Valerie Harvey Appellant (Applicant) v. Saskatchewan Legal Aid Commission, 2020 SKCA 110

Court of Appeal for Saskatchewan Docket: CACV3477 Citation: Harvey v Saskatchewan Legal Aid Commission , 2020 SKCA 110 Date: 2020-09-16 Between: Valerie Harvey Appellant (Applicant) And Saskatchewan Legal Aid Commission Respondent (Respondent) Before: Ryan-Froslie, Leurer and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr.

Justice Barrington-Foote On appeal from: 2019 SKQB 191 , Saskatoon Appeal heard: May 19, 2020 Counsel: Tim Quigley for the Appellant Kevin Wilson, Q.C. for the Respondent Leurer J.A. I. Introduction [ 1 ] In 2018, Valerie Harvey was removed from the panel of lawyers [Panel] eligible to provide legal services pursuant to The Legal Aid Act , SS 1983, c L-9.1 [ Act ]. The Saskatchewan Legal Aid Commission [Commission] denied her subsequent application for reinstatement to the Panel. [ 2 ] Ms.

Harvey’s application for an order compelling the Commission to place her back on the Panel was dismissed by a Court of Queen’s Bench judge in Chambers: Harvey v Saskatchewan Legal Aid Commission , 2019 SKQB 191 [ Chambers Decision ]. Ms. Harvey now appeals to this Court. [ 3 ] In my respectful view, the Commission did not have a lawful reason to remove Ms. Harvey’s name from the Panel. On this basis, I would grant Ms. Harvey’s appeal and quash the decision of the Commission purporting to remove her name from the Panel. The result is that Ms. Harvey remains a Panel member . My reasons follow. II. Background A.

Facts [ 4 ] The Commission is a corporation, continued pursuant to s. 3(1) of the Act . Its members are appointed by the provincial government and the Law Society of Saskatchewan. [ 5 ] The Act requires the Commission to, among other things, “provide legal services to persons and organizations in respect of civil and criminal matters where those persons and organizations are financially unable to secure those services from their own resources” (s. 6(1)(a)). The Commission meets this duty by employing staff lawyers, legal assistants and administrative staff.

The Commission also engages members of the private bar on an ad hoc basis. Both employed staff lawyers and members of the private bar who provide legal services under the Act are placed on the Panel, which is established and maintained pursuant to s. 6(1)(h). Private bar members of the Panel are listed in the Legal Aid Information Network. [ 6 ] Ms. Harvey was called to the Saskatchewan bar in 1998 and entered private practice. Between that year and 2000, she was on the Panel to take files not handled by Commission staff lawyers. [ 7 ] In February 2000, Ms.

Harvey took the first of what would become several positions as a salaried employee of the Commission. The first position was at the Commission offices in North Battleford, where she worked until July 2000. The second was from November 2000 to April 2013, first at the Commission offices in Prince Albert and later in Saskatoon. Beginning in August 2014, Ms. Harvey served as Legal Director of the Commission’s Saskatoon criminal law offices. In January 2016, Ms. Harvey resigned from this position, after which she was on inactive status with the Law Society of Saskatchewan for six months. [ 8 ] When Ms.

Harvey resumed her private law practice in July 2016, she applied to be on, and was readmitted to, the Panel. Early in 2018, while still on the Panel, Ms. Harvey accepted two short-term positions as a contract employee of the Commission. In April 2018, she accepted a three-month contract to work as a salaried lawyer for the Commission at its Saskatoon criminal law office. This term was later extended to August 31, 2018.

[ 9 ] Sometime between July 2018 and early August 2018, while still a term employee of the Commission, Ms. Harvey’s name was removed as a Panel member listed on the Legal Aid Information Network. [ 10 ] Ms. Harvey’s term of employment with the Commission expired on August 31, 2018. On September 7, 2018, Ms. Harvey wrote to the Commission’s head office stating: … I understand that I was not put back on the panel once my employment with Legal Aid ended. I trust that this is simply an oversight.

However, if I do need to reapply or talk to someone to get back on the panel, can you please let me know as soon as possible. [ 11 ] Three days later, Ms. Harvey received an email from the Commission advising that its “standard practice in this situation, after a lawyer leaves our employ, is to require a [private bar] panel application to ensure we have the most current information”. Ms. Harvey was also told she could “find the application on [the Commission’s] public website”. Ms. Harvey completed and submitted the application that day. [ 12 ] On September 18, 2018, Ms.

Harvey received an email advising that a “determination has been made that your application should be considered by the Commission and that this is expected to happen at the next Board meeting on September 28th”. Ms. Harvey then retained legal counsel, who replied to the Commission on her behalf on September 24, 2018, stating that she had “never withdrawn from the [Commission] Panel” and her “status as a member of the [Commission] Panel has continued”. The letter went on to state that, “[a]s Ms.

Harvey is already on the [Commission] Panel, the Commission does not have jurisdiction to ‘consider’ any such application” (emphasis in original). [ 13 ] On October 3, 2018, the Chair of the Commission wrote to Ms. Harvey’s counsel to advise that “ the matter of Ms. Harvey’s status with respect to the [Commission] Panel was placed on the Agenda for the Legal Aid Commission meeting that took place on September 28, 2018”, but “the Commission felt that your letter raises issues that will need to be determined with the assistance of the Commission’s legal counsel”. Accordingly, Ms.

Harvey and her counsel were advised to expect a response “in due course”. [ 14 ] On November 13, 2018, the Commission advised Ms. Harvey that, “[a]fter consulting with the Commission’s legal counsel, the Commission has determined that Ms. Harvey is not a member of the Panel”. This decision was said to be “based on the wording of The Legal Aid Act , as well as on the procedures that have typically been followed by the Commission when lawyers have completed their employment with [the Commission]”. [ 15 ] After a further exchange, on December 18, 2018, the Commission advised Ms.

Harvey as follows: … When a staff solicitor leaves the employ of The Saskatchewan Legal Aid Commission, this constitutes a withdrawal from the panel. Their status as a member of the panel does not somehow automatically continue. If the solicitor wishes to, she may apply to be on the panel as a member of the private bar. In the context of Ms. Harvey’s situation, she followed this practice on several occasions when her employment with The Legal Aid Commission ended at various times in her career. There is no automatic right for a solicitor to be designated by the Commission as a member of the panel.

In the context of Ms. Harvey’s most recent application to be on the panel, the Commission has determined not to designate her as a member of the panel. [ 16 ] On January 3, 2019, Ms. Harvey’s counsel wrote to the Commission, stating she had never received notice that she had been removed from the Panel nor “reasons for the removal”. The letter also asked the Commission to provide reasons if it was asserting that Ms. Harvey had been removed from the Panel for just cause. On January 14, 2019, the Commission’s counsel reiterated that its position was as set out in the December 18, 2018, correspondence. [ 17 ] Ms.

Harvey commenced these proceedings in February 2019. In her originating application, Ms. Harvey sought an order reinstating her to the “[the Commission] private bar Panel”. It was alleged in that application that the Commission had “violated Section 16(1) of The Legal Aid Act which requires just cause for removal, and Section 16(3) of The Legal Aid Act which requires [the Commission] to provide notice to the applicant, to be served personally or by registered mail, of removal and reasons for the removal”. [ 18 ] In response to Ms.

Harvey’s application, the Commission filed with the court a Certified Record of Proceedings that stated as follows: The following are parts of the Notice to Obtain Record of Proceedings that cannot be fully complied with and the reasons why:

a) The Applicant, by way of the Originating Application dated February 14, 2019, challenges her alleged removal from the Saskatchewan Legal Aid Commission’s panel of private bar lawyers (the “Panel”) pursuant to section 16(2) of The Legal Aid Act , SS 1983, c L-9.1 . However, the Applicant was not removed from the Panel. There is thus no document removing the Applicant from the Panel and no written record of a decision in relation thereto.

b) I certify that I have attached all records as required by Rule 3-58. [ 19 ] The Commission also filed an affidavit of its chief executive officer, Craig Goebel. Mr. Goebel’s affidavit explained that: (

a) Lawyers employed by the Commission “automatically become members of the Panel upon hire and are so designated for as long as they remain employed” but that “[u]pon cessation of employment with Legal Aid, for any reason, such persons are no longer on the Panel”; (b) “As a matter of longstanding practice, [the Commission] requires staff lawyers who leave the employ of [the Commission] for any reason and go into private practice – and who want to join the Panel – to submit the Panel Application to be considered by [the Commission] for acceptance onto the Panel”. The affidavit also explained that this “procedure allows [the Commission] to look at

candidates at the time of their application, in light of their history/experience, etc. and within the context of [the Commission’s] determination of its needs at the time and in the future. In these circumstances, [the Commission] manages its human resources operations reasonably”; (

c) Ms. Harvey had followed the process of re​applying for readmission to the Panel on each previous occasion when she had left the employ of the Commission, including when she reapplied to be on the Panel in September 2018; (

d) The “matter of Ms. Harvey’s Panel Application was placed on the agenda for the Legal Aid Commission’s (its Board of Directors) meeting, which took place on September 28, 2018”. At that meeting, it was confirmed Ms. Harvey was not a present member of the Panel “and it had determined not to designate her as a member of the Panel pursuant to her recent application”. It was further said that this “decision” was communicated to Ms. Harvey in the October 3, 2018 letter from the Commission chair. (It is to be recalled that in this letter, the Commission chair had advised that the “matter of Ms.

Harvey’s status with respect to the [Commission] Panel was placed on the Agenda for the Legal Aid Commission meeting that took place on September 28, 2018”, but “the Commission felt that your letter raises issues that will need to be determined with the assistance of the Commission’s legal counsel” (emphasis added). Accordingly, Ms. Harvey and her counsel were advised to expect a response “in due course” ); (

e) The Commission’s “decision not to designate Ms. Harvey as a member of the Panel … was again communicated” on December 18, 2018 (emphasis added); and (f) “At no time was Ms. Harvey removed from the private bar Panel pursuant to s. 16 of the Act , or otherwise. She left the Panel in the normal course when the term of her employment ended on August 31, 2018.” [ 20 ] On May 29, 2019, Ms. Harvey filed an amended originating application. The amended application continued her earlier requested relief and supporting grounds.

It also sought an “order in the nature of certiorari quashing the decision of [the Commission] to dismiss [her] application to be on [the Commission’s] private bar Panel” and an order “in the nature of mandamus compelling [the Commission] to place her on [the Commission’s] private bar Panel”. In its grounds, the amended application referred to a letter Ms. Harvey had written to the Minister of Justice for Saskatchewan in July 2018 and allegations of defamation which Mr. Goebel had made against her relating to that letter. The amended application asserted that Ms.

Harvey “was not permitted to be on the Panel for one reason: she had criticized both the [Commission’s] chief executive office and the [Commission]”. Ms. Harvey filed a supplementary affidavit relating to these allegations. She linked the facts asserted in her original affidavit to her new allegations. Ms. Harvey also denied that she had ever been informed that she would have to reapply to the Panel at the expiration of any of her term contracts. [ 21 ] In response to the amended application and this affidavit, the Commission filed an affidavit sworn by its chairperson, Michelle Ouellette, Q.C. Ms.

Ouellette’s affidavit provided further details surrounding the decision not to appoint Ms. Harvey to the Panel. She referred to the existence of different versions of the letter from Ms. Harvey to the Minister of Justice, described as the “Harvey Letter”, each said to be identical but with different dates. Ms. Ouellette said that she was “aware that Ms. Harvey apparently disseminated the Harvey Letter to the Minister of Justice, the Union that represents [Commission] employees and the Saskatoon Provincial Court judiciary”. Ms.

Ouellette stated that from “reading the Harvey Letter [she] formed the opinion that it demonstrated Ms. Harvey had an animus towards, a disrespect for and a bias against both [the Commission] and its CEO, both professionally and personally” and that “Ms. Harvey’s criticisms of Mr. Goebel and her dissatisfaction with [the Commission] as an organization as set out in the Harvey Letter were largely unfounded”. [ 22 ] Ms. Ouellette explained that at its September 28, 2018 meeting, the Commission had “determined that Ms.

Harvey was not a current member of the Panel” but that it “desired to further review and assess the matter with the assistance of the Commission’s legal counsel”. She explained that she had, in her October 3, 2018 letter, advised Ms. Harvey’s counsel of “this decision and advis[ed] that the Commission’s determination in relation to the Panel Application would be made in due course”. [ 23 ] Finally, Ms. Ouellette expanded on the matters considered by the Commission in “assessing Ms. Harvey’s Panel Application”.

She explained that the “Commission considered the fact that any/all members of the Panel necessarily have significant interaction with, and oversight by, the CEO” and a “functioning relationship between the CEO and members of the Panel is a requirement for membership on the Panel”. She reviewed the responsibilities of the CEO in relation to “tasks in respect of the operations and management of members of the Panel”. The affidavit then stated: 16. After careful consideration, the Commission ultimately decided that Ms. Harvey should not be designated as a member of the Panel and her Panel Application was rejected.

This decision was made considering, inter alia , the following relevant factors: (

a) That, as a result of the Harvey Letter written and disseminated by Ms. Harvey, Ms. Harvey had displayed an animus towards [the Commission] as an organization that would make her membership on the Panel inappropriate and would pose unwarranted reputational risks to the organization; and (

b) That, as a result of the Harvey Letter, Ms. Harvey had clearly stated her inability to engage in a functioning – let alone fruitful – professional relationship with Mr. Goebel. This, alone, made her membership on the Panel inappropriate given the above-noted necessary interaction and oversight of all Panel members by the CEO. [ 24 ] Ms. Harvey filed a reply affidavit. Among other things, it denied any animus towards, disrespect for, or bias against the Commission as an organization. The reply affidavit maintained that Ms. Harvey had been “able to maintain a working relationship with Mr.

Goebel despite the fact that [she] did not agree with him about some of his decisions and about the direction in which he was taking [the Commission]”. Ms. Harvey stated that while she was in private practice, she had been “in communication with Mr. Goebel only 3 or 4 times”.

B. The Chambers Decision [ 25 ] The Chambers judge framed his analysis around four questions: (

a) What were the circumstances concerning Ms. Harvey’s removal from the Panel? (

b) Does Ms. Harvey have a right of appeal from her removal from the Panel? (

c) Is the decision of the Commission not to place Ms. Harvey on the Panel subject to judicial review? (

d) What is the applicable standard of review? [ 26 ] With respect to the first question, the Chambers judge referred to the evidence that, when lawyers left the employ of the Commission, the Commission’s standard practice was that the lawyer would be removed from the Panel. He observed that Ms. Harvey had applied for readmission to the Panel after her employment ended in August 2018. Therefore, she must “be taken to have accepted and acceded to the stated standard practice” ( Chambers Decision at para 32). The Chambers judge referred to ss. 6(1)(

h) and 7(

d) of the Act and concluded that the Commission’s “removal of Ms. Harvey’s name from the [P]anel was not done for cause but was rather an administrative act … in accordance with the standard policy and procedure of [the Commission]” (at para 33). [ 27 ] Regarding the second question, the Chambers judge held: [34] Section 16(4) of the Act provides a right of appeal for removal from the panel, but only in respect to a removal of a solicitor from the panel for just cause. As Ms. Harvey was not removed for just cause, there is no right of appeal in respect to such administrative action. I therefore dismiss Ms.

Harvey’s application for reinstatement to the panel. [ 28 ] Respecting the third question, the Chambers judge held that the Commission’s “decision not to appoint Ms. Harvey to the [P]anel was not a public action but rather a private action and therefore is not subject to judicial review” (at para 37). [ 29 ] Finally, regarding the fourth question, the Chambers judge concluded that “even if the decision of [the Commission not to place Ms.

Harvey on the Panel] was subject to judicial review … the standard of review of such decision was one of reasonableness” and he “ would have found their decision to be one which ‘falls within a range of possible outcomes which is defensible in respect of the facts and law’ and therefore reasonable” (at para 38, citing Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 , [2008] 1 SCR 190 [ Dunsmuir ] ). III. Issues [ 30 ] In my respectful view, Ms. Harvey’s appeal can be fairly decided by answering two questions: (

a) Did the Chambers judge err in holding that the Commission had legal authority to remove a lawyer from the Panel for reasons other than just cause? (

b) If Ms. Harvey was unlawfully removed from the Panel, is that decision subject to judicial review? IV. Analysis A. Did the Chambers judge err in holding that the Commission had legal authority to remove a lawyer from the Panel for reasons other than just cause? [ 31 ] It is common ground that Ms. Harvey was removed from the Panel in 2018. The Commission asserted, and the Chambers judge found, that the removal of Ms. Harvey from the Panel was an “administrative act … in accordance with the standard policy and procedure of [the Commission]” (at para 33). In this Court, Ms.

Harvey argued that this finding is the product of palpable and overriding error. She asserts that this finding ignores evidence that her name disappeared from the Panel list sometime between July and early August 2018, before her employment terminated and at a time that coincides with her letter to the Minister of Justice. Although the Commission defends the Chambers judge’s finding of fact, putting into issue the precise reason why her name was removed from the Panel, it agrees that Ms. Harvey was not removed from the Panel for just cause.

The issue of law is whether the Chambers judge erred in law by concluding that the Commission had the legal authority to remove a lawyer from the Panel for reasons other than just cause. [ 32 ] Ms. Harvey was last readmitted as a Panel member in July 2016 when she returned to private practice after a period where her status with the Law Society of Saskatchewan was “inactive”. She remained listed in the Legal Aid Information Network when she became a term employee of the Commission in April 2018. Ms.

Harvey argues that if her name was removed from the Panel as a matter of standard policy or practice wherein employees’ names are removed when their employment ends, the Commission had no authority to implement that policy or practice, at least in respect to lawyers who were admitted to the Panel as a member of the private bar before they became a Commission employee.

She maintains that the Commission could only remove her from the Panel for “just cause”, in accordance with s. 16(1) of the Act , which provides that the Commission “may remove a solicitor from the panel for just cause by giving the solicitor notice of his or her removal and setting out the reasons for the removal” (emphasis added). [ 33 ] Ms. Harvey points out that the Commission did not allege that it had just cause for her removal from the Panel. This was conceded by the Commission’s counsel in argument before this Court.

The Chambers judge nonetheless found that the Commission had the authority to remove her from the Panel. Ms. Harvey challenges the correctness of the Chambers judge’s conclusion. [ 34 ] Before discussing whether the Commission had the authority to act as it did, I need to address, as a preliminary matter, the

Commission’s argument that the issue of its authority to remove Ms. Harvey from the Panel for reasons other than just cause is a newissue raised for the first time in this appeal. [35] Ms. Harvey was a member of the Panel before she became, on the most recent occasion, an employee of the Commission. Theevidence does not suggest, nor did the Commission allege, that when she assumed this most recent term position, Ms. Harvey had agreedto withdraw from the Panel at the conclusion of the term of her appointment. In her originating application, Ms.

Harvey requested an orderfor “[r]einstatement to the [Commission] private bar Panel” and stated as grounds that the Commission had: … violated Section 16(1) of The Legal Aid Act which requires just cause for removal, and Section 16(3) which requires [the Commission]to provide notice to the applicant, to be served personally or by registered mail, of removal and reasons for the removal. [36] Ms. Harvey’s originating application therefore put the lawfulness of the removal of her name from the Panel foursquare inissue. In her amended originating application, Ms.

Harvey sought additional relief, including the previously mentioned requests for anorder in the nature of certiorari and mandamus. [37] The Chambers judge found it necessary to determine the legislative authority for the Commission to remove Ms. Harvey fromthe Panel in considering the first issue he framed, stating as follows: [33] Therefore, I find that [the Commission’s] removal of Ms. Harvey’s name from the panel was not done for cause but was rather anadministrative act. Under s. 6(1)(

h) of the Act, [the Commission] has the right to establish and maintain a panel of solicitors who providelegal services, and under s. 7(

d) of the Act [the Commission] may establish procedures pursuant to which solicitors shall provide suchservices. I therefore find that the removal of Ms. Harvey’s name from the panel was in accordance with the standard policy and procedureof [the Commission]. (Emphasis added) [38] It is clear from this that the legality of the Commission’s policy or practice was a live issue in the Court of Queen’s Bench.Otherwise, there was no point in the Chambers judge’s reference to s. 7(

d) of the Act. I would add that counsel for the Commission franklyacknowledged in oral argument that even if the issue as now framed by Ms. Harvey is new, he could point to no evidence that might havebeen added to the record from what was before the Chambers judge. [39] For these reasons, I would respectfully reject the Commission’s contention that this Court should not consider whether theChambers judge erred in holding that the Commission had the lawful authority to remove Ms. Harvey’s name from the Panel for reasonsother than just cause.

With this, I return to the substance of the issue. [40] I begin by observing that the Commission has only those powers given to it pursuant to statute. This point is directly illustratedby Fry (Elizabeth) Society of Saskatchewan Inc. v Legal Aid Commission (Sask.) (1988), (SK CA), 72 Sask R 1 (CA).The issue in that case was whether the Commission had the authority to implement a policy that prohibited legal aid lawyers fromproviding certain services unless the legal aid applicant met cash contribution requirements.

The Commission accepted, and this Courtagreed, that as a creature of statute, the Commission has only those powers given to it by the Act: [10] The parties accept that the Commission is not permitted to administer the Act in a manner that is inconsistent with theadministrative structure that the legislature has enacted into law. Therefore the respondent can only exercise those powers delegated to itby statute. The question for us to decide is not whether the “Contribution Policy” can be implemented by Order-in-Council under s. 40 ofthe Act.

The question is whether the Commission has statutory authority to establish the impugned conditions of eligibility for legal aid. [41] Before the Chambers judge, the Commission argued, and the Chambers judge agreed, that the Commission had the legalauthority to implement its standard policy or practice pursuant to s. 7(

d) of the Act, which provides as follows: Powers of commission 7 Subject to this Act and the regulations, the commission may: … (

d) establish guidelines, procedures and requirements, pursuant to which solicitors or other persons retained under this Act shall providelegal services[.] [42] This Court’s role is to ask itself whether, in making this determination, the Chambers judge identified the appropriate standardof review and applied it correctly: Dr. Q. v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 43, [2003] 1SCR 226.

This approach to appellate review allows us to step “into the shoes of the subordinate court in reviewing a tribunal’s decision”with the result that our focus is, in effect, on the Commission’s decision: Prairie Acid Rain Coalition v Canada (Minister of Fisheries andOceans), 2006 FCA 31 at para 14, [2006] 3 FCR 610, quoted with approval in Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3at para 247, [2012] 1 SCR 23, and Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 45–47, [2013]2 SCR 559. [43] In this case, the Chambers judge held that if the decision by the Commission not to add Ms.

Harvey’s name to the Panel wassubject to judicial review, which he said it was not, he would have reviewed that decision on a reasonableness basis. However, he did notidentify the standard by which he reviewed the legality of the Commission’s actions in removing Ms. Harvey from the Panel. [44] In this case, the legality of the Commission’s actions turned on the

interpretation of its statutory authority. Ms. Harveyconceded, with reference to Dunsmuir, that the Commission is “entitled to deference in its

interpretation of its governing statute”. In myrespectful view, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov], puts beyonddoubt the point that the standard applicable to a review of the Commission’s

interpretation of its powers under the Act is reasonableness.In that case, the Supreme Court of Canada clarified that, where reasonableness is the applicable standard of review, it applies to a review

of the tribunal’s statutory authority: [67] In [Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31, [2018] 2 SCR 230 [CHRC]], themajority, while noting this inherent difficulty – and the negative impact on litigants of the resulting uncertainty in the law – nonethelessleft the question of whether the category of true questions of jurisdiction remains necessary to be determined in a later case.

After hearingsubmissions on this issue and having an adequate opportunity for reflection on this point, we are now in a position to conclude that it isnot necessary to maintain this category of correctness review. The arguments that support maintaining this category – in particular theconcern that a delegated decision maker should not be free to determine the scope of its own authority – can be addressed adequately byapplying the framework for conducting reasonableness review that we describe below. Reasonableness review is both robust andresponsive to context.

A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensurethat administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessmentregarding whether a particular

interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctnessstandard. [68] Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and thereforedoes not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutoryscheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where thereasonableness standard is applied in reviewing a decision maker’s

interpretation of its authority, precise or narrow statutory language willnecessarily limit the number of reasonable

interpretations open to the decision maker – perhaps limiting it one. Conversely, where thelegislature has afforded a decision maker broad powers in general terms – and has provided no right of appeal to a court – the legislature’sintention that the decision maker have greater leeway in interpreting its enabling statute should be given effect.

Without seeking to importthe U.S. jurisprudence on this issue wholesale, we find that the following comments of the Supreme Court of the United States in [City ofArlington, Texas v Federal Communications Commission, 569 US 290 (2013)], at p. 307, are apt: The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-makingthat is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.

Where[the legislature] has established a clear line, the agency cannot go beyond it; and where [the legislature] has established an ambiguous line,the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause topuzzle over whether the interpretive question presented is “jurisdictional”…. (Italicized emphasis in original; underlined emphasis added) [45] The substantive issue, therefore, is whether it was reasonable for the Commission to interpret s. 7(

d) as giving to it theauthority to unilaterally remove a lawyer from the Panel for reasons other than just cause. As explained in Vavilov, “[b]ecauseadministrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of thelegal context relevant to a particular decision”. As further explained, any administrative action “must comport with any more specificconstraints imposed by the governing legislative scheme, such as the statutory

definitions, principles or formulas that prescribe theexercise of a discretion” (at para 108). One of the authorities referred to by the Supreme Court in support of the latter proposition was thedecision of Stratas J.A. in Canada (Attorney General) v Almon Equipment Limited, 2010 FCA 193 at paras 38–40, [2011] 4 FCR 203,which referred to the requirement that administrative authorities must adhere to the “mandatory statutory recipe” that may be prescribed inapplicable legislation. [46] In this case, as in any other, the issue of

interpretation is resolved by following the so-called modern approach to statutoryinterpretation. The often-cited paragraph of Iacobucci J. describing this approach from Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 27, has now been codified in Saskatchewan in The Legislation Act, SS 2019, c L-10.2 [Legislation Act]: Acts and regulations remedial 2-10(1)The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature. [47] The Legislation Act also provides that every enactment should be interpreted as remedial and given a fair, large and liberalinterpretation: 2-10(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [48] The appropriate place to begin the consideration of the substantive issue is with an examination of the place of the “Panel”under the Act. Pursuant to the Act, the Commission is required to establish and maintain a “panel” to meet its obligation to “provide legalservices to persons and organizations in respect of civil and criminal matters where those persons and organizations are financially unableto secure those services from their own resources” (s. 6(1)(a)). In this regard, s. 6(1)(

h) states: 6(1) The commission shall: … (

h) establish and maintain a panel of solicitors for the purposes of the provision of legal services. (Emphasis added) The composition of the Panel is, therefore, integrally connected to the purpose of the Act. [49] In paragraph 33 of the Chambers Decision, the Chambers judge referred to s. 6(1)(

h) as reposing with the Commission the“right to establish and maintain a panel of solicitors who provide legal services” (emphasis added). I would correct the Chambers judgeslightly in relation to this provision. Section 6(1)(

h) is the source of the Commission’s duty – not power or right – to establish and

maintain a panel of solicitors who provide legal services. [ 50 ] The Commission has discretion as to who may be added as Panel members. In this regard, s. 15 states as follows: Composition of panel 15

(1) Any solicitor who wishes to provide legal services under this Act , including a solicitor who is a member or an employee of the commission, may be designated by the commission as a member of the panel subject to any terms and conditions that may be prescribed by the commission.

(2) The solicitors constituting the panel of solicitors maintained under The Community Legal Services (Saskatchewan) Act continue as members of the panel mentioned in subsection (1) until they are removed under this Act or withdraw from the panel. [ 51 ] I observe that, pursuant to s. 15(2), solicitors who were members of the panel under The Community Legal Services (Saskatchewan) Act, 1974 , SS 1973-74, c 11 [ 1974 Act ] continue in this capacity “until they are removed under [the] Act or withdraw from the panel”. [ 52 ] The only basis stated in the Act for the removal of a lawyer from the Panel is that set out in s. 16 , which provides as follows: Removal of solicitor 16

(1) The commission may remove a solicitor from the panel for just cause by giving the solicitor notice of his or her removal and setting out the reasons for the removal.

(2) A solicitor may, within 30 days after he or she receives notice of his or her removal from the panel, apply to the Court of Queen’s Bench to set aside the decision of the commission, and the court may order the reinstatement of the solicitor on the panel or dismiss the application.

(3) A notice pursuant to this

section is to be served personally or mailed by registered mail to the last known address of the solicitor being served.

(4) A notice served by registered mail is deemed to have been received on the seventh day following the day of its mailing, unless the solicitor to whom it was mailed establishes that, through no fault of his or her own, he or she did not receive the notice or that he or she received it at a later date. (Emphasis added) [ 53 ] On its face, this provision would apply equally to members of the Panel appointed both under the 1974 Act and those appointed under the Act in its present incarnation.

The Act provides no other basis for the removal by the Commission of any solicitor from the Panel other than “for just cause”, as set out in s. 16(1) . [ 54 ] Because, by its terms, the Act treats all Panel members equally, including those appointed under the 1974 Act , I find it useful to briefly consider the history of that legislation.

A review of this history supports the conclusion that s. 16(1) is exhaustive of the circumstances in which a lawyer may be unilaterally removed by the Commission from the Panel. [ 55 ] The origins of the 1974 Act trace to the Final Report of the Saskatchewan Legal Aid Committee , prepared for the Hon. Roy Romanow, Q.C., Attorney General for Saskatchewan (Regina: Department of the Attorney General, March 1973) [Carter Report]. The terms of reference given to the authors of the Carter Report included to “examine and make recommendations as to the extent of the need for subsidized programs of legal assistance”.

The Carter Report recommended the creation of a provincial program, which it called “Saskatchewan Community Legal Services”, to provide legal services to indigent persons through lawyers employed by a series of clinics and members of the private bar.

All of this was to be administered through a provincial central agency, which became the precursor to the Commission. [ 56 ] The Carter Report further recommended that persons who qualified for legal aid would, in some cases, be required to accept the services of an employed clinic lawyer but, in other circumstances, the person would be entitled to retain a member of the private bar. The Carter Report explained its proposals as follows (c VIII at 9–10): (

C) Jurisdiction of the Clinic (

i) In Criminal Matters 1. In all cases involving

summary conviction criminal code offences, and other

summary conviction federal offences, and all cases of indictable offences where a magistrate has absolute jurisdiction, a legally aided client should have the right to have the clinic act for him, or to choose a lawyer living and practicing in one or other of the clinic areas to represent him . 2.

A legally aided client charged with an offence punishable by death, life imprisonment or for a term of ten years or more should have the right to have the clinic act for him, or to choose any lawyer entitled to practice in Saskatchewan to represent him . (The choice would be made by the client from a panel of private practitioners, as hereafter dealt with.) 3.

In any other case where a legally aided client is charged with a criminal offence, or an offence under any federal statute (not falling within paragraph (1) above), he would be limited to having the clinic act for him subject, however, to his right, with the permission of the advisory council of the clinic area in which he resides first secured, to retain a lawyer entitled to practice in Saskatchewan to represent him

in place of the clinic . (Italicized emphasis in original; underlined emphasis added) [ 57 ] The Carter Report contemplated the creation of a “panel” of private bar lawyers who could offer services to legal aid clients (c VIII at 13–14): (

G) Panels of Private Practitioners The executive director should invite private practitioners in the province to advise him whether they are ready, within the limitations of the system set out above, to act on legal aid cases. Each such practitioner should be asked, in the event that he wishes to act, to advise the executive director of his experience and areas of specialty, if any. Every practitioner requesting to be placed on a panel should be so placed.

The executive director should have the right to remove the name of any private practitioner from a panel where, in his opinion, there is good cause for so doing. In such case, the executive director should notify the practitioner of his reason for so acting and the practitioner should have a right of appeal to a judge of the Court of Queen’s Bench.

Where a legally aided client has the right, and exercises it, to choose a private practitioner to act for him, the executive director should have the right to discuss, and explain, the panel to that client, including the right to advise the client of the experience, and areas of specialty, of each person on the panel. [ 58 ] Several features of these recommendations stand out. First, the idea of the “Panel” was directly tied to the choice to be given to legal aid clients to retain private bar lawyers for certain types of cases.

Second, private bar lawyers would have the right to be placed on the Panel list should they wish to act for legal aid clients “within the limitations of the system”. Third, private bar lawyers could only be removed from the Panel, and hence not be eligible to provide legal aid services to clients who might choose to retain them to provide legal aid services, if “there is good cause for doing so” (c VIII at 13).

Fourth, the role of the executive director was to assist the legal aid client in the choice of counsel by providing information and advice on the experience and expertise of Panel members, tying back to the idea that the legal aid client would have the ultimate right to choose their private bar representative when not required to accept a clinic lawyer. [ 59 ] The Carter Report formed the foundation for the 1974 Act . The 1974 Act established the “Saskatchewan Legal Services Commission” (s. 4), which was charged with the overall administration of a legal aid scheme, much as recommended in the Carter Report.

So far as directly concerns the issues in this appeal, the 1974 Act defined the “Panel” as meaning “the panel of solicitors maintained by the commission who are prepared to provide legal services in accordance with this Act ” ( s. 2 (j)) and established a statutory infrastructure for members of the Panel to provide legal services pursuant to that Act .

Section 16 of the 1974 Act was the predecessor provision to ss. 15 and 16 of the Act in its current form, and stated: Panel 16. —

(1) The commission shall maintain a panel of solicitors who are prepared to undertake the provision of legal services in cases where their services are required to avoid situations that might lead to a conflict of interest for other solicitors to act or where it would otherwise be improper or impossible for any other solicitors to provide legal services, or in cases provided for under

section 21.

(2) The commission may, upon supplying him with just reasons therefore, remove a solicitor from the panel.

(3) When a solicitor is removed from the panel pursuant to subsection (2), he may appeal the removal to a judge of the Court of Queen’s Bench who may order the reinstatement of the solicitor. [ 60 ]

Section 21 of the 1974 Act embedded the ability of legal aid clients to pick the lawyer of their choice in certain circumstances, provided that the lawyer was on the Panel. The legislation therefore confirmed that the idea behind the creation and maintenance of the “Panel” was to facilitate client choice in circumstances where representation was not provided by a legal aid employee. [ 61 ] In the years since 1974, the system of legal aid in this province has undergone significant reform.

The Act in its current form came into force in 1983, when the Saskatchewan Legal Services Commission was continued as the “Saskatchewan Legal Aid Commission” ( s. 3(1) ), and the model for the delivery of legal services markedly changed. Now, in most circumstances, clients do not have the ability to choose counsel but instead are represented by lawyers employed by the Commission.

However, there remain circumstances in which private bar counsel are employed by the Commission, such as when conflicts of interest occur or when client needs cannot be met by lawyers employed by the Commission. [ 62 ] I see nothing in the new legislation that would signal that the Legislature intended to depart from its earlier, deliberate decision that Panel members could be unilaterally removed by the Commission only for just cause. To the contrary, the amendments reinforce that this was intended to continue under the reformed Act .

Specifically, the reformed Act added additional procedural safeguards to protect solicitors who were removed by the Commission for just cause. In this regard, s. 16(1) of the reformed Act now requires that the lawyer be served with a notice of the withdrawal which sets out the reasons for the removal. Section 16(3) now directs a specific method of serving this notice. [ 63 ] I am cognizant that, as presently constituted, the “Panel” consists of both staff lawyers employed directly by the Commission and lawyers practicing in the private bar who agree to accept retainers from the Commission. However, Ms.

Harvey was not placed on the Panel as an employee of the Commission. Moreover, this case does not involve the scope of the discretion of the Commission to add members to the Panel. What is at stake is the scope of its authority to remove Panel members once appointed. [ 64 ] I am also alive to the fact that, pursuant to s. 15(1), employees of the Commission or members of the private bar may be designated as Panel members “subject to any terms and conditions that may be prescribed by the [C]ommission” (emphasis added).

Apart from any other requirement that must be met, for something to be “prescribed”, it surely must be reduced to writing. In oral argument, counsel for the Commission conceded that the practice relating to the removal of formerly employed lawyers from the Panel was

“informal” and not in written form. It would be inconsistent for the Legislature to provide that a solicitor may be removed from a Panelonly for just cause, but then provide also that the Commission has the authority to unilaterally prescribe a condition that allows removalfrom the Panel for other reasons. [65] The Commission provided evidence of the terms and conditions pursuant to which appointments from the private bar are madeto the Panel.

Part C of the Commission’s Appointments to the Private Bar: The Legal Aid Act – Policy, Procedures, Tariffs, Private BarAppointment Policy (1 October 2014, updated June 2016) deals with the Panel (at 3): C. PANEL OF SOLICITORS 1. A ‘solicitor’ means a person who is authorized to engage in the practice of law in Saskatchewan. 2.

a) A solicitor who wishes to provide legal services may apply to be placed on the panel of solicitors by completing the prescribed form(schedule

E) and return it to Saskatchewan Legal Aid Commission, Head Office.

b) A Curriculum Vitae of the lawyer should be provided with the prescribed form. 3. The Commission will periodically update the panel lists and request confirmation that the solicitor wishes to remain on the panel(schedule

E) and return it to Saskatchewan Legal Aid Commission, Head Office. 4. A solicitor appointed to act for a client may withdraw their services with respect to a particular client by notifying the Commission oftheir intention to do so. 5. Any change of the solicitor of record, from the one named in the letter of appointment, must be approved by the Chief ExecutiveOfficer or their designate. [66] Ms. Harvey makes the point, which the Commission does not contest, that these terms and conditions applied when she wasappointed to the Panel when she returned to private law practice in 2016.

The only mention of the removal of a lawyer appointed to thePanel pursuant to this policy is found at point 3 above, which refers simply to the Commission “periodically” updating the Panel lists andseeking “confirmation that the solicitor wishes to remain on the [P]anel”. In any event, the fact that the Commission had a policy does notanswer the question at large here, which is whether it had the statutory authority to implement such policy regardless of its form. [67] The application of the reasonableness standard entitles the Commission to deference in the

interpretation of the Act. However,ultimately, the Commission cannot assume powers that the Legislature did not intend it to have. As explained in Vavilov: [109] As stated above, a proper application of the reasonableness standard is capable of allaying the concern that an administrativedecision maker might interpret the scope of its own authority beyond what the legislature intended. As a result, there is no need tomaintain a category of “truly” jurisdictional questions that are subject to correctness review. Although a decision maker’s

interpretation ofits statutory grant of authority is generally entitled to deference, the decision maker must nonetheless properly justify that

interpretation.Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended tohave, and an administrative body cannot exercise authority which was not delegated to it. Contrary to our colleagues’ concern (at para.285), this does not reintroduce the concept of “jurisdictional error” into judicial review, but merely identifies one of the obvious andnecessary constraints imposed on administrative decision makers. (Emphasis added) [68] Here, in my respectful view, it is simply impossible to reasonably interpret s. 7(

d) as providing the Commission with theauthority to unilaterally impose its policy or practice on private bar Panel members who subsequently become Commission employees. Inthis regard, the legislative direction that a solicitor may be removed from a Panel only for just cause cannot be reconciled with aninterpretation of the Act that would give the Commission authority to remove that solicitor for other reasons under the guise of a“guideline”, “procedure” or “requirement”.

Section 7(

d) is easily understood as providing the basis upon which Panel members are toprovide services to the Commission. [69] The Commission referred to practical issues that would arise if it could not remove former employees from the Panel. It notedthat the Panel would become cluttered with former employees who had retired or moved away, and with others who had been dismissed orresigned due to ethical or competency concerns. However, the fact that such issues might arise would not justify an

interpretation of s. 7(d)of the Act that would authorize the removal of a ready, willing and able counsel from the Panel. [70] In Fairhaven Billiards Inc. v Saskatchewan (Liquor and Gaming Authority) (1999), (SK CA), 177 Sask R237 at para 18 (CA), Tallis J.A. observed that a statutory body’s policy “can have no effect if it flies in the face of a contradictorystatutory provision or regulation”. I see no basis for any other principle to be applied here.

The Commission’s policy or practice whereby alawyer is automatically removed from the Panel simply because he or she ceases to be its employee is not only unauthorized by the Act,but it is contrary to the statutory limitation that restricts the Commission from unilaterally removing a lawyer from the Panel for reasonsother than just cause. Simply put, the Commission ignored the “mandatory statutory recipe” prescribed in the Act when it determined thatit could remove Ms. Harvey from the Panel for reasons other than just cause.

Its decision was, therefore, unreasonable. [71] For these reasons, in my respectful view, the Chambers judge erred in law when he failed to recognize that the Commission didnot act reasonably when it concluded that it had the authority to unilaterally remove Ms. Harvey from the Panel without just cause. B. If Ms. Harvey was unlawfully removed from the Panel, is that decisionsubject to judicial review? [72] The Chambers judge concluded that the decision not to place Ms. Harvey on the Panel was not subject to judicial review.

Inreaching this conclusion, he accepted the Commission’s argument based on Highwood Congregation of Jehovah’s Witnesses (Judicial

Committee) v Wall , 2018 SCC 26 , [2018] 1 SCR 750 [ Highwood ]: [37] In this case I find that [the Commission’s] decision not to appoint Ms. Harvey to the panel was not a public action but rather a private action and therefore is not subject to judicial review. I adopt the comments made by Justice Rowe in Highwood at para 14 : 14 Not all decisions are amenable to judicial review under a superior court’s supervisory jurisdiction. Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.

Even public bodies make some decisions that are private in nature – such as renting premises and hiring staff – and such decisions are not subject to judicial review: ... In making these contractual decisions, the public body is not exercising “a power central to the administrative mandate given to it by Parliament”, but is rather exercising a private power.

Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority. [ 73 ] The focus of the Chambers judge’s analysis was on the question of whether a duty of fairness was owed in connection with this decision. As already noted, this appeal does not concern the appointment of Panel members, but instead what is at stake is the removal of a lawyer from the Panel.

Nonetheless, in argument in this Court, the Commission referred to Highwood as well as Dunsmuir as providing a basis to insulate any decision by the Commission to remove a lawyer from the Panel from judicial review. The Commission’s argument, as I understand it, is that any issue that touches on the placement of a lawyer on the Panel is akin to a matter of employment. [ 74 ] The issue in Highwood was whether the decision of the defendants to expel Mr. Wall from the defendants’ religious congregation was subject to judicial oversight.

The defendants’ actions were unconnected to any public law purpose, let alone authority. Justice Rowe distinguished a line of cases where judicial review was found to be available in relation to decisions of private bodies: [20] In my view, these cases do not make judicial review available for private bodies. Courts have questioned how a private Act – like that for the United Church of Canada – that does not confer statutory authority can attract judicial review: see Greaves v.

United Church of God Canada , 2003 BCSC 1365 , 27 C.C.E.L. (3d) 46, at para. 29 ; Setia [ v Appleby College , 2013 ONCA 753 . 118 OR (3d) 481], at para. 36. The problem with the cases that rely on Setia is that they hold that where a decision has a broad public impact, the decision is of a sufficient public character and is therefore reviewable: Graff [ v New Democratic Party , 2017 ONSC 3578 , 28 Admin LR (6th) 294], at para. 18; West Toronto United Football Club [ v Ontario Soccer Association , 2014 ONSC 5881 , 327 OAC 29], at para. 24.

These cases fail to distinguish between “public” in a generic sense and “public” in a public law sense. In my view, a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power . Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term.

Again, judicial review is about the legality of state decision making . [21] Part of the confusion seems to have arisen from the courts’ reliance on Air Canada [ v Toronto Port Authority , 2011 FCA 347 , 246 NR 131] to determine the “public” nature of the matter at hand. But, what Air Canada actually dealt with was the question of whether certain public entities were acting as a federal board, commission or tribunal such that the judicial review jurisdiction of the Federal Court was engaged.

The proposition that private decisions of a public body will not be subject to judicial review does not make the inverse true. Thus it does not follow that “public” decisions of a private body – in the sense that they have some broad import – will be reviewable. The relevant inquiry is whether the legality of state decision making is at issue . [22] The present case raises no issues about the rule of law.

The Congregation has no constating private Act and the Congregation in no way is exercising state authority . (Emphasis added) [ 75 ] The emphasized passages go to the heart of the distinction between the present situation and the facts of Highwood . In contrast to Highwood , the Commission exists pursuant to a constating public statute and has, as I have explained, only those powers given to it by the Act .

This case is about the limits of the Commission’s statutory authority pursuant to its constating statute. [ 76 ] The Commission points out that, apart from this distinction, not every decision of a public body is amenable to judicial review. It notes that, in paragraph 14 of Highwood relied on by the Chambers judge, the Supreme Court recognized that the hiring of staff involved a decision that was private in nature and therefore beyond the reach of judicial review. The genesis of this proposition is, of course, Dunsmuir.

In that case, a government dismissed one of its employees who was employed under a contract governed by the ordinary laws of contract. The employee brought an application for judicial review, alleging procedural unfairness. The Supreme Court held that in the circumstances the matter was private in character and there was no room for the implication of a public law duty of procedural fairness. [ 77 ] I take no issue with the Commission’s general point that not every decision taken by a public authority is subject to judicial review.

This principle was recently reiterated by this Court in Alie-Kirkpatrick v Saskatoon (City) , 2019 SKCA 92 at para 39 , [2020] 3 WWR 629 . However, when the Commission exercises its duty under s. 6(1) (

h) of the Act to “establish and maintain a panel of solicitors for the purposes of the provision of legal services”, it is exercising powers central to the administrative mandate given to it by the Legislature, thus falling outside of the exception set out in Highwood . Private lawyers seeking to be placed on the Panel are not applying for employment. They are simply asking to be eligible for appointments to handle cases in a similar way that they obtain retainers from private clients.

This point is illustrated by s. 17 of the Act , which provides that a Panel member “may decline to provide his or her services in respect to any client”. [ 78 ] In more specific response to the Commission’s argument, the Act draws a distinction between the employment of lawyers and the retaining of private bar lawyers. Under s. 7(d), the Commission may establish guidelines, procedures and requirements, pursuant to which “solicitors or other persons retained under this Act shall provide legal services” (emphasis added).

Section 7(

b) uses the term “employ” in relation to staff lawyers. Further, the analogy the Commission draws between the placement of lawyers on the Panel as contemplated by s. 15 of the Act breaks down because its arguments are focused on decision-making relating to the assignment of cases to lawyers who are on the Panel. This appeal is not about the assignment by the Commission of cases to Panel members. I would prefer to leave any issues that may exist with respect to the Commission’s decision-making surrounding the assignment of cases to Panel members to a case where that specific issue arises.

[ 79 ] I also do not intend to define or limit the Commission’s ability to agree to terms or conditions of employment with its employed solicitors. Those issues are not directly at stake in this appeal. More specifically, the question of whether (for example) the Commission could, by contract, secure a commitment from a person it hired as an employee to withdraw from the Panel at the end of that person’s employment is not engaged on the facts of this case. As I have explained, Ms.

Harvey was a member of the Panel before she became, on the most recent occasion, an employee of the Commission, and there is no suggestion that she agreed to withdraw from the Panel at the conclusion of her appointment when she assumed this most recent term position. [ 80 ] In

summary, in my respectful view the decision by the Commission to remove Ms. Harvey from the Panel is subject to judicial review. V. Conclusion [ 81 ] I would grant Ms. Harvey’s appeal and quash the decision of the Commission purporting to remove Ms. Harvey from the Panel. The result is that Ms. Harvey remains a Panel member. [ 82 ] Ms. Harvey is entitled to her costs in this Court and the Court of Queen’s Bench. “Leurer J.A.” Leurer J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.