Practice and Procedure Before Administrative Tribunals

Transcription

1 Publisher s Note 2019 Release 3 Previous release was From Your Library: Robert W. Macaulay and James L.H. Sprague Practice and Procedure Before Administrative Tribunals AUTHOR S NOTE To what extent can private entities engage in public regulation? This is a question which emerges across a wide range of the administrative state. Children s Aid Societies perform public functions in relation to child protection, the Law Society of Ontario and other self-regulating professional bodies govern their professions in the public interest. Courts have considered the scope and dynamics of private entities performing public functions in many settings. Recently, two cases add new perspectives (and raise new questions) in relation to the status of private organizations performing statutory roles at public law. In Canadian Standards Association v. P.S. Knight Co. Ltd., 2018 FCA 222, the Federal Court of Appeal considered the Canadian Standards Association (CSA) s claim of copyright infringement. The CSA, a private organization, claimed copyright infringement when a competitor published its own publication containing the Canadian Electrical Code, Part I (the Code). The competitor ( Knight ) copied THOMSON REUTERS CANADA1 Customer Support (Toronto International) (Toll Free Canada U.S.) Fax (Toronto) Fax (Toll Free Canada Only) CustomerSupport.LegalTaxCanada@TR.com This publisher s note may be scanned electronically and photocopied for the purpose of circulating copies within your organization. 1

2 and published its version of the Code on the basis that since it is incorporated by reference in a statute as the standard for electrical aspects of construction, the Code had been transformed into a public, regulatory source document that could not be subject to copyright. The CSA published the first version of CSA Electrical Code in 1927 and has updated and published revised versions of the Code continuously ever since. The CSA sells the Code and uses the income from these sales to finance ongoing revisions to the Code and other voluntary standards. The CSA is accredited by the Standards Council of Canada (the Standards Council) to develop official standards. The Standards Council, in turn, is federal Crown corporation, created by the Standards Council of Canada Act, R.S.C. 1985, c. S-16, s. 3 (the Standards Council Act). The Standards Council has approved the Code as a national standard, which has then been incorporated in other statutes. For example, the Canada Occupational Health and Safety Regulations, SOR/ incorporates the Code as part of its definition of Canadian Electrical Code with which federally-regulated workplaces and employers are required to comply. The Code has been incorporated by reference into provincial regulations and statutes setting standards for installation and maintenance of electrical equipment (see, for example, Electrical Safety Regulation, B.C. Reg. 100/2004, s. 20). The Federal Court of Appeal considered a range of perspectives on the issue, including U.S. precedents which have held there is no copyright in law and the argument that the rule of law requires that there be no copyright in the Code because citizens have the right to unimpeded access to the law. The Court notes that the U.S. Copyright Act specifically excludes statutes and laws from copyright protection while the Canadian legislation refers to copyright arising in every original literary, dramatic, musical and artistic work. Elsewhere, the Act also establishes that the Crown reserves copyright in publications that it causes to be created. For these and related difference in the statutory backdrop, the Court concludes that the U.S. precedents are not applicable in Canada. Further, the Court found the public policy rationale for recognizing the copyright more compelling. [90] Finally, to the extent that it is appropriate for this Court to consider public policy issues in these appeals, it seems to me that on these facts public policy militates in favour of recognizing the CSA s copyright in the CSA Electrical Code. The collaborative process for developing the Code, which is then extended through incorporation by 2

3 reference into statutes and regulations at the federal, provincial and territorial levels, is an example of cooperative federalism at its best: see generally Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837 at paras ; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48 at paras An important component of this process is the CSA s ability to sell the Code and to use the funds so generated to help finance the maintenance of this and other national standards: Federal Court s reasons at para. 42. Impairing the CSA s ability to continue to generate revenue in this way might well negatively impact the continued existence of common national standards in areas where consistency is important, as is the case with electrical maintenance and installation. (at para 90) The Court additionally found that while the copyright arises in favour of the CSA, it does not similarly arise in favour of the Crown, as the Standards Council is a private body and not under government control or direction. The Court also rejected Crown prerogative as a basis for Crown copyright, as there is a distinction between laws and regulations on the one hand, and standards developed by an independent body which hare incorporated by reference into a statute or regulation. The Federal Court of Appeal concluded that CSA enjoys copyright in the Code, and the competitor Knight was prevented from copying it and selling it for less. In this way, the distinction between the private nature of the CSA s rights and the public force of its standards was kept distinct. The relationship between public authority and private actors lay at the centre of the Ontario Superior Court s decision in Bogaerts v. Attorney General of Ontario, 2019 ONSC 41. This judgment, which has garnered significant media attention, involved a constitutional challenge to the authority delegated to the Ontario Society for the Prevention of Cruelty to Animals (the OSPCA ). The legislation authorizing the OSPCA to engage in warrantless searches and seizures as part of its investigation was challenged under sections 7 and 8 of the Charter. The OSPCA was founded in 1873 as a charitable organization. In 1919, the Province of Ontario enacted its first legislation to protect animals, which included incorporating the OSPCA and giving it carriage of that objective. This statute afforded any inspector or agent of the OSPCA the powers of a constable in any municipality or district in Ontario. While the legislation evolved, the basic structure of the OSPCA having public authority to protect animal welfare continued. The 1955 version of the OSPCA Act provided that, for the purposes of enforcement of this or any other Act or law in force in Ontario pertaining to the welfare of or the prevention of cruelty to animals, every inspector and agent of 3

4 the Society shall have and may exercise any of the powers of a police officer. In 2008, a preamble was added to the legislation which sharpened its focus, which reads: The people of Ontario and their government: Believe that how we treat animals in Ontario helps define our humanity, morality and compassion as a society;... The Court considered an rejected the idea that the OSPCA is an agent of the Crown or de facto a part of the Government of Ontario. Rather, as a private, independent charitable organization, it has been afforded statutory powers relating to animal welfare in the province. Its stated object, pursuant to section 3 of the current Act, is to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom. Today, the OSPCA exercises a range of powers and roles under the current OSPCA Act, and also under other provincial statutes, federal criminal animal cruelty laws, and municipal bylaws. Importantly, the OSPCA receives very little government funding (and only recently has received any funding at all). Generally, the OSPCA raises funds privately to fund its public functions. The Court first considered whether the legislation empowering the SPCA could be characterized as an exercise of criminal law power and therefore ultra vires the province. After an analysis of its purposes and jurisdiction, The Court concluded that the law enforcement powers under the Act was valid provincial legislation under the property and civil rights jurisdiction of s. 92(13) of the Constitution Act, The remaining argument under the Charter focused on whether it was unconstitutional under section 7 of the Charter for the province to delegate police and other investigative powers to a private organization, and to the OSPCA in particular, without the same kind of oversight and transparency which accompanies other police powers in the province. In the course of its analysis, the Court accepted the existence of a new principle of fundamental justice. Minnema J. described this principle as follows: law enforcement bodies must be subject to reasonable standards of transparency and accountability. So framed, Minnema J. proceeded to conclude that the grant of specific law enforcement powers to the SPCA lacked standards of transparency and accountability. He held: The OSPCA is a private organization. Private organizations by their nature are rarely transparent, and have limited public accountability. Prior to 2012, Newfoundland and Labrador had similar legislation to Ontario which delegated police and investigative powers, including search and seizure powers, to its own Society for the Prevention of 4

5 Cruelty to Animals. Before that legislation was rescinded, two of that province s Provincial Court judges indicated in strong terms that a private organization having such powers was simply unacceptable: R. v. Clarke, [2001] N.J. No. 191 at paragraph 6, and Beazley (Re), [2007] N.J. No. 337, at paragraphs 3-6 and 22. Where reasonable transparency and accountability is lacking, I share that view. The OSPCA investigators and agents while having police powers, are not subject to the Police Services Act, R.S.O. 1990, c. P.15, which has a comprehensive system for oversight and accountability for police. Rather the OSPCA has a policy manual that it has created related to entering homes and seizures of property, and that manual is not a public document. Complaints and discipline are dealt with internally. The OSPCA is not subject to the Ombudsman Act, R.S.O. 1990, c. O.6, or similar legislation. Unlike virtually every public body in Ontario, the OPSCA is not subject to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. Indeed, the evidence establishes that the OSPCA has no formal access to information policy, and in practice does not provide access to information. Overall the OSPCA appears to be an organization that operates in a way that is shielded from public view while at the same time fulfilling clearly public functions. As stated by the intervener [Animal Justice], although charged with law enforcement responsibilities, the OSPCA is opaque, insular, unaccountable, and potentially subject to external influence, and as such Ontarians cannot be confident that the laws it enforces will be fairly and impartially administered. (at paras ). Consequently, the Court held that the policing powers of the SPCA under the Ontario legislation violated section 7 of the Charter. Minnema J. further held that the breach, as found, could not be saved under s.1. A 12 month suspended declaration of invalidity of the affected sections of the Act followed. The delegation of public statutory roles to private organizations raises a range of important questions for the application of public law doctrines. Some of these implications were raised in the Supreme Court s 2018 decision in Highwood Congregation of Jehovah s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, exploring when private organizations exercising legal powers can be made subject to administrative law accountability for fairness and other procedural protections on judicial review. The CSA and OSPCA cases raise new questions for the application of public law to private organizations, including the following: What forms of oversight and accountability should accompany a private organization s exercise of a public authority? Does the newly recognized principle of fundamental justice relating to oversight and accountability extend to all actions of a private 5

6 organization that performs public roles, or only in relation to, and to the extent of the organization s public role? What kinds of public authority or legal rights exercised or affected by a private organization will give rise to judicial review in the application of the Supreme Court s Wall decision. What kind of funding can private organizations engage in so as to fund their capacity to fulfill public functions (whether charging for members of the public to access their services, or relying on private fundraising for ensure sufficient capacity to discharge public powers)? Given the new terrain explored in these decisions, there is little doubt that these and other questions will arise in future legal challenges, as the relationship between private organizations and public funding comes under growing legal scrutiny. This Update includes a new section in chapter 5 dealing specifically with the delegation of public powers to private organizations (chapter 5.5(d) Restrictions on Delegation to Private Entities); as well as updates to the discussion of the 2018 Wall decision of the Supreme Court which shed light on how this decision is being applied in the context of private organizations and public law obligations. An additional update is related to the availability of procedural fairness in a private procurement process. L.S. 6