Supreme Court Statutory Interpretation Cases: La Presse inc v Quebec, 2023 SCC 22; Reference re Impact Assessment Act, 2023 SCC 23.
In the last two weeks, the Supreme Court released two cases that implicate the law of statutory interpretation, which generally applies to administrative decision-makers (Vavilov, at para 118). For that reason, the Court’s development of the law of statutory interpretation applies to administrator. What I aim to highlight in these cases is the disparity in the way the Court is applying purposive interpretation, specifically in the interaction between text and purpose. In La Presse, the Court admits that “[c]onfusion as to what [the modern approach to interpretation] might entail in practice endurses, despite the apparent simplicity of Driedger’s influential words” [22]. The CJ offers “clarity” on issues that he sees “at the heart of the confusion.” I fear, though, that the Court did not accomplish the achievement of clarity. Whether one agrees with the result in La Presse, it is a harbinger of further confusion in the law of statutory interpretation, which could affect how administrators interpret the law.
La Presse involved the scope of s.648(1) of the Criminal Code, which prohibits the publication of information about portions of a criminal trial at which the jury is not present. Section 648(1) says that “After permission to separate is given to members of the jury…” a mandatory publication ban is enacted. But there is another provision: section 645(5) confers powers on a trial judge “to deal with any matter that would ordinarily or necessarily be dealt with in absence of the jury after it has been sworn.” This provision, on first reading, seems to suggest that the publication ban can also apply before the jury is empanelled. We seem torn between two provisions.
The appellants would have good reason to hang their hats on s.648(1). I took it as a positive step that in TELUS v Wellman, 2019 SCC 19, R v Rafilovich, 2019 SCC 51, and MediaQMI v Kamel, 2021 SCC 23, the Court clarified the following propositions: (a) the text is the object of interpretation, meaning that within the purposive approach, legislatures express their aims through the medium of text; (b) in selecting and using purposes, courts should not subvert text; in other words, we should not abstract away from the text in order to stretch it to achieve ever-more abstract aims.
The Chief Justice's opinion in this case endorses what I think is another version of purposive interpretation, one that is potentially inconsistent with these cases. In deciding that s.648(1) applies before the jury is empanelled (a power channeled through s.645(5)), I worry the Court abstracts away from the condition-precedent type language at the outset of s.648(1). These are words of limitation, and every word in a statutory enactment should be given effect.
The CJ is right that this is not the end of the analysis, but I do not think the context dislodges the text's meaning. It is true that s.645(5) was adopted after the publication ban provision in s.648(1), which might lead us to think that former “adds on” to the latter, only extending its scope to the pre-trial context. But this assumes that s.645(5)’s language (“ordinary and necessarily”) encompasses the specific matter of publication bans, which is subject to s.648(1)’s more specific terms. I found the appellants’ view of this persuasive: there is a distinction between pre and post jury empanelment, and there are reasons why Parliament would enact a mandatory ban for the post-empanelment stage and leave the pre-empanelment stage to a judge’s discretion [46]. Those reasons are reflected in the appellants’ textual interpretation.
Not so, for the Court. The CJ was motivated to read s.648(1) in this way to accord with the modern trial and the fact that, to him, trial fairness and efficiency mandate a global approach that allows a mandatory publication ban pre-and-post empanelment. This is so given the matters dealt with at the pre-trial stage in the modern era. But it does not appear that s.648(1) always applied in this manner. I think the CJ reveals this kind of reasoning at para 9, where he suggests that the “context of modern trials simply reveals s.648(1)’s full temporal scope” [9] and that "the matters that should 'remain a secret' for the jury are now dealt with before and after its empanelment" [50]. He says this is supported by Hansard [48]. All of this might be so, but I worry about this sort of reasoning, which suggests that modern practice can “reveal” heretofore unknown applications of a statute that does not—at least obviously— seem to encompass those applications. This is not a situation where there is a broad term enacted that invites application to new fact situations (see the discussion in R v DLW, 2016 SCC 22 at para 61, confirming that “[b]road statutory categories are often held to include thinks unknown when the statute was enacted” but also confirming that this is “most often” the approach when statutory language is “broad or open-textured”). This is even more worrisome when the Court does not cite any of the warnings it has usually attached to the use of Hansard evidence to reach this conslusion (MediaQMI, at para 37).
I also think that the Court's reliance on the absurdity doctrine in relation to purpose is apt to be misunderstood. The CJ accepts that reliance on the absurdity doctrine is justified when an interpretation of the text would "defeat" the objective of a provision; here, he suggests that the appellants’ interpretation of s.648(1) would undermine trial efficiency, a purpose attributed to s.648(1) [54-55]. He does rely on Sullivan/Driedger for this point, and also relies on But I find this hard to square with the Court's recent comments, suggesting that Parliament does not achieve its objectives at all costs (see e.g. Rafilovich, at para 30). The line between Parliament making a reasoned choice not to pursue an objective at all costs, and Parliament "defeating" an objective, seems blurry. It’s possible that the publication ban does not apply to the pre-trial context, and that it is Parliament’s job to solve any inefficiencies that arise. This interpretation can still meet the purposes of the provision; just not as coherently as the CJ’s interpretation. But this is not a flaw under the purposive approach.
This is just my view, and many might disagree. My bigger concern is that the Court deploys this reasoning, and reaches its result, without mentioning any of the cases I mentioned above: TELUS v Wellman, Rafilovich, and MediaQMI. All of these cases involved either methodological disputes deeply dividing members of the court (TELUS and Rafilovich), or statements that at least shed doubt on the reasoning deployed in La Presse (MediaQMI). This is disappointing because the CJ took the step of purporting to offer clarification. But his clarifications ring hollow without considering or even mentioning these cases. What’s more, the clarifications are largely cosmetic. We already know that the “plain meaning of the text is not in itself determinative”—all accept that purpose must be addressed in every case [23]. And while it is helpful to point out that “external interpretive aids” can only be deployed after conducting the purposive analysis [24], this is not what I consider to be an issue at the heart of confusion about statutory interpretation. Instead, I think the issue is the confusing interaction between text and purpose, unaddressed by this case, but exacerbated by it, especially in light of the Court’s use of Hansard evidence without the typical warnings.
As if to prove the point, the Court released its Impact Assessment Act Reference decision last week. That case involves issues relating to the distribution of powers. But it also dealt with an issue related to the interpretation of statutes. In discussing the dissent’s approach to the statute, which it would have read it a certain way in order to minimize the constitutional problem, the Court says the following [193]:
Had Parliament intended the “designated projects” scheme to target only “significant” changes, it could have similarly used that adjective in defining “effects within federal jurisdiction”. It did not do so. This Court must respect Parliament’s drafting choices and cannot amend the IAA as it sees fit. As this Court has held, “however generously one may interpret the statute, one cannot rewrite it”
And before this, at para 89, the Court relies on Hansard evidence, but attaches a strong warning to it—the warning conspicuously absent in La Presse: “Courts must approach parliamentary debates with great care, acknowledging that the record will often be full of contradictory statements, that speakers may make inadvertent errors in presenting and discussing legislation and that it is bad practice to cherry-pick seemingly helpful passages from the record.”
Whatever the merits of the Impact Assessment decision, it reveals a different emphasis than La Presse when it comes to the relationship between text and purpose, and the use of Hansard evidence. Maybe this is just interpretive pragmatism. If it is, the Court should say so. If not, I fear that the Court has much more work to do, especially for administrators who are tasked with applying the law, if it is committed to clarity in the law of interpretation. It appears caught between two forms of purposive interpretation, and if La Presse is any indication, it does not yet appear ready to really delve into the inconsistencies in the approach. While I have my preference for which version of purposive interpretation should adopt, we should all hope for the Court to be much clearer about how to interpret statutes under the modern approach, one way or another.
Georgopoulos v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2023 ABCA 285 (October 10, 2023)
**Thanks to a SEAR reader for alerting me to this case**
Category: Rights of appeal/adequate alternative remedy.
Context: G was dissatisified with the non-economic loss compensation given to him by the Workers’ Compensation Board, and appealed the associated “permanent clinical impairment rating” through the internal and external processes. Dissatisfied, he then brought an appeal under the Workers’ Compensation Act (allowing appeal on “a question of law or jurisdiction”), and an application for judicial review. His procedural fairness arguments fell under the right of appeal as raising a question of law, but the Court found no fault with the Appeals Commission’s procedures [4]. His application for judicial review was premised on the argument that the Appeals Commission “unreasonably weighed the medical evidence,” but the Court rejected the invitation to re-weigh on judicial review [5].
Issue: G appealed the dismissal of the application for judicial review and the appeal to the ABCA.
Holding:
Feehan JA, joined by Kirker JA, rejected the appeal on the basis that the ABKB did not err in declining to re-weigh the medical evidence evidence [8]: “It is not unreasonable for the Appeals Commission to prefer one body of expert evidence over another. Conclusory allegations that the Appeals Commission or the chambers judge failed ‘to appropriately consider the evidentiary record and factual matrix’ are not sufficient to demonstrate a reviewable error” [8]. The majority also rejected G’s attempt to characterize disputed issues of fact and evidence as questions relating to the legal standard of fairness, falling under the right of appeal [9].
Slatter JA concurred in the result, but provided extensive reasons in principle for rejecting the appeal, concluding that “it is not open to challenge factual decisions of the Appeals Commission by applications for judicial review under the Rules of Court” [28].
Analysis: I profiled the ABKB decision in Issue #59. I’ve profiled this case in some detail because it raises, in picture perfect form, the issues at the heart of the Supreme Court’s upcoming Yatar appeal. There are issues of doctrine and principle.
At the doctrinal level, the majority’s conclusion in this case makes good sense. G’s challenges on appeal and judicial review seemed premised on disputed issues of fact and medical evidence. Importantly, as the majority points out, whether these factual arguments can be boostrapped into the appeal, or whether contested by way of judicial review, they are unlikely to succeed [9]. That said, the majority’s clean distinction between clear questions of legal fairness and unappealable questions of fact is open to question, though almost certainly not in this case. This is a powerful counterargument to what I will say now about the question of principle raised in this case.
Slatter JA concludes that “as a general rule, a statutory right of appeal from the decision of an administrative tribunal is intended to exhaust the remedies available to the applicant,” though depending on the statute, the right of appeal may not intended to oust judicial review completely [13]. Here, and in his opinion, Slatter JA appears to make three separate points: (1) while there is a constitutional guarantee of judicial review as specified in Crevier, there is nothing constitutionally wrong with a legislature specifying the review function through a right of appeal, restricting it to questions of law, and preventing judicial review [15-18]; (2) “[w]hether a statutory right of appeal is intended to be the exclusive remedy for reviewing administrative decisions must always be a question of statutory interpretation,” meaning that sometimes a right of appeal scheme may not completely oust judicial review [18-21]; (3) even if the statutory scheme permits judicial review, judicial review is discretionary and a right of appeal will likely be an adequate alternative remedy warranting a court to decline jurisdiction [21].
As a set of general rules, I think Slatter JA is right: especially on the constitutional point, which I discuss in my forthcoming paper in the Canadian Bar Review. As Slatter JA notes, the scope of the rule established in Crevier is a matter of debate after Vavilov, but to him, the right of appeal in this case satisifed the constitutional guarantee [15]. As I noted above, and while I agree with this conclusion, there are powerful counterarguments that are sure to be raised in argument in Yatar, including whether defining the constitutional guarantee in terms of questions of law is sufficiently administrable (consider procedural fairness); and whether the history of the law of judicial review and its contemporary development protects a broader constitutional guarantee.
Jamali v Canada (Citizenship and Immigration), 2023 FC 1328 (October 5, 2023)
Category: Chinook and procedural fairness
Context: This is an application for judicial review in relation to an officer’s decision to refuse a work permit. Among other things, the applicant argued that the decision was procedurally unfair because the officer relied on the use of Chinook, “a processing tool developed by IRCC to speed up officers’ review of the high volume of applications, review the file information, make decisions and generate notes in a fraction of the time it previously took to review the same number of applications” [42].
Issue: Is the decision procedurally unfair?
Holding: No: “[43] The applicant’s arguments are speculative. The applicant did not adduce evidence to support his position, or about what the Chinook software does and does not do. It is not sufficient merely to allege or presume that not enough ‘human input’ went into the review of his application or that there was a ‘lack of effective oversight’ and the record does not support those arguments in this case.”
Analysis: I’ve highlighted the Chinook issue many times in this newsletter (see example Issue #85). The challenge remains the same. The Court—rightly—is asking litigants to adduce evidence about the way Chinook works. Applicants’ counsel are right to raise questions about this tool, especially because it might maximize efficiency of processing at the expense of individual justification. But these cases are beginning to pose a problem for those who might wish to question Chinook. In the absence of evidence about its operation, the Court is left to conclude that its use raises no issues. As the precedents pile up, the onus will be on applicants’ counsel to point to specific ways in which Chinook might undermine individual justification or procedural fairness.
Pelletier v Bloorston Farms Ltd, 2023 ONSC 5626 (October 6, 2023)
Category: Impact on affected individual
Context: Pelletier appeals orders made by the Landlord Tenant Board, denying his motion to set aside an eviction order and denying his request to review the decision. At issue was the validity of an agreement which terminated Pelletier’s tenancy in return for a $6000 payment from the landlord. However, Pelletier changed his mind; but the landlord refused to return the tenancy. At a hearing to set aside the eviction order, Pelletier raised issues of duress, unconscionability, and misrepresentation. Specifically, Pelletier argued that “The Board’s reasons did not address evidence from Mr. Pelletier in support of his alternative argument that the landlord’s agent had misrepresented to him the facts and his rights by telling him that the building was condemned, that he was going to be evicted whether he signed the document presented to him or not, without any compensation, and that a visit from the sheriff was imminent” [5].
Issue: Did the Board (and review) properly address the issue of misrepresentation?
Holding: No.
Analysis: Though this is a statutory appeal, the case presents two important themes emerging from Vavilov and the recent case of Mason (see Issue #108). First, the Board’s reasons here failed to demonstrate reflection on its statutory duties to “have regard to all the circumstances around the making of this agreement…” specifically on misrepresentation [20]. This is especially so given that the reasons are “silent on critical evidence that affects the significant rights and interests, in this case accessible and affordable housing, of a vulnerable individual” [19]. Second, Mason confirmed the central importance of the parties’ submissions. It appears that failure by the decision-makers to address properly-argued issues and evidence will probably lead to a successful judicial review. Together, these two constraints from Vavilov will meaningfully raise the bar for decision-makers, particularly in a context like a landlord-tenant board.
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.