Issue #109: October 8, 2023
Resistance to Mason, the Squamish Nation development, professional misconduct
This week, the Supreme Court released a decision involving the interpretation of statutes: La Presse Inc v Quebec, 2023 SCC 22. This case does not involve administrative law, but in my view, it may introduce confusion in the law of statutory interpretation, which applies to administrative interpretations of law. I will address this case in next week’s newsletter.
There will be no dicta recording this week given the Thanksgiving weekend. Happy Thanksgiving to all!
Klos v Canada (Attorney General), 2023 FCA 205 (October 5, 2023)
Category: Application of the reasonableness standard
Context and Analysis: Last week, the Supreme Court of Canada released its decision in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108). As part of Issue 108, I criticized the Court for saying one thing and doing another; for insisting on properly deferential reasonableness review while deciding an issue of international law de novo (though I addressed plausible counter-arguments in Issue 108).
The Federal Court of Appeal has now—already—spoken to this problem in Klos. For a three judge panel, Stratas JA relies on the well-established rule in Alberta Teachers’ Association, 2011 SCC 61, that absent exceptional circumstances, new arguments should not be heard on judicial review (let alone three levels of review up from the decision-maker):
[8] The applicant also submits that the delay of the Board in this case constitutes an abuse of process. The applicant did not place this issue before the Board for consideration in his written submissions and, thus, it is a new issue in this Court that should not be heard: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. We do not consider that the Supreme Court’s recent willingness (in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21) to decide a case on the basis of a new issue, one of international law, for the first time on the third level of appeal should be taken to undercut the longstanding, unquestioned authority of Alberta Teachers’ Association.
I share this view wholeheartedly, and suspect that most courts will continue to rely on the rule established in Alberta Teachers. To my mind, while this issue appears technical, it goes to the heart of reasonableness review. No matter the importance of the issue—and this includes issues of international law—reasonableness review is the presumptive standard, absent a question attracting correctness review. If we are committed to this rule come what may, it is generally not appropriate to decide issues de novo on judicial review. There are exceptions, but as far as I can tell, these exceptions were not relied upon in Mason. At any rate, this strong committment to a presumption of reasonableness review is the clear rule established in Vavilov.
The College of Physicians and Surgeons of Saskatchewan v Leontowicz, 2023 SKCA 110 (September 29, 2023)
Category: Professional discipline, rights of appeal
Context: From the decision:
[2] The College of Physicians and Surgeons of Saskatchewan [College] charged Jesse Leontowicz, M.D., with one count of professional misconduct arising from an off-duty sexual encounter he had with a woman who was not his patient. The Discipline Hearing Committee [Committee] accepted the complainant’s evidence and found Dr. Leontowicz guilty of unbecoming, improper, unprofessional or discreditable conduct within the meaning of s. 46(o) of The Medical Profession Act, 1981, SS 1980-81, c M-10.1 [MPA]: Leontowicz v The College of Physicians and Surgeons of Saskatchewan (11 June 2020) Saskatoon, CPSS [Committee Decision]. By way of penalty, the Council of the College [Council] suspended Dr. Leontowicz’s licence indefinitely and issued a reprimand: Leontowicz v The College of Physicians and Surgeons of Saskatchewan (25 September 2020) Saskatoon, Council of the CPSS (Sask) [Penalty Decision]….
Dr. Leontowicz appealed via right of appeal to the superior court, which found that the Committee erred in finding him guilty of misconduct.
Issue: Should the Committee’s decisions be upheld?
Holding: [5] For the reasons that follow, I conclude the judge erred in quashing the Committee Decision and in vacating the professional misconduct charge against Dr. Leontowicz. That part of the College’s appeal must be allowed and the finding of professional misconduct against Dr. Leontowicz restored. However, the College’s appeal from the part of the QB Decision that dealt with penalty and costs is dismissed. I am satisfied that the Council erred in making those orders and that the appropriate remedy is to set them aside and remit the matter of penalty and costs to the Council for reconsideration.
Analysis: This is an interesting decision on the broader issue of off-duty professional misconduct and a professional college’s jurisdiction over such issues. For our purposes, I am particularly interested in how the Court approached one of the College’s arguments on the misconduct finding: that the judicial review judge erred by failing “to give the Discipline Hearing Committee the deference required and instead substituted his own views on whether Dr. Leontowicz’s off-duty conduct constituted unprofessional misconduct” [44].
The Court, on this point at least, essentially concludes that “appeal means appeal.” The College pointed to case law that “has repeatedly held that members of a self-regulated profession are best suited to determine the ethics of their own profession and to identify the profession’s core values and principles” [48]. As the Court notes, this should be undisputed. But this does not limit the force of the right of appeal: “…it is also of significance that the Legislature gave members an express right of appeal from a Committee’s decision….[t]his underscores the fact that the Committee’s decision-making authority is not unfettered nor impervious to judicial intervention where warranted.” [48].
The Court is even clearer in rejecting the College’s “wide ranging submission that a reviewing court owes something akin to an additional or super-added layer of deference to the Committee in connection with its disciplinary decisions” [53]. As the Court notes, any indications in the jurisprudence supporting this contention predate Vavilov and “are at odds with the shift in direction provided by that decision” [53]. I think this is well-said.
Kits Point Residents Association v Vancouver (City), 2023 BCSC 1706 (September 29, 2023)
Category: Selection of standard of review, application of reasonableness standard, procedural fairness.
Context: This case concerns the Squamish Nation’s Sen̓áḵw development. The development “will consist of 11 towers, with building heights reaching 56 stories, with an estimated 6000 or more residential rental suites, along with office and commercial space and community amenities” [2]. While the development is located in the city of Vancouver proper, it is not subject to local zoning bylaws, considering that it is on reserve lands subject to federal jurisdiction. Nonetheless, City Council adopted an in camera resolution to authorize and execute a services agreement to facilitate the development [5]. The Kits Point Residents association challenged the City’s resolution on several grounds: (1) the purported unlawfulness of the incamera session; (2) procedural fairness; (3) bad-faith; and (4) reasonableness.
Issues: I will address issues (1) and (2).
Holding: “I conclude that the Resolutuon and the Services Agreement are valid and decline to grant the orders sought by the petitioners” [253].
Analysis:
On the first issue, involving the in camera hearing, the Kits Point Residents Association argued that the standard of review should be correctness, on the basis that the “open meeting requirement” and “the extent to which a local government can shield its decisions from public oversight because the matter relates to development on reserve land” are “questions of central importance to the legal system as a whole and will have significant consequences to municipal governments across British Columbia…” [119].
The Court rightly rejects this argument. As the Court notes, the incamera rules in the Vancouver Charter only apply to the city, and it is only this statute that is directly at issue. This relates to a point about how we determine the standard of review. As the City argued, “it is necessary to review the substance of each decision at issue”—we cannot, as the Residents Association seemed to do, mix together the various issues at play and by addition suggest that they amount to a central question of general importance [122]. In this case, the in camera resolution was simply about the interpretation of the Vancouver Charter.
As to whether the incamera rules were followed, the Court concludes that the City properly relied on exceptions to the general rule in the statute that meetings should be open. Meetings can be closed under the Vancouver Charter where “negotiations and related discussions respecting the proposed provisions of an activity, work or facility that are at their preliminary stages and that, in the view of the Council, could reasonabl[y] be expected to harm the interests of the city, if they were held in public” [see para 166]. The Kits Residents Association attempted to argue that “interests of the city” relate to “the interests of the Vancouver residents in their communities” [182]. In my view, the Court properly rejects this narrow interpretation of “interests of the city.” As the Court notes, this term is semantically far broader, and encompasses “a variety of considerations including the reputation of the City, fiscal issues…[and] the relationship between the City and the Nation” [182]. And the principles of interpretation supported this broader reading, especially given the context of UNDRIP, DRIPA, and the rules of interpretation related to Indigenous rights [172, 182]. This is a case where, because of the breadth of the legislative language, we assign a great deal of latitude to the City.
On the issue of procedural fairness, the Kits PointResidents Association argued that even though the statute did not require the City to hold a public hearing, the common law duty of fairness mandated that the City should have conducted “a public process similar to a public hearing even though a public hearing was not statutorily required” [195]. But the Court rejects this argument. It holds that the resolution and Services Agreement does not affect any one resident or individual in particular—in other words, this is not a “quasi-judicial decision” which affects rights and interests, but rather a commercial agreement [202-203].
While I agree with this conclusion, especially because a hearing was not statutorily required, I do not think it helps to use the label of “quasi-judicial.” The City appeared to argue that “for the action of a municipality to attract a requirement of procedural [fairness] it must have quasi-judicial elements” [197]. This language is sometimes used in municipal cases because bylaws are, in form, legislative in nature, and do not usually attract duties of procedural fairness. This principle is sound in theory because it is true that procedural fairness rights will be most relevant when a decision is narrow-casted to one individual’s particular rights and interests. But this is one factor to consider in the analysis—it would be wrong, in my view, to conclude that the status of a decision as “quasi-judicial” is determinative.
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.