Over the holidays, the Sunday Evening Administrative Review received a Clawbies award in the “Best Newsletter Category.” The Clawbies are annual awards which recognize the best blogs, newsletters, Youtubers etc etc in the Canadian legal community. I am grateful to all of you for reading each week and finding time to nominate the newsletter for a Clawbie. Thank you!
Sullivan v Canada (Attorney General), 2024 FCA 7 (January 11, 2024)
Category: Charter values.
Context: This is a judicial review of a decision of the Appeal Division of the Social Security Tribunal. The Appeal Division held that the applicant was properly disqualified from receiving employment insurance benefits when he lost his job due to misconduct—failing to comply with his employer’s COVID vaccination policy.
Analysis: The Court (per Stratas JA for a panel of three), finds the Appeal Division’s decision reasonable. Though he withdrew this argument at first instance, the applicant raised Charter arguments for the first time on judicial review. The Court also invited the applicant to advance arguments on Charter values, given the Supreme Court’s decision in CSFTNO (Issue #117).
As I noted in Issue #117, the decision in CSFTNO arguably raises more questions than it does answers. It suggests that the framework of Charter values imposes a procedural duty on decision-makers to consider the values underlying a particular provision, even if the values were not raised at first instance, and even where a written Charter provision does not apply. I raised two questions about this in light of the rest of our constitutional and administrative law jurisprudence. First, what of Quebec (Attorney General) v 9147-0732 Quebec Inc, 2020 SCC 32 and Toronto (City) v Ontario (Attorney General), 2021 SCC 34? These cases suggested that the text of the Charter is the object of interpretation, that it sets up fence posts that guide purposive analysis. In CSFTNO, we have a different mode of thinking, suggesting that values (or purposes?) have independent weight. Second, CSFTNO’s contemplation of a litigant raising Charter values for the first time on review created questions about the normal rules of administrative law, which require litigants to raise Charter arguments at first instance.
The Court in Sullivan suggests good answers to these questions, inexplicably left open by the Supreme Court in CSFTNO. On the first question of the relationship between “values” and constitutional text, the Court says:
[11] The text of the Charter and case law under it heavily qualifies “freedom” and “equality”. And everything in the Charter is subject to reasonable limits prescribed by law under section 1. As well, it must also be remembered that section 1 of the Charter, in binding words that cannot be ignored, says that the Charter protects the “rights and freedoms set out in it”, not other things such as “values”. Thus, the “values” that administrative decision-makers are to take into account cannot be broader than, undercut or do an end run around the established scope of the “rights and freedoms set out” in the Charter determined in accordance with the seminal, binding Supreme Court authority of Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426. Undercutting the applicant’s submission is the fact that there are no Charter cases recognizing a general, unqualified entitlement to “freedom” or “equality”.
On the second question of Charter values at first instance, the Court says:
[8] In this Court, the applicant has raised the Charter in support of his claim. In the General Division, he raised Charter arguments but expressly withdrew them. Thus, his Charter arguments in this Court are a new, inadmissible issue: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. We add that all Charter arguments, whether based on rights, freedoms or values must be supported by a rich evidentiary record, not by the “unsupported hypotheses of enthusiastic counsel” or judges: see the venerable, unquestioned case of Mackay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, 61 D.L.R. (4th) 385 at 362. We do not have that sort of evidentiary record here.
These paragraphs, in good common law fashion, attempt to plug some holes in CSFTNO. By clarifying that Charter values cannot transcend the text, the Court rightly aligns CSFTNO with the “seminal, binding” decision in Quebec Inc. And by resisting the temptation to adjudicate the Charter issue anew, the Court preserves the basic rules of administrative law, especially on Charter issues. With these clarifications in mind, I expect further work to try to make sense of CSFTNO, and particularly, to find a plausible place for “values” in the Canadian constitutional order. Are values comparable to purposes, in that they serve as soft constraints on state decision-making; or do they carry independent, normative weight? Sullivan (in my view, rightly) suggests the former, and CSFTNO suggests the latter. And if the latter is correct, then we should ask serious questions about how courts can deal with normative questions of constitutional law absent a record, in the cases—few as they may be—that this will arise. More to come on this, I’m sure.
McNeil v Elizabeth Fry Society of Greater Vancouver, 2024 BCCA 2 (January 5, 2024)
Category: Reasonableness review.
Context: From the Court’s summary:
The appellant was a resident of a social housing facility operated by the respondent. She objected to a rule restricting guests and sought relief from the Residential Tenancy Branch (“RTB”). The arbitrator found the RTB did not have jurisdiction over the dispute because the Lodge provides transitional housing, which is exempted from the Residential Tenancy Act. The reviewing judge upheld the RTB decision. The appellant appealed.
Holding: Appeal dismissed.
Analysis: The Court (per Fenlon JA) ultimately dismisses the appeal, but offers some guidance for the RTB on the point of “temporariness.” The Residential Tenancy Regulation does not apply to so-called “transitional housing” which is only offered on a “temporary basis” [8]. However, assessing “temporariness” is tricky business, and the Court notes that “…it is evident that some of the decisions [of the RTB] cannot stand together” [29]. So, the Court—relying on Vavilov, at para 132— encourages the RTB “to address these inconsistencies and provide clearer guidance on the factors to be considered in determining whether accommodation is temporary” [29]. This is wise. “Coaching” like this—either in the context of the review, or on remittal—is a useful tool that courts can use to encourage consistency. This is even though Vavilov clearly ruled out the application of the correctness standard in cases of persistent administrative discord. Even under the reasonableness (or patent unreasonableness) standard, this kind of coaching can preserve deference while identifying cases where the administrative decision-maker itself must render more consistent decisions.
Patel v Canada (Citizenship and Immigration), 2024 FC 28 (January 9, 2024)
Category: Reasonableness review.
Context and Holding: The Applicants, a family, seek judicial review of a decision of the Refugee Protection Division [RPD]. The Court finds the decision unreasonable.
Analysis: This decision repays reading, especially because the RPD here issued a “no credible basis finding” that removes the Applicants’ right of appeal to the Refugee Appeal Division. Azmudeh J finds the decision unreasonable. She concludes that the RPD erred in making its credibility findings. In a very helpful passage that I wish to highlight for readers, Azmudeh J says:
[24] Putting it differently, likening the situation to puzzle pieces, individual credibility findings represent fragments of evidence. Each piece might be accurate on its own, but without assembling and examining the complete puzzle, the overall picture – the comprehensive credibility assessment – may fail to reflect the true nature of the case. It underscores the necessity of a holistic approach to ensure the integrity and accuracy of the decision-making process. Without it, the chain of reasoning is lost and the reasons are no longer intelligible.
This is a good reminder for those defending decisions on judicial review. It will not be enough for government counsel to argue that the decision—by focusing on individual pieces of evidence—was written with diligence [23].
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.