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Page 14 November 5, 2018 • Law Times www.lawtimesnews.com Supreme Court of Canada Aboriginal and Indigenous Law CONSTITUTIONAL ISSUES Miscellaneous Imposing consultation obligations on elected legislature might constrain it in pursuing its mandate Duty to consult. The ances- tors of First Nation entered into Treaty No. 8 ceding territory to Crown in exchange for certain guarantees, including right to hunt, trap, and fish. Parliament enacted legislation affecting Canada's environmental laws and potentially impacting First Nation's rights without consult- ing First Nation at any stage. Trial judge allowed First Na- tion's application for judicial review, finding Ministers had duty to give First Nation notice and reasonable opportunity to make submissions on introduc- tion of bills. Federal Court of Appeal allowed Ministers' ap- peal, finding importing duty to consult into legislative process offended separation of powers doctrine and principle of par- liamentary privilege and that judicial review was only avail- able in respect to decisions of federal board, commission or other tribunal. First Nation ap- pealed. Appeal dismissed. Pro- cess of developing, passing and enacting legislation was not Crown conduct triggering duty to consult and duty was not to be extended to legislative pro- cess. In duty to consult context, Crown conduct only included executive action or action taken on behalf of executive. Federal Court only had jurisdiction to judicially review actions of fed- eral board, commission or other tribunal, not parliamentary ac- tivities. When developing legis- lation, cabinet and ministers act pursuant to powers under Part IV of Constitution Act, 1867, not statutory powers. First Na- tion's treaty rights were protect- ed under s. 35 of Constitution Act, and Crown's dealings with those rights engaged honour of Crown, but that did not mean honour gave rise to justiciable duty to consult when ministers developed legislation poten- tially adversely affecting treaty rights. Parliamentary sover- eignty mandated that legislature could make or unmake any law it wished, within confines of its constitutional authority. Impos- ing consultation obligations on elected legislature might con- strain it in pursuing its man- date, undermine its ability to act as voice of electorate, and lead to significant judicial incursion into workings of legislature. Duty to consult was not only means to give effect to honour of Crown when rights might be adversely affected by legisla- tion, conclusions did not apply to development of subordinate legislation which was execu- tive conduct, and conclusions did not affect enforceability of treaty provisions implemented through legislation that ex- plicitly required pre-legislative consultation. Crown was not absolved of duty to act honour- ably and application of s. 35 was not limited. Mikisew Cree First Nation v. Canada (Governor General in Council) (2018), 2018 Car- swellNat 5579, 2018 Carswell- Nat 5580, 2018 SCC 40, 2018 CSC 40, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2016), 2016 Carswell- Nat 6599, 2016 CarswellNat 9957, 2016 FCA 311, 2016 CAF 311, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and Yves de Montigny J.A. (F.C.A.). Labour and Employment Law PUBLIC SERVICE EMPLOYEES Termination of employment National Assembly not needing exclusive, unreviewable authority to perform its constitutional role Three security guards em- ployed by National Assembly of Québec were dismissed by President of National Assem- bly. Their union grieved their termination before labour ar- bitrator. Arbitrator concluded that guards' functions were not closely and directly connected to Assembly's constitutional functions. Arbitrator held that their management was not pro- tected by parliamentary privi- lege and that grievances could proceed. President brought mo- tion seeking judicial review of arbitrator's decision. Reviewing judge granted motion, hold- ing that decision to dismiss security guards was protected from review by privilege over management of employees. As result, arbitrator did not have jurisdiction to decide griev- ances and union appealed. Ma- jority of Court of Appeal held that arbitrator had correctly concluded that dismissals of security guards were not pro- tected by parliamentary privi- lege because their tasks were not closely and directly con- nected to National Assembly's functions. President appealed. Appeal dismissed. National Assembly did not need exclu- sive, unreviewable authority over management of its security guards in order to perform its constitutional role with dig- nity and efficiency. Further, As- sembly's ability to carry out its constitutional mandate did not require scope of parliamentary privilege to extend so far as to protect decision to terminate employees. Therefore, President failed to establish that dismiss- als were protected by parlia- mentary privilege and decision of labour arbitrator should be confirmed. Chagnon v. Syndicat de la fonction publique et parapub lique du Québec (2018), 2018 CarswellQue 8572, 2018 Car- swellQue 8573, 2018 SCC 39, 2018 CSC 39, Wagner C.J.C., Abella J., Moldaver J., Kara- katsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellQue 1071, 2017 QCCA 271, Bélanger J.C.A., Morin J.C.A., and Chamberland J.C.A. (C.A. Que.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans General Division did not refuse to hear applicant's representative because he was not duly licenced as paralegal Procedural fairness. Applicant's application for Canada Pension Plan (CPP) disability benefits was dismissed. General Divi- sion of Social Security Tribunal dismissed applicant's appeal after oral hearing on basis that applicant failed to prove that his disability was severe and precluded him from all gainful employment. Appeal Division of Social Security Tribunal dis- missed appeal on ground that General Division did not refuse to hear applicant's representa- tive because he was not duly li- cenced as paralegal. Applicant brought application for judicial review. Application dismissed. Appeal Division did not make reviewable error in conclud- ing that General Division did not refuse to hear representa- tive and that representative was allowed to represent applicant during hearing. Fontaine v. Canada (Attor ney General) (2018), 2018 Car- swellNat 3430, 2018 Carswell- Nat 3431, 2018 FCA 90, 2018 CAF 90, J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and Yves de Montigny J.A. (F.C.A.). Federal Court Environmental Law STATUTORY PROTECTION OF ENVIRONMENT Approvals, licences and orders Case-by-case approach was not antithetical to criminal law jurisdiction MCG Inc. was company oper- ating in field of home develop- ment, in which it bought large areas of land, subdivided land, developed homes and resold them. MCG Inc.'s lands were subject to emergency order un- der Species at Risk Act, where it was determined necessary to protect specifies of frog. MCG Inc. brought application to set aside emergency order. Appli- cation dismissed. Practical ob- ject and effect of subparagraph 80 (4) (c) (ii) of Act is to provide Governor in Council with pow- er to intervene in emergency when species at risk was about to suffer harm that could jeop- ardize its survival or recovery. There was real link between CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. CASELAW Containing contact information for more than 66,000 judges and legal professionals, more than 27,500 law offices, government departments, and law related offices, canadianlawlist.com attracts more than 325,000 page views a month and 110,000 unique visitors! Book your enhanced listing today! Contact Colleen Austin at 416.649.9327 or colleen.austin@tr.com www.canadianlawlist.com Enhance your presence on Canada's largest legal directory AVAILABLE ONLINE AND IN PRINT Untitled-2 1 2018-09-05 10:17 AM

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