Newfoundland Association of Provincial Court Judges et al. v. Newfoundland, (2000) 192 Nfld. & P.E.I.R. 183 (NFCA)
| Judge | Marshall, Cameron and Green, JJ.A. |
| Court | Court of Appeal (Newfoundland) |
| Case Date | September 01, 2000 |
| Jurisdiction | Newfoundland and Labrador |
| Citations | (2000), 192 Nfld. & P.E.I.R. 183 (NFCA) |
Provincial Court Judges v. Nfld. (2000), 192 Nfld. & P.E.I.R. 183 (NFCA);
580 A.P.R. 183
MLB headnote and full text
Temp. Cite: [2000] Nfld. & P.E.I.R. TBEd. SE.004
Her Majesty the Queen in Right of Newfoundland (appellant) v. The Judges of The Provincial Court of Newfoundland, as represented by the Newfoundland Association of Provincial Court Judges, The Honourable Judge Robert A. Fowler, The Honourable Judge Kendra Goulding, The Honourable Judge Michael Roche, The Honourable Judge Richard Leblanc, The Honourable Judge James Igloliorte, The Honourable Judge James Kean, The Honourable Judge David Power, The Honourable Judge David A. Peddle, The Honourable Judge Kymil Howe, The Honourable Judge Gerald Barnable, The Honourable Judge Garrett Handrigan, The Honourable Judge Randy Whiffen, The Honourable Judge Bruce Legrow, The Honourable Judge John Rorke, The Honourable Judge Gregory O. Brown, The Honourable Judge Owen Kennedy, The Honourable Judge David Orr, The Honourable Judge Robert Smith, The Honourable Judge Robert Hyslop, The Honourable Judge Reginald Reid, The Honourable Judge William J. Baker, The Honourable Judge Joseph Woodrow (respondents) and The Honourable Chief Judge Donald S. Luther (intervenor)
(98/95; 2000 NFCA 46)
Indexed As: Newfoundland Association of Provincial Court Judges et al. v. Newfoundland
Newfoundland Supreme Court
Court of Appeal
Marshall, Cameron and Green, JJ.A.
September 1, 2000.
Summary:
Provincial Court judges applied for various remedies, asserting that the legislative and the executive branches of the Newfoundland Government had failed to comply with the provisions of the Provincial Court Act relating to the setting of their salaries and benefits.
The Newfoundland Supreme Court, Trial Division, in a decision reported at 163 Nfld. & P.E.I.R. 319; 503 A.P.R. 319, granted the judges an order in the nature of mandamus requiring that the 1992 recommendations of a tribunal (appointed under s. 28 of the Provincial Court Act), respecting the judges' salaries take effect as of June 1, 1992. The court declared that the Public Sector Restraint Act, 1991, and the Public Sector Restraint Act, 1992, as they related to the judges, were unconstitutional. The court concluded that if the Government wished to persist in freezing the judges' salaries in accordance with the public sector restraint legislation, it had to remit the matter to a new tribunal. The court also dealt with the constitutional validity of various sections of the Provincial Court Act, 1991, S.N. 1997. The court held that the Government was constitutionally required to provide for the remuneration of tribunal members and funding for the tribunal to engage the services of any persons necessary for the proper conduct of its mandate. The Government was also constitutionally required to provide funding to the judges for adequate representation before a tribunal and/or the courts, the amounts of such funding to be subject to review by either a Taxing Master or judge of the Supreme Court of Newfoundland. The court also held that a paid leave program introduced by the Government was constitutional. The court granted the judges costs on a solicitor and client basis. The Government appealed.
The Newfoundland Court of Appeal, Marshall, JJ.A., dissenting, allowed the appeal in part. The court affirmed that the Public Service Restraint legislation as it related to the judges, was unconstitutional. However, the Government could not submit the matter of freezing the salaries to a new tribunal because the restraint legislation had been considered by a tribunal in 1992 and because of the operation of the negative resolution procedure. The court further varied the trial decision by: (1) by setting aside the order of mandamus; (2) by setting aside orders respecting the constitutional validity of various sections of the Provincial Court Act, 1991; (3) by declaring that s. 28.2(4) of the Provincial Court Act, 1991, as amended, was unconstitutional and of no force and effect; (4) by setting aside the declaration that the Government was constitutionally required to provide for remuneration of tribunal members appointed under s. 28(1) of the Provincial Court Act, 1991; and (5) by setting aside the declaration that the Government was constitutionally required to provide funding to the judges for adequate representation before a tribunal and the courts and substituting a declaration that the tribunal had the jurisdiction to recommend, and the court on application, in its discretion, had jurisdiction to order, that the government provide funding to the judges for all or a portion of their costs of representation before the tribunal and/or the court. In all other respects, the court dismissed the appeal. The court granted the judges and the intervenor costs on the appeal on a party and party basis.
Administrative Law - Topic 2087
Natural justice - Constitution of board or tribunal - Considerations - Bias - General -Section 28 of the Provincial Court Act provided a process for the appointment of a three person tribunal to make salary recommendations for the Newfoundland Provincial Court judges - Section 28(2) of an amending act gave the government the right to appoint two of the three members of the tribunal - The Newfoundland Court of Appeal rejected the assertion that s. 28(2) was unconstitutional - The test was whether a tribunal was and appeared to be independent - One could not say, in the abstract, that a tribunal composed of unequal numbers of nominees from the executive and the judges would necessarily be, or be perceived to be, lacking the degree of necessary independence - The issue was better left to the application of the principles of natural justice in each particular case - See paragraphs 235 to 243 and 650 to 652.
Administrative Law - Topic 2089
Natural justice - Constitution of board or tribunal - Considerations - Bias - Pecuniary - A tribunal was appointed to make salary recommendations for the Newfoundland Provincial Court judges pursuant to s. 28 of the Provincial Court Act - Members of the tribunal were not paid - The Provincial Court judges questioned the independence of the tribunal - The Newfoundland Court of Appeal affirmed that the Government was constitutionally required to provide funding for tribunal expenses, but rejected an assertion that it had to provide for the remuneration of the tribunal members - See paragraphs 259 to 276.
Administrative Law - Topic 3553
Judicial review - Mandamus - Conditions precedent - Existence of duty - Provincial Court judges applied for mandamus and other relief, asserting that the Newfoundland Government had failed to comply with the provisions of the Provincial Court Act relating to the setting of their salaries and benefits - The Newfoundland Court of Appeal granted declaratory relief, but denied a mandamus order because of: the difficulty of determining who could be said to be subject to a duty; the suit being against the Province alone and not an individual or group alleged to be under a duty persona designata; and the general failure of the judges to demonstrate that an actual duty to pay a specified amount of public money had arisen - If in the unlikely event that the Crown departed from the convention of honouring declaratory judgements, the judges had the remedy of an action leading to quantification of their claims and summary judgment at which they could seek enforcement of the Minister of Finance's statutory duty to pay - See paragraphs 209 to 234.
Administrative Law - Topic 3701
Judicial review - Mandamus - Mandamus to government and executive - General - [See Administrative Law - Topic 3553 ].
Civil Rights - Topic 3135
Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to independent and impartial tribunal - Section 28 of the Provincial Court Act provided a process for the appointment of a tribunal to make salary recommendations for the Newfoundland Provincial Court judges - Amendments resulted in s. 28.2(4) removing the fixed time for the House of Assembly to deal with a tribunal report where a session of the House was prorogued before the report was dealt with - The trial judge held that s. 28.2(4) was unconstitutional because it did not meet the requirement for judicial independence of a specified amount of time (Reference Re Remuneration of Judges of the Provincial Court (P.E.I.) (S.C.C.)) - The court read in a provision requiring the House to consider a report within six months - The Newfoundland Court of Appeal affirmed that s. 28.2(4) was unconstitutional, but held that the trial judge erred in reading in the six months requirement - Severance of 28.2(4) from the scheme would leave a 30 day consideration period (ss. 28.2(2) and 28.2(3)) which met the constitutional standard - See paragraphs 244 to 258.
Constitutional Law - Topic 8655
Judges - Independence - [See Administrative Law - Topic 2087 , Administrative Law - Topic 2089 and Civil Rights - Topic 3135 ].
Constitutional Law - Topic 8660
Judges - Compensation - [See Administrative Law - Topic 2087 , Administrative Law - Topic 2089 and Civil Rights - Topic 3135 ].
Courts - Topic 78
Stare decisis, authority of judicial decisions - Prior decisions of same court - "Per incuriam" exception - The Newfoundland Court of Appeal held that it was not open to a court to disregard comments of the Supreme Court of Canada on the basis that they were made "per incuriam" in cases where the lower court is merely of the opinion that some fundamental aspect of the Supreme Court's ruling did not receive "due weight" or was not "fully considered" - Generally, the per incuriam doctrine is applied as a justification for a court not following one of its own previous decisions. It did not justify a refusal by a lower court to follow the decision of the highest appellate court." - See paragraph 87, footnote 7.
Courts - Topic 126.1
Stare decisis, authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See Courts -Topic 78 ].
Courts - Topic 311
Judges - Independence of judiciary - Financial security - [See Administrative Law - Topic 2087 , Administrative Law -Topic 2089 and Civil Rights - Topic 3135 ].
Courts - Topic 430
Judges - Compensation - Independent reports and recommendations - [See Civil Rights - Topic 3135 ].
Courts - Topic 430
Judges - Compensation - Independent reports and recommendations - The Newfoundland Court of Appeal stated that the review of a government's decision rejecting the salary recommendations of a commission appointed under s. 28 of the Provincial Court Act involved the search for rational and supportable reasons for the position taken - The reasons given need not be taken at face value if it can be shown that they are not supported by the factual substratum and the underlying assumptions - Reasons will prima facie not be regarded as legitimate or rational if they were not raised before and submitted to the commission during its deliberations -It was insufficient to state, in conclusory form, that the recommendations were unfair or unreasonable - However, the government only had to demonstrate the rationality of its decision and not that the recommendation was wrong, irrational or unreasonable - A reviewing court should not substitute its opinion for that of the government or simply decide whether the government's reasons were right or wrong - See paragraphs 91 to 94.
Courts - Topic 430
Judges - Compensation - Independent reports and recommendations - The Newfoundland Court of Appeal summarized the parameters of the reviewing role which a court had to discharge on a challenge to the reasons given by government in rejecting the salary recommendations of a Commission appointed under s. 28 of the Provincial Court Act - See paragraph 95.
Courts - Topic 430
Judges - Compensation - Independent reports and recommendations - A tribunal appointed under s. 28 of the Provincial Court Act made salary recommendations for Newfoundland Provincial Court judges - On May 1, 1992, the Tribunal's report was placed before the House of Assembly - On June 1, 1992, the House resolved to defer consideration until the expiry of a restraint period imposed by the Public Sector Restraint Act - The Newfoundland Court of Appeal affirmed that the House had failed to "consider" and "approve or vary" the report within 30 days as required by s. 28(7) of the Provincial Court Act and the report automatically came into effect on June 1, 1992 - Even if the government had considered the report, it failed to articulate a rational justification as why the recommendations should not be followed -The judges were entitled to a declaration that the freeze on their salaries was of no force and effect - See paragraphs 163 to 208.
Courts - Topic 681
Judges - Disqualification - Conflict of interest - Exceptions - Provincial Court judges applied for various remedies, asserting that the Newfoundland Government had failed to comply with the provisions of the Provincial Court Act relating to the setting of their salaries and benefits - The Newfoundland Court of Appeal noted that the members of the Court of Appeal had a potential self-interest where the application might have implications for the legal positions of federally appointed judges - However, as an exception to the general rule, the court refused to disqualify itself because it was necessary for the Provincial Court judges to have a forum consisting of federally appointed judges in which to have the claims adjudicated - Given the decision in Reference Re Remuneration of Judges of the Provincial Court (P.E.I.) (S.C.C.), there was no alternative - See paragraphs 141 to 146.
Practice - Topic 7468
Costs - Solicitor and client costs - Entitlement to - Against the Crown or governmental bodies - The Newfoundland Provincial Court judges applied for various remedies, asserting that the government had failed to comply with the provisions of the Provincial Court Act respecting the setting of their salaries - In disposing of the application, the trial judge held that for the system to work as envisaged, equity dictated that the judges be funded and not just the executive or legislative branches of the government - The trial judge awarded the judges solicitor and client costs - The Newfoundland Court of Appeal held that while there might be special constitutional considerations affecting the issue of judges' reimbursement for representation costs, both at the commission and court levels, it could not be said that there was a universal constitutional right requiring reimbursement in all cases - However, the costs award was justifiable on a traditional basis: the government's failure to deal with the judge's grievances in a proper manner that respected both constitutional principle and the policies behind its legislation - See paragraphs 277 to 313.
Practice - Topic 7845
Costs - Costs out of a fund - Public fund - When appropriate - [See Practice - Topic 7468 ].
Cases Noticed:
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1; 150 D.L.R.(4th) 577, refd to. [para. 3].
Reference Re Public Sector Pay Reduction Act (P.E.I.), s. 10; Re Provincial Court Act (P.E.I.); R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Provincial Judges' Association v. Manitoba (Minister of Justice) - see Reference Re Remuneration of Judges of the Provincial Court (P.E.I.).
Alberta Provincial Judges' Association v. Alberta (1999), 237 A.R. 276; 197 W.A.C. 276; 177 D.L.R.(4th) 418 (C.A.), leave to appeal dismissed (2000), 258 N.R. 194; 261 A.R. 399; 225 W.A.C. 399 (S.C.C.), refd to. [para. 4].
Provincial Court Judges' Association of British Columbia v. British Columbia (Attorney General) (1998), 108 B.C.A.C. 177; 176 W.A.C. 177; 160 D.L.R.(4th) 477 (C.A.), leave to appeal dismissed (1999), 236 N.R. 185; 123 B.C.A.C. 160; 201 W.A.C. 160 (S.C.C.), refd to. [para. 4].
Conférence des juges du Québec v. Québec (Procureure générale), [2000] J.Q. No. 400 (Que. S.C.), refd to. [para. 4].
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1998] 1 S.C.R. 3; 223 N.R. 21; 212 A.R. 161; 168 W.A.C. 161; 126 Man.R.(2d) 96; 167 W.A.C. 196; 161 Nfld. & P.E.I.R. 124; 497 A.P.R. 124, refd to. [para. 72].
Ontario Federation of Justices of the Peace Associations et al. v. Ontario (1999), 119 O.A.C. 107; 171 D.L.R.(4th) 337 (Div. Ct.), refd to. [para. 86, footnote 6].
R. v. Sellars, [1980] 1 S.C.R. 527; 32 N.R. 70, refd to. [paras. 87, 332, footnote 7].
Cassell & Co. v. Broome, [1972] A.C. 1027 (H.L.), refd to. [para. 87, footnote 7].
Scarff v. Wilson (1988), 55 D.L.R.(4th) 247 (B.C.C.A.), refd to. [para. 87, footnote 7].
Woods Manufacturing Co. v. R., [1951] S.C.R. 504, refd to. [para. 87, footnote 7].
R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 74 C.R.(3d) 129; 53 C.C.C.(3d) 330; [1990] 2 W.W.R. 220; 71 Alta. L.R.(2d) 145, refd to. [para. 109].
R. v. Feeney (M.), [1997] 2 S.C.R. 117, refd to. [para. 109].
R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161; 69 C.C.C.(3d) 481, refd to. [para. 109, footnote 11].
Provincial Court Judges' Case (No. 3), Re, [1998] 2 S.C.R. 443, refd to. [para. 125].
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.) - see Provincial Court Judges' Case (No. 3).
Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, refd to. [para. 129].
Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81; 38 B.C.L.R.(3d) 1, refd to. [para. 129].
Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al. (1999), 239 N.R. 1 (S.C.C.), refd to. [para. 129].
Provincial Court Judges Case (No. 4), (Motion for Directions by Quebec Judges Conference), [1998] S.C.J. No. 60, refd to. [para. 132].
R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 23 C.C.C.(3d) 193; 24 D.L.R.(4th) 161, refd to. [paras. 136, 367].
Judges v. Saskatchewan (Attorney General), [1937] 2 D.L.R. 209 (P.C.), refd to. [para. 145].
Johns-Mansville Canada Inc. et al. v. Newfoundland (1985), 51 Nfld. & P.E.I.R. 338; 150 A.P.R. 338 (Nfld. T.D.), refd to. [para. 214].
Air Canada v. British Columbia (Attorney General) (1986), 72 N.R. 135; 32 D.L.R.(4th) 1 (S.C.C.), consd. para. 220, footnote 21].
Northrop Corp. v. Canada (1976), 68 D.L.R.(3d) 182 (T.D.), refd to. [para. 222].
Levesque v. Canada (Attorney General) (1986), 25 D.L.R.(4th) 184 (F.C.T.D.), consd. [para. 226].
R. v. Campbell, [1999] 2 S.C.R. 956, refd to. [para. 288].
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.) - see R. v. Campbell.
Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, refd to. [paras. 304, 715].
House of Haynes (Restaurant) Ltd. v. Snook et al. (1995), 134 Nfld. & P.E.I.R. 23; 417 A.P.R. 23 (Nfld. C.A.), refd to. [paras. 304, 726].
Perry v. Heywood et al. (1998), 175 Nfld. & P.E.I.R. 253; 537 A.P.R. 253 (Nfld. C.A.), refd to. [paras. 304, 726].
Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; [1992] 2 W.W.R. 193; 88 D.L.R.(4th) 1, refd to. [paras. 306, 729].
Reference Re Territorial Court Act (N.W.T.), Section 6(2) (1997), 152 D.L.R.(4th) 132 (N.W.T.S.C.), refd to. [para. 306].
R. v. Hynes (D.W.) (1999), 177 Nfld. & P.E.I.R. 232; 543 A.P.R. 232 (C.A.), refd to. [para. 333].
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 29 D.L.R.(4th) 161; 26 C.C.C.(3d) 481, refd to. [para. 334].
Walters v. Essex (County) Board of Education, [1974] S.C.R. 481, refd to. [para. 485].
Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83; 19 D.L.R.(4th) 1; [1985] 4 W.W.R. 385, refd to. [para. 522].
Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask. R. 1; [1988] 2 W.W.R. 577; 39 C.C.C.(3d) 385; 48 D.L.R.(4th) 1, refd to. [para. 523].
R. v. Mercure - see Mercure v. Saskatchewan.
Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241; 83 D.L.R.(4th) 297, refd to. [para. 524].
Janes v. Deer Lake (Town) (1994), 110 Nfld. & P.E.I.R. 202; 346 A.P.R. 202 (Nfld. C.A.), refd to. [para. 726].
Sooley v. Canadian Home Assurance Co. (1994), 115 Nfld. & P.E.I.R. 47; 360 A.P.R. 47 (Nfld. C.A.), refd to. [para. 726].
Finlay v. Canada, [1993] 1 S.C.R. 1080; 150 N.R. 81, dist. [para. 729].
Statutes Noticed:
Provincial Court Act, S.N. 1997, c. 19, sect. 28.2(4) [para. 246].
Authors and Works Noticed:
Beauchesne, Arthur, Parliamentary Rules and Forms of the House of Commons of Canada (4th Ed.), para. 152(4) [para. 592].
Beauchesne, Arthur, Parliamentary Rules and Forms of the House of Commons of Canada with Annotations, Comments and Precedents (6th Ed. 1989), para. 493 [para. 592].
Black's Law Dictionary (7th Ed. 1999) [para. 338].
British Columbia Law Reform Commission, Report on Civil Rights (Project No. 3), Part I: Legal Position of the Crown (1972), pp. 33, 34 [para. 218, footnote 20].
Corbett, S.M., Reading the Preamble to the British North America Act, 1867 (1998), 9 Constitutional Forum 42, pp. 43, 45, 46 [para. 369].
Goldsworthy, Jeffrey, The Preamble, Judicial Independence and Judicial Integrity (2000), 11 Constitutional Forum 60, pp. 62, 63, 64 [para. 369].
Hansard (Nfld.) - see Newfoundland, Hansard, House of Assembly Proceedings.
Hogg, Peter W., Constitutional Law of Canada (Looseleaf Ed.), vol. 1, pp. 12-8, 12-9 [para. 521].
Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (3rd Ed. 1999), p. 572 [para. 214].
Leclair, Jean, and Morissette, Yves-Marie, L'indépendence judiciaire et La Cour suprême: Reconstruction historique douteuse et théorie constitutionnelle de complaisance (1998), 36 Osgoode Hall L.J. 485, pp. 506, 507 [para. 369].
Lederman, W.R., The Independence of the Judiciary (1956), 34 Can. Bar Rev. 769, generally [para. 369].
Maitland, The Constitutional History of English Law (1908), pp. 442, 479 [para. 385].
Marleau, Robert, and Montpetit, Camille, House of Commons Procedure and Practice (1st Ed. 2000), c. 13, p. 524 [para. 592].
May, Erskine, Treatise on the Law, Privileges, Proceedings and Usage of Parliament (23rd Ed. 1997), pp. 384, 385 [para. 591].
Mitchell, Graeme G., Developments in Constitutional Law: The 1997-98 Term-Activism and Accountability (1999), 10 S.C.L.R.(2d) 83, pp. 100, 109, 118, 120 [para. 369].
Morton, F.L, and Knopff, Rainer, The Charter Revolution and the Court Party (2000), p. 108 [para. 369].
Murphy and Rueter, Stare Decisis in Commonwealth Appellate Courts (1981), pp. 88, 89, 90 [para. 87, footnote 7].
Newfoundland, Department of Finance, Budget (1992), generally [para. 179, footnote 17].
Newfoundland, Hansard, House of Assembly Proceedings, Vol. XLI, No. 24, pp. 741, 742, 747 [para. 537].
Newfoundland, Hansard, House of Assembly Proceedings, Vol. XLI, No. 47, pp. 1517, 1570 [para. 551].
Newfoundland, Hansard, House of Assembly Proceedings, Vol. XLII, No. 42, pp. 1517 [paras. 560, 561]; 1518 [paras. 203, 561, 562, footnote 18].
Ontario Law Reform Commission, Report on the Liability of the Crown (1989), pp. 58, 89, 90, 91 [para. 218, footnote 20].
Oxford Dictionary [para. 485].
Richards, Robert G., Provincial Court Judges' Appeals (No. 1) (1998), 61 Sask. L. Rev. 575, para. 36 [para. 369].
Roach, Kent, Constitutional Remedies in Canada (1999 Looseleaf Ed.), pp. 13-5, 13-6, 13-7 [para. 226].
Russell, Peter, The Judiciary in Canada: The Third Branch of Government (1987), p. 97 [para. 161, footnote 14].
Seniuk, Gerald T.G., Judicial Independence and the Supreme Court of Canada (1998), 77 Can. Bar Rev. 381, p. 398 [para. 369].
Sgayias, David, Remedies Against Government: The Intersection of Public Law and Private Law in Law of Remedies, [1995] Spec. Lect. L.S.U.C. 427, pp. 433, 434, 435 [para. 226].
Stevens, Robert, The Independence of the Judiciary - The View from the Lord Chancellor's Office (1993), generally [para. 369].
Counsel:
Donald Burrage, for the appellant;
Robb Tonn, for the respondent;
Augustus Lilly, Q.C., for the intervenor.
This appeal was heard on November 19 and 20, 1998, by Marshall, Cameron and Green, JJ.A., of the Newfoundland Court of Appeal. The decision of the court was delivered on September 1, 2000, including the following opinions:
Green, J.A. (Cameron, J.A., concurring) - see paragraphs 1 to 320;
Marshall, J.A., dissenting - see paragraphs 321 to 750.
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