A Review of the Administrative Law Judgments of

Justice Thomas A. Cromwell – 1997 to 2008

Brian K. Awad1

"We are all of the view that the appeal should be allowed for the reasons given by Justice Thomas Cromwell of the Nova Scotia Court of Appeal.” – Chief Justice McLachlin, Dowe v. The Queen 2

Introduction

On September 5, 2008, Prime Minister nominated Justice

Thomas A. Cromwell of the Nova Scotia Court of Appeal to the Supreme Court of

Canada to fill the vacancy created upon the resignation of Justice Michel

Bastarache earlier this year.

If appointed by the Governor General – following his yet-to-be-held “interview” by a committee of MPs – Cromwell J. will be the Atlantic-Canada judge3 on the

SCC, the first Nova Scotia judge to sit on the Court since 1984.4 Justice

1 Brian K. Awad is a partner with the Halifax law firm of Burchell Hayman Parish.

2 This is the full oral judgment of the Court in Dowe v. The Queen, issued on October 17, 2008. As the judgment suggests, Cromwell J. had dissented from his colleagues in R. v. Dowe, 2007 NSCA 128.

3 Section 6 of the Supreme Court Act states, “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Of the remaining six judges, by convention, one is to be from Atlantic Canada.

4 Justice Roland Ritchie was a member of the SCC from 1959 to 1984. Following his 25-year stay, the Atlantic Canada seat has been filled for 23 years by judges from New Brunswick: Justice Gérard La Forest (1985 – 1997) and Bastarache J. (1997 – 2008). - 2 -

Cromwell has experience as a practitioner,5 arbitrator, Executive Legal Offier of

the SCC, and academic, and is fully bilingual. If confirmed, he can be expected

to contribute effectively to the work of the Court across a broad spectrum.

Justice Cromwell has been a justice of the NSCA since being appointed in 1997

directly from the faculty of Dalhousie Law School. Since that time he has penned

many important judgments across a number of fields of law. His judgments are

clear and well reasoned. He is greatly respected by the bar in Nova Scotia. A

judgment such as was issued recently in Dowe, supra is not surprising.

Should Justice Cromwell join Canada’s top court, one can expect that his NSCA judgments will attract a wider readership. To assist administrative law lawyers across Canada who may be appearing before the SCC in 2009 and beyond, or who may consider citing judgments of Cromwell J. in other proceedings, this paper reviews the administrative law judgments of the learned justice since his appointment to the NSCA.

When this topic was chosen as the subject of this paper, it was not expected that any pattern would become evident. However, two laudable and compatible tendencies have emerged, as will be noted in the conclusion.

5 O'Hara, Cromwell & Wilkin, in Kingston, . The late T.G. O’Hara was a justice and prominent force on the Ontario Court of Justice in Newmarket, Ontario for a decade beginning in the 1990s.

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Protecting the administrative justice system

In this section of the paper are presented a number of decisions that exhibit a common thread: they each protect the administrative justice system and allow it to fulfill its function in an effective manner.

In NSGEU v. Capital District Health Authority, 2006 NSCA 85, an arbitral board

issued a supplementary award to clarify its initial award regarding compensation.

The initial award had included across-the-board (ATB) pay increases as well as the possibility of “catch-up adjustments” for certain classes of employee. The catch-up adjustment was premised on the view that compensation for the employees in question should be “at the forefront of wages paid for equivalent work performed in Atlantic Canada and in the middle of the Canadian ‘pack’”.

The initial award of the Board left open the possibility that the “catch-up adjustment” could apply to a class of employees already “at the forefront” following the ATB wage increase.6 CDHA asked the Board to clarify its intention.

6 In its initial award, the Board wrote:

The Board has also determined that there will be cases where a “catch-up” adjustment should not be made: it will not be awarded to any classification where the rate for a CDHA classification is already leading in Atlantic Canada as of [the date of the new collective agreement]. Moreover, if as a result of any catch up award, the classification moves to the top, none of the future staggered catch-ups will be awarded. …

Where, as of [the date of the new collective agreement], and thereafter in the case of classifications that move to the top as a result of implementation of one of the staggered catch-ups, the employer can demonstrate that the hourly wage rate for any classification ranks highest already in Atlantic Canada for equivalent

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In response, NSGEU argued that CDHA was asking the Board to change the award, and that this would run counter to the principle functus officio. The Board disagreed with the union, characterizing the request and its task as being in regard to “implementation” of its award – a matter over which it continued to have jurisdiction. The Board then issued a supplemental award stating that the ATB adjustments were to be considered in deciding whether a class was eligible for a catch up adjustment. NSGEU applied for judicial review. At first instance, the supplemental award was quashed. CDHA appealed that decision to the Nova

Scotia Court of Appeal. The Court restored the supplemental award, with

Cromwell J. writing the decision.

Cromwell J. begins his analysis with Pushpanathan and determines that the standard of review should be “reasonableness”. He reasons that, while the question is jurisdictional in nature, there are factors that suggest some deference:

50 … The critical question is whether the board’s supplemental award gave effect to its intent manifest in the earlier award. That seems to me to be a question at the fact-intensive end of the spectrum of questions of mixed law and fact. This supports giving some deference to the board on this issue.

51 The case for deference on this issue seems particularly strong because the board had to determine its own intent. While I would not underestimate the difficulty of determining the intent of the shifting majorities which occurred in the course of the board’s two awards, the board nonetheless seems to me to be better placed than the court to do so.

classifications in the region, the awarded [standard annual increases] shall not be awarded.

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Cromwell J. then finds that the Board’s conclusion (that its first award failed to give effect to its true intention) was reasonable. Thus, Cromwell J. supported the

Board’s handling of a what it saw as an unintended ambiguity.

In Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37, the issue of “deliberative secrecy” was raised. Cherubini operated a metal fabricating plant in Nova Scotia. The operation gave rise to acrimonious labour relations and a poor record pursuant to the Occupational Health and Safety Act.

Cherubini took the position that it was a victim of overzealous enforcement of the

OHSA. It closed the plant in 2002 and sued the government for damages, alleging various torts including conspiracy (the unions were also named), intentional interference with economic interests, and abuse of public authority.

One of the allegedly-tortious governmental decisions was an order that Cherubini ensure that its crane operators be certified. Cherubini did not challenge that order; rather, the company applied to the Board of Examiners under the

Stationary Engineers Act (since repealed), asking that certificates of qualification be issued to the company’s long-term employees without the requirement of passing the usual examination. The Board rejected the request. The decision was consistent with the Board’s usual policy.

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A number of years later, in the course of the civil litigation, counsel for Cherubini

issued notices of examination to the members of the Board of Examiners.

Cherubini wanted to know inter alia what information had been received and

considered by the Board, and how Cherubini had been dealt with as compared to

other similar operators. Crown counsel responded to the notices by filing a

motion to quash the notices. The Crown was successful at first instance, and

Cherubini appealed to the Nova Scotia Court of Appeal. The appeal was

dismissed, with Cromwell J. writing for the Court.

Cromwell J. describes the general ambit of the principle of deliberative secrecy:

it protects “the substance of the matters decided and the decision-maker’s

thinking with respect to such matters”. Drawing upon the Supreme Court of

Canada decision in Quebec (commission des affaires socials) v. Tremblay,

[1992] 1 S.C.R. 952, he holds that the “why” of the decision and the “how” of the

decision are both protected; however, the latter is open to scrutiny in cases

where the moving party shows “valid reasons” for lifting the protection of the

deliberative process. One such reason would be the existence of evidence

sufficient to “rebut the presumption of regularity” and to give rise to a concern

that there had been a violation of natural justice in the course of the deliberative process. Cromwell J. articulates the “test” as follows:

35 In the context of administrative law challenges to a tribunal’s decision, the party seeking to lift deliberative secrecy must show valid reasons for believing that the process followed did not comply with the rules of natural justice or procedural fairness or that the discretionary authority has been otherwise exceeded. … In other words, the party

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must establish valid reasons for believing that lifting deliberative secrecy will show that the tribunal made a reviewable error. [citations omitted]

36 What is the threshold for lifting deliberative secrecy in the context of a tort action? By analogy to the judicial review cases, it would seem that there must be evidence of a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed and that the proposed discovery will afford evidence of it. …

37 I would also add this. The decision about whether to lift deliberative secrecy in a particular case involves a weighing of the competing interests of protecting tribunals from undue disclosure with the need of litigants to have access to information in order to assert their rights. Deliberative secrecy should not be lifted any more than necessary to provide access to the required information. It follows, therefore, that among the factors that may be taken into account in balancing these interests is what other sources of information are available to the party that would not intrude upon deliberative secrecy.

Cromwell J. then considers the theory and evidence put forward by Cherubini and holds:

In my respectful view, the appellant has not provided any clearly articulated basis to displace deliberative secrecy, let alone provided evidence to support it.

Since the appellant failed to meet the threshold in this case, Cromwell J. protected the decision maker.

In Marshall et al. v. The Queen, 2002 NSCA 43, the appellants challenged by way of judicial review the appointment by the Director of Public Prosecutions of a particular lawyer from the Department of Justice to prosecute the charges against the appellants. The appellants alleged that the Justice lawyer in question was in a conflict of interest.

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By way of motion in the application for judicial review, the appellants sought to discover the DPP. The motion was dismissed by the judge and the appellants filed an interlocutory appeal. Cromwell J. affirmed the decision of the judge at first instance, finding that the appellants had failed to prove that the written record formed an insufficient basis for argument. Thus, again, Cromwell J. protected the decision maker in the absence of a good reason not to do so.

In Nova Scotia Securities Commission v. Potter, 2006 NSCA 45, the respondent had been the President of a technology company (KHI) that had failed in 2001.

Soon after the demise of KHI, the respondent and other company insiders became embroiled in multi-party collection litigation that had been started by lenders (who had seen their collateral (KHI stock) evaporate). The civil litigation featured allegations that the “insiders” had manipulated the KHI stock price. This prompted the Nova Scotia Securities Commission to open an investigation.

In the course of the investigation, the Commission staff obtained a CD copy of the full contents of the respondent’s email mailbox, which had been copied from the mothballed company-email server now possessed by a former director of the company. That director had volunteered the server to counsel for the lenders, who then accessed its contents. The respondent alleged that his email on the server included relevant privileged communications, and that such communications had been viewed and used without his consent. The respondent applied for judicial review, asking for various forms of relief in regard

#376870.3 - 9 - to the regulatory investigation. The respondent was successful at first instance and Commission staff appealed to the Nova Scotia Court of Appeal. The Court allowed the appeal, with Cromwell J. writing for the Court.

The principal argument of the Commission staff was that judicial review was premature: the respondent’s arguments should be made first to the Commission in the course of a hearing pursuant to the Securities Act. Recognizing that the case would require a close and difficult examination of the conduct of an ongoing investigation, and an assessment of what should and should not be disclosed at that stage, Cromwell J. agreed with the Commission’s position. Cromwell J. saw that the respondent had available to him an adequate alternative forum and remedy pursuant to the Securities Act. The learned judge was alive to the evils of fragmented proceedings, and saw the issues raised by the respondent as falling squarely within the Commission’s area of expertise and its mandate:

50 Not only is the balancing of confidentiality and disclosure in the investigative context central to the Commission’s statutory mandate, the Commission is better placed than the courts to perform that balancing, particularly at this preliminary stage. Unlike the courts, the Commission’s balancing may be performed in light of the actual information in issue and a detailed grasp of the investigation and the underlying policy issues in relation to securities regulation.

Thus, one sees Cromwell J. respecting the jurisdiction of the regulator and recognizing the desirability of having issues heard by tribunals equipped to do the job.

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One element of the decision of Cromwell J. in Haché, infra, can be seen to be of a similar sort. In that case, the appellant (by cross-appeal) alleged that the regulatory proceeding was an abuse of process due to a prior acquittal in criminal court. Cromwell J. discusses the then-recent decision of the Supreme Court of

Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, but leaves the issue to be decided at a future hearing before a new Board.

Likewise, in Re Schriver, 2006 NSCA 1, Cromwell J. can be seen to apply a

Weber analysis to find that the Nova Scotia Securities Commission has concurrent jurisdiction (alongside the Mutual Fund Dealers Association, a

”recognized” self-regulatory organization) to investigate and prosecute misconduct by a financial advisor.

And again, in Psychologist “Y” v. Nova Scotia Board of Examiners in Psychology,

2005 NSCA 116, Cromwell J. affirms the refusal by the judge at first instance to issue an order of prohibition. In regard to that remedy, he writes:

24 … Where some deference may be due to the tribunal on the point in issue, it will generally be better for the court not to intervene by prohibition unless the tribunal's decision to proceed clearly exceeds the bounds of any deference owed to its decisions. Intervening by prohibition other than in very clear cases is to be avoided because it will generally preclude judicial deference and short-circuit the statutory division of labour between the tribunal as a first instance decision-maker and the court as an appellate review body.

25 In summary, it seems to me that prohibition will generally only be appropriate where it is clearly shown, taking appropriate judicial deference into account, that the tribunal has no authority to continue with the proceeding. In cases in which the tribunal has not clearly exceeded the bounds of any deference which may be due to it on the critical legal question, or in which further fact-finding is necessary or in which the answer to the legal question is not clear, it will generally be better to let

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the proceeding run its course before the tribunal, subject to appellate review or appeal at its conclusion.

On the merits of the case, Cromwell J. finds that the issues raised by the

appellant were appropriately matters for the hearing committee to determine at

first instance.

Cromwell J. an be expected to interpret legislation in a manner that allows the administrative agency to pursue its mission. In Guy v. Nova Scotia (Workers’

Compensation Appeals Tribunal), 2008 NSCA 1, the Court of Appeal was faced with the question of whether a maximum-expenditure policy conflicted with the enabling statute. The appellant received WCB benefits and was to undergo vocational rehabilitation. Section 112 of the Workers’ Compensation Act, S.N.S.

1994-95, c .10 authorized the WCB to make expenditures on rehab programs.7

Section 113 imposed a duty upon WCB beneficiaries to cooperate with rehab

programs put forward by the WCB.

WCB’s expenditures pursuant to section 112 included a living allowance for any recipient whose rehab program was located in a place other than where he or she lived. The allowance was “capped” at $750 per month if the program was in

Halifax. The appellant requested an increase. WCB did not dispute that the amount was inadequate, but refused the increase on the basis of a “binding

7 Section 112(1) provides: “112 (1) The Board may make any expenditures and take any measures that, in the Board's opinion, will (a) aid injured workers in returning to work; and (b) reduce the effects of workers' injuries.”

#376870.3 - 12 - policy” issued pursuant to section 183 of the WCA.8 The appellant appealed to the WCAT. The appeal was dismissed. He then appealed to the Nova Scotia

Court of Appeal. His appeal was dismissed, with Cromwell J. writing the decision.

Cromwell J. recognized the tension between a discretion (section 112) and a

“binding policy” (section 183); however, he saw section 112 as “a discretion to spend money for broadly stated purposes” (para. 17), whereas section 183 was a rule-making power that could be used to give shape to the broad grant of discretion. Thus, there was no inconsistency:

18 … Within the scheme of the WCA, policies are intended to provide WCB with a means to bring clarity, predictability, consistency and a measure of financial control over the process of awarding benefits.

With an agency such as the WCB, “clarity, predictability, consistency and a

measure of financial control” are all vital to its mission.

Cromwell J. will also not permit technical defects to determine the result. The

case of Haché v. Lunenburg County District School Board, 2004 NSCA 46

concerned a disciplinary proceeding taken by a school board against a teacher

8 Section 183 allows the Board to adopt policies. Sub-section (5) provides that “every policy adopted by the Board of Directors pursuant to subsection (2) is binding on the Board itself, the Chair, every officer and employee of the Board and on the Appeals Tribunal.” Sub-section (7) provides that “it is not within the jurisdiction of the Chair, an officer or an employee of the Board to refuse to apply a policy on the ground that it is inconsistent with this Act or the regulations.”

#376870.3 - 13 - accused of improper sexual contact with students. After a hearing, the Board

discharged the teacher. An application for judicial review by the teacher was

allowed on the basis that there was a failure by the Board to give formal notice to

the teacher regarding a “sixth complainant” whose evidence the Board had

heard. The Board appealed to the Nova Scotia Court of Appeal. Cromwell J.

wrote the decision of the Court. At first instance, the judge had declared the

proceeding “void ab initio” due to the lack of mention of the sixth complainant in

the notice of hearing. Cromwell J. wrote:

30 In considering this point, I have found it helpful to distinguish three different types of arguments about notice. The first relates to the giving of notice as a condition of taking further action. The failure to give notice arguably invalidates everything that follows. The second relates to whether a failure to give proper notice deprives a party of natural justice. The third relates to the content of the notice which must be given. Depending on the seriousness of the defect and the legislative and factual context, cases of defective notice may be treated as if no notice had been given as in the first type or analyzed solely from the perspective of natural justice as in the second. It seems to me, with respect, that a good deal of the trouble in this case could have been avoided by keeping these different types of arguments about notice distinct.

Cromwell J. saw the case before him as one of “defective notice, not no notice”.

He also found that there was no failure of natural justice on this basis because

the existence and evidence of the sixth complainant had been disclosed to the

teacher in advance of the hearing.

Finally, Cromwell J. has written two decisions in the field of labour relations that

show great respect for arbitrators in that field, and for the tradition of deference.

In Cape Breton Regional Municipality v. C.U.P.E., Local 933, 2006 NSCA 80,

Justice Cromwell restored an arbitral award that had been overturned by the

#376870.3 - 14 - judge at first instance. The collective agreement contained a “re-opener clause” for cases where the responsibilities of a class of employees had increased. The union applied for an increase, and the arbitrator made an award. The

Municipality applied for judicial review. The judge at first instance applied a

“reasonableness” standard of review and found that the award was not reasonable in that it ignored the intentions of the parties.

In regard to the standard of review, Cromwell J. notes the tradition of deference in judicial review of labour relations, and writes:

33 This highly deferential approach does not rest primarily on a minute parsing of the words used to give arbitrators privative protection. Rather, it rests on policy considerations relating to the centrality to the whole scheme of collective bargaining of grievance arbitration by expert arbitrators: Bradco, supra at pp. 334-339. The policy basis of this deference was stressed in Dayco (Canada) Ltd. v. C.A.W., [1993] 2 S.C.R. 230 (S.C.C.), a case like Bradco in which the pragmatic and functional approach was applied. LaForest, J. at 250-251 of Dayco said this:

... This Court has stated in previous cases that courts should, as a matter of policy, defer to the expertise of the arbitrator in questions relating to the interpretation of collective agreements; ... the arbitrator is acting within his or her "home territory", and any judicial review of that interpretation must only be to a standard of patent unreasonableness.

(Emphasis added)

34 While Voice Construction reminds us of the primacy of the pragmatic and functional approach, it does not question, let alone erase, the importance of judicial deference to labour arbitrators. Voice does not say that labour arbitrators interpreting the provisions of a collective agreement will always, or even generally, be reviewed for reasonableness: Capital District Health Authority v. N.S.G.E.U., [2006] N.S.J. No. 153 (N.S. C.A.).

Cromwell J. then conducts the Pushpanathan analysis and concludes that the standard of review should be “patent unreasonableness”:

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69 All of the four contextual factors point to deference. The question before the arbitrator was one requiring the interpretation of a collective agreement and he was, therefore, operating at the core of his expertise. The importance of mandatory grievance arbitration in the overall scheme of collective bargaining law and the concomitant limitation of judicial involvement in the process support deference. The "final and binding" provisions applying to this arbitration also support a finding of considerable deference.

70 I conclude, respectfully, that the judge erred in selecting reasonableness rather than patent unreasonableness, as the appropriate standard of judicial review.

He describes that standard as follows:

73 When reviewing for patent unreasonableness, the question is whether the absence of such tenable support is clear; the defect should be "immediate and obvious." The decision must be "so flawed that no amount of curial deference would justify letting it stand." Such decisions have been characterized as being "clearly irrational", "evidently not in accordance with reason" or as "almost border[ing] on the absurd": Ryan at para. 52; Voice Construction at para. 18. As with the reasonableness standard, the touchstone is the tribunal's reasoning, not the court's view of the 'correct' result.

Turning to the arbitrator’s decision, Justice Cromwell concludes:

85 Respectfully, I do not think it can be said that the arbitrator here failed to consider the intention of the parties. The respondent in effect invites us to follow the example of the chambers judge and to substitute our view of those intentions for the arbitrator's. This we may not do.

Cromwell J. again supports the decision of the arbitrator in Halifax Employers

Association v. I.L.A., Local 269, 2004 NSCA 101. The issue before the Court was whether an arbitrator’s decision to extend the time limit for grieving a dismissal – from four days to two years – was patently unreasonable.9

9 The arbitrator had discretion to do so pursuant to section 60(1.1) of the Canada Labour Code.

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In his review of the arbitrator’s decision, Cromwell J. disagrees with the view of the judge at first instance as to whether the arbitrator properly considered the merits of the grievance. Cromwell J. writes:

78 Even granting the Chambers judge's assumption that it would have been reviewable error for the arbitrator to address the merits at the same time as the extension issue, that is not an error that the arbitrator made in this case. He simply determined that there was a prima facie case of discrimination contrary to the CHRA and that the prima facie case of discrimination, coupled with the seriousness of a discharge from employment, constituted reasonable grounds for extending the time even though other relevant factors pointed the other way.

79 While some may not find this reasoning convincing or the result wise, that is not the issue for the reviewing court. The arbitrator's decision that these considerations constitute reasonable grounds is rational. His decision should therefore not be disturbed on judicial review for patent unreasonableness.

80 I would add that even if the arbitrator's reasons support more than one interpretation, it is wrong to fasten on one that is considered to be patently unreasonable when the reasons fairly support another, rational interpretation. The standard of review is not to be applied to every line of reasoning: the question for the reviewing court is whether the reasons of the tribunal disclose any line of reasoning that rationally supports the result. The arbitrator reasoned that the seriousness of the penalty and the fundamental importance of the protection of human rights constitute a reasonable basis for extending time in the circumstances of this case. There can surely be no reviewable error in his taking into account that the grievance related to the most serious workplace penalty -- dismissal -- and that it was based on an arguably discriminatory and unlawful agreement. That line of reasoning is rational and does not depend on any final determination of what the learned Chambers judge refers to as the merits of the grievance. It is, therefore, a sustainable line of reasoning which does not suffer from the patent unreasonableness identified by the judge, if such it be.

The above indicates that, as an element of deference, decisions of administrative decision makers will be read in a fair manner. That favourite technique of litigators – to put forward an extreme interpretation of a decision or position, and then to note how shocking it is – will not carry the day.

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In concluding this section, it is noteworthy that it is an article of Cromwell J. that

is cited centrally by the majority in Dunsmuir v. New Brunswick, 2008 SCC 9 –

clearly a watershed judgment. The passage quoted in Dunsmuir is:

[T]he rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law.10

The above confirms Cromwell J.’s understanding of the delicate balance between

the rule of law, legislative supremacy and the proper place of judicial review.

Respecting individual rights

The decisions reviewed above reveal a judge who supports the functioning of the administrative justice system. However, this support appears to be conditioned on the administrative justice system being respectful of the rights of affected individuals.

In Guy, supra, Cromwell J. recognized the dilemma faced by an individual who

was under a statutory duty to cooperate (section 113 of the WCA) yet was

offered an allowance where he “could not reasonably be expected to [comply] on

the available resources”. Cromwell J. reserved for another day the question of

10 See Dunsmuir, supra at para. 30. The article in question is “Appellate Review: Policy and Pragmatism”. In 2006 Pitblado Lectures, Appellate Courts: Policy, Law and Practice. Winnipeg: Fort Garry, 2006, V-1.

#376870.3 - 18 - whether adherence to the maximum allowance “binding policy” in such a case would be upheld. This suggests a concern for security of the person enshrined in section 7 of the Canadian Charter of Rights and Freedoms.

In Pelley v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA

46, Cromwell J. is asked to interpret the WCA entitlement of near-retirement-age

individuals. At issue was whether a 63 year old with a recurring injury would be

treated the same as a 63 year old with a new injury. Cromwell J. interprets the

legislation in a manner that would see such individuals treated the same. While

Cromwell J. does not mention the notion of equal treatment and benefit of the

law, enshrined in section 15 of the Charter, his refusal to allow a distinction

between similarly-situated injured persons is consistent with that constitutional

provision.

In Haché, supra, after rejecting the “no notice” ground relied on by the judge at

first instance, Cromwell J. went on to dismiss the appeal on other grounds which

can be seen to arise from a concern for individual rights. By way of cross-

appeal, the teacher asserted that (1) the Board had improperly relied upon the

evidence of the school principal (a witness called by the teacher) as

corroborative of the evidence of the complainants, and (2) the proceeding was an

abuse of process. (As noted above, the latter issue was reserved to a hearing

before a new Board.)

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In regard to issue (1), Cromwell J. saw the school board’s decision as fatally flawed because its conclusion (that the complaints were made out) was based on bad reasoning and bad evidence. The hearing before the Board had featured conflicting accounts as to whether inappropriate sexual contact had taken place.

The teacher had called the school principal as a witness. The Board found the principal’s evidence to be “significant collaboration” [sic.] of the evidence of the complainants, and concluded that the abuse had occurred.

Cromwell J. first applies the Pushpanathan analysis to the issue. He writes:

81 … [T]he issue of whether Ms. Wade's evidence was relevant to the credibility of the complainants has been characterized as a question of law in both court and tribunal settings. In the present case, the determination that the evidence is relevant does not depend on the determination of some other issue on which deference is due to the Board of Appeal. I would conclude that there is nothing in the nature of this issue to support deference to the Board's conclusion that Ms. Wade's evidence was logically capable of supporting the credibility of the complainants.

82 Nor do I think that the contextual factor of relative expertise supports deference to the Board of Appeal on this issue. A court is in as good a position as the tribunal to decide whether evidence is logically probative of a fact in issue where, as here, that determination does not depend on the interpretation of the tribunal's statutory mandate or definition of its assigned task or some other matter which may call for deference.

83 Taking these factors into account along with the mild privative clause and the fact that there is no statutory right of appeal but only a right to seek judicial review by certiorari, I would conclude that the question of whether Ms. Wade's evidence was relevant to the issue of the credibility of the complainants should be assessed on the standard of reasonableness.

84 I would stress the distinction between this first aspect of Mr. Haché's submission, which is concerned with relevance, from the second aspect of the issue which is concerned with the weight to be given to evidence. On this second aspect, the highest level of deference is due as it relates entirely to the fact-finding and evidence weighing function of the Board of Appeal. On that aspect, the court should interfere only if the tribunal's

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assessment of weight results in its ultimate factual conclusions being patently unreasonable.

He then proceeds to find that the principal’s evidence could not reasonably be said to be relevant to enhancing the credibility of the complainants: it had no probative value with respect to that issue. He writes:

93 … Even if this evidence could be said to pass the low threshold of bare relevance, it was in my opinion patently unreasonable to attach the very great weight C indeed decisive weight C to it that the Board of Appeal did.

94 I would conclude therefore that the Board of Appeal committed reviewable error when it concluded that Ms. Wade's evidence provided "significant collaboration of the events of inappropriate touching that C.D. and the other witnesses described".

It is rare to see a reviewing court overturn an administrative decision based on a different assessment of evidence or relevance. However, Cromwell J. is a recognized authority on the law of evidence,11 and, in this instance, the supposedly-corroborative evidence was such that it was unfair, unreasonable and illogical to have such evidence determine the result of a proceeding with a devastating outcome. This suggests that Cromwell J.’s deferential stance, while respectful to the administrative justice system, will not permit that system to do harm to individual rights. The matter was returned for a new hearing before a new board.

11 The learned justice’s article, "Proving Guilt: The Presumption of Innocence and the Canadian Charter of Rights and Freedoms," from Charles, Cromwell and Jobson, eds., Evidence and the Canadian Charter of Rights and Freedoms (Toronto: Butterworths, 1989) has been cited by the in R. v. Downey, [1992] 2 S.C.R. 10 and R. v. Chaulk, [1990] 3 S.C.R. 1303. The Ontario Court of Appeal has referred to him as a judge “accepted as an expert in the law of evidence”: see R. v. Kimberley (2001), 56 O.R. (3d) 38 (C.A.), per Doherty J.A..

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In Wright v. Nova Scotia Public Service Long Term Disability Plan Trust Fund,

2006 NSCA 101, the claimant was a public servant and a member of the

provincial LTD Plan. He was initially disabled by what might be described as "job

burnout" and later treated for depression. He claimed LTD benefits; his claim

was approved in regard to his "own occupation” but denied in regard to "any

occupation” (i.e. the claims adjudicator acknowledged the claimant could not do

his old job, but felt he was not disabled from doing other jobs). The claimant appealed to the LTD Plan’s Appeal Board; that appeal was denied.

The claimant then sued in court claiming benefits. In addition to defending the matter on the merits, the LTD Plan argued issue estoppel. The judge found in favour of the claimant. The LTD Plan appealed to the Nova Scotia Court of

Appeal. The appeal was dismissed, with Cromwell J. writing for the Court.

In regard to issue estoppel, contrary to the opinion of the judge at first instance,

Cromwell J. finds that the traditional three criteria for issue estoppel12 were made out in the case before him. Cromwell J. then affirms the alternative holding of the judge at first instance: the case was one where it was proper for the court to exercise its discretion to permit “relitigation”.

Cromwell discusses the factors set out in Danyluk v. Ainsworth Technologies

Inc., 2001 SCC 44. He notes that the Plan indicates that internal appeals were

12 The traditional three criteria are (1) same parties, (2) same issue, and (3) a prior judicial decision made within jurisdiction: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44.

#376870.3 - 22 - restricted to “medical grounds only”, that the evidence on the appeal was medical, and that the Board was composed of medical doctors – all of which pointed to there being an opportunity for a court to consider other issues by way of a civil action for benefits. However, it appears that the over-arching injustice of the situation was perhaps the most-important factor. In that regard, Cromwell J. echoes the words of Binnie J. in Danyluk13 when he writes:

106 So far as one can tell from the record, there has never been any proper consideration by a neutral party of whether Mr. Wright was disabled within the meaning of the "any occupation" definition in the Plan. It appears that his court action was the only way that could occur. The matter did not fall squarely within either the expertise or the terms of reference of the medical appeal board and, in the circumstances of this case, there was no other adequate remedy. It is at best unclear whether Mr. Wright appreciated that the medical appeal might preclude a subsequent court action – he said he did not – and the lack of legal clarity which is evident on this point makes that lack of appreciation understandable. The stakes are large: the judge found that the Plan owed Mr. Wright well over $100, 000. And a disability plan is no "mere commercial contract", but a contract that provides for the intangible benefit of the knowledge of income security in the event of disability: Fidler v. Sun Life Assurance Co. of Canada, [2006] S.C.J. No. 30 (S.C.C.) at paras. 56-58.

107 It has been said that the principles of issue estoppel limit a litigant to "one bite at the cherry": Danyluk at para. 18. I am persuaded that, in the particular circumstances of this case, it would be unfair to limit Mr. Wright to the one bite he got before the medical appeal board.

As to the merits of the case, Cromwell J. affirmed the decision of the trial judge that the claimant was entitled to benefits.

13 Danyluk, supra at para. 80: “Whatever the appellant's various procedural mistakes in this case, the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated.”

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Finally, a concern for individual rights and proper functioning of the administrative justice system can be seen to explain the “test” set out in Cherubini, supra and the closing caution communicated to the Securities Commission in Potter, supra.

Conclusion

The administrative law judgments of Cromwell J. since his 1997 appointment to the Nova Scotia Court of Appeal have been reviewed above. Two laudable tendencies are evident. First, Cromwell J. can be seen to ensure that his decisions enhance or protect the ability of the administrative justice system to do its job in an effective manner. The administrative justice system will be allowed

“first crack” at hearing the merits of matters (including preliminary objections), its procedural needs will be understood and respected, and its decisions will be granted due deference on review on their merits.

Where an administrative decision is overturned, in each case reviewed above, the decision can be seen to be motivated by a concern regarding individual rights

– the right to be heard (Wright), the right to security of the person (Guy), the right to equal treatment and benefit (Pelley), and the right to be presumed innocent

(Haché). If individual rights have not been respected through an administrative process, counsel can expect that Justice Cromwell will be open to intervening to remedy the situation.

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There is no inconsistency amongst the cases reviewed above. Where Cromwell

J. has intervened, he does so in a manner that continues to respect the administrative justice system. Remedies for breaches of individual rights arise in individual cases that are fact specific, and those remedies do no harm to the administrative justice system. Thus, despite the occasional intervention, it is safe

to describe Justice Cromwell as a friend of the administrative justice system.

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