Modes of Rights Protection in Administrative Law I: Smith & Rhuland Ltd. v. Nova Scotia,  2 SCR 95
I am preparing a piece for a collection, edited by Matthew Harrington, celebrating the 150th anniversary of the Canadian constitution. My topic is rights in administrative law. My goal is quite simple: to identify pre- and post-Charter modes of rights protection and assess their advantages and disadvantages.
The pre-Charter era is exemplified by Smith & Rhuland Ltd. v. Nova Scotia,  2 SCR 95. Here, the Nova Scotia Labour Relations Board had refused to certify a trade union as a bargaining agent, on the basis that the union was dominated by a Communist. While a preference for Communism might seem quaint today, it was a more serious matter in the 1950s, when the Communist Party “demand[ed] of its votaries unremitting pressure, by deceit, treachery and revolution, to subvert democratic institutions and to establish dictatorship subservient to Soviet Russia” (at p. 98).
But as Rand J. pointed out for a plurality of three judges, there was no law against being a member of the Communist Party:
There is no law in this country against holding such views nor of being a member of a group or party supporting them. This man is eligible for election or appointment to the highest political offices in the province: on what ground can it be said that the legislature of which he might be a member has empowered the Board, in effect, to exclude him from a labour union? or to exclude a labour union from the benefits of the statute because it avails itself, in legitimate activities, of his abilities? (at p. 98)
For the Board to take the ideological affiliation of the man who dominated the union into account meant that its decision was, as Kellock J. put it, “reached upon a consideration of extraneous matters” (at p. 103). Under the Trade Union Act, 1947 (N.S.), c. 3, such considerations were irrelevant. In the words of the plurality:
Regardless of the strength and character of the influence of such a person, there must be some evidence that, with the acquiescence of the members, it has been directed to ends destructive of the legitimate purposes of the union, before that association can justify the exclusion of employees from the rights and privileges of a statute designed primarily for their benefit (at p. 100).
Treating political affiliations as an irrelevant consideration is an elegant solution to what might otherwise be a difficult problem. It would have commended itself to A.V. Dicey:
… every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person (Law of the Constitution, 9th ed., at p. 193, cited in Chaput v. Romain,  SCR 834, at pp. 854-855).
On this approach, the lawfulness of action that infringes rights is a simple question of vires. Was this a matter the decision-maker could take into account or not? Was the decision-maker acting within the four corners of the statutory authority accorded to it by the legislature? Answering these questions can ensure robust judicial protection of rights (all the more so if, per Dicey, damages can be collected by a successful plaintiff). At least, that is the theory.
There are reasons, however, to doubt the robustness of this approach. We can begin with Cartwright J.’s dissent in Smith & Rhuland. In his view, the statute did “not expressly indicate the principles” the Board could legitimately take into account (at p. 103). Sometimes a statute will specify, expressly or by necessary implication, the considerations a decision-mkaer must take into account; and sometimes it may also specify the considerations that are not to be taken into account. But on other occasions, the statute may be silent. For Cartwright J., this case fell into the “silence” category:
In the case at bar, the Board was guided by the fact, as found by it, that the dominant leadership and direction of the applicant union was provided by a member of the Communist party, to the conclusion that certification would be inconsistent with the principle and purpose of the Act and contrary to the public interest. I am quite unable to say as a matter of law that this was an extraneous consideration…It is not necessary that I should express an opinion as to whether the decision of the Board was right or wise. It appears to me to be a decision made in the bona fide exercise of a discretion which the legislature has seen fit to commit to it and not to the courts (at pp. 106-107).
Whether Cartwright J. is right or wrong, his dissent is evidence that, even in the 1950s, Rand J.’s approach would not infallibly protect rights. As documented in Ewing & Gearty, The Struggle for Civil Liberties, this essentially interpretive approach can be powerless when a legislature sets out expressly to curb rights. Indeed, if one takes the view (as Canadian administrative lawyers now generally do) that a body such as the Board should be accorded deference on the interpretation of its home statute, its decision to take political affiliations into account could be overturned only on the basis of unreasonableness. This would not be a question on which courts could automatically substitute their judgment, rights or no rights.
In addition, Rand J.’s approach is out of step with modern Canadian public law. On the one hand, Rand J.’s approach gives no deference at all on a matter well within the scope of the Board’s statutory mandate, whereas Canadian courts have long recognized the desirability of giving interpretive space to expert decision-makers acting within their areas of specialization. On the other hand, Rand J.’s approach treats political affiliation as a non-negotiable absolute, whereas rights in Canadian law are now generally subject to a proportionality test which permits infringements to be justified by state bodies.
In conclusion, the attraction of Rand J.’s approach is its simplicity. But it may prove to be too simple.
This content has been updated on November 17, 2016 at 23:34.