Welcome to the first issue of the SEAR. Sincere thanks for subscribing. As a bonus, for this first issue, I’ve done a retrospective analysis of cases from the end of June-present. Going forward, and each week, I will only analyze cases for the week that was.
Reference re Code of Civil Procedure (Que), art. 35, 2021 SCC 27 (June 30, 2021)
Context: Does granting exclusive jurisdiction over civil claims for less than $85 000 to the Court of Quebec create a parallel or shadow court that usurps the role reserved to superior courts protected under s.96 of the Constitution Act, 1867?
Holding: The Court (per Côté and Martin JJ), applying the Residential Tenancies and “core jurisdiction” tests, concluded that “the monetary limit is too high when considered in its historical and institutional contexts” [8] because “[t]he scope of the jurisdiction…combined with the various features of the institutional context in which that jurisdiction is exercised, transforms the Court of Quebec into a prohibited parallel court and impermissibly infringes on the core jurisdiction of the Superior Court.” [7].
Wagner CJ and Rowe J filed a partial dissent. Abella J filed a dissent.
Analysis: This is a long decision that repays careful reading. Practically, and as Paul Daly notes, the Court of Quebec is a unique institution in Canada, so the precedential value of this case may be limited.
That said, I worry about the proliferation of tests in the area of s.96. We now have Residential Tenancies, the “core test,” and here, the Court adopts a “multi-factored analysis” that it says is applicable where “…a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts…” [144]. The Court seems to suggest that this is an adaptation of the core test [145]. But as Daly notes, this test could plausibly apply in cases beyond “courts” to other administrative decision-makers. For now, I consider this multi-factored test to be narrowly cast to cases like the Court of Quebec, and otherwise, the “core” doctrine as described in MacMillan Bloedel is the important piece.
Gordon v British Columbia (Superintendent of Motor Vehicles), 2021 BCSC 1362 (July 12, 2021)
Context: This is a judicial review of an adjudicator decision to issue a notice of driving prohibition under s.94.1(1) of the Motor Vehicle Act after Gordon refused to accompany the police to a station to comply with a demand for a breath sample. Gordon argued that the police failed to ensure he had access to counsel prior to asking for a breath sample [29], which he said was a “reasonable excuse” to refuse a sample under the Criminal Code. Gordon said that the issue is of central importance to the legal system, warranting correctness review, given “reasonable excuse” language in other statutes.
Holding: On standard of review, the Court held that the issue at hand “is without broad implication and does not bear upon the ability of the legal system to function. The fact that the reasonable excuse concept is found in more than one statutory regime is insufficient to make the matter of transcendent importance to the legal system” [41]. On the merits, the Court concluded that while the right to counsel in this case was not immediately facilitated [57], it was Gordon who refused to come to the police station where he could have availed himself of his right to counsel [61].
Analysis: This case is another in a line that reaffirms the narrowness of the “general questions category” from Vavilov. Many of the issues recognized as “questions of central importance” have concerned constitutional matters, and the constitutional hook seems to matter , at least in part, for recognizing such questions (see Bank of Montreal v Li, 2020 FCA 22 at para 28). There is obviously some proximity to constitutional problems in Gordon, including the interaction between the “reasonable excuse” language and constitutional protections. This should weigh in favour of a correctness standard—given, also, the use of this language in other statutes. But there is, I think, a fair reticence by lower court judges to deviate from Vavilov’s instruction that this category is not a “broad catch-all” (Vavilov, at para 61). This reticence might explain the result, even if, in a perfect doctrinal world, correctness should be the standard.
Ahousaht First Nation v Canada (Indian Affairs and Northern Development), 2021 FCA 135 (July 9, 2021)
Context: This case concerns an appeal from the Specific Claims Tribunal.
Analysis: While Vavilov is over a year old now, its description of reasonableness is contextual (with due respect to the opinion of Abella and Karakatsanis JJ in concurrence). Contextual tests can sometimes work intuitively. Other times they can be confusing. Locke JA does us a service, then, at [45] when he summarizes the key aspects of Vavilovian reasonableness:
[45] […]
A. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with respectful attention and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (para. 84);
B. To develop an understanding of the decision maker’s reasoning process, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision (para 99);
C. The burden is on the party challenging the decision to show that it is unreasonable (para. 100);
D. To be reasonable, a decision must be based on reasoning that is both rational and logical, though reasonableness review is not a line-by-line treasure hunt for error (para. 102);
E. A decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis; a decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point (para. 103);
F. Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise (para. 104); and
G. Absent exceptional circumstances, a reviewing court will not interfere with the tribunal’s factual findings; the reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker (para. 125).
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Please complement the SEAR with your own research and study. Any mistakes are my own.
Quote of the week: “Do not fear mistakes. There are none.”—Miles Davis