Justiciability, Access to Justice and the Development of Constitutional Law in Canada

AuthorGerard J Kennedy,Lorne Sossin
DOI10.22145/flr.45.4.10
Publication Date01 December 2017
Date01 December 2017
SubjectArticle
/tmp/tmp-17Xt9mZxsWJCZ6/input JUSTICIABILITY, ACCESS TO JUSTICE AND THE
DEVELOPMENT OF CONSTITUTIONAL LAW IN CANADA
Gerard J Kennedy* and Lorne Sossin **
ABSTRACT
Concentrating on Canadian experience, specifically litigation under the Canadian Charter
of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice
benefits of summary procedures with the government litigant’s duty to act in the public
interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the
benefits that can result from the use of summary procedures to end litigation, the authors
observe that compliance with strict requirements in procedural law are frequently
dispensed with in the Charter context. In fact, summary procedures can have a
devastating effect on the development of Charter rights. The authors ultimately posit that
the government should have a duty of restraint in using summary procedures to end
public law litigation, and courts should be reluctant to permit the government to
preclude such litigation aimed at advancing the evolution of the Charter from reaching
hearings on the merits.
I INTRODUCTION
This edition of this journal addresses the ‘boundaries of judicial review’. Traditionally,
this concerns the concept of justiciability.1 If a case raises a question that a court is
institutionally incapable of answering, or that is not susceptible to the judicial process,
litigation is foreclosed by the courts as part of their gatekeeping function. In this paper,
we look at justiciability from a different angle, one which can functionally determine
whether litigation can proceed—the boundaries of the use of summary procedures to
end public law litigation (including judicial review).
Just as there is no right without a remedy, so it means little to say a matter is
justiciable if a party is effectively precluded from advancing it to a decision on the merits.
Using Canada as a case study, and concentrating on litigation under the Canadian Charter
of Rights and Freedoms,2 we explore the relationship between procedural justice and
justiciability. We seek to reconcile the access to justice benefits that can result from

* Ph.D. Candidate, Osgoode Hall Law School, York University; 2016 Pierre Elliott Trudeau
Foundation Scholar.
** Dean and Professor, Osgoode Hall Law School, York University.
1 See, eg, Lorne M Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada
(Carswell, 2nd ed, 2012).
2 Canada Act 1982 (UK) c 11, sch B pt I (‘Charter’).

708
Federal Law Review
Volume 45
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summary procedures with the government litigant’s duty to act in the public interest (or
as a ‘model litigant’) and uphold the rule of law.
The Supreme Court of Canada has acknowledged that access to justice is one of the
least admirable aspects of Canada’s justice system, and a serious threat to the rule of
law.3 Courts in Canada and specifically Ontario have encouraged the creative and novel
uses of civil procedure to summarily end proceedings in order to improve access to
justice.4 But summary procedures are not without their disadvantages, such as risking
advantaging heavily resourced parties5 and denying parties their ‘day in court’.6 These
concerns are heightened when a government litigant considers using the summary
procedure to end a litigation. Government litigants are not only exceptionally well-
resourced, but they also have a public interest mandate, particularly in Charter matters.7
Moreover, the use of summary procedures to end Charter litigation can have devastating
effects.
In Part II of this paper, we briefly explain principles of constitutional litigation in
Canada and how they differ in important ways from those in Australia. We then explore
the relationship between justiciability and access to justice, and provide a brief overview
the crisis of access to justice facing the courts in Canada. We also explore civil rules
reform (particularly with respect to summary procedures to end civil actions) as one
strategy adopted by Canadian jurisdictions to address this crisis. In Part III, we explain
why greater flexibility regarding procedural matters in Charter cases may be justified. In
Part IV, we note the negative consequences that can arise from the use of procedural
tactics in Charter matters, especially when employed against poorly resourced parties.
In Part V, based on the foregoing, we explain why we view it as appropriate to recognise
a duty of constraint on government lawyers employing summary procedures to end
Charter litigation, and why courts should be reluctant to allow the government to end
such litigation through summary procedures. This will not require much nuancing of
established principles of and rules within procedural law. Indeed, the rule of law—one
of the principles that supports the expanded use of summary procedures to end
litigation in a purely private context—may point in precisely the opposite direction in
the public law, and specifically Charter, context.



3 See, eg, Hryniak v Mauldin [2014] 1 SCR 87, 92 [1] (Karakatsanis J) (‘Hryniak’).
4 Ibid.
5 See, eg, Michelle Flaherty, ‘Best Practices in Active Adjudication’ (2015) 28 Canadian Journal
of Administrative Law and Practice 291, 297–8. The pitfalls facing self-represented litigants are
explained thoroughly by Julie Macfarlane in Julie MacFarlane, ‘The National Self-
Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented
Litigants’ (Final Report, Treasurer’s Advisory Group on Access to Justice, May 2013) http://www.lsuc.on.ca.ezproxy.library.yorku.ca/uploadedFiles/For_the_Public/About_th
e_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf>.
6 Vasuda Sinha, Lorne Sossin and Jenna Meguid, ‘Charter Litigation, Social and Economic
Rights & Civil Procedure’ (2017) 26 Journal of Law and Social Policy 43; Jonathan Lisus,
Hryniak: Requiem for the vanishing trial, or brave new world?’ (2014) 33(1) The Advocates’
Journal 6.
7 Adam M Dodek, ‘Lawyering at the Intersection of Public Law and Legal Ethics: Government
Lawyers as Custodians of the Rule of Law’ (2010) 33(1) Dalhousie Law Journal 1.

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Justiciability, Access to Justice and the Development of Constitutional Law in Canada
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II CANADIAN CONSTITUTIONAL LITIGATION, JUSTICIABILITY,
ACCESS TO JUSTICE AND PROCEDURAL LAW
A Justiciability in Canadian Law
As in Australia,8 judicial review is constitutionally guaranteed in Canada to uphold the
rule of law.9 As Justice Ivan Rand famously wrote in 1959’s Roncarelli v Duplessis, ‘there
is no such thing as absolute and untrammelled “discretion”‘ in exercising public
powers.10 Despite these general principles in Canadian law, the doctrine of justiciability
demarcates the scope of judicial review. Consistent with Rayner Thwaites’s
conceptualisation, justiciability may extend further to administrative schemes directed
at making the actions they cover non-justiciable.11
In the Canadian context, where a matter raises no legal dispute, or is otherwise
inappropriate to adjudicate (whether because the dispute has been allocated to another
body such as Parliament to resolve or because the matter is not yet ripe or already moot),
a judge generally will decline to hear the matter as it is non-justiciable. Though an
important doctrine that recognises the limits of judicial power, justiciability can also be
seen as the effective limits of the rule of law in a society. Parties to disputes held to lie
outside of the province of the courts to adjudicate are left without recourse to assure the
rule of law is respected.12
Non-justiciable matters per se are relatively rare in Canadian law, related to matters
such as exercises of Crown prerogative, including advice that the Prime Minister gives
to the Queen or her representatives concerning the bestowing of honours.13 As we
return to below, some kinds of claims for social and economic rights may also be non-
justiciable.14 This is very different than in Australia, where many ‘margin cases’ concern
migration.15 Unlike Australia,16 advisory opinions are permissible in Canadian law.17
Public interest standing can be granted to ensure that judicial review of government

8 Explained in Matthew Groves, ‘Judicial Review and Human Rights’ (2018) 25 Australian
Journal of Administrative Law (forthcoming), citing Plaintiff S157/2002 v Commonwealth (2003)
211 CLR 476, 513 [103].
9 Described in a series of cases beginning with Crévier v A-G (Quebec) [1981] 2 SCR 220 (Laskin
CJ). The constitutional requirement for judicial review is also noted by Abella J in Wilson v
Atomic Energy of Canada Ltd [2016] 1 SCR 770, 794-5 [31].
10 [1959] SCR 121, 140.
11 Rayner Thwaites, ‘The Changing Landscape of Non-Justiciability’ [2016] 1 New Zealand Law
Review 31, 59.
12 For further discussion of this point, see Lorne Sossin, ‘The Unfinished Project of Roncarelli:
Justiciability, Discretion and the Limits of the Rule of Law’ (2010) 55(3) McGill Law Journal
661.
13 See, eg, Black v Chrétien (2001) 54 OR (3d) 215 (CA).
14 Tanudjaja v A-G (Canada) (2014) 123 OR (3d) 161 (‘Tanudjaja’).
15 See, eg, Groves, above n 8, citing Stephen Gageler, ‘Impact of Migration Law on the
Development of Australian...

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