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Mark
Peterson v College of Psychologists of Ontario, 2023 ONSC 4685 (August 23, 2023)
Category: Doré/ reasonableness review.
Context: The Inquiries, Complaints and Reports Committee (ICRC) of the College of Psychologists of Ontario ordered Peterson “to complete a specified continuing education or remedial program (SCERP)…regarding professionalism in public statements” [2]. Peterson, a well-known public figure, made several comments (outlined in para 9) that the ICRC “may be reasonably regarded by members of the profession as disgraceful, dishonourable and/or unprofessional” and posed “moderate risks of harm to the public” [3]. Dr. Peterson was advised that a failure to complete the remedial program could result in an allegation of professional misconduct and the commencement of disciplinary proceedings [4]. Peterson argued that (1) the ICRC failed to conduct appropriate balancing of his right to freedom of expression under the Doré v. Barreau du Québec, 2012 SCC 12 case; (2) the reasons offered for the decision fail to meet the legal standards set out in Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65.
Issue: Is the decision to impose a SCERP consistent with the legal standards set out in Doré and Vavilov?
Holding: Yes: “In my view, the Decision of the ICRC adequately and reasonably considered Dr. Peterson’s statements in the context of the College’s statutory mandate to regulate the profession in the public interest. It considered and proportionately balanced the impact of imposing a SCERP on Dr. Peterson’s right to freedom of expression protected by s.2(b) of the Charter of Rights and Freedoms” [5].
Analysis: I highlight this case because it demonstrates the ongoing tensions in the case law over how much courts should expect decision-makers to explain and justify limitations on constitutional rights. It is not in issue that the applicant has professional responsibilities, and that his freedom of expression can be limited if those limits are demonstrably justified. Applying this test, on one hand, the result is unsurprising on one view on the law. On the other hand, if Vavilov changes the way we review administrative determinations of constitutional law, then we might think the court should have expected more explanation here about how the SCERP is a justified infringement on freedom of expression, regardless if the SCERP is appropriate.
First, why is the result unsurprising? Doré holds that when administrative decision-makers impact an individual’s Charter rights, they must balance their statutory objectives with the “Charter value” at stake in the case. This is a different analysis than the one that applies when an individual challenges a law (as opposed to an administrative decision); when a law is challenged, courts first ask whether the provisions of the law infringe a Charter right, according to the typical tests developed in Charter litigation; the onus then shifts to the government to justify that infringement under the well-defined steps of the Oakes test. Notably, when an administrative act is challenged, courts are instructed to defer to an administrator’s expertise (Doré, at para 30).
This is a light-touch standard that is relatively unstructured, despite some Supreme Court statements to the contrary. On its face, all it seems to require is that a decision-maker identify a Charter value and then “weigh” it against some statutory objective. So here, it was enough that the ICRC appeared alive to the Charter issue. The Court notes that “the Panel was well aware of the importance of the value of the freedom of expression and Dr. Peterson’s position respecting it…” [58]. While acknowledging Peterson’s freedom of expression right, the ICRC ultimately concluded that Peterson was obligated with “ensuring that any public statements made are consistent with the professional standards….currently adopted by the College” [57]. For the Court, this was enough: “The fact that the Decision did not provide a detailed discussion of the value of freedom of expression does not mean the ICRC did not appropriately consider it” [62]. In fact, because—institutionally speaking—the ICRC is only a screening body, it “should not be expected to do so” [62]. The Court under Doré and Trinity Western, 2018 SCC 32 need not do more (at least on one interpretation). For this reason, this decision is at least a plausible interpretation of this law, for better or worse.
Now, I continue to believe, as a constitutional matter, that courts should not defer in all cases to administrative interpretations of rights because of the unique role of superior courts in acting as independent arbiters of constitutional controversies (see the discussion in Reference re Code of Civil Procedure (Que), art 35, 2021 SCC 27 at paras 49-50). But putting that view aside, and as I argue in academic work, it is my view that Vavilov still raises the bar for the application of reasonableness review in constitutional cases. Vavilov was, in essence, a reset button: it told administrators that they would be expected, as a condition of their extensive power, to themselves justify their legal conclusions. This was a change of posture. Before Vavilov, it was possible for courts to supplement decisions and pick up the administrator’s pen to complete decisions that were silent on certain points.
Here is where the tension arises. As the Ontario Court of Appeal has acknowledged, decision-makers cannot use the loose and highly deferential Doré analysis to “elide key steps in the analysis” (Lauzon v Ontario (Justices of the Peace Review Council), 2023 ONCA 425 at para 125; see Issue #93). My view, and it appears the view of the ONCA, is that we should demand more from decision-makers when they purport to limit Charter rights, especially after Vavilov. If Lauzon is right (and I acknowledge that that case was rendered in a different context involving the principle of judicial independence and not an individual screening decision), then it seems to me more might be required.
Here, the decision of the Court does not refer to whether the ICRC itself specifically assessed the impact of the SCERP as a rational or least drastic way to achieve its statutory objectives. The Court says that the imposition of an SCELR is a good middle ground option between doing nothing or sending the matter to discipline; this proportionate middle ground “will have a minimal impact on Dr. Peterson’s right to freedom of expression” [62]. This may be so, but these are conclusions and analyses that the ICRC should have conducted beyond a simple acknowledgment of the right and a statement that Peterson must abide by professional obligations. Reasoning on this specific point, assessing the reasonableness of the disposition against the value of the speech and what the “training” would involve—especially given that a professional misconduct finding could be made if the training isn’t complete— seems to be at the core of the constitutional analysis. In other words, the SCERP might be legally justified here, but we should expect something closer to an Oakes analysis, demonstrated through the reasons.
The Court in the Peterson case, though, is worried about this line of thinking: “The focus on sufficiency of reasons in Vavilov should not be inappropriately used as a tool to reduce deference and respect for the role and decisions of expert administrative bodies, having regard to the context in which those decisions are made and their consequences for the individual” [74]. Taking the point to completion, the Court notes, relying on Vavilov, that the history and context of the proceedings, including correspondence between Peterson and the College and a previous ICRC disposition, show that the ICRC considered the freedom of expression [58, Vavilov, at para 94].
It is true that, under Vavilov, it is permissible to look at the history and context of the proceedings, especially in cases where the reasons provided by the decision-maker are sparse (see Zeifmans LLP v Canada, 2022 FCA 160, and Issue #60). And reasons need not be lengthy. But Vavilov also says that courts should not supplement the reasons, and courts post-Vavilov have taken this instruction to heart, refusing to cooper up decisions that fail to explain central points (see Cavendish Farms Corporation v Lethbridge (City), 2022 ABCA 312). As Lauzon says, “[i]t is not the reviewing court’s function to fill a “fundamental gap” in a tribunal’s reasoning by mining the record” (Lauzon, at para 151), and courts should not “engage in a form of judicial pareidolia using the contents of the factual record…” (Zibadel v Canada (Citizenship and Immigration), 2023 FC 285 at para 48; Issue #81). On Charter matters, this is also well-established after Vavilov: sometimes the record simply contains no contemporaneous proportionality analysis, and courts should not squint to find one (see Société Radio-Canada v. Canada (Attorney General), 2023 FCA 131). For what it’s worth, I disagree that it is an “inappropriate” use of Vavilov to say so.
For that reason, I also simply do not agree that the choice is between sufficient reasons or “deference,” as the Court suggests in Peterson. It is, rather, that deference is earned because of sufficient reasons. This is the Vavilov bargain. No one should disagree that the College has the power to impose a SCELR under certain conditions; nor is it questionable that the College must consider non-frivolous freedom of expression claims. While it is open to the ICRC to implement a SCELR in this case—absent a challenge to the College’s power to adopt binding rules of this sort—it is its job to assess the constitutional stakes appropriately. And here, it is at least arguable that the Court helped the ICRC do its job. It is widely recognized that Vavilov raised the bar for administrators, and that same posture should apply—perhaps even more strongly—when the Constitution is raised, even where there is a screening decision that appears straightforward.
Index Investments Inc v Paradise (Town), 2023 NLSC 112 (August 3, 2023)
**Thanks to a SEAR reader for sending in this case**
Category: Application of the reasonableness standard
Context: This is a judicial review of a decision of the respondent town to rezone the Applicants’ properties. The rezoning occurred in the context of the municipality carrying out its Municipal Plan Review. On judicial review, the applicants argued that the rezoning decision was an improper exercise of power under the Urban and Rural Planning Act; they suggested that the decision had the effect of “down-zoning” the properties, and that the stated reason for the zoning decision
Issue: Is the rezoning decision reasonable?
Holding: Yes.
Analysis: This is an interesting decision demonstrating how courts, applying reasonableness review, can still meaningfully review legislative instruments promulgated by municipal bylaws and other bodies. As we know, this is a live issue post-Vavilov.
The Court begins the analysis in the right place. It suggests that, in cases involving municipal bylaws, “the determination of whether a decision is reasonable will significantly depend on the enabling legislation and the Record” [42]. Indeed, in these cases, the enabling legislation will take on greater importance [45-46], since after all “[a]n assessment of the by-law making powers of a municipality is in essence an exercise in statutory interpretation” [84]. This is a significant answer to those who question how to conduct reasonableness review of subordinate instruments.
There were procedural requirements embedded in the Urban and Rural Planning Act that the Town had to meet; the Court concludes that these requirements were fulfilled [153]. The Court also looked to the record. Here, the record indicated that the Town rezoned the properties due to “sloping concerns” which called for conservation protection [123]. The record made that connection clear, and so here, there is arguably no problem with relying on the record to shed light on the decision, especially since municipalities do not produce “reasons” in a traditional sense [154]. The Court could have confidence in this reality here because of the involved consultation process.
The case also highlights an interesting constructive expropriation issue [158].
Onni Wyndansea Holdings Ltd v Ucluelet (District), 2023 BCCA 342 (August 25, 2023)
**Thanks to a SEAR reader for sending this case**
Category: Appellate review standard and application of the reasonableness standard
Context: From the Court summary:
The appellant appeals the dismissal of its petition challenging the decision of the Council of the District of Ucluelet to adopt zoning amendment bylaws that downzoned the appellant’s land. The chambers judge rejected the appellant’s arguments that the bylaws were unreasonable and enacted in bad faith or for an improper purpose. The judge also declined to grant a declaration, in the alternative, that the appellant’s use of its land was a lawful non-conforming use and thus exempt from the effect of the downzoning.
Issues: (1) What is the standard of appellate review that applies to findings of fact?; (2) Are the bylaws unreasonable? (3) Should a declaration be granted?
Holding: (1) Given the judge’s fact-finding role in making a finding of bad faith, those factual findings are owed deference; (2) The bylaws are reasonable; (3) Onni has not established a lawful non-conforming use.
Analysis: Typically, the standard of appellate review for judicial review matters asks appellate courts to step into the shoes of the judicial review court and re-do the analysis, asking whether the judicial review court selected the standard of review and applied it correctly (see Northern Regional Health Authority v Horrocks, 2021 SCC 42, Issue #15). Horrocks left open the possibility that Housen v Nikolaisen, 2002 SCC 33, could apply “where a reviewing judge acts as a decision-maker of first instance” [12]. As Keith Brown and I have argued, there are good reasons to apply this exception—and this case appears to be one of them, where the bad faith finding was very dependent on evidentiary and factual conclusions made by the first-instance judge. In such cases, the complete re-do contemplated by Horrocks seems inapposite.
The Court finds that the judicial review judge did not err in finding the bylaws reasonable. Interestingly, it notes that consistency with past practices—one of Vavilov’s contextual constraints—is “of doubtful application in the context of a challenge to the Council’s decision to amend a zoning bylaw when the governing legislation expressly provides that the power to adopt a bylaw includes a power of amendment or repeal…” [74]. This is just another reminder that Vavilov is contextual, and in cases such as this, we can expect the legal constraints and the record to figure more strongly than past practices—in any event, such practices are more relevant to adjudicative decision-makers.
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.