Our Public Law Group

When organizations find themselves needing to challenge a government action or the constitutionality of legislation, Borden Ladner Gervais LLP (BLG) is here to achieve the best possible results. Working alongside you and speaking your language, the Public Law Group consists of experienced lawyers across Canada practising constitutional, Aboriginal and administrative law. And as part of a national Firm, with six offices across the country, we are uniquely positioned to better serve our clients by drawing on the broad experience, knowledge and expertise of numerous individuals with diverse areas of focus.

Professionals in BLG's Public Law Group strive for excellence in every endeavor, and as such, have been consistently ranked in the top national and international ranking publications, including the 2010 edition of Chambers Global – The World's Leading Lawyers and the 2010 Lexpert® /American Lawyer Guide to the Leading 500 Lawyers in Canada. The 2011 edition of The Best Lawyers in Canada ® ranks the Firm number one in Canada in Administrative and Public Law with six lawyers listed.

Our Services

The Public Law Group advises public and private bodies faced with constitutional and administrative law issues, including:

division of powers issues;
issues associated with the Canadian Charter of Rights and Freedoms;
Aboriginal law issues;
provincial and federal administrative issues; and
applications for judicial review.

We also provide advice and litigation services regarding judicial ethics, government contracts, trade law and government relations.

Our Public Law Group is also committed to providing pro bono services for clients who wish to bring matters of public importance before the courts.

Our Experience

Members of our Public Law Group have appeared before all levels of Court, including the Supreme Court of Canada, and have argued some of Canada 's leading constitutional, administrative and Aboriginal cases. Our members have written extensively on a vast array of public law issues and are frequently asked to speak on the latest developments in their respective areas of expertise. In addition, members of the Public Law Group have taught and continue to teach courses in the areas of public and administrative law at Canada 's leading law schools.

Charter of Rights and Freedoms:

Charter litigation considers whether legislation and/or government action infringes a fundamental right or freedom guaranteed by the Charter . This type of litigation often raises issues of the utmost importance to individuals or groups, particularly minority groups.

Members of our team have been involved in several of the Supreme Court of Canada's landmark Charter decisions, including:

Morrow v. Zhang, a case concerning whether a cap on plaintiffs' non-pecuniary damages arising from motor vehicle accidents based on the type and severity of the injury is contrary to either s. 7 or s. 15 of the Charter;
M. v. H., a section 15 case involving the equality rights of same-sex couples and the definition of “spouse” under Ontario's Family Law Act;
Chaoulli v. A.G. (Quebec), a challenge to restrictions on private health insurance based on both the Canadian Charter and Quebec Charter;
Lavigne v. OPSEU, a freedom of expression case challenging the use by unions of compelled dues for political and ideological purposes;
U.F.C.W. v. Kmart Canada Ltd., a case addressing freedom of expression and the constitutionality of restrictions on secondary picketing.

Division of Powers:

Division of powers cases consider which level of government (federal or provincial) has jurisdiction to legislate in a given area. Such issues can be crucial for businesses and individuals determining how to govern their affairs, and for the proper functioning of each level of government.

Leading Supreme Court of Canada cases that we have been involved in include:

Reference re: Canada Assistance Plan, a case addressing the federal government's obligations to help fund certain provincial programs and its ability to change funding agreements;
The Firearms Act Reference, dealing with the federal government's power to require gun licensing and registration;
Burrardview Neighbourhood Association v. Vancouver Port Authority, a case addressing jurisdiction over “Navigation and Shipping” and “Public Property”; and
Reference re: Upper Churchill Water Rights Reversion Act, a case involving the ability of a provincial government to enact legislation which affected property and civil rights outside of the province.

General Constitutional:

In some constitutional cases, neither the Charter of Rights nor federal/provincial issues are raised. These “other” cases may address the proper role of government officials or consider the broad unwritten principles underlying the Constitution.

We have acted in a number of different capacities on general constitutional issues including:

Conrad Black v. Canada (Prime Minister), a case in which we acted for the Prime Minister and successfully protected his prerogative power to make decisions in respect of honours and foreign affairs without review by the courts;
Edwards v. Canada (Attorney General), in which we acted for the Chief Justice of Canada in a successful motion to quash a subpoena served on him on the grounds of judicial immunity;
we have advised the Prime Minister, various Ministers of the Crown, and senior government officials in respect of various issues relating to governmental power; and
we have provided advice on various issues relating to the Canada Elections Act .

Public Inquiries:

Commissions of Inquiry are called to address a particular incident or issue and provide an opportunity for key stakeholders to make submissions and have their voices heard. A Commission's work culminates in the issuing of a report and recommendations for the future.

Members of the Public Law Group have been involved in every major federal public inquiry for the last 25 years, including:

Arar Inquiry: This Commission of Inquiry considered the actions of Canadian officials in the treatment of Maher Arar, a Canadian citizen who was deported to Syria and detained there. We acted as counsel to Commissioner O'Connor on the Policy Review aspect of the Inquiry's mandate;
Gomery Inquiry: This Commission of Inquiry considered issues arising out of the federal sponsorship program and advertising activities. We acted for the Right Honourable Jean Chrétien and Jean Pelletier, his Chief of Staff;
Walkerton Inquiry: This Inquiry looked into the contamination of the drinking water in the town of Walkerton, Ontario and into water safety more generally. We acted as counsel to Commissioner O'Connor;
Krever Inquiry into the Blood System: This Inquiry, under the direction of Commissioner Horace Krever, investigated issues arising from the contamination of the blood supply in the 1980s as a result of infected donors of blood and plasma. We acted for senior officials of the Canadian Red Cross;
Commission of Inquiry into the Avalanche at Kangiqsualujuuaq: This inquiry looked into the circumstances surrounding the death of nine people in the avalanche that occurred in the Inuit community of Kangiqsualuguuaq in Nunavik, Québec;
Commission to Investigate the Introduction and Spread of SARS in Ontario : This inquiry considered the introduction and spread of SARS in the Spring of 2003. We represented a number of Hospitals before the Commission;
Inquiry into Pediatric Forensic Pathology in Ontario : This inquiry looked into the policies, procedures and accountabilities in the province's pediatric forensic pathology system; and
Commission of Inquiry into Certain Allegations Respecting Business and Financial Dealings Between Karlheinz Schreiber and the Right Honourable Brian Mulroney: We acted for former Prime Minister Brian Mulroney

Aboriginal Law:

The government's relationship with Aboriginal persons is a matter that is increasingly the subject of litigation before the Courts or negotiation between parties. Matters addressed include resource management, land claims and self-government for Aboriginal groups.

Significant negotiations and Supreme Court of Canada cases that we have been involved in include:

Wewaykum Indian Band v. Canada, a case addressing the fiduciary duty of the Crown and the creation of reserves;
R. v. Sappier; R. v. Gray, a case concerning the requirements to establish an aboriginal right to harvest Crown timber for domestic purposes;
British Columbia (Minister of Forests) v. Okanagan Indian Band, concerning the jurisdiction to order the payment of costs in advance in public law cases;
Chief Hill and Kitkatla Band v. The Minister of Small Business, Tourism and Culture and International Forest Products, a case addressing the principles to be applied in injunction proceedings in aboriginal rights cases;
we have acted as counsel for an intervenor in a number of cases in respect of the Fisheries Act and its impact on aboriginal rights under the Constitution;
counsel to the Assembly of First Nations as intervenors in R. v. Badger and Native Women's Assn. of Canada v. Canada; and
we have acted as counsel to the federal government in land claim negotiations in the Yukon Territory.

General Administrative:

Administrative law cases address the state's power in administering legislation and carrying out government policy. Administrative litigation may involve representing a party's interest before an administrative tribunal or statutory decision-maker, and may also include bringing matters to the courts for judicial review.

Key cases that we have been involved in include:

Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), a case before the Ontario Court of Appeal on the standing of administrative tribunals on appeals and judicial reviews, where we acted as counsel to the Information and Privacy Commissioner;
Canada (Attorney General) v. Canada (Information Commission), a case before the Federal Court, where we were successful in quashing as a breach of freedom of expression rights as guaranteed by s. 2(b) of the Charter, a “gag order” issued by the Information Commission which had forbade witnesses before him from disclosing any information in respect of their testimony;
Chretien v. Canada (Commission of Inquiry into the Sponsorship Program, Gomery Commission), a case before the Federal Court in which we were successful, on behalf of the Right Honourable Jean Chretien, in having portions of the inquiry report quashed on the basis of reasonable apprehension of bias;
we represented a Senior Advisor to the Privy Council office in challenging a portion of the Access to Information Act;
we acted as counsel to the Ontario Flue-Cured Tobacco Board at the Ontario Court of Appeal and Divisional Court in a case involving administrative law principles of bias, judicial deference, standard of review and evidence; and
we have acted for various pension plan sponsors and administrators before the Financial Services Tribunal.

Other practice groups within the Firm have significant involvement in different aspects of public law including: Appeal and Review Group, Environmental Law; Government Relations; Labour and Employment; Municipal Law; Municipal, Government and Police Liability; and Privacy and Access to Information.