Ingram v Alberta (Chief Medical Officer of Health), 2023 ABKB 453 (July 31, 2023)
Category: Pandemic restrictions.
Context: This is an application for judicial review in relation to certain orders enacted by the Chief Medical Officer of Health (CMOH) dealing with the pandemic. The application challenges the orders on a constitutional basis and also on the basis that the orders were ultra vires the Public Health Act. While the arguments in this case evolved, and were related to arguments made in CM v Alberta, 2022 ABKB 716 (Issue #64), the application here eventually addressed the question of improper subdelegation.
Issue: Were the orders ultra vires because they were essentially adopted by Cabinet rather than the CMOH, who has decision-making authority under the Public Health Act?
Holding: “[57] In conclusion, I declare that the impugned Orders were ultra vires of the Public Health Act because they were based on a interpretation of the Public Health Act that gave final decision making authority over public health orders to elected officials.”
Analysis: Given the decision in CM, the result in Ingram is not surprising. Alberta argued that the CMOH only “provided recommendations to cabinet and then issued orders that were informed by cabinet’s policy decisions” [35]. This meant that the CMOH retained “decisive involvement” over the orders—if true, the subdelegation argument does not get off the ground. Alberta even argued that if the Premier had directed the CMOH orders, “it would not be an error for her to comply since the Orders are executive legislation” [36].
The Court rejects these arguments—the right result, I think. It is the CMOH that is delegated power to make determinations it considers necessary in relation to its statutory mandate [53]. Absent a legal warrant for Cabinet to make these judgments for itself, or a power to order the CMOH under the relevant statutory provision, Alberta cannot simply argue that the Cabinet’s status as the holder of executive power entitles it to make decisions otherwise delegated to the CMOH.
Zemtsova v Shevalev Estate, 2023 BCSC 1375 (August 9, 2023)
Category: Selection of standard of review (arbitral appeals)
Context: This is an appeal of a family law arbitration award under the BC Arbitration Act. The petitioner argued that the arbitratior committed an “arbitral error” and an error of law and sought to appeal the award under the Arbitration Act’s statutory right of appeal.
Issue: What is the standard of review?
Holding: [63] I conclude that appellate standards of review apply to a family law arbitration appeal under the Arbitration Act (correctness for questions of law; palpable and overriding error for questions of mixed fact and law).
Analysis: As I said in Issue #66, the standard of review for arbitral appeals is in flux. Courts across the country have split on the matter (see paras 68-69). Here, the Court offers good reasons to follow the instruction in Vavilov that rights of appeal—even in arbitral matters—attract the appellate standards of review rather than the pre-Vavilov reasonableness standard. As the Court notes, Vavilov is significantly organized around legislative intent, and the presence of a right of appeal is a signal of legislative intent recognized in Vavilov [73-74].
Interestingly, the Court also notes (a) that the Judicial Review Procedure Act (JRPA) is expressly disapplied by the Arbitration Act, meaning “that the legislature does not regard arbitration appeals under the Arbitration Act to be a species of ‘administrative’ decision for Vavilov standard of review purposes” [75]; and (b) the application of the correctness standard fosters predictability and consistency on pure questions of law [79]. These are additional reasons to follow Vavilov’s holding on rights of appeal, though they are not strictly necessary to conclude that appeal rights necessarily attract the appellate standards—in other words, it is sufficient for a right of appeal to exist for the appellate standards to apply. On (a), even if the Judicial Review Procedure Act applied, Vavilov’s holding on rights of appeal was “categorical” (Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at para 27). Absent a contrary legislative indication, I would think rights of appeal attract the appellate standards no matter whether the JRPA applies. On (b) it is undoubtedly true that the application of the correctness standard through the appellate standards of review fosters rule of law values. But, like in (a), it is not clear to me that this is a necessary conclusion to apply the appellate standards. The Court is right to conclude that the appellate standards apply, but its reasons in (a) and (b) should only be seen as additional contextual reasons to favour those standards, not mandatory conclusions that need to be drawn in order to apply the appellate standards.
Condominimums Renaissance Blainville c Ville de Blainville, 2023 QCCS 2992 (August 7, 2023)
Category: Selection of standard of review (municipal decisions)
Context: The applicant seeks to quash 40 “certificates of amendment” relating to property assessments for certain properties (see paras 1-12). The applicant questions the legality of these certificates.
Issue: What is the standard of review?
Holding: The standard of review is correctness [122].
Analysis: A curious holding on standard of review. The Court follows the QCCA decision in Shiller v Bousquet, 2017 QCCA 276 at paras 32-45. That case held that the standard of review for a municipal decision issuing certificates of occupancy is correctness—in that case, the decision-maker had no decision-making latitude (Shiller, at para 39). Analogizing to Shiller, the Court here concludes that the standard of correctness applies. It distinguishes a recent QCCA case where the Court applied Vavilov’s reasonableness standard to the review of a municipal bylaw (see Service de calèches et traîneaux Lucky Luc c. Ville de Montréal, 2022 QCCA 1610, Issue #69).
The Shiller precedent appears to be a vestige of pre-Vavilov law, finding conceptual harmony with other pre-Vavilov cases that saw questions of municipal power as questions of jurisdiction inviting the correctness standard (United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19; Nanaimo (City) v Rascal Trucking Ltd, 2000 SCC 13). But these precedents are likely now questionable because (a) of Vavilov’s dispatch of jurisdictional questions attracting correctness review; and (b) of the QCCA’s explicit embrace of Vavilov for review of municipal bylaws. Though this case does not involve a bylaw, it is worth asking why there should be a special carveout for this sort of more adjudicative municipal action, especially if the reasonableness standard can account for cases where there is no decision-making latitude (ie) only one “right” answer.
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. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.