topic of Continuing Legal Education and feedback on the 2007 program
Nancy Forbes indicated that in her opinion, this was the best CLE she had ever attended and she thanked Mathieu for his assistance in organizing it. She also noted how general comments from participants have been positive and that speakers spoke on the topic they had been assigned and were on time. Everyone agreed that general thanks had to be extended to Kim MacDonald for her assistance in the logistics. Holly indicated that there were 128 paid registrations, plus the 20 speakers, for a total of 148 attendees. A discussion then occurred between Nancy, Michèle and Mathieu with respect to attendance and how important it is to insist on having French-speaking as well as Quebec speakers to increase the number of people attending from Québec.
Plans for the 2008 CLE
Nancy indicated that Michèle will co-chair the organizing committee for the Administrative Law Section and that Mathieu will assist her in the organization. She also noted how it is sufficient to have three judges on the judges’ panel for Saturday and how the organizers will need the assistance from people in the western provinces to recruit speakers.
Québec City CLC
The Chair indicated that a business meeting is scheduled for the CBA Conference in Québec City in August 2008 and she suggested that we have the whistle blower presentation at that meeting. It was noted that we will need to coordinate with the Labour Law Section as Pierre Moreau has indicated that he would like to have that presentation at the 2008 CLE.
Communications
I indicated that thanks had to be given to the work of several Pro-Bono Students who have placements with the Human Rights Commission this year and my co-worker, Chantal Gauthier, and Charles Ferris (former Chair of the National Section). I noted that I already had eight summaries of the papers prepared by the speakers at the CLE ready for publication in the next newsletter and that I would submit them to Holly. The other summaries would be provided by the end of November, first week of December. Holly indicated that she will add the summaries to the section’s website but that we have to make sure that everything is in by the end of November, which is the deadline for the next newsletter.
Mathieu indicated that for the subsequent newsletter, probably in the Spring of 2008, he would like to add papers presented at CLEs organized by the branches.
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