Dec 22, 2017

SCC divides on circumstances justifying correctness review

Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56 (CanLII)

Facts: In two proceedings before the Administrative Tribunal of Quebec, the Minister of Employment and Social Solidarity filed motions that had been prepared, drawn up, signed and filed in the Minister’s name by a person who was not an advocate. The individual respondents in both proceedings brought motions to dismiss on the grounds that the Minister’s written proceedings had not been prepared by an advocate who was a member of the Barreau du Québec.

At issue was the interpretation of provisions in two pieces of legislation: the Act respecting the Barreau du Québec (“Barreau Act”) and the Act respecting administrative justice (“ARAJ”).

Section 128 of the Barreau Act provides that preparing and drawing up motions and other written proceedings are the “exclusive prerogative” of advocates and solicitors, and that it is the exclusive prerogative of advocates to “plead or act before any tribunal”, with certain exceptions, including pleading or acting before the Tribunal “to the extent that the Minister … is to be represented to plead or act in his … name”.

Section 129 of the Barreau Act provides that s 128 does not limit or restrict certain rights, including “rights specifically defined and granted to any person by any public or private law”.

Section 102 of the ARAJ grants the Minister the right to “be represented by the person of his or her choice” before the social affairs division of the Tribunal.

The Tribunal concluded that under s 102 of the ARAJ, a person representing the Minister who is not an advocate has the power to prepare motions. That power is not limited by s 128 of the Barreau Act. The Tribunal dismissed the respondents’ motions to dismiss Minister’s motions.

The respondents and the Barreau sought judicial review of the Tribunal’s decision. The Superior Court applied the correctness standard, concluded that the Tribunal’s decision was incorrect, quashed the Tribunal’s decision and declared null the Minister’s motions. The Court of Appeal allowed the appeal, holding that the reasonableness standard applied and that the Tribunal’s decision was reasonable.

Decision: Appeal dismissed (Côté J, dissenting).

Writing for the majority, Brown J held that the applicable standard of review is reasonableness. There is no satisfactory precedent and the central issue entails the interpretation of s 102 of the ARAJ, which is the Tribunal’s enabling statute. As such, the reasonableness standard must be presumed to apply.

The Tribunal had to bear in mind the Barreau Act when interpreting s 102, but that does not remove the issue from the Tribunal’s jurisdiction and expertise; to the contrary, it shows that the Barreau Act has a close connection to the Tribunal’s function. The Tribunal has to refer to the Barreau Act often in performing its function and has had to interpret ss 128 and 129 in many recent decisions.

The issue raised in the case is not a question of central importance to the legal system as whole and that lies outside the Tribunal’s expertise. While the Barreau’s role in regulating the representation of others before a court or tribunal is of obvious importance, the Tribunal was not called upon to decide the overall scope of advocates’ monopoly on the provision of legal services. It had only to decide the scope of a narrow exception concerning representation of the Minister by a person who is not an advocate in certain proceedings before the Tribunal. The interpretation of s 102 of the ARAJ falls squarely within the Tribunal’s expertise.

The majority rejected various arguments in support of the correctness standard. First, they disagreed with Côté J that the Tribunal could render inconsistent decisions on the issue, pointing to the fact that the Tribunal’s recent decisions on the issue are consistent. Further, the importance she attaches, in determining the standard of review, to the mere possibility of the Tribunal rendering conflicting decisions on this point is contrary to the Court’s recent jurisprudence and does not justify a correctness standard. Second, the issue in this case does not concern two statutes that are in conflict with each other. Third, applying a contextual analysis, the presumption of reasonableness is not rebutted here: the Tribunal is a sophisticated administrative tribunal with power to decide “any question of law or fact necessary for the exercise of its jurisdiction”.

The majority found that the Tribunal’s conclusion is reasonable. It falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, including the principles of statutory interpretation. The majority engaged in a lengthy statutory interpretation exercise and concluded that, having regard to the grammatical and ordinary sense of its words, the broader context of the legislation, the legislature’s intent and the legislative history of the provision, the Minister’s right under s 102 of the ARAJ to “be represented” before the social affairs division of the Tribunal by a person who is not an advocate includes both written and oral submissions.

Justice Côté dissented, disagreeing with the majority on both the applicable standard of review and the result.

In her view, the motions before the Tribunal were grounded in the Barreau Act, and to decide the motions the Tribunal had to do more than simply bear that statute in mind. Whenever a question relates to the representation of others by a person who is not an advocate, it is necessary to interpret and apply the Barreau Act, which establishes what acts are reserved exclusively to advocates and solicitors.

The correctness standard applies because the issue in the case is a question of central importance to the legal system as a whole and lies outside the Tribunal’s specialised area of expertise. That issue is one of statutory interpretation relating to the Barreau Act, and it is essential that ss 128 and 129 of that statute be interpreted and applied uniformly and consistently. Likewise, the exceptions that allow litigants to be represented by persons who are not advocates must be applied uniformly and consistently – the rule of law requires that there be only “one law for all”. Contrary to the majority’s critique, Côté J explained that her reasoning is not that the correctness standard applies simply because the Tribunal could render inconsistent decisions; rather, the correctness standard must be applied to questions that are of central importance to the legal system because such questions require uniform and consistent answers owing to their impact on the administration of justice as a whole. The impact that an inconsistent application of ss 128 and 129 could have on the administrative of justice as a whole leads to the conclusion that only one interpretation of these provisions is possible.

Even if the presumption of reasonableness applies, Côté J would find that the presumption is rebutted on a contextual analysis. Although the Tribunal is protected by a strong privative clause, the issue before the Tribunal is one in which it has no special expertise. It is a question of law that necessarily involved the interpretation of the Barreau Act, which is not the Tribunal’s enabling statute or one closely connection to its function. Although there has not yet been a case in which the Court has rebutted the presumption of the reasonableness standard based on contextual factors, the absence of a precedent cannot prevent the court from applying the rule.

Conducting a statutory interpretation analysis, Côté J concluded that, properly construed, only an advocate or solicitor may prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the Tribunal’s social affairs division.

Commentary: The central feature of this decision is the split between the majority of eight judges, who found that the reasonableness standard of review applied, and Côté J, a lone dissenter, who would have applied the correctness standard.

In several recent cases, Côté J has favoured correctness review over reasonableness review. However, in the previous cases she was joined in the dissent by other judges. In Wilson, Côté and Brown JJ co-authored the dissenting reasons. Citing rule of law concerns, they held that “where there is lingering disagreement on a matter of statutory interpretation between administrative decision-makers, and where it is clear that the legislature could only have intended the statute to bear one meaning, correctness review is appropriate.” It is somewhat surprising, then, that in Barreau du Québec, Brown J not only disagreed with Côté J on the applicable standard of review – he authored the majority reasons.

A significant point of contention between the majority and the dissent is whether Côté J’s reasons would expand the reasoning of the dissent in Wilson such that a mere possibility of conflicting decisions – rather than a “lingering disagreement – could justify correctness review. The majority reads this expansion into Côté J’s reasons. She responds that they have misunderstood her reasoning – she is not suggesting correctness review applies because there could be conflicting decisions, but rather because of the central importance of the issue and the resulting negative impact inconsistent decisions could have on the administrative of justice as a whole.

Given the explanation she provides (at para 53), Côté J may be right is saying that the majority have distorted her reasons, which do rest on a different rationale than the dissent in Wilson (though she cites similar rule of law concerns). However, her reasons do not provide a very compelling explanation of why the issue is one of central importance to the legal system as a whole. She asks rhetorically: “How can it be accepted … that the [Tribunal] concluded in the instant case that the Minister’s representative may … prepare, draw up and sign written proceedings for use in a case before [the social affairs] division, but that it could decide in another case that only an advocate may do so … ?” It is difficult to see how this potential inconsistency raises rule of law concerns, or how it supports a conclusion that the issue is one of central importance to the legal system. Rather, it seems like the kind of inconsistency that tribunals are routinely left to sort out themselves.

A second noteworthy aspect of the decision is that although the majority purports to be conducting reasonableness review, its actual analysis reveals something much closer to correctness review. The majority engages in a lengthy, detailed statutory interpretation exercise that is identical in its quality and depth of analysis to that of Côté J (though they reach opposite conclusions) – a detailed review of the legislative history, and a careful consideration of the legislative objectives, the scheme of the Act and the grammatical and ordinary sense of the words. Totally absent is any consideration of the Tribunal’s own reasons, which the Supreme Court repeatedly tells lower courts ought to be the focus on reasonableness review. In the result, one wonders why the court bothered to engage in such a debate on the standard of review, only to analyse the substantive issue in the case without paying heed to the proper operation of the reasonableness standard. The decision provides more evidence that the standard of review concept is becoming increasingly theoretical and illusory, with little practical impact on how the Court decides cases.

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