Issue 11: September 26, 2021
Makivik Corporation v Canada (Attorney General), 2021 FCA 184 (September 21, 2021)
Context: This is a judicial review of a decision of the Minister of the Environment and Climate Change Canada to vary a decision of the Nunavik Marine Region Wildlife Board. The Minister varied the Board decision and reduced the number of polar bears that can be harvested from the territory covered by the Nunavik Inuit Land Claims Agreement. The Makivik Corporation sought declaratory relief.
Issues: There are many issues in this case, but three are of interest: (1) the role of the court in exercising its discretion to conduct judicial review in the treaty context; (2) the standard of review; (3) the role of traditional knowledge in the Minister’s decision.
Holding: The Court ultimately allowed the appeal in part and granted the declaratory relief. The Court held on the three issues outlined: (1) whether declaratory relief should be granted is a remedial issue, but in this treaty context, the same considerations apply to whether the Court should hear the case on the merits [59]; (2) the standard of review “is correctness on matters of treaty interpretation, the scope of Aboriginal and treaty rights under s.35…and reasonableness for any decisions outside these categories” [77]; (3) the Minister failed to communicate concerns he had with an Inuit traditional knowledge [ITK] study.
Analysis: This is a case that should be read very carefully by those practicing in the treaty/Indigenous rights context.
On the first issue of discretion, the parties did not argue that the Court should not exercise its discretion to decide the case. But the Court said that the same question of discretion permeates whether to conduct judicial review and the grant of a declaration. On this note, the Court held that “[t]he categories of cases in which courts may exercise discretion not to undertake judicial review are not closed” and may include “cases involving disputes under modern treaties, in which the Supreme Court has directed judicial forbearance and restraint” [60]. This instruction would be upset, in the Court’s eyes, even if a court chooses not to grant declaratory relief but still addresses the matters on the merits. I have previously written in favour of a common approach to the exercise of whether to conduct a review and the remedy to grant (see Issue #2). But the content of that approach in the treaty context, one of deference, should not be taken too far at the threshold stage. Prudentially, the weight of the constitutional issues presented in the modern treaty context may weigh in favour of providing basic guidance to the parties in reasons, even if the declaratory relief does not follow (see, for similar comments, Bessette v British Columbia (Attorney General), 2019 SCC 31 at para 38). Relatedly, what is the “adequate alternative remedy” for Indigenous parties to a treaty to vindicate their rights? The sui generis nature of these rights makes that question a difficult one to answer. This is a tough balance for courts to strike and I would be cautious about taking this part of the Court’s reasoning too far.
On the standard of review, the Court follows Vavilov’s holding that the standard of review on matters of treaty interpretation is correctness. The Court comments that “[d]eferring to one ‘partner’s’ view of the meaning of or compliance with the treaty would be inconsistent” with the nature of the relationship set out by modern treaties [81]. This makes sense following Vavilov. Note though that the Court draws out an exception to the correctness standard for questions of fact [82].
Finally, there was a question as to whether the Minister adequately considered a study of Inuit traditional knowledge [32]. Under the treaty, the Court concludes that the Minister’s requirement to give reasons must be interpreted “purposively" [108]. The Minister’s officials, apparently, had methodological concerns about the study [106]. Given the centrality of Inuit traditional knowledge to the treaty, the Court concludes that the Minister failed to make clear his concerns with the study [112]. Government officials will be held to a high standard in the specific context of treaty rights, but more broadly, because this is a constitutional issue.
Century Hospitality Group v Alberta (Appeals), 2021 ABQB 767 (September 22, 2021)
Context: One of the Century’s former employees was laid off due to COVID-19 closures, and brought a complaint to Employment Standards. This is an application for judicial review of a decision by the Registrar of Appeals denying the Century’s application for an extension of time to file a Notice of Appeal from a decision of an Employment Standards Officer. The case centred around the fact that that the timeliness of Century’s appeal may have been affected by office closures due to COVID-19. Century argued that issues relating to the interpretation of the Employment Standards Code should be based on a reasonableness standard, while issues involving the Interpretation Act (which governs in cases of office closures) should be based on a correctness standard, as this statute is not the Registrar’s “home” statute [30].
Issue: What is the standard of review?
Holding: The Court concludes that “interpretations of the Interpretation Act are very likely to be of central importance to the legal system as a whole, rather than discrete issues of relevance only to the litigating parties” [33].
Analysis: As I have written before (Issue #1, Issue #7), the Vavilov general questions category is exceedingly narrow. As Stratas JA said in Portnov v Canada (Attorney General), 2021 FCA 171 at para 17, such a question must transcend the statute under interpretation or contain implications for constitutional or quasi-constitutional principles. Generally, most of the questions recognized by the Court have met both branches of Portnov’s para 17. At the same time, the Supreme Court has never adverted to the constitutional hook as a requirement for the general questions category, and it has recognized questions that do not raise constitutional issues on their face (see Toronto (City) v CUPE, Local 79, 2003 SCC 63 at para 70 re res judicata and abuse of process).
While this is a close call, I think the Court’s conclusion is correct. The Interpretation Act, as it operates in this case, provides general rules for what happens for office closures. As the Court notes, especially in the current environment, “[a] decision on this issue may have application to many service issues under many statutes involving many administrative tribunals” [34]. If this is so, the question is not related to the timelines involving one statute, which the Supreme Court has previously recognized is not a general question (see McLean v British Columbia (Securities Commission), 2013 SCC 67, at para 28). What’s more, in McLean, the Court does note that “limitation periods, as a conceptual matter, are generally of central importance to the fair administration of justice” (McLean, at para 28, Moldaver J’s emphasis). While the question does not involve the Constitution and may be even narrower than a general limitations question, the Interpretation Act is a sort of meta-statute that governs other statutes. Questions under the Interpretation Act do arguably have wide-ranging impacts on other statutes and the stability of the legal system.
Ontario Nurses’ Association v 10 Community Care Access Centres, 2021, 2021 ONSC 5348 (September 21, 2021)
Context: This is an application for judicial review of a decision made by the Pay Equity Hearings Tribunal. The question was whether an employer “was obliged to negotiate with a recognized barganing agent (a trade union)” in the maintenance of pay equity [10]. The question involved the interpretation of the Pay Equity Act. The Tribunal concluded that the “maintenance” of pay equity, as described in the statute, “is not a joint or collaborative undertaking” but rather “is solely the responsibility of the employer” [11]. The Tribunal, in the course of its reasons, concluded that “the failure to require an employer to negotiate maintenance with a representative trade union does not transgress on the freedom of association as protected through [the Charter]” [11].
Holding: The Court concluded that the decision of the Pay Equity Tribunal was reasonable.
Analysis: This case shows how the muck of Charter values—both in terms of discretionary decisions and the interpretation of legislation—is in need of major clean-up by the Supreme Court of Canada. Two points:
1) While this was not a purely discretionary decision by an administrative decision-maker nor a direct attack on the constitutionality of the legislation, the Pay Equity Tribunal was required to interpret the Pay Equity Act and determine whether Charter values could assist the interpretation [106]. This was a case in the BellExpressVu Limited Partnership v Rex, 2002 SCC 42 line of cases, in which a question was raised as to whether Charter values could enter the fray in the situation of statutory ambiguity. In other words, the Doré v. Barreau du Québec, 2012 SCC 12 framework is not directly applicable here, as the Court says [105]. And yet it appears the Pay Equity Tribunal viewed this as a Doré-type case [108-109]. It asked whether there was a “proportionate balancing” [109]. The Court is forced to make sense of the mix between the BellExpressVu and Doré analyses. But they are separate, in theory.
2) If this case does raise a constitutional question, in theory, the standard of review would be reasonableness no matter whether the case is analyzed as BellExpressVu or Doré . But that conclusion is not particularly satisfying on either account. As I have said, Doré should not survive Vavilov. And if it is a BellExpressVu type case, and Doré does not survive Vavilov, then there is a question: should the question of whether the decision-maker properly incorporated “Charter values” (read:rights) into the legislative interpretation truly just a run-of-the-mill legislative interpretation subject to the reasonableness standard? I’m inclined to think that, in the BellExpressVu context, Charter values are simply used as an interpretive tool or an avoidance technique (ie) we avoid unconstitutional interpretations. This would counsel in favour of a reasonableness standard. But the invocation of constitutional rights might weigh in favour of the correctness standard, if Doré is overturned. More fun awaits on Charter values.
Sennikova v Canada (Attorney General), 2021 FC 982 (September 22, 2021)
Analysis: This was a judicial review of a decision of the Social Security Tribunal Appeal Division. I’ve included this case this week because the Applicant was self-represented and the Court said that it will “explain the law and findings as clearly and simply as [they] can, avoiding the jargon or shorthand that is sometimes used by lawyers and judges familiar with this area” [3]. For those who wish to have a basic explanation of the Vavilov framework (students, for example), this case provides a very good summary.
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.
"The liberties of none are safe unless the liberties of all are protected." - William O. Douglas