On March 21, 2014, the Supreme Court of Canada released its decision on the eligibility of Justice
Marc Nadon, a supernumary justice of the Federal Court of Appeal
and a former Advocate of 10 years seniority in Quebec, to be
appointed as one of its members in a seat designated for a judge
from Quebec. A majority of 6 judges found that Justice Nadon was
not eligible for appointment under Section 6 of the Supreme Court
Act, while Justice Moldaver, writing in dissent, found that he
The decision turned on the interpretation of Sections 5 and 6 of
the Act, which read as follows:
5. [Who may be appointed judges] Any person may be appointed a
judge who is or has been a judge of a superior court of a province
or a barrister or advocate of at least ten years standing at the
bar of a province.
6. [Three judges from Quebec] 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.
The majority begins its judgment by noting that the case raises
issues that, on their face, appear only to involve statutory
interpretation, but in fact engage fundamental issues about the
Court's place in Canada's Constitutional order.
The fundamental disagreement between the majority and Justice
Moldaver's interpretation is whether the word "among"
in Section 6 refers to qualified persons from Section 5, or
connotes a currency requirement for qualification of judges
appointed under that section. The majority determined that, while
Section 6 should be read in conjunction with Section 5 in order to
determine which advocates in Quebec are eligible for appointment,
but not so as to make former advocates eligible. This
"cherry-picking" is a principle of statutory
interpretation "hitherto unknown" in Canadian law, as it
was characterized by Justice Moldaver in his dissenting
The interpretation favoured by the majority also has the adverse
effect of creating an ambiguity in the law by raising the question
of whether an advocate of 10 years seniority who was no longer
practicing in Quebec could simply rejoin the bar in that province
and thus render him or herself eligible for appointment. The
majority refused to answer this question, as the issue of this
ambiguity had not been raised in the constitutional reference. The
logical inconsistency of this ambiguity indicates the extent to
which the majority has shaped its interpretation of the Act to
achieve its outcome. The refusal of the majority to address this
issue belies the difficulty of explaining the inconsistency, and
suggests that the majority can find no principled basis for it.
The majority decision in this reference can be seen as part of a
continuing development within the Supreme Court of Canada's
jurisprudence wherein the Court is establishing itself as a
separate head of power in the Canadian system of government. This
was further reinforced by the majority's ruling that an
amendment clarifying eligibility for appointment under Section 6
would require unanimous consent of the provinces. With respect,
this departure from the traditions of constitutional monarchy in
Canada is to be lamented. This decision further chips away at the
supremacy of Parliament and the prerogatives of the Crown. As
Justice Moldaver points out, the majority has strayed into a
political question rather than implementing the law on a plain
reading of the statute. One cannot help but wonder at the motives
of the majority in reaching this contorted conclusion.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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