AJC Litigation Dismissed by Federal Court

Monday, August 15, 2022

On July 25, 2022, the Federal Court dismissed the judicial review application filed by the Association of Justice Counsel (AJC) to help ensure that the health and safety of our members is protected in federal courts across the country.

While many courts and tribunals across Canada have taken public health and safety very seriously during this COVID-19 pandemic, troubling reports of inconsistent approaches by some courts and judicial officers have been reported. These incidents have often been accompanied by pronouncements that judicial independence or authority to control the court’s process are justifications for not conforming with reasonable COVID-19 public health and safety protocols.   Lives have been put at risk.

The Federal Court rejected the AJC’s application for declarations and mandamus (without costs) stating that the AJC should instead pursue the administrative processes within the Federal public service, such as grievances or health and safety complaints, to protect lawyers and court participants who are facing unsafe working conditions in federal courtrooms, and particularly in the Tax Court of Canada.

“If the applicant’s members are being put in unsafe working conditions and, after pursuing these alternative remedies, the [federal government] employers are unable to take reasonable steps to ensure safe working conditions, then and only then should the applicant seek” to challenge in court the CAS guidelines, Justice Zinn held.  As a result, the Court did not address the AJC’s substantive arguments that the health and safety of court participants, including counsel, are protected by section 7 of the Charter and that authority over health and safety in courtrooms is not an aspect of judicial independence or the court’s authority to control its own process.

The full text of the decision can be read here.

While we are disappointed with the decision, we remain fully resolved to continue our fight to protect the health and safety of our members. We are currently reviewing the decision to determine if we will appeal the dismissal or pursue other avenues.