What you missed at the CBA Administrative Law, Labour and Employment Law Conference

  • February 20, 2019
  • Lisa Hynes

On November 16 and 17, more than 170 practitioners, academics and tribunal members gathered in Ottawa to attend the annual CBA Administrative Law, Labour and Employment Law conference. As usual, the one-and-a-half-day conference was packed with informative sessions for lawyers who practise in these areas and members of tribunals and boards who set and apply policy and adjudicate disputes.

David Jones, Q.C., opened the conference with his annual Year in Review in Administrative Law, essential information for administrative law practitioners. David’s focus on standard of review was timely, in anticipation of the Supreme Court’s December hearings reconsidering the approach to standard of review. The CBA intervened in the standard of review trilogy of Bell Canada, National Football League, and Vavilov.

David reviewed where we have been on standard of review over the last 40 years, from New Brunswick Liquor (1979), through Bibeault (1988), Pushpanathan (1997) and Dunsmuir (2008), and shared his thoughts on where we should be going. He suggested several principles the court should bear in mind when revisiting standard of review, such as the purpose of judicial review and the importance of honouring the rule of law, the source of the court’s authority to review decisions of statutory delegates, and legislative intent as the justification for deference. David reminded attendees that not all instances of statutory interpretation are exercises of discretion and questioned why courts should show more deference to an administrative body on a question of law than would be given to a trial judge on the same issue.

Attendees were fortunate to hear from experts from across the country in a number of plenary and breakout sessions. Topics were diverse:

  • What is the impact of mental illness in the workplace? Practitioners Fiona Campbell and Jeff Grubb QC, along with William Ostapek of the Alberta Workers’ Compensation Board, discussed how workers’ compensation regimes deal with mental illness and the duties of employers when it comes to mental health, including the duty to inquire and managing mental health issues caused by harassment in the workplace.
  • What happens when employees use drugs, whether for medicinal reasons or as a personal and recreational choice that might become dependence? Dwayne Cameron, Susan Philpott, Daria Strachan and Darren Stratton discussed issues that can arise in the workplace when employees use an illegal (or legal) substance.
  • How is the law regarding public interest standing and interventions in administrative hearings developing? Jane Scholes described her involvement as amicus curiae before the Supreme Court in the recent Delta Airlines v Lukács case, where Mr. Lukács sought standing to represent the interests of others before the Canadian Transportation Agency. Pam Hrick looked at another aspect of public participation, presenting a paper on public interest interventions before administrative tribunals. Owen Rees MSM discussed a practical example of public interest standing, in the hearing of the Inquiry Committee of the Canadian Judicial Council concerning the Hon. Lori Douglas.
  • What are Charter values, and will lower courts ever apply a charter values analysis when reviewing administrative decisions? A panel of experts had a lively discussion about the influence of charter values following the Supreme Court’s decision in Trinity Western University. The Hon. David Stratas of the Federal Court of Appeal, Dr. Mary Liston of Allard School of Law at UBC and Prof. Lorne Sossin of Osgoode Hall Law School all weighed in with their analysis of vexing questions about this developing area.  
  • What immigration issues arise in employment relationships and how do we deal with them? Chantal Arsenault, Barbara Jo Caruso and Peter Perram discussed the impact of immigration considerations on employer compliance, employment contracts, and more.

A Saturday morning ethics lesson kept everyone on their toes as Charlene Theodore, Kimberley Turner, Q.C., and David Wright reviewed the implications of Groia and talked about the importance of developing cultural competency as a professional and ethical obligation.

The annual conference would not be complete without the lunchtime fireside chat, featuring Justice David Stratas in conversation with Pierre Moreau.

The conference wrapped up with the traditional View from the Bench. This year’s panel featured Justices Anne Mactavish, Simon Ruel, Ann Smith and Georgina Jackson giving their views on topics like how and when to supplement the record on judicial review (hint: read Justice Stratas’ decision in 2012 FCA 22 and check out 2016 BCCA 41) and the shifting approach to statutory interpretation in judicial review.

Stay tuned for next year’s conference, when consideration of the Supreme Court’s decisions in the upcoming standard of review trilogy is sure to be a hot topic! Mark your calendars for November 8- 9, 2019 in Ottawa. With a slate of timely and interesting discussions, and numerous opportunities to network with colleagues from across the country, this is an event not to be missed!

Lisa Hynes, legal counsel with the Court of Appeal in Alberta, is the Communications Officer with the Administrative Law Section.