The final SEAR of the year will be December 17, 2023. On that day, I’ll provide my yearly summary of the top/emerging issues in Canadian administrative law for 2023 and onwards. This is a newsletter you won’t want to miss if you’re looking for a quick summary of where we’ve been and where we’re going.
The newsletter will resume January 7, 2024.
I wish you and yours the best of the season. With hope for the future and with the comfort of those close to you, I hope you have a wonderful Christmas season.
Mark
Brar v British Columbia (Securities Commission), 2023 BCCA 432 (November 27, 2023)
Category: Privative clauses.
Context: From the Court’s summary:
Petitioners filed a petition for judicial review of summonses objecting that they required more information than what they had received concerning the investigation. Chambers judge struck the petition on the basis that it was barred by a privative clause, s. 170 of the Securities Act. Alternatively, judge held that, in any event, any duty of procedural fairness owed to the Petitioners was “minimal” and had been discharged in the circumstances.
Issue and Analysis: The core issue raised is whether the privative clause bars the petition for judicial review on procedural grounds. The provision is broad, and the chambers judge saw it as a complete bar to the petition [10, 21].
What’s remarkable here is that the BCCA agrees: “I agree that on its face, the provision does seem to bar any challenge to a decision made under the Act except a decision not made in good faith” [41]. But this is not conclusive for the Court. Instead, “the weight of authority clearly supports the proposition that a privative clause…does not prohibit judicial review on the grounds of procedural fairness” [43]. This is true: Board of Health for the Township of Saltfleet v Knapman, [1956] SCR 877 at 879.
Notably, the Court does not rest its conclusion on the Constitution and its protection of an inherent judicial review jurisdiction per se: “…I do not find it necessary to consider the petitioners’ alternative argument that the judge erred in dismissing the application to declare s.170 unconstitutional” [44]. It appears, instead, that the Court rested its conclusion on statutory interpretation principles, implicitly concluding that legislation. This was the approach that governed before the Supreme Court’s decision in Crevier v. Quebec (Attorney General), [1981] 2 SCR 220, which finally declared that there was a constitutional limit that undergirded this conclusion. The Court cites to Crevier here, but that citation does not appear to do any substantive work.
Mirza et al v Law Society of Ontario, 2023 ONSC 6727 (November 29, 2023)
Category: Procedural fairness.
Context: This case concerns the Law Society of Ontario bar exam “cheating scandal.” After concluding, based on an investigation, that certain licensing candidates accessed “cheating keys,” accessed copies of the exam, and had “anomalous exam results,” the LSO licensing department concluded that the Applicants “had engaged in ‘prohibited actions’ by making ‘a false or misleading representation or declaration’” [4]. The LSO licensing department voided the Applicants’ exam results and, for all Applicants but one, their registration in the licensing process. It also disqualified the Applicants for one year, for re-applying to the licensing process.
Issue: Among other things, was it a breach of procedural fairness for the LSO to impose punitive consequences on the Applicants without holding a hearing?
Holding: “However, the further sanctions imposed by the LSO substantially impacted the Applicants to the point of being punitive. It was a violation of procedural fairness to impose that level of consequence without holding a hearing or reaching a determination that the Applicants had engaged in intentional misconduct” [10].
Analysis: Professional colleges, especially at the stage of imposing “penalties,” are typically owed extensive deference—from one perspective, this makes this case surprising. But this characterization begs the question. The LSO had argued that its sanctions in this case were simply regulatory, not punitive. They were not imposed via a quasi-judicial process; there was no finding that the Applicants were not of good character, or that the misconduct was intentional; and as a result, what happened was something less than a “penalty” that would not attract a high bar for the common law duty of fairness. But the LSO was, apparently, sloppy. At different times, it represented that it was proceeding on a good character inquiry, and at any rate, the statutory context supported the holding of a hearing [28-29].
In other words, the LSO proceeded as if it was investigating good character, with all of the consequences this implies. The LSO was “not entitled to void the Applicants’ registration and treat the consequence as a regulatory sanction without a finding of fault and a hearing…” [38]. Ultimately, this turns out to be a rather intrusive review of the LSO’s choice of procedure in a case raising profound regulatory challenges; but given the stakes, especially the fact that the LSO reserved the right to impose a hearing on the Applicants upon re-application, there may have been good reason for the Court to insist on higher standards. And of course, the LSO could have avoided this outcome by scrupulously understanding its enabling statute and erring on the side of a hearing in these odd circumstances.
Aghvamiamoli v. Canada (Citizenship and Immigration), 2023 FC 1613 (December 1, 2023)
Category: Application of reasonableness standard.
Context and Analysis: This is a judicial review of a visa officer’s decision refusing an application for a study visa. The officer refused the application “citing [the applicant’s lack of financial support, of family ties outside Canada and the purpose of the Applicant’s visit” [3].
The Court ultimately upholds the decision as reasonable, but notes that the Officer’s analysis of the Applicant’s study plan is wanting. The Officer’s bald statement questioning “how the proposed studies in Canada would benefit their academic and professional development in Iran” [34] was simply insufficient. For the Court, this wasn’t enough, because the “generic comment does not explain ‘what more’ the Officer may have been looking for in terms of guidance if the Applicant wished to reapply in the future” [35]. This is an example of the new onus, created by Vavilov, put on decision-makers to adequately explain their decisions.
Vandenberg v Vancouver (City) Fire and Rescue Services, 2023 BCSC 2104 (November 30, 2023)
Category: Doré/Loyola
Context: This is a judicial review of a decision of the Fire Chief of Vancouver to issue an Order to the City of Vancouver to clear tarps, tents, and other structures from Hastings Block. Two of the persons sheltering on the Block challenged the Order on the grounds that (a) it violated their Charter rights; and (2) with no notice given to the Block campers before the Order was issued, procedural fairness rights were violated.
Issue: (1) What is the proper analysis for the Charter issues?: (2) Were procedural fairness rights violated?
Holding: The Court finds the decision reasonable, yet concludes that the Fire Chief did not meet the duty of fairness when issuing the Order because of a failure to provide notice and an opportunity for submissions.
Analysis:
This case starkly highlights the challenges that decision-makers are faced with in 2023. On one hand—claims of constitutional rights, on which we’d expect decision-makers to engage carefully, affording opportunities for claimants to make their arguments. On the other hand, the practical requirements of administrative decision-making, which may sometimes reject procedural and reasons-giving constraints as impractical:
(1) This case demonstrates the continued controversy over the Doré/Loyola framework, specifically how courts conduct the two-step test it invites: (1) is a claimant’s Charter rights and/or values engaged?; (2) if so, is the balance struck by the decision-maker between the right/value and the statutory objective reasonable. Some courts have concluded that this first step—including decisions involving whether the Charter applies in the first place—is reviewed on a correctness standard [61]. Others have concluded that a failure to engage with Charter submissions at first instance means a decision cannot be reasonable: Canada (Attorney General) v Robinson, 2022 FCA 59.
The Court here holds that the first step is a matter of first impression for the Court, apparently applying the correctness standard [73]. In so doing, however, we get an interesting conundrum: here, the Charter arguments were not raised by the affected parties at first instance and in fact, the Court concludes that “Ms. Vandenburg could not be expected to raise that question with Fire Chief Fry…” [73]. So, the Court concludes that in conducting de novo review, “the court is not restricted to the record before the statutory decision-maker” [88-89]. We can contrast this holding with cases like Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at paras 43-47, where the Federal Court of Appeal stressed the legal and practical importance of placing Charter issues before decision-makers. Perhaps the contrast isn’t so great if you consider that Forest Ethics involved an adjudicative tribunal whereas, here, there was no defined process for submissions. And yet we must think that the statements made in Forest Ethics also apply to this context—that factual appreciations would assist the judicial review court under any standard. This points to the practical challenge facing decision-makers: if higher standards of reasoning apply to constitutional issues, they may need to inculcate processes to adequately show their work on constitutional questions. But this may be difficult, especially in a “front-line” context like this.
(2) In conducting reasonableness review of the Fire Chief’s balancing of the Charter issue with statutory objectives, we get very light-touch review that is likely inconsistent with what we have come to expect from Vavilov. Citing Trinity Western, the Court concludes that it can consider “reasons that could have been given” [159]. The Court notes that the Fire Chief’s argument that she actually engaged with the Charter issues is “conceptually challenging,” [165] but that substantive engagement with the Charter can be demonstrated “even though the decision-maker does not expressly acknowledge [it] and the record does not demonstrate it explicitly” [166]. Assuming that Vavilov has something to say about the matter, this statement of the test appears somewhat more relaxed than under Vavilov, where the record can disclose implied determinations of law, but “reasons that could be offered”—generated by the Court—are no bueno. Here, the Court freely offers that a fire hazard could have motivated Chief Fry’s decision to clear the tents. That may be the case, yet we will have to square this light-touch review with Vavilov at some point.
(3) On procedural fairness, the Court concludes that the decision is administrative in nature, rather than policy-laden, involving Charter rights, and that therefore the duty of procedural fairness is not low [232]. While I accept these findings, this is a somewhat remarkable conclusion, given the factual and practical decision-making context that faced Chief Fry, and the wide-reaching impacts of the Order—it could just as easily been seen as a policy decision. I wonder about the feasability of the Court’s conclusion that notice and submissions could have been facilitated [233]. At any rate, the Court finds this lack of notice and opportunity for submissions fatal, and concludes that the duty of fairness was not met.
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.