On February 7, 2014, the Supreme Court of Canada released its judgment in Bernard v. Canada (Attorney General), 2014 SCC 13, a case involving the judicial review of a decision by the Public Service Labour Relations Board requiring the employer to provide home contact information about bargaining unit members to the union that represents them. Ms. Bernard contested that decision on the basis that it breached her privacy rights and her right not to associate with the union under the Charter. The case also touches upon two issues of appellate practice.

The first issue is how an appellate court should approach a lower court decision that interprets its own previous order. This issue arose out of the back-and-forth nature of the proceedings between the Board and the Federal Court of Appeal, which has original jurisdiction to hear judicial review of the Board’s decisions. The Board ordered the employer to disclose some personal information to the union. Upon review of that decision, the Court of Appeal issued an order and remitted the matter to the Board for redetermination. The Board’s subsequent decision was also reviewed by the Court of Appeal, which essentially had to determine whether the Board’s redetermination was consistent with the Court’s original order. Ms. Bernard appealed the Court of Appeal’s decision. Should the Supreme Court afford greater deference to the Court of Appeal, since it was interpreting its own order?

The majority of the Supreme Court observed in obiter dicta that weight ought to be given to the Court of Appeal’s interpretation of its own order in determining whether the Board made a reviewable error in its redetermination. Abella and Cromwell JJ. expressed the majority’s view as follows:

[35] … Giving some weight to the Court of Appeal’s interpretation of its own order in these circumstances is not so much a matter of deference as of operating on the common-sense assumption that the Court knew what it meant. We would hesitate to say that the Board made a reviewable error by interpreting the Court of Appeal’s order in the same way that court itself did or by failing to deal with an issue that manifestly has no merit. But we see no need to reach any final view on this point.

In his dissenting opinion, Rothstein J. disagreed that any special deference was owed to the Court of Appeal:

[90] However, the interpretation of the order in Bernard I is not subject to a deferential review by this Court. Indeed, the stock in trade of this Court is to review decisions of lower courts on questions of law of public importance on the standard of correctness, not on assumptions about what the lower court intended, as my colleagues assert at para. 35 of their reasons. There is therefore no reason to defer to the opinion of the court below in Bernard II regarding its interpretation of the decision in Bernard I. …

The second issue of appellate practice relates to the hearing of new arguments on appeal. Both the majority and the dissent agreed that Ms. Bernard’s Charter arguments could be raised before the Court even though the Board and the Court of Appeal had not addressed them. The majority dealt with the issue in the briefest terms:

[36] This is one of the exceptional cases in which this Court is in a position to address those arguments now, and it can be done very summarily. They have no merit. Even if the Federal Court of Appeal erred with respect to the scope of the Board’s reconsideration, Ms. Bernard’s s. 2(d) and s. 8 Charter arguments that were supposedly neglected were clearly bound to fail, whenever and wherever asserted.

Rothstein J. provided a somewhat more developed explanation for hearing Ms. Bernard’s Charter arguments:

[92] I acknowledge that Ms. Bernard’s Charter arguments were not addressed by the Board and the Federal Court of Appeal and that the practice of this Court is generally not to determine issues not dealt with in the forums below. However, that is not a rule of mandatory application in all cases.

[93] This Court outlined the two-step test for determining whether an appellate court may address an argument not decided by the lower courts in Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at para. 38. First, is the argument a “new issue” on appeal? If so, do the evidentiary record and the interests of justice support an exception to the general rule that a new issue cannot be raised on appeal?

A “new issue” is one that is “legally and factually distinct” from the issues raised before the lower courts (para. 94, citing Quan, at para. 39). Rothstein J. concluded that Ms. Bernard’s Charter arguments were not “new issues” because she had raised or attempted to raise them below. In any event, Rothstein J. stated that the evidentiary record and the interests of justice reinforce “the view that this Court ought to decide these arguments.” (para. 96)

With respect to the evidentiary record, Rothstein J. said:

[98] The evidentiary record in this case is sufficient for this Court’s inquiry into the s. 2(d) Charter issue. The reasons of the Board and the Federal Court of Appeal reflect the fact that Ms. Bernard presented this claim three times: Bernard I (para. 24), PIPSC 3 (para. 9), and Bernard II (para. 29). She now asks this Court to address it. The respondents are sophisticated parties who had ample opportunity to respond to the s. 2(d) constitutional question stated by this Court. And, at no point did the respondents argue that they would be prejudiced were this Court to decide the s. 2(d) Charter question.

[99] Similarly, the respondents substantively addressed Ms. Bernard’s s. 8 Charter claims in their written submissions before this Court, and did not argue that prejudice would result should this Court proceed to consider the issue.

Rothstein J. was also of the view that the interests of justice required the Court to consider Ms. Bernard’s Charter arguments:

[100] Ms. Bernard’s methodical attempts to have her Charter arguments addressed were consistently denied by the Board and the Federal Court of Appeal. The Conway principle is that tribunals have the authority and duty to “consider and apply the Constitution, including the Charter” (para. 77 (emphasis added)). Had leave to appeal to this Court not been granted, Ms. Bernard would have been entirely precluded from having her s. 2(d) and s. 8 Charter claims addressed in the course of these proceedings before the Board and the Federal Court of Appeal.

[Full disclosure: The editor of this blog appeared as counsel for an intervener in this appeal, The Canadian Constitution Foundation.]