The Lawyers Weekly - June 25, 2010

Examiners
Continued From Page 2

not thousands, of cases that reach his ministry. That job rests with the civil servants.

“The appeal court made a clear
distinction between giving legal
advice while acting as a lawyer and
taking a decision in the name of
the minister in the public adminis-
trative framework,” said Fauteux,
who represented the Quebec
Attorney General in the case. “The
work of examiners consists of mak-
ing decisions on objections filed by
citizens over tax matters on behalf
of the Revenue Minister. In this
context, their decisions cannot be
considered as ‘giving legal advice’,
even though when interpreting
and applying laws there is neces-
sarily a legal aspect to it. The min-
ister is still legally making the deci-
sion, through his civil servants,
who are responsible for addressing
the objections.”
Though only mentioned in
passing in the ruling, Fauteux
notes that under s. 128 of An Act
respecting the Barreau du Québec,
giving legal advice and consulta-
tions on legal matters is the exclu-
sive prerogative of the practising
advocate or solicitor—if it is per-
formed for others. The Barreau
argued that an examiner who
analyses an objection and writes a
brief is in essence providing legal
advice to the minister. “We argued
that an examiner is not giving legal
advice to the minister but is instead
rendering a decision on behalf of
the minister, which is very differ-
ent. The court accepted our argu-
ment—that their job is not to
provide the minister with legal
advice. Their job is to render deci-
sions on behalf of the minister.”
A decision on whether or not
the Barreau or the Chambre will
seek leave to appeal before the
Supreme Court of Canada has yet
to be made, said Corriveau. ;

Press release said comments ‘could be construed as anti-Semitic’

Barreau du Québec c. Québec (Procureur général), [2010] J.Q. no 5006.

Green
Continued From Page 2

All quotes translated from French by the author.

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anti-Semitic.

Two years later, after Shavluk had been approved as the party’s candidate in a Vancouver-area riding, the attack comments came to the attention of leader Elizabeth May.

On Sept. 4, 2008, the party
issued a press release announ-
cing that Shavluk was no longer
a candidate because those com-
ments “could be construed as
anti-Semitic.”
In a subsequent interview,
May apologized for the fact that
Shavluk initially passed party
screening. “We had not seen his
blog mentioning unacceptable
statements.”
She went on to say while the
party believes in free speech,
“we draw the line…on things
that are hate filled.”

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The B.C. Supreme Court judge agreed that the attack statements could be construed as anti-Semitic but she held that both the press release and the leader’s remarks defamed Shavluk and that the defences of justification and fair comment were not available.

The defendants did make out the defence of qualified privilege, however, because their responses were not made as a result of malice but to distance the party from comments considered to be unacceptable, Justice Ross concluded.

She considered the requirements in Grant v. Torstar Corp., [2009] 3 S.C.R. 640, and found that the statements were protected by the defence of responsible communication on a matter of public interest.