On November 8 and 9, 2019, more than 150 practitioners, academics and tribunal members gathered in Ottawa to attend the annual CBA Administrative Law, Labour and Employment Law conference. Participants had the opportunity to attend a diverse selection of plenary and breakout sessions addressing the latest legal developments, while networking with colleagues from across the country.
The first day of the conference opened with an overview of David Jones’ annual Administrative Law in Review paper. This year’s presentation by Victoria Jones covered a wide range of interesting decisions from the availability of judicial review, particularly in the context of parliamentary privilege, to public interest standing, and the applicability of procedural fairness to private organizations (following the Supreme Court of Canada’s decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26), to the developing relationship between administrative law and constitutional law.
Conference participants were then treated to a dynamic discussion among Audrey Boctor, Victoria Jones, Bill Shores Q.C., and The Honourable Justice David Stratas about the potential implications of the Supreme Court’s highly anticipated standard of review trilogy (Bell Canada, National Football League, and Vavilov), which was heard in December 2018 and has yet to be decided. While none of the panelists had a crystal ball to predict the outcome of the trilogy, the general consensus was that it is unlikely to be unanimous and, therefore, unlikely to provide the clear path forward that we have all been hoping for. In a few short months, we will likely find out whether the panelists’ predictions were accurate.
The conference’s break-out sessions covered some of the latest developments and trends in administrative, labour and employment law. These sessions included:
- A discussion abut the “fissured” workplace, which in recent years has become more prevalent due to increased outsourcing, franchise agreements, and the use of staffing agencies by employers. Panelists discussed the historical developments leading to the current landscape, as well as the impact of this changing landscape on employee benefits—especially pensions, the ability of employees’ to enforce their rights, and recent changes to the Canada Labour Code.
- A discussion about two important threshold issues on judicial review: justiciability, or whether the subject-matter of a decision is suitable for judicial review; and jurisdiction, the question of whether there is sufficient state action of a public nature to warrant judicial intervention. The expert panel expanded on some of the themes raised at the opening of the conference. Philippe Lagasse of Carleton University opened with his perspective on the recent decision of the United Kingdom Supreme Court in R v Miller, involving the review of Prime Minister Boris Johnson’s prorogation of Parliament in the midst of the Brexit debate, and its potential implications for judicial review in Canada. Pam Hrick focused on the Canadian context, including Parliamentary privilege and when political decisions are immune from judicial review. Shahzad Siddiqui discussed in detail the availability of judicial review for decisions of religious and voluntary associations, focussing on the Wall decision and cases following it.
- A discussion about the “toxic” or “poisoned” workplace, including: the various statutory/regulatory regimes across the country prohibiting harassment in the workplace; best practices from around the world in preventing psychological harassment and tools for moving towards a “psychologically safe” workplace; the Quebec experience in proving damages for an employer’s failure to protect against harassment; and, an overview of what the Canadian case law tells us about what conduct meets the threshold for toxic behaviour in the workplace.
- A discussion about best practices to apply when self-represented litigants are appearing before tribunals, to ensure that all parties’ rights to procedural fairness are met. Chris Wirth’s presentation made clear that this is an increasingly important topic for tribunals and courts alike. Michael Gottheil of the Alberta Human Rights Commission and Scott MacKenzie, Q.C. of the Island Regulatory and Appeals Commission presented practical tips for managing hearings with self-represented persons, drawn from specific experiences before their tribunals.
Following the break-out sessions, the first day of the conference ended with an informative discussion among The Honourable Justice Janice R. Ashcroft from the Court of Queen’s Bench in Alberta, experienced mediator Paul Godin, and Shirley Netten from the Society Security Tribunal of Canada (Appeal Division). The panelists discussed the pros and cons of alternative dispute resolution for administrative, labour & employment law matters. Conference participants had the opportunity to consider a case study and discuss different approaches to resolving the problem without resorting to litigation.
The second day of the conference opened with an intimate fireside discussion between The Honourable Justice Sheilah Martin and Pierre Moreau. Justice Martin shared her thoughts about the law, scholarship, equality, justice—and what led her to a seat on Canada’s highest court.
A lively panel discussion about senior lawyers’ ethical and professional obligations when delegating work to junior lawyers within the firm rounded out the conference, leaving participants with an afternoon to explore Ottawa or continue networking with old friends before heading back to their respective corners of the country.
Next year’s conference will almost certainly include a discussion about the highly anticipated trilogy from the Supreme Court of Canada and how the subject of standard of review will be interpreted and applied by courts across the country. Don't forget to mark November 20 and 21, 2020 in your calendars for the next conference in Ottawa!
The Honourable. Justice Sheilah Martin, Puisne Justice on The Supreme Court of Canada, discussed her life and career at a Fireside Chat hosted by Pierre E. Moreau.