CBA Administrative Law, Labour and Employment Law Conference

  • January 02, 2018
  • Ronni Nordal

Each year one wonders whether the CBA Admin Law, Labour & Employment Law Conference will meet expectations created by the great conference the previous year. Without a doubt the 2017 Conference, held in Ottawa in November, met – even exceeded – them.

David Phillip Jones, Q.C., started off the conference with the popular annual Year in Review in Administrative Law. One of David’s main messages was that the determination of standard of review is a means to an end and is not, in and of itself, determinative. David encouraged attendees to remember that where there is a rebuttable presumption of the standard of review being reasonableness, consideration must be given to whether reasonableness is, in fact, the correct standard to be applied. David also reminded us that if the reviewing body finds there is only one possible “reasonable interpretation/application” – it has applied a correctness standard, not the reasonableness standard.

Lastly, David challenged all attendees to think about how it can possibly be fair and reasonable to have different interpretations of the same document, such as a standard form contract, upheld on the reasonableness standard of review. David argues that when dealing with standard form contracts, the same words should have the same meaning regardless of whether the decision maker is in Calgary, Grand Prairie or Medicine Hat.

In the break-out session dealing with Judicial Review of Executive Action:

  • Jan Brongers explained the case law on justiciability by taking us through two specific cases in which he was involved: Black v Chrétien and Alani v Canada (Prime Minister).
  • Lorne Waldman delivered a very thorough paper on judicial review of the exercise of the Crown prerogative.
  • Among the points discussed was the extent to which the courts, through judicial review of executive action, are filling an accountability void that the existing political/constitutional system does not address.

In the break-out session dealing with The Aging Workforce – Accommodation & Benefits:

  • Laura Watts and Dr. Paulette Guitard educated the session on the natural/normal consequences of aging as compared to pathological changes that constitute disabilities. Attendees were reminded to focus on functional abilities rather than age. Myths were debunked, including the myth that our workforce is rapidly aging. Our workforce is aging at the exact same rate as it always has – time has not sped up – the concern is that there is a shortage of younger workers.
  • Adrian Ishak took us though the law of duty to accommodate and prohibition on discrimination on the basis of age – with a strong reminder that performance management must be applied the same to all employees regardless of age.
  •  Level Chan rounded out the panel, which was a joint effort with the CBA Pensions Section, by reminding us that pensions and benefits are outliers in that discrimination on the basis of age is allowed within bona fide plans.

The Admin/Labour & Employment Law Conference would not be the same without the privilege of a fireside chat with a justice of the Supreme Court of Canada. Pierre Moreau provided an engaging and personal interview with Madam Justice Suzanne Cote. Justice Cote shared her experiences both as a practising lawyer and as a Supreme Court Justice. Without question she must be one of a very select few to have bought into a law partnership during articles.

In the afternoon break-out session dealing with Indigenous Rights in Administrative and Regulatory Decision-making:

  •  Robert Janes, Q.C., and Sara Mainville explored the significance of recent Supreme Court of Canada cases on the issue of how Indigenous rights can, and should, be accounted for in administrative and regulatory decision-making processes; and how those processes can incorporate elements of Indigenous legal traditions.

In the break-out session dealing with The Labour and Employment Law Year In Review:

  • Thomas Gorsky and Ray Larkin, Q.C., took attendees on a fast paced trip across the country, hitting the highs and the lows – and reminding us that as much as some things change, some things always stay the same, and that the practise of Labour and Employment Law remains challenging, exciting and ever-evolving.

With 2017 being the 35th Anniversary of the Canadian Charter of Rights and Freedoms, the first day of the conference appropriately ended with a plenary on the Charter and what the future holds for administrative and labour and employment law.

Graeme Mitchell, Q.C., and Dr. Howard Kislowicz not only briefly reviewed the history that gave rise to the new labour trilogy 2015 – the ability of administrative tribunals to consider/apply the Charter and the proper application of the Charter – but also provided their own personal perspectives on where the Charter is likely to be raised in future cases and the emerging issues to watch for.

The Saturday morning panel on Ethics and Professionalism was more than up for the challenge of an early morning session and engaged attendees to get thinking about what “civility” is, and how to determine where the line is between  zealous advocacy and professional misconduct. The panel also discussed the special and often challenging circumstances that arise when dealing with a self-represented litigant. Kim Turner, Q.C., and David Wright spoken openly and honestly, and with a touch of humour, and got everyone thinking about their own practice and approach.

Last but certainly not least, the conference closed with A View from the Bench.The panel consisted of:

  • Justice M. O’Bonsawin, Ontario Superior Court of Justice
  • Justice M. Savard, Quebec Court of Appeal
  • Justice M. Gleason, Federal Court of Appeal
  • Justice S.H. Smallwood, Supreme Court of the Northwest Territories

Attendees were privileged to hear personal stories including their perspectives on how being female, and in the case of two of the Justices, Indigenous, affected their decision-making and/or the make up of the court they preside on.

Ronni Nordal is a lawyer with Nordal Leblanc Law Office