Issue #12: October 3, 2021
Toronto (City) v Ontario (Attorney General), 2021 SCC 34 (October 1, 2021)
The big legal story this week was the Supreme Court’s 5-4 decision in this case. The case, among other things, concerns the role of unwritten constitutional principles in invaliditating legislation. The majority holds that unwritten principles cannot be used to formally invalidate legislation [5], but they can be used to (1) interpret texts and (2) “develop structural doctrines” that “fill gaps” in the text [55-56].
I wrote about the case’s implications for administrative law on Double Aspect. Long story short: Vavilov, para 35 says that “courts are bound to respect” a legislated standard of review “within the limits imposed by the rule of law.” The Rule of Law is an unwritten constitutional principle. So what does City of Toronto mean for Vavilov’s para 35? In my view, these cases can be reconciled, but it would take some perhaps unjustified finagling. Read my post for more.
Ferguson Point Restaurants v Vancouver Board of Parks and Recreation, 2021 BCSC 1888
Context: This is an application for judicial review of a resolution of the Vancouver Board of Parks and Recreation. The decision cut a two-lane roadway in Stanley Park down to one lane with the other lane reserved for bikes. The applicant restaurant challenged the resolution as unreasonable.
Issue: How is the reasonableness standard of review from Vavilov applied to municipal bodies/boards and the decisions that they make? Was the decision by the Park Board to pass a resolution closing one of the lanes of Park Drive to motor vehicles and dedicating it for use as a bike path reasonable?
Holding: The decision is reasonable.
Analysis: As readers may know, prior to Vavilov, Catalyst Paper Corp. v North Cowichan (District), 2012 SCC 2 created an arguably special standard of review for judicial review of municipal bodies in a legislative capacity. While that standard was nominally reasonableness, it was applied to create “wide deference”: “only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside” (Catalyst, at para 24). The Court in Catalyst rejected the argument that Dunsmuir v New Brunswick, 2008 SCC 9 precluded such a special test, holding fast to the idea that Catalyst merely sets out the context for judicial review of municipal bylaws.
The Court in Ferguson Point Restaurants follows the same thinking. It holds that Catalyst should still be applied in light of Vavilov because “the Catalyst test is a test for reasonableness, but as appropriate to the particular context of a legislative decision….” [85]. While reasonableness is a single standard, the Court rejects the idea that a single standard means a single test for review [86].
So, in BC at least, Catalyst survives. Whether it should is another matter. I am partial to a reading of Vavilov that views it as a simplifying exercise. Indeed, this is how the Federal Court of Appeal saw it in Portnov v Canada (Attorney General), 2021 FCA 171, where it rejected the special test in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 for judicial review of regulations. It rejected this test, in part, because a special carve-out for regulations puts form over substance (Portnov, at para 23) and undermines the “sweeping and comprehensive” nature of Vavilov’s contextual standard of review. An application of Vavilov may lead to “more” deference in the context of municipalities and regulations, but this should not be automatic as a categorical rule. The same reasons for rejecting Katz should flow to Catalyst.
Lauzon v Justices of the Peace Review Council, 2021 ONSC 6174 (September 27, 2021)
Context: A Hearing Panel of the Justices of the Peace Review Council lodged a finding of judicial misconduct against Justice of the Peace Julie Lauzon. The finding was made by the Panel in relation to an article written by JP Lauzon entitled “When Bail Courts Don’t Follow the Law.” As a result of this article, three complaints were filed against the Applicant to the Justices of the Peace Review Council. The complaints were filed by the President of the Ontario Crown Attorney’s Association on its behalf, the Assistant Deputy Attorney General on behalf of the Ministry of the Attorney General Ontario, and the Director of Public Prosecutions on behalf of the Public Prosecution Service of Canada. Two of the three panel members also recommended that the Applicant be removed from office.
Issue: Lauzon raised issues about her “freedom of expression as a judicial officer under s.2(b) of the [Charter]” [4]. She argued that the complaints filed “are an attack on judicial independence, ‘a constitutional question,’ for which correctness is the applicable standard of review” [7]. Specifically, she argued that the Hearing Panel should have refused to consider the complaints because the complaints were part of a “concerted campaign to have her removed from office” [4]. What is the standard of review?
Holding: The Divisional Court held that the misconduct finding and the recommendation for removal were reasonable. The Court also held that the standard of review as to the framework to assess the constitutional claims was correctness [19]; it held that the standard of review on whether the Hearing Panel properly heard the case was reasonableness [6, 16].
Analysis: Two issues here:
1) The Court held that what test to apply to the constitutional issues—R v Oakes, [1986] 1 SCR 103 or Doré v Barreau du Quebec, 2012 SCC 12—is assessed on a standard of review of correctness [18-19]. The Court does not articulate why this is, beyond a general comment that it is a “question of law” [19]. If the Vavilov presumption of reasonableness is taken seriously, though, this is simply a part of the law the administrative body is asked to apply, and should be subject to a reasonableness standard. In my view, this practical problem would be solved by simply applying a common test for whenever a constitutional issue is raised, no matter if the challenge is raised to a law or administrative act. For the general reasons outlined in Vavilov at paras 53 et seq, this common test should be one based on the correctness standard. But this is far from the only view on the matter.
2) The Divisional Court makes an interesting comment in light of Lauzon’s argument that the question may be a question of “central importance” attracting the correctness standard under Vavilov. In order to entertain the argument that complaints by the Attorney General herself interferes with judicial independence, the Court says that “the applicant needed to establish, as a threshold finding of fact, that the complaints were not bona fide complaints about conduct, but were an attempt to disenfranchise a particular judicial officer” [11]. On a practical level this threshold hurdle makes some sense, since Vavilov makes no reference to an applicant needing to cross any threshold hurdles of this sort to raise an issue as one of central importance. Is it possible, for example, that even bona fide complaints about conduct could impact judicial independence? To my mind, it is undesirable to narrow the scope of this category in this way, no matter the practical implications.
Ontario Nurses’ Assn v Chief Medical Officer of Health (Ontario), 2021 ONSC 5999 (September 27, 2021)
Context: The Ontario Nurses Association sought an order asking the Chief Medical Officer to amend two orders promulgated under the Health Protection and Promotion Act. The Association asked for mandamus, suggesting that the directives ought to require the use of N95 masks in a broader array of certain medical settings, on the basis that the Directives failed to “reflect the risk of aerosol and asymptomatic transmission of COVID” [37]. In the alternative, the Association asked for the Directives to be quashed.
Issue: Are the Directives reasonable as is?
Holding: The Court upheld the Directives as reasonable.
Analysis: This is an interesting example of how reasonableness is adapting to the context of the COVID-19 pandemic. The Applicants in such circumstances faced a huge uphill battle: (1) mandamus is always a stretch; (2) the Directives are “quasi-legislative” in nature [40]; (3) the COVID context is one which, in general, courts have been “passive” in the policing of exercises of power (see Paul Daly here).
This is especially so under this legislative scheme, which provides a good example of Vavilovian reasonableness review. The only real legal restriction on the power to issue directives is that the Chief Medical Officer must consider the precautionary principle [10]. The applicants suggested that the risk of aerosol transmission counselled a certain approach to the precautionary principle that “mandates” a requirement for the use of N95 respirators [36]. Vavilovian reasonableness means that the Chief Medical Officer’s interpretation of the term is owed deference—the Court cannot accept the applicants’ submissions simply because they think they have advanced a better interpretation of what the precautionary principle means in this context.
This is especially so because the applicants failed to advance convincing evidence to suggest that their interpretation of the precautionary principle should prevail [62 et seq]. When legal restrictions are loose, as here, and where the applicants have failed to suggest why the administrator has failed to regard those restrictions, deference rules the day.
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.
Quote of the Week: “The friend in my adversity I shall always cherish most. I can better trust those who have helped to relieve the gloom of my dark hours than those who are so ready to enjoy with me the sunshine of my prosperity”-Ulysses S. Grant