Barreau du Québec v. Quebec (Attorney General)

Barreau du Québec v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
2017-11-10
Neutral citation
2017 SCC 56
Report
[2017] 2 SCR 488
Case number
37034
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Quebec
Notes
SCC Case Information: 37034
Decision Content
SUPREME COURT OF CANADA
Citation: Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488
Appeal heard: March 27, 2017
Judgment rendered: November 10, 2017
Docket: 37034
Between:
Barreau du Québec
Appellant
and
Attorney General of Quebec
Respondent
- and -
Administrative Tribunal of Québec, Ordre des comptables professionnels agréés du Québec and Chartered Professional Accountants of Canada
Interveners
Official English Translation
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 41):
Brown J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Rowe JJ. concurring)
Dissenting reasons:
(paras. 42 to 99):
Côté J.
Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488
Barreau du Québec Appellant
v.
Attorney General of Quebec Respondent
and
Administrative Tribunal of Québec,
Ordre des comptables professionnels agréés du Québec and
Chartered Professional Accountants of Canada Interveners
Indexed as: Barreau du Québec v. Quebec (Attorney General)
2017 SCC 56
File No.: 37034.
2017: March 27; 2017: November 10.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for quebec
Administrative law — Judicial review — Standard of review — Statutory provisions establishing exception to monopoly on practice of advocates for certain proceedings under Act respecting administrative justice — Administrative Tribunal of Québec concluding that its enabling statute authorizes person who is not advocate to prepare and draw up written proceedings in name of Minister of Employment and Social Solidarity and that that power is not in conflict with Act respecting the Barreau du Québec — Standard of review applicable to that decision — Act respecting administrative justice, CQLR, c. J‑3, s. 102 — Act respecting the Barreau du Québec, CQLR, c. B‑1, ss. 128(2)(a)(5), 129(b).
Administrative law — Boards and tribunals — Procedure — Representation by advocate — Statutory provisions establishing exception to monopoly on practice of advocates for certain proceedings under Act respecting administrative justice — Written proceedings prepared, drawn up, signed and filed by person who was not advocate in name of Minister of Employment and Social Solidarity for cases before social affairs division of Administrative Tribunal of Québec — Whether Minister’s right “to be represented by the person of his . . . choice” encompasses both oral and written representation — Act respecting administrative justice, CQLR, c. J‑3, s. 102 — Act respecting the Barreau du Québec, CQLR, c. B‑1, ss. 128(2)(a)(5), 129(b).
In cases relating to social aid in which the opposing parties were the Minister of Employment and Social Solidarity (“Minister”) and individuals, the Minister applied for a review of decisions rendered by the Administrative Tribunal of Québec (“ATQ”) by presenting motions for review that had been prepared, drawn up, signed and filed by a person who was not an advocate. In both those cases, the individuals in question brought a motion to dismiss on the ground that the Minister’s written proceedings had not been prepared and drawn up by a practising advocate entered on the Roll of the Order of the Barreau du Québec.
The right to represent others before a court or tribunal is generally reserved to lawyers. Section 128 of the Act respecting the Barreau du Québec provides that certain activities, including preparing and drawing up motions and other written proceedings, are the “exclusive prerogative” of advocates and solicitors. It reserves “plead[ing] or act[ing]” before courts or tribunals to practising advocates. However, the Act respecting the Barreau du Québec establishes certain exceptions to the monopoly on practice of advocates and gives the Minister the right “to be represented to plead or act in his . . . name” before the social affairs division of the ATQ (s. 128(2)(a)(5)). Further, s. 129(b) provides that s. 128 does not limit rights that are specifically defined and granted to any person by another law. Section 102 of the Act respecting administrative justice grants the Minister the right to “be represented by the person of his . . . choice before the social affairs division” of the ATQ.
The ATQ dismissed the individual litigants’ motions to dismiss, concluding that under s. 102 of the Act respecting administrative justice, a person who is not an advocate may do everything that is needed for the representation of the Minister, both oral and written, before that tribunal’s social affairs division and that this power is not in conflict with the Act respecting the Barreau du Québec. The Superior Court granted applications for judicial review of those decisions, but the Court of Appeal set aside that judgment, concluding that, regardless of the applicable standard of review, the ATQ’s decisions should not have been reversed.
Held (Côté J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ.: The central issue before the ATQ was whether the Minister’s right to “be represented” that is provided for in s. 102 of the Act respecting administrative justice includes the preparation and drawing up of written proceedings or motions intended for use before the ATQ’s social affairs division. The reasonableness standard must be presumed to apply, given that this issue entails the interpretation of s. 102, which is in the ATQ’s enabling statute and which sets out procedural rules that apply in proceedings before it. Although the ATQ had to bear the Act respecting the Barreau du Québec in mind in interpreting s. 102 of the Act respecting administrative justice, this does not have the effect of removing the issue from the ATQ’s jurisdiction and expertise. Rather, it shows that the Act respecting the Barreau du Québec has a close connection to the ATQ’s function. Moreover, s. 128(2)(a)(5) of that Act, which grants the Minister the right to be represented by a person who is not an advocate, refers expressly to the ATQ and establishes a procedural rule that applies in proceedings before it.
The issue to be resolved in this case is not a question that is of central importance to the legal system as a whole and lies outside the ATQ’s specialized area of expertise; if it were, that would rebut the presumption in favour of the reasonableness standard. The Barreau’s role in regulating the representation of others before a court or tribunal is of obvious importance, but this does not mean that every question touching on this subject is automatically one of central importance to the legal system as a whole. The issue in this case concerns only the scope of a narrow exception that was established by the Quebec legislature in order to allow the Minister to be represented by a person who is not an advocate in certain proceedings before the ATQ’s social affairs division. Moreover, the interpretation of s. 102 of the Act respecting administrative justice falls squarely within the ATQ’s expertise. The presumption in favour of the reasonableness standard is therefore not rebutted, as the legislature intended the ATQ to be able to decide any question related to proceedings pertaining to social aid, including the issue in this case.
The ATQ’s conclusion on the scope of s. 102 of the Act respecting administrative justice is reasonable. That section grants the Minister a right to “be represented”. Read in the grammatical and ordinary sense of its words, it grants the Minister the right to be represented before the social affairs division of the ATQ both for the purpose of preparing and drawing up motions and other written proceedings and for that of oral representation. This interpretation, according to which the Minister’s representative may do everything that is needed for the representation of others before the ATQ, is also consistent with the broader context of the legislation and with the legislature’s intent, in particular its intention to promote the introduction of non‑judicial processes into administrative justice. The legislative history of the exception for the Minister is also relevant, and it confirms what the legislature intended in this regard.
Although s. 102 of the Act respecting administrative justice authorizes a person who is not an advocate to represent the Minister in writing, it does not conflict with s. 128(1) of the Act respecting the Barreau du Québec, which gives practising advocates and solicitors the exclusive right to prepare and draw up documents for use in a court or tribunal. This “conflict” is resolved by s. 129(b) of the Act respecting the Barreau du Québec, which provides that s. 128 of that Act neither limits nor restricts rights that are specifically defined and granted to any person by any public or private law. The Minister’s right under s. 102 of the Act respecting administrative justice to be represented by a person of his or her choice is thus not diminished in the least by s. 128 of the Act respecting the Barreau du Québec.
Per Côté J. (dissenting): Whenever a question relates to the representation of others by a person who is not an advocate, it is necessary to interpret and apply the Act respecting the Barreau du Québec and, subsidiarily, any related legislation that sets out how the exceptions provided for in the Act respecting the Barreau du Québec are to operate. The issue in this case is a question of central importance to the legal system as a whole and lies outside the ATQ’s specialized area of expertise. It therefore falls within an established category of questions to which the correctness standard applies. Because of the impact that an inconsistent application of ss. 128 and 129 of the Act respecting the Barreau du Québec could have on the administration of justice as a whole, only one interpretation of these provisions is possible.
Because the question before the ATQ necessarily involved the interpretation of the Act respecting the Barreau du Québec, the presumption in favour of the reasonableness standard does not apply. Furthermore, that presumption can be rebutted by a contextual analysis based on the Dunsmuir factors, which means that it is the correctness standard that must be applied. Although the ATQ is protected by a strong privative clause, it was considering a question of law that had nothing to do with the purpose of the ATQ’s social affairs division. The Act respecting the Barreau du Québec is not the ATQ’s enabling statute, nor is it a statute that has a close connection to the ATQ’s function and with which it has particular familiarity. Deference is thus not warranted here.
A conclusion that the Minister can have a person who is neither an advocate nor a solicitor prepare and draw up a written proceeding or other similar document that is intended for use in a case before the ATQ’s social affairs division is based on an interpretation that is inconsistent with the words of the statutes in question and with the intention of the legislature. Such an interpretation also disregards the object of the Act respecting the Barreau du Québec. Section 102 of the Act respecting administrative justice does not grant the Minister the right to have recourse for that purpose to the services of a person who is neither an advocate nor a solicitor.
The exception to the monopoly on practice of advocates that is provided for in s. 102 of the Act respecting administrative justice and the one provided for in s. 128(2)(a)(5) of the Act respecting the Barreau du Québec were enacted simultaneously for purposes of concordance. The word “represented” used in these two provisions must therefore be understood to have the same meaning in both of them. Whereas subparas. (3), (5) and (7) of s. 128(2)(a) of the Act respecting the Barreau du Québec establish exceptions that authorize people who are not advocates to plead or act for others before the ATQ’s social affairs division in proceedings specified in them, s. 102 of the Act respecting administrative justice has a different and complementary purpose, namely to indicate who may represent the parties to whom those exceptions apply, including the Minister, in such proceedings and to limit the scope of such representation. This interpretation is supported by the fact that, when the legislature established the exceptions provided for in s. 128(2)(a) of the Act respecting the Barreau du Québec, it also amended the relevant related statutes to indicate how the exceptions it had just established would operate. Section 128(2)(a)(5) of the Act respecting the Barreau du Québec and s. 102 of the Act respecting administrative justice are an example of this.
The legislature’s intention in enacting s. 129(b) of the Act respecting the Barreau du Québec was to preserve its ability to establish exceptions to the rules set out in s. 128 of that Act in other statutes. But what it did in enacting s. 102 of the Act respecting administrative justice was merely to specify how the exception it had just established under s. 128(2)(a) of the Act respecting the Barreau du Québec would operate. Had the legislature so intended, it could also have accompanied the exclusive power of advocates and solicitors under s. 128(1)(b) “to prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the courts” with an exception for people other than advocates, which it in fact did in s. 128(2)(a). That it omitted to do so must be viewed as a relevant factor in determining the legislature’s actual intent. It may be tempting to reach a different conclusion, particularly because it may seem simpler if a single person can both represent the Minister before a tribunal and prepare and draw up for him or her the written proceedings needed for that purpose. But the pursuit of simpler solutions is not a principle of statutory interpretation. Legislation must be interpreted in accordance with the relevant principles and applied, not changed.
Cases Cited
By Brown J.
Distinguished: Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591; considered: Fortin v. Chrétien, 2001 SCC 45, [2001] 2 S.C.R. 500; referred to: Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Harvey v. Guerreiro, [2005] R.J.Q. 1817; P.S. v. Québec (Emploi et Solidarité sociale), 2010 QCTAQ 11404, 2010 CanLII 70683; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555; Bélanger v. Saint‑Marcel (Municipalité), 2013 QCTAQ 01912, 2013 CanLII 5734; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.
By Côté J. (dissenting)
Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Fortin v. Chrétien, 2001 SCC 45, [2001] 2 S.C.R. 500; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; 9175‑1503 Québec inc. v. Montréal (Ville), 2012 QCTAQ 07491, 2012 CanLII 48176; 117437 Canada inc. v. Lévis (Ville), 2014 QCTAQ 0159, 2014 CanLII 1318; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Packer v. Packer, [1953] 2 All E.R. 127; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513; Tremblay v. Québec (Tribunal des professions), 2006 QCCA 1441, 61 Admin. L.R. (4th) 67.
Statutes and Regulations Cited
Act respecting administrative justice, CQLR, c. J‑3, ss. 1, 14, 15, 18, 102, 154, 158.
Act respecting occupational health and safety, S.Q. 1979, c. 63, ss. 274, 283.
Act respecting the Barreau du Québec, CQLR, c. B‑1, ss. 128, 129, 141.
Act respecting the Commission des affaires sociales, R.S.Q., c. C‑34 [rep. 1997, c. 43, s. 184], s. 38.
Act respecting the implementation of the Act respecting administrative justice, S.Q. 1997, c. 43.
Act respecting the Régie du logement, CQLR, c. R‑8.1, ss. 72, 74, 91.
Act to amend the Bar Act, S.Q. 1973, c. 44, s. 72.
Act to amend various legislation, S.Q. 1984, c. 27, ss. 49, 51.
Act to establish the Régie du logement and to amend the Civil Code and other legislation, S.Q. 1979, c. 48, ss. 72, 127.
Interpretation Act, CQLR, c. I‑16, ss. 41, 41.1.
Law Society Act, 1999, S.N.L. 1999, c. L‑9.1, s. 2(2)(b), (c)(ii).
Legal Profession Act, C.C.S.M., c. L107, s. 20(2)(b), (3)(a)(ii).
Legal Profession Act, R.S.N.W.T. 1988, c. L‑2, s. 1 “practice of law” paras. (a), (b)(ii).
Legal Profession Act, R.S.N.W.T. (Nu.) 1988, c. L‑2, s. 1 “practice of law” paras. (a), (b)(ii).
Legal Profession Act, R.S.P.E.I. 1988, c. L‑6.1, s. 21(1)(d), (e).
Legal Profession Act, R.S.Y. 2002, c. 134, s. 1(1) “practice of law” paras. (a), (b)(ii).
Legal Profession Act, S.B.C. 1998, c. 9, s. 1(1) “practice of law” paras. (a), (b).
Professional Code, CQLR, c. C‑26, ss. 23, 26.
Authors Cited
Cornu, Gérard, dir. Vocabulaire juridique, 10e éd. Paris: Presses universitaires de France, 2014, “représenter”.
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
de Kovachich, Hélène. “Le Tribunal administratif du Québec au passé, au présent et au futur”, dans Service de la formation continue du Barreau du Québec, vol. 363, Le TAQ d’hier, d’aujourd’hui et de demain — 15e anniversaire du TAQ. Cowansville, Qué.: Yvon Blais, 2013, 1.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Lemieux, Denis, avec la collaboration de Marjolaine Paré. Justice administrative: Loi commentée, 3e éd. Brossard, Qué.: Publications CCH, 2009.
Quebec. Assemblée nationale. Commission des institutions. “Consultation générale dans le cadre de l’étude du projet de loi no 130 — Loi sur la justice administrative”, Journal des débats de la Commission permanente des institutions, vol. 34, no 64, 1re sess., 35e lég., 6 février 1996.
Quebec. Assemblée nationale. Journal des débats, vol. 27, no 107, 4e sess., 32e lég., 14 juin 1984, p. 7095.
APPEAL from a judgment of the Quebec Court of Appeal (Bich, Morin and Bouchard JJ.A.), 2016 QCCA 536, [2016] AZ‑51267764, [2016] J.Q. no 2576 (QL), 2016 CarswellQue 2440 (WL Can.), setting aside a decision of Gendreau J., 2014 QCCS 2226, [2014] AZ‑51076682, [2014] J.Q. no 4819 (QL), 2014 CarswellQue 4955 (WL Can.), granting motions for judicial review of decisions of the Administrative Tribunal of Québec, 2012 QCTAQ 12689, 2013 CanLII 2328, [2012] AZ‑50928694, 2013 LNQCTAQ 3 (QL), and 2012 QCTAQ 12713, 2013 CanLII 9887, [2012] AZ‑50928693. Appeal dismissed, Côté J. dissenting.
Michel Paradis, Sylvie Champagne and Gaston Gauthier, for the appellant.
Alexandre Ouellet, for the respondent.
No one appeared for the intervener the Administrative Tribunal of Québec.
François Barette, Érik Morissette and Maxime‑Arnaud Keable, for the intervener Ordre des comptables professionnels agréés du Québec.
Dominic C. Belley, for the intervener the Chartered Professional Accountants of Canada.
English version of the judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ. delivered by
Brown J. —
I. Introduction
[1] This appeal concerns the statutory right of the Minister of Employment and Social Solidarity (“Minister”) to “be represented” before the social affairs division of the Administrative Tribunal of Québec (“ATQ”) by a person who is not an advocate. In particular, the Court must determine whether it was reasonable for the ATQ to conclude that a person who is not an advocate may, on the Minister’s behalf, prepare, draw up and sign motions or other written proceedings intended for use in certain proceedings before that tribunal. For the reasons that follow, I am of the view that it was reasonable for the ATQ to conclude that, under the Act respecting administrative justice, CQLR, c. J‑3, a person who is not an advocate may, in certain proceedings, do everything that is needed for the representation of the Minister before that tribunal’s social affairs division and that this power is not in conflict with the Act respecting the Barreau du Québec, CQLR, c. B‑1.
II. Overview of the Facts and the Decisions Below
A. Facts
[2] The ATQ is a tribunal established by the Act respecting administrative justice. Its function is to make determinations in respect of various proceedings brought against administrative authorities in Quebec (s. 14 of the Act respecting administrative justice). The social affairs division of the ATQ is responsible for making determinations in respect of proceedings pertaining, inter alia, to matters of income security or support, and of social aid and allowances (s. 18 of the Act respecting administrative justice). The ATQ may, on an application and on certain conditions, review any decision it has made (s. 154 of the Act respecting administrative justice).
[3] In January and February 2011, the ATQ’s social affairs division made decisions on the granting of social aid in two cases in which the opposing parties were the Minister and individuals. The Minister subsequently applied for a review of those two decisions under s. 154 of the Act respecting administrative justice, presenting to the ATQ motions for review that had been prepared, drawn up, signed and filed in the Minister’s name by a person who was not an advocate. In both those cases, the individuals in question brought a motion to dismiss on the ground that the Minister’s written proceedings had not been prepared by a practising advocate entered on the Roll of the Order of the Barreau du Québec.
[4] The Barreau du Québec intervened in the proceedings before the ATQ and in the courts below to present its interpretation of the scope of the Minister’s right to be represented before the ATQ’s social affairs division, and it was granted leave to be substituted for the individual litigants in this Court. The Minister has been represented by the Attorney General of Quebec in this Court and in the courts below.
B. Legislative Provisions
(1) Act respecting the Barreau du Québec
[5] The right to represent others before a court or tribunal is generally reserved to lawyers. In Quebec, the provision of legal services is governed by the Act respecting the Barreau du Québec. Section 128 of that Act provides that certain activities, including preparing and drawing up motions and other written proceedings, are the “exclusive prerogative” of advocates and solicitors. It reserves “plead[ing] or act[ing]” before courts or tribunals to practising advocates:
128. (1) The following acts, performed for others, shall be the exclusive prerogative of the practising advocate or solicitor:
(a) to give legal advice and consultations on legal matters;
(b) to prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the courts;
(c) to prepare and draw up an agreement, petition, by‑law, resolution or other similar document relating to the constitution, organization, reorganization or winding‑up of a legal person governed by federal or provincial laws respecting legal persons, or the amalgamation of several legal persons or the surrender of a charter.
(2) The following acts, performed for others, shall be the exclusive prerogative of the practising advocate and not of the solicitor:
(a) to plead or act before any tribunal, except before:
(1) a conciliation officer or an arbitrator of disputes or grievances, within the meaning of the Labour Code (chapter C‑27);
(2) the Administrative Labour Tribunal;
(3) the Commission des normes, de l’équité, de la santé et de la sécurité du travail established by the Act respecting occupational health and safety (chapter S‑2.1), a review board established under the Workers’ Compensation Act (chapter A‑3) or the social affairs division of the Administrative Tribunal of Québec, instituted under the Act respecting administrative justice (chapter J‑3), in the case of a proceeding pertaining to compensation for rescuers and victims of crime, a proceeding brought under section 65 of the Workers’ Compensation Act or a proceeding brought under section 12 of the Act respecting indemnities for victims of asbestosis and silicosis in mines and quarries (chapter I‑7);
(4) the Régie du logement established under the Act respecting the Régie du logement (chapter R‑8.1);
(5) the social affairs division of the Administrative Tribunal of Québec, to the extent that the Minister of Employment and Social Solidarity or a body which is his delegatee as regards the application of the Individual and Family Assistance Act (chapter A‑13.1.1) is to be represented to plead or act in his or its name;
(6) an arbitration officer, a conciliation officer, a council of arbitration or an investigator within the meaning of the Act respecting labour relations, vocational training and workforce management in the construction industry (chapter R‑20);
(7) in matters of immigration, the social affairs division of the Administrative Tribunal of Québec, in the case and subject to the conditions set out in the third paragraph of section 102 of the Act respecting administrative justice;
(b) to prepare and draw up a will or codicil or a discharge or any contract or document, except leases, affecting immovable property and requiring registration or cancellation of a registration in Québec;
(c) to prepare, draw up and file the declaration of value of an estate, required by the taxation laws; this paragraph c shall not apply to legal persons authorized by law to act as liquidators of successions or as trustees;
(d) to prepare and draw up a document or proceeding, for registration as prescribed by law, of a person or partnership carrying on a business or operating an industry;
(e) to make collections or make any claim with costs or to imply that judicial proceedings will be taken.
However, the Act respecting the Barreau du Québec establishes certain exceptions to the monopoly on practice of advocates and gives the Minister the right “to be represented to plead or act in his . . . name” before the social affairs division of the ATQ (s. 128(2)(a)(5)). Further, s. 129(b) provides that s. 128 does not limit rights that are specifically defined and granted to any person by another law:
129. None of the provisions of section 128 shall limit or restrict:
(a) the right of an advocate to perform any other act not expressly forbidden by this Act or the by‑laws of the Bar;
(b) the rights specifically defined and granted to any person by any public or private law;
(c) the right of public or private bodies to be represented by their officers, except for the purpose of pleading, before any organization having a quasi‑judicial function;
(d) the right of secretaries or assistant‑secretaries of legal persons established for a private interest or in the public interest to draw up the minutes of meetings of directors or shareholders and all other documents which they are authorized to draw up in virtue of federal or provincial laws;
(e) the right of a practising notary to perform the acts therein set forth except those contemplated in paragraph b of subsection 1, other than in non‑contentious matters, and in paragraphs a and e of subsection 2; but a practising notary may imply that judicial proceedings will be taken.
(2) Act respecting administrative justice
[6] The second paragraph of s. 102 of the Act respecting administrative justice grants the Minister the right to “be represented by the person of his . . . choice before the social affairs division” of the ATQ:
102. The parties may be represented by the person of their choice before the social affairs division, in the case of a proceeding pertaining to compensation for rescuers and victims of crime, a proceeding under section 65 of the Workmen’s Compensation Act (chapter A‑3) or a proceeding under section 12 of the Act respecting indemnities for victims of asbestosis and silicosis in mines and quarries (chapter I‑7); however, a professional who has been removed from the roll or declared disqualified to practise, or whose right to engage in professional activities has been restricted or suspended in accordance with the Professional Code (chapter C‑26) or any legislation governing a profession may not act as a representative.
The Minister of Employment and Social Solidarity or a body which is the Minister’s delegatee for the purposes of the Individual and Family Assistance Act (chapter A‑13.1.1) may be represented by the person of his or its choice before the social affairs division in the case of a proceeding brought under that Act or this Act in a matter of income security or support or social aid and allowances.
The applicant may, before the social affairs division in the case of a proceeding in a matter of immigration, be represented by a relative or by a non‑profit organization devoted to the defense or interests of immigrants, if he is unable to be present himself by reason of absence from Québec. In the latter case, the mandatary must provide the Tribunal with a mandate in writing, signed by the person represented, indicating the gratuitous nature of the mandate.
C. Judicial History
(1) Decisions of the ATQ — 2012 QCTAQ 12713, 2013 CanLII 9887, and 2012 QCTAQ 12689, 2013 CanLII 2328
[7] The ATQ dismissed the two motions to dismiss concerning the motions for review that had been filed in the Minister’s name. It concluded that a person representing the Minister who is not an advocate has the power to prepare motions for review under s. 102 of the Act respecting administrative justice and that this power is not limited by the Act respecting the Barreau du Québec, because the Minister’s right to be represented for the purpose of “plead[ing] or act[ing]” under s. 128(2)(a)(5) of the Act respecting the Barreau du Québec encompasses both oral and written representation (2012 QCTAQ 12689, at paras. 20‑26). Moreover, s. 102 of the Act respecting administrative justice must be interpreted in light of s. 129(b) of the Act respecting the Barreau du Québec, and the wording of s. 102 is broader than that of s. 128(2)(a)(5) of the Act respecting the Barreau du Québec (2012 QCTAQ 12689, at paras. 28‑29). The ATQ concluded that the power of a person who is not an advocate to represent the Minister under s. 102 includes all acts that are normally within the prerogative of an advocate who represents a client before a court or tribunal, including drawing up and preparing motions or other written proceedings.
(2) Judgment of the Quebec Superior Court — 2014 QCCS 2226
[8] The individuals involved in the cases before the ATQ applied, with the Barreau’s support, to the Quebec Superior Court for judicial review of the ATQ’s decisions. The Superior Court began by considering the standard of review, and it concluded that the standard applicable to the ATQ’s decisions was correctness. It noted that there was a privative clause, but decided that the question before it created a conflict between the Act respecting administrative justice and the Act respecting the Barreau du Québec, a statute of public order. In its view, the fundamental issue concerned the interpretation of the exception established by s. 128(2)(a)(5) of the Act respecting the Barreau du Québec. The Superior Court found that this issue was [translation] “outside the context of the ATQ’s exclusive jurisdiction” (para. 33 (CanLII)) and that such an exception to the Act respecting the Barreau du Québec must be interpreted “narrowly, consistently and uniformly” (para. 37). In its view, the ATQ “has no special expertise or experience in this area” (para. 35).
[9] On the scope of the “represent[ation]” provided for in s. 102 of the Act respecting administrative justice, the Superior Court focused its analysis on s. 128 of the Act respecting the Barreau du Québec, which distinguishes two classes of activities: “prepar[ing] and draw[ing] up” documents intended for use before the courts, which is dealt with in s. 128(1), and “plead[ing] or act[ing] before any tribunal”, which is dealt with in s. 128(2). This second class has seven exceptions, one of which is the Minister’s right under s. 128(2)(a)(5) to be represented by a person who is not an advocate for the purpose of pleading or acting before the social affairs division of the ATQ. The first class, on the other hand, the one that includes the preparation and drawing up of motions, [translation] “has no exceptions” (para. 45). On this basis, the Superior Court concluded that the power of a person chosen to represent the Minister who is not an advocate, “which must be narrowly construed, can concern only the power to plead or act before the ATQ’s social affairs division, that is, [s. 128(2)] of the Act respecting the Barreau du Québec” (para. 47), and that the act of “plead[ing] or act[ing]” before a court or tribunal does not include the preparation and drawing up of motions. On the subject of s. 129(b) of the Act respecting the Barreau du Québec, which concerns rights that are “specifically defined and granted” by any other law, the Superior Court was of the view that the only specific right granted to the Minister is based on s. 128(2)(a)(5) of that Act.
[10] In short, the Superior Court held that a person chosen by the Minister to represent him or her who is not an advocate may plead or act orally before the ATQ’s social affairs division, but that only an advocate or a solicitor may prepare and draw up the related written proceedings. It accordingly dismissed the motions for review filed in the Minister’s name in the two cases in question, declaring them to be null.
(3) Judgment of the Quebec Court of Appeal — 2016 QCCA 536
[11] The Attorney General of Quebec appealed the Superior Court’s judgment to the Quebec Court of Appeal, arguing that the Superior Court had erred on the standard of review and on the scope of the Minister’s right to be represented by a person of his or her choice. The Court of Appeal allowed the appeal and set aside the Superior Court’s judgment.
[12] On the standard of review, the Court of Appeal was of the view that the Superior Court had erred in applying the correctness standard. It noted that the ATQ is protected by a privative clause, that it has exclusive jurisdiction over social aid and that s. 15 of the Act respecting administrative justice authorizes it “to decide any question of law or fact necessary for the exercise of its jurisdiction” (para. 31 (CanLII)). Citing Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674, the Court of Appeal held that the fact that the ATQ had to [translation] “bear [the Act respecting the Barreau du Québec] in mind” in interpreting s. 102 of the Act respecting administrative justice did not have the effect of removing the issue from the tribunal’s jurisdiction (para. 32). The issue the ATQ had to resolve “is not a question of general law that is of central importance to the legal system as a whole and lies outside its specialized area of expertise” (para. 34).
[13] The Court of Appeal also expressed the view that the Superior Court had erred in reversing the ATQ’s decisions. It identified two possible interpretations of the Minister’s right to be represented by a person who is not an advocate — one based on the extension of this right by a 1973 legislative amendment that had added the word “act” to the word “plead” in s. 128 of the Act respecting the Barreau du Québec, and the other based on s. 129 of that Act — and both of them led to the same result, that a person representing the Minister who is not an advocate may prepare, draw up and sign motions or written proceedings intended for use before the ATQ’s social affairs division. The Court of Appeal concluded that, regardless of the applicable standard of review, the decisions of the ATQ, which had in fact combined these two possible interpretations, were acceptable.
III. Analysis
A. Standard of Review
[14] The first issue is that of the applicable standard of review. The reason why the Superior Court and the Court of Appeal did not apply the same standard is that they characterized the subject matter of the case differently. In my view, this difference between the courts below stems from the fact that they approached their analysis of the question before them from different perspectives. The Superior Court found that the statutory interpretation issue pertained primarily to the Act respecting the Barreau du Québec, whereas the Court of Appeal considered that issue from the standpoint of s. 102 of the Act respecting administrative justice. With all due respect, I consider the latter approach to be the correct one. As I will explain, as a result of s. 129(b) of the Act respecting the Barreau du Québec, s. 128 of that Act in no way limits the scope of s. 102 of the Act respecting administrative justice. The central issue before the ATQ had been whether the Minister’s right to “be represented” that is provided for in s. 102 includes the preparation and drawing up of written proceedings or motions intended for use before the ATQ’s social affairs division. The applicable standard in this regard is reasonableness.
[15] Unless the jurisprudence already contains a satisfactory determination of the applicable standard of review (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 62), a court must presume, in reviewing a decision in which a specialized administrative tribunal has interpreted and applied its enabling statute or a statute with a close connection to its function, that the reasonableness standard applies (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R