Beware the Artful Pleader: the Public-Private Divide

Canada distinguishes between public law and private law. Judicial review of administrative action is kept separate from the law of tort, contract, property and equity. In an important 2010 decision (Canada (Attorney General) v. TeleZone Inc., [2010] 3 SCR 585, 2010 SCC 62), the Supreme Court of Canada signaled that the importance of the distinction should not be exaggerated. Nonetheless, it remains the case that some matters are appropriate for judicial review and some are not. Mourant v. Sackville (Town), 2014 NBCA 56 provides a good illustration.

The plaintiff was dismissed as the chief administrative officer of a town. Two years subsequent to his dismissal, the plaintiff brought an action — rather than an application for judicial review — seeking restoration to his position. Richard J.A. held that the plaintiff was essentially seeking a public law remedy, the quashing of the dismissal, a matter for judicial review: “Mr. Mourant is asking the Court to effectively quash the decision of the Town Council” (at para. 25):

[26]  In the present case, the Legislature gave to the Town Council the exclusive authority to determine, on an affirmative vote of at least two thirds of the whole council, whether Mr. Mourant might be dismissed for cause. With an adequate count, the Council voted he should be removed from office. For a court to order him reinstated, the Court, by necessity, must quash the decision of the Town Council. Yet, that kind of relief “may be obtained only on an application for judicial review made under [Rule 69]” (emphasis added): Rule 69.01.

[30]    There is simply no other way to view the relief Mr. Mourant seeks in his Statement of Claim other than as a disguised attempt to quash the decision of the Town Council. In TeleZone, Binnie J. foresaw that “artful pleading” might be used to circumvent legislative intent. Although he did not think it a very serious problem, he emphasized that, where a claimant pursues a damage claim and does not seek to have the decision or order set aside by judicial review, “[t]he claimant must […] be content to take its money (if successful) and walk away leaving the order standing” (para. 75). Moreover, he added that there is always a residual discretion in the inherent jurisdiction of the court to stay an action for damages “because in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong” (para. 78).

Richard J.A. noted that permitting the plaintiff to pursue his action would allow him to circumvent the strict 3-month time limit for judicial review applications, thereby undermining effective public administration:

[29]  The stringent test governing extensions of time in judicial review matters is a reflection of the need for effective public decision-making. This case perfectly illustrates the type of chaos that might occur if one were able to circumvent judicial review as the exclusive means by which one could seek to have the decision of the Town Council set aside. Without a strict limitation period for having the decision set aside, how could a municipality possibly know when it could safely hire someone to replace the dismissed officer, to avoid the situation of having two individuals in the same role, both with the same security of tenure guaranteed by s. 74(5)? It could not; at least not until the limitation for commencing an action also expired. That would certainly not be what one would call “effective public decision-making”, and would certainly not be a model of precision and clarity. The lack of a strict limitation period would lead to unreliable public administration, and to a confused public…

Artful pleaders beware. And judges: beware artful pleaders.

This content has been updated on September 25, 2014 at 22:10.