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Message from the Editors
By Katherine Crosbie, WorkSafeBC and Lorna Pawluk, Vancouver
When we began searching for a theme for the first edition of Intra Vires, we noticed that a number of jurisdictions in the country were considering the clustering of tribunals as a possible cost savings measure in this challenging economic and fiscal environment...
Message from the Past Chair
By Mathieu Bouchard, Irving, Mitchell & Kalichman LLP, Montreal
This past year was a busy one for the Administrative Law Section. Once again, our annual National PD Conference was a great success thanks to a great team of dedicated volunteers.The Section also worked hard on two key elements…
British Columbia update: SELI Canada Inc. v. Construction and Specialized Workers’ Union
By Michael Stephens, Hunter Litigation Chambers, Vancouver
In August 2011 decision, the British Columbia Court of Appeal confirmed the ground of review in administrative law for error of fact (amounting to an error of law) in circumstances where it is alleged the tribunal has made findings not supported by the evidence.
Continuing evolution of human rights protection: A new approach for British Columbia
By Peter A. Gall, Q.C. and Susan Chapman, Heenan Blaikie LLP, Vancouver
In this paper, the authors propose the creation of a new tribunal that would be responsible for resolving issues that arise under three statutes governing employment conditions, the B.C. Human Rights Code, the Employment Standards Act and the Labour Relations Code.
Amendments to The Saskatchewan Human Rights Code
By Jana Linner, MacPherson Leslie & Tyerman LLP, Regina
The passage of Bill 160 on May 18, 2011 paved the way for the transformation of the human rights system in Saskatchewan. What follows is a brief review of six of the most significant changes.
The Administrative Tribunal of Quebec
By Joseph-André Roy, Heenan Blaikie LLP, Quebec City
On December 16, 1996, the National Assembly of Québec enacted the Act respecting administrative justice, which established the Administrative Tribunal of Québec. Nearly all the sections included in this act came into force on April 1, 1998.
Message from the Chair
By Murray L. Murphy, Stewart McKelvey LLP, Charlottetown
It has been my privilege to participate in the Administrative Law Section, serve on its executive, and now act as National Section Chair. Our Section is fortunate to have a group of talented and motivated representatives with vast knowledge and varied backgrounds...
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Section Notes:
National Administrative Law, Labour and Employment Law Conference
Join us November 25-26 in Ottawa for the 12th Annual National Administrative Law and Labour & Employment Law Conference, entitled Behind Closed Doors. The program will be highlighted by a conversation with the Right Honourable Beverley McLachlin, Chief Justice of Canada. Click here for details and to register.
Twitter
Follow us on Twitter @CBAAdmLaw to stay informed of National and Branch Section events and happenings as well as notice of court decisions of interest to administrative law practitioners.
2011 CBA Adminstrative Law Section PD (Recap)
By Simon Ruel, Heenan Blaikie LLP, Quebec City
On May 27, 2011, the Quebec Administrative Law Section, in cooperation with the National Administrative Law Section, held a conference on the duty to consult and the legal framework for public participation (« Les obligations de consultation des autorités publiques et l’encadrement juridique de la participation »)...
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Message from the Editors
By Katherine Crosbie and Lorna Pawluk
The new name of our Section newsletter, Intra Vires, means "within the legal power or authority of a person or official." It was chosen by the Section executive from names submitted by members of the Section. We would like to thank everyone for their suggestions and hope that the new name encourages your continued involvement.
When we began searching for a theme for the first edition of Intra Vires, we noticed that a number of jurisdictions in the country were considering the clustering of tribunals as a possible cost savings measure in this challenging economic and fiscal environment. We thought that those jurisdictions might benefit from the experience of jurisdictions where clustering had already taken place. A number of Section members took time out of their hectic schedules to provide us that information. Their efforts and contributions are greatly appreciated.
Finally, we want to acknowledge the outstanding work of our members in making possible this first edition of Intra Vires. We all have an interest in ensuring that government and regulatory bodies fulfill their statutory mandates and respect the rule of law and jurisdictional boundaries. This newsletter is an excellent example of our members contributing their insight and analysis to support colleagues in the administrative law bar. In every case, this was done willingly and cheerfully – many thanks to everyone for their contributions and hard work.
We welcome your comments on the newsletter and any suggestions or contributions for the next edition, which will be published in March.
Sincerely,
Katherine Crosbie and Lorna Pawluk, co-editors
Katherine Crosbie is a Director at WorkSafeBC. Lorna Pawluk is a Legal Counsel in Vancouver.
Message from the Past Chair
By Mathieu Bouchard
This past year was a busy one for the Administrative Law Section. In November we held our 11th Annual National PD Conference in Ottawa. In addition to our usual partners at the CBA Labour and Employment Law Section, the conference benefited from the support of the CBA National Privacy and Access Law Section. Once again, the conference was a great success and I am looking forward to the 12th edition, to be held on November 25-26. Over the past 10 months, a great team of dedicated volunteers has put together a first-rate program with sought-after and engaging speakers, including, for the first time at the conference, the Chief Justice of Canada, the Right Hon. Beverley McLachlin.
The Section also worked hard on two key activities: reviving its newsletter, which was published twice during the year thanks to the diligent work of Lorna Pawluk and Katherine Crosbie, and drafting a resolution on the application of the Canadian Charter by administrative tribunals and boards. The resolution was submitted to CBA Council at the Mid-Winter meeting in 2011 and adopted unanimously. As Chair, I worked closely with CBA staff lawyer Rebecca Bromwich and provincial and territorial Chairs to send letters to all Ministers of Justice across Canada as well as the Canadian Council and Administrative Tribunals. There have been follow-up conference calls. Through these letters and calls, the Section has extended an offer of its member expertise to participate in the training of Tribunal members on Charter issues.
The Section held its spring meeting on May 27-28 in Quebec City, in conjunction with a very well organized and attended PD half-day program on the duty to consult, where Madam Justice Marie Deschamps was one of the speakers.
Congratulations to Simon Ruel, our new Secretary, for a job well done!
Finally, I'd like to thank all Executive members and provincial and territorial Chairs who have made it so pleasurable to chair this Section. I wish all the best to Murray Murphy, who I know will do a fantastic job!
Mathieu Bouchard is a partner at Mitchell & Kalichman LLP in Montreal. He was president of the CBA National Administrative Law Section from 2010-2011.
British Columbia update: SELI Canada Inc. v. Construction and Specialized Workers’ Union
By Michael Stephens
SELI Canada Inc.: review for error of law on the face of the “record,” and the use of unofficial transcripts of tribunal proceedings on judicial review.
In August 2011, the British Columbia Court of Appeal issued its decision in SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611, 2011 BCCA 353, which addressed important issues relating to the extent to which a party on judicial review may tender evidence in the form of an unofficial transcript of the proceeding of a tribunal whose decision is the subject of challenge. In SELI Canada, what was in particular at issue was the admissibility on judicial review of an “imperfect and unofficial transcript” of a proceeding before the B.C. Human Rights Tribunal, portions of which had been prepared by a legal secretary of counsel for the employer who had attended and recorded the proceeding. The use of this unofficial form of transcription was made necessary by the tribunal’s refusal to make arrangements to provide a court reporter to transcribe the proceedings, and a ruling by the tribunal that the employer could not itself use a court reporter to record the proceedings without the union’s consent (which consent had not apparently been given). On judicial review, the employer sought to adduce evidence in the form of the unofficial transcript of the proceedings. A similar issue had arose in the recent case of Kinexus Bioinformatics Corp. v. Asad, 2010 BCSC 33 which held, among other things, that a transcript of notes taken by one of the parties during a tribunal hearing is generally inadmissible.
In SELI Canada, the union and tribunal argued in essence that the tribunal had the right to determine the extent of its record, and the courts are not entitled to look beyond that record in undertaking judicial review. The Court of Appeal addressed squarely the question whether an unofficial transcript of a tribunal hearing is part of the “record” of the proceeding for the purposes of the Judicial Review Procedure Act, R.S.B.C. 1996, c.241 and within the meaning of the doctrine of review for error on the face of the “record.” Mr. Justice Groberman, for the Court of Appeal, described the history of the doctrine of review for error on the face of the record, including legislative amendments in Ontario and British Columbia which sought to expand the scope of the “record” of proceedings, and concluded that an unofficial transcript of a tribunal hearing forms no part of the “record” of the proceeding since it is not an official document of the tribunal. Therefore, if the only basis for judicial review in the SELI Canada case had been “error of law in the face of the record”, then the Court of Appeal would have found that the unofficial transcript documents were not admissible.
However, the Court went on to discuss and review the historical development of judicial review culminating in the “demise of ‘error of law on the face of the record’ as an important concept in judicial review”. The doctrine, as the court explained, sprung out of a formalistic and anachronistic phase in administrative law jurisprudence, which had been subsequently overtaken by the functionalism of later cases such as Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, U.E.S., Local 298 v. Bibeault, [1998] 2 S.C.R. 1048, and “further systemetized” in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748. Groberman J.A. explained that as a result of these developments “error of law on the face of the record” has ceased to have any practical importance in Canada.
A related aspect of this jurisprudential development is the availability of review for error of fact for want of evidence. In view of this modern ground of review for error of fact, the Court of Appeal concluded that the unofficial transcript of the tribunal hearing in the SELI case was properly admissible in support of such a ground. The court dismissed the suggestion that rendering unofficial transcript evidence admissible on judicial review would be unfair to the tribunal, noting: “a tribunal can protect the parties in itself by ensuring that proceedings are recorded. If the tribunal does not itself have the resources to do so it can at least ensure the rules and procedures do not prevent the parties from taking appropriate steps to obtain an adequate record of the proceedings” (para 71).
The SELI Canada decision represents a confirmation of the ground of review in administrative law for error of fact (amounting to an error of law) in circumstances where it is alleged the tribunal has made findings not supported by the evidence. It follows logically from the existence of such ground of review that a party should, in an appropriate case, be permitted to file evidence on judicial review which seeks to establish the evidentiary record which was before the tribunal; and the fact that the tribunal has failed to record the proceeding itself, or declined to allow an official recording to be taken by a court reporter, ought not be permitted to thwart a party from advancing a case for judicial review on the ground of a factual error has occurred which amounts to an injustice. Any suggestion to the contrary, under the rubric of error of law on the face of the record, has been briskly brushed aside by the British Columbia Court of Appeal.
Michael Stephens is litigation counsel at Hunter Litigation Chambers in Vancouver. He is Chair of the CBA Administrative Law Section, B.C. Branch.
Continuing evolution of human rights protection: A new approach for British Columbia
By Peter A. Gall, Q.C. and Susan Chapman
The Saskatchewan government has recently passed new legislation eliminating the Saskatchewan Human Rights Tribunal and transferring adjudication of human rights complaints to the courts. In doing so, it has provided yet another illustration of the constant innovation in institutional frameworks for the protection of human rights. In this paper, we propose a somewhat different change for British Columbia: one that acknowledges the special nature of the workplace, the interconnectedness of the different pieces of legislation governing it, and the need for expert, effective, efficient and comprehensive resolution of workplace disputes, including those that have human rights dimensions. The proposal is to create a new tribunal that would be responsible for resolving issues that arise under three statutes governing employment conditions, the B.C. Human Rights Code, the Employment Standards Act and the Labour Relations Code.
While the proposal includes a number of features, the argument here will focus on the most controversial aspect: the removal of jurisdiction over human rights complaints in the workplace from the Human Rights Tribunal. That recommendation arises out of the success of human rights legislation. It responds to the extended application and interpretation of that legislation and the resulting increase in the number of workplace and other disputes that are recognized as having human rights dimensions. One consequence has been a growth of experience in dealing with human rights issues on the part of adjudicators in the labour field and in the courts.
Continue to the full article 
Peter A. Gall, Q.C. is a partner with Heenan Blaikie LLP’s labour & employment law group in Vancouver. Susan Chapman is an associate at Heenan Blaikie LLP in Vancouver.
Amendments to The Saskatchewan Human Rights Code
By Jana Linner
The passage of Bill 1601 on May 18, 2011, paved the way for the transformation of the human rights system in Saskatchewan. Bill 160 amends The Saskatchewan Human Rights Code, and came into force on July 1, 2011. The changes contained in Bill 160 have been viewed by the employer community as largely positive, as they are intended to clarify employers’ responsibilities, prevent frivolous complaints and encourage settlements. What follows is a brief review of six of the most significant changes to the Code.
The most significant change to the existing legislation is the abolishment of the Saskatchewan Human Rights Tribunal. After July 1, 2011, the adjudication of human rights complaints in Saskatchewan will be performed by the Saskatchewan Court of Queen’s Bench. Hearings held by the Court will be governed by The Queen’s Bench Rules,however, the Court will not be permitted to award costs to any party unless it considers that there has been vexatious, frivolous or abusive conduct on the part of a party.
The Chief Commissioner’s reason for abolishing the Tribunal and moving hearings of human rights complaints to the courts is to support more uniform and consistent decisions respecting human rights jurisprudence in Saskatchewan. The hope is that this will provide the people of Saskatchewan with a clearer understanding of their human rights obligations under the law. Nevertheless, the abolishment of the Saskatchewan Tribunal has been severely criticized by organized labour and other groups, including Amnesty International, who have argued that the change to having complaints adjudicated by the courts will impede access to human rights remedies for many individuals. However, the Chief Commissioner argues that the opposite is true. Currently, resolving an average complaint through the Tribunal can take up to three years.2 It is the Chief Commissioner’s position that the new process will improve access to justice by making the process more expedient. While procedural details have not yet been finalized, the Chief Commissioner has suggested that complaints forwarded to a hearing by the Commission will not follow the usual trial process. Rather, complaints will be initiated by notice of motion and will not require processes such as examination for discovery.3
A second important change to the Code concerns the threshold evidence required by the Commission to substantiate an initial complaint sufficiently as to require a response from the respondent. Before the amendments to the Code, there was no threshold evidentiary requirement beyond reasonableness; a complainant merely had to show “reasonable grounds for believing that any person has contravened a provision of [the Code]” in order to file a complaint and require a response. The Code now requires a complainant to provide “sufficient evidence” that a reasonable ground exists for believing someone has contravened the Code. This change is designed to discourage and expediently dispense with frivolous complaints.
Bill 160 also brings a renewed focus on mediation to human rights complaints in Saskatchewan. The amended Code allows the Chief Commissioner to require the parties to enter mandatory mediation before being permitted to make an application to the court for adjudication.
Further emphasizing the importance of the mediation process, the amended Code encourages the parties to arrive at a settlement. If, during the mediation process, the complaint rejects an offer that the Chief Commissioner finds “fair and reasonable”, the Chief Commissioner may dismiss the complaint without further consideration. However, when a hearing is required, the Commission will continue to provide a lawyer to the complainant at no cost at any step of the litigation, up to an including hearings at the Supreme Court of Canada, as long as the Commission considers there is merit to the complaint.
The limitation period for filing a complaint is also changed from two years to one year. The intention with this change is to make investigations more accurate as memories will be fresher and documentary evidence is less likely to have been lost.
The amended Code also contains a new process for appealing a decision of the Chief Commissioner. Complainants are required to appeal the Chief Commissioner’s decision to the court at their own cost.4 However, in the event that the Chief Commissioner’s decision is overturned, the Commission will represent the complainant at any future hearings or appeals with the Commission bearing the cost.5
Finally, the amended Code has significantly changed the requirement to apply for exemptions from the Code’s provisions. Under the old law, a formal exemption from the Commission was required, for example, to target a particular marginalized group for employment. The amended Code provides that it is not a contravention of the legislation for a person to adopt or implement “a reasonable and justifiable measure” designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals if those disadvantages are based on a prohibited ground or grounds. As such, employers who wish to implement employment initiatives targeted at particular marginalized groups will no longer have to apply to the Chief Commissioner for an exemption from the Code to do so.
Overall, the recent amendments to the Code will help prevent frivolous complaints from going forward and encourage settlement through the use of alternative dispute resolution as opposed to litigation.
1 An Act to Amend The Saskatchewan Human Rights Code and to make consequential amendments to The Labour Standards Act, 4th Sess, 26th Leg, Saskatchewan, 2010.
2 David M Arnot, Chief Commissioner of the Saskatchewan Human Rights Commission, “Human Rights in Saskatchewan: A Legacy of Leadership”, Bar Notes (CBA Saskatchewan), XXV:3 (Spring 2011) 7 at 7 [Arnot].
3 Ibid at 7.
4 Arnot, supra note 2 at 8.
5 Ibid.
Jana Linner is a member of the employment law and administrative law groups in the Regina office of MacPherson Leslie & Tyerman LLP.
The Administrative Tribunal of Quebec
By Joseph-André Roy
Establishment of the ATQ
On December 16, 1996, the National Assembly of Québec enacted the Act respecting administrative justice (hereinafter called “AAJ”), which established the Administrative Tribunal of Québec (hereinafter “ATQ"). Nearly all the sections included in this act came into force on April 1, 1998.
Administrative tribunals that have been replaced by the ATQ
On the date the AAJ became effective, the ATQ integrated the following five administrative tribunals: the Commission des affaires sociales, the Bureau de révision de l’évaluation foncière (property assessment), the Tribunal d’appel en matière de protection du territoire agricole (protection of agricultural land), the Bureau de révision de l’immigration (immigration), and the Commission d’examen des troubles mentaux (mental disorder). Moreover, the AAJ entrusted the ATQ with jurisdictions which had been until then with the Court of Québec, inter alia the Expropriation Division of the Court of Québec. Quebec Court of Appeal jurisdictions were also transferred to the ATQ. For instance, before the AAJ came into force, decisions of the Commission des transports du Québec were subject to appeal, on leave, before the Court of Appeal on a question of law. Those decisions may now can be appealed before the ATQ.
The AAJ has also created new recourses in economic matters, and has entrusted the ATQ with the jurisdiction to hear those matters. In addition, the AAJ has designated one of the ATQ divisions as a Review Board, within the meaning of sections 672.38 and following of the Criminal Code , to review the status of persons found to be not criminally responsible or unfit to stand trial for criminal offences on account of a mental disorder. Finally, contrary to what had been planned when the bill was initially introduced, the Commission d’appel en matière de lésions professionnelles, now called the Commission des lésions professionnelles (workplace safety board), was not included in the ATQ.
By adopting the Act respecting the implementation of the Act respecting administrative justice , the National Assembly of Québec therefore transferred to the ATQ the jurisdictions of a number of Quebec administrative tribunals. This Act has modified more than one hundred and thirty (130) Quebec statutes.
How the ATQ operates
The AAJ is the centralized administrative appeals tribunal in Quebec. The AAJ provides that the ATQ makes determinations in respect of decisions of Quebec administrative tribunals or other administrative authorities listed in the statute. The ATQ may confirm, vary or quash the administrative decisions and, where appropriate, render the decision that, in its opinion, should have been made.
The ATQ includes four divisions:
- the social affairs division;
- the immovable property division;
- the territory and environment division;
- the economic affairs division.
The AAJ includes four annexes identifying the proceedings in respect of which each division is charged with making determinations. Most proceedings are heard by a panel of two members. Some of them are heard by only a member, while some are heard by a panel of three.
ATQ panels are specialized and the AAJ specifies the professional requirements for panel members in relation to each class of proceedings. For example, the AAJ requires that proceedings before the ATQ’s immovable property division be heard by a panel of two members, a lawyer or a notary, and chartered appraiser. The ATQ is a multidisciplinary and highly specialized tribunal . This was quickly recognized by the courts when they had to identify the appropriate standard of review of ATQ decisions.
In more practical terms, the AAJ provides that the ATQ’s headquarters must be located in Quebec City. The ATQ may also sit at any place in Quebec , which brings lawyers practicing before the ATQ to plead in hotel rooms across the province.
Finally, Chapter VI of the AAJ deals with rules of evidence and procedure applicable to the ATQ. For example, section 106 of the AAJ provides that the ATQ has the power to relieve a party from its failure to act within the time prescribed by law if this party establishes that it was unable, for valid reasons, to act sooner and if, in its opinion, no other party suffers serious harm therefrom.
This section could allow a lawyer to safeguard the rights of a client, in appropriate circumstances, when an appeal is brought outside the time limitation prescribed the AJA.
Review of an ATQ decision
The ATQ may, on an application, review or revoke any decision that it has previously made, when new facts are revealed which might have justified a different decision, had this been known in time. It may also do so when a party was not able, owing to reasons considered sufficient, to be heard or when a substantive or procedural mistake is of nature likely to invalidate the decision.
Appeal of an ATQ decision
The decisions of the ATQ are final and not subject to appeal, with the exception of decisions rendered by the immovable property division and those regarding the protection of agricultural land. These decisions, regardless of the amounts involved, may be appealed in the Court of Québec, with leave of that Court.
Finally according to section 107 AAJ, a proceeding before the ATQ does not suspend the execution on the administrative decision being challenged, unless a legal provision provides otherwise or if a member of the Tribunal orders otherwise by reason of urgency or risk of serious and irreparable harm.
For further reading on the subject :
• Jacques Forgues, « Une avancée majeure pour la justice administrative et pour le TAQ » dans Développements récents en droit administratif et constitutionnel 2006, Yvon Blais, Cowansville, 2006;
• Madeleine Lemieux, Tribunaux administratifs du Québec, règles et législation annotées, Éditions Yvon Blais, Cowansville, 2002;
• Gilles Pépin, La loi québécoise sur la justice administrative, (1957) 57 R. du B. 633;
• Jean-Pierre Villagi, « Les moyens de se pourvoir à l’encontre de mesures administratives » dans Droit public et administratif, Collection de droit 2010-2011, Volume 7, Yvon Blais, Cowansville, 2010, p. 133 à 191;
• Mémoire du Tribunal administratif du Québec présenté à Commission d’enquête sur le processus de nomination des juges.
Joseph-André Roy is a member of the litigation and administrative law group in the Quebec City office of Heenan Blaikie LLP.
Message from the Chair
By Murray L. Murphy
It has been my privilege to participate in the Administrative Law Section, serve on its executive, and now act as National Section Chair. Our Section is fortunate to have a group of talented and motivated representatives with vast knowledge and varied backgrounds.
The Administrative Law Section closed out 2010-11 with participation in a professional development program at the August Canadian Legal Conference, titled Resolving Disputes for Underfunded Plans and the Rights of Plan Members in Insolvency Proceedings, and co-presented by the CBA National Pensions and Benefits Law and Labour and Employment Law Sections.
In October, I attended the National Sections Council meeting in Ottawa and provided input on behalf of the Section. One of our fall highlights is the 2011 National Administrative Law, Labour and Employment Law Conference, titled Behind Closed Doors, which takes place at the Westin Ottawa on November 25 and 26. The program includes presentations on important topics from Canada’s leading practitioners and judges, and will feature a keynote luncheon with the Right Honourable Beverley McLachlin, Chief Justice of Canada. You can find more details online.
We have two annual Section business meetings, one in November following the annual PD Conference, and the second in late spring. Our work includes participation in legislative submissions (we were a co-sponsor of the CBA Canadian Human Rights Tribunal Stakeholder Consultation submission). The Section strives to bring attention to matters of national importance in administrative law. In 2010 the Section, through the efforts of past Chair Mathieu Bouchard, spearheaded the introduction of a CBA Resolution on Charter of Rights and Freedoms Training for tribunal members, and it was unanimously adopted by CBA Council in February 2011. The Section will continue to work towards uniform, consistent and comprehensive training for tribunal members across the country.
I would like to invite participation and input in the Administrative Law Section from CBA members across the country. Finally, I would like to thank and congratulate our Communications Committee, Lorna Pawluk and Katherine Crosbie, for their excellent work on the newsletter and our foray into social media. Please follow us on Twitter @CBAAdmLaw.
Murray L. Murphy
Charlottetown, PEI
Murray L. Murphy is Chair of the National Administrative Law Section (2011-2012). He is a partner practising in the Charlottetown office of Stewart McKelvey LLP.
2011 CBA Administrative Law Section PD (Recap)
By Simon Ruel
On May 27, 2011, the Quebec Administrative Law Section, in cooperation with the National Administrative Law Section, held a conference on the duty to consult and the legal framework for public participation (« Les obligations de consultation des autorités publiques et l’encadrement juridique de la participation »), with the participation of The Honourable Marie Deschamps of the Supreme Court of Canada, Professor Paule Halle, Faculty of Law, University Laval, Mr. Yves Leboeuf, Vice-President, Operations, Canadian Environmental Assessment Agency, and Mr. Pierre Delisle, Heenan Blaikie Aubut.
As Madam Justice Deschamps indicated, although the duty to consult is generally understood to be related to Aboriginal Law, it applies well beyond that sphere. A common denominator in Aboriginal and administrative law is that the need for consultation before decisions are made is rooted in principles that animate our democracies - the involvement of citizens in decisions that affect them. This is why the duty to consult has permeated many areas of the law. Madam Justice Deschamps concluded in saying that although the duty to consult has been used in the past as a sword against a government that failed to “hear the other side”, consultation can be used most efficiently by parties as a shield to avoid litigation and eventually achieve reconciliation.
Mr. Yves Leboeuf discussed the mandate of the Canadian Environmental Agency with regard to Aboriginal consultations. The Canadian Environmental Assessment Act provides that one of the objects of the Agency is “to engage in consultation with aboriginal peoples on policy issues related to this Act.” He discussed the Agency’s financial program available to assist participants to the environmental assessment process.
Professor Paule Halley discussed the duty to consult in international environmental law, in particular the United Nations Economic Commission for Europe (“UNECE”) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“Aarhus Convention”). The Aarhus Convention links environmental rights and human rights and establishes that sustainable development can be achieved only through the involvement of all stakeholders, private and public.
Mr. Pierre Delisle discussed the duty to consult and consultation mechanisms in municipal law, noting that citizen participation was an ancient concept. He discussed the need to adapt and modernize consultation mechanisms to further participation and efficiency, e.g. technical support for citizens, role of ombudsman.
Simon Ruel is a member of the litigation group in the Quebec City office of Heenan Blaikie LLP.
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