I want to say a sincere “thank you” to those who sent kind notes on my upcoming appointment as a tenure-track Assistant Professor at the Faculty of Law, Thompson Rivers University. Some readers have asked if I expect any changes to the newsletter. I do not anticipate any changes as I take on this role. As always, please do not hesitate to send any cases that you think should be profiled.
New Blue Ontario Fund v Ontario (Chief Electoral Officer), 2024 ONSC 1048 (February 2, 2022)
Reasonableness review//Charter values.
Context: This is an application for judicial review relating to a refusing by the Chief Electoral Officer of Ontario [CEO] to pay three quarterly per-vote subsidies to the New Blue Party of Ontario. This party is a registered Ontario political party founded in 2020. Under s.32.1 of the Election Finances Act, provision is made “for the payment of a quarterly allowance to political parties in Ontario that meet a certain threshold of votes” [6]. Section 32.1 (2.1) of the statute, enacted in advance of the 2022 election, set and adjusted the schedule and entitlement of payments for 2022 and 2023. That schedule provided that allowances would not be paid for the final part of 2022 and the first quarter of 2023; rather, these payments would be made as a lump sum before the 2022 election, based on the 2018 election results (when the New Blue Party did not exist). Reading these provisions, the CEO concluded that the New Blue Party was not eligible to receive any payments until the second quarter of 2023.
Issue: The Applicants sought: (1) an order in the nature of mandamus; (2) in the alternative, a quashing of the decision as unreasonable because: “…it is contrary to the plain language of the statute, fails to grapple with the purpose of the statute and fails to take into account Charter values” [12]. I will not address mandamus.
Holding: “The refusal by the CEO to pay three quarterly per-vote subsidies to New Blue following the 2022 provincial general election based on the amendments to the EFA is reasonable” [3].
Analysis: This case is interesting from a statutory interpretation perspective, but it also illustrates two tensions in reasonableness review with which lower courts are working: what to do when elements of statutory context are not raised before the decision-maker; and what to do with Charter values. In my view, the Court navigates these tensions admirably.
On statutory context: the Applicants argued that the CEO’s interpretation did not address the purpose(s) of the legislation. It is not clear that an argument on purpose was clearly before the CEO [54-55]. In absence of an argument on purpose—which, to remind readers, is always a binding interpretive constraint in our law of interpretation—the Court was not willing to fault the CEO for not addressing it. Here, the CEO is not an adjudicator; rather, “[h]e is an officer of Ontario’s Legislative Assembly, with statutory authority to administer the EFA. As such, he was required to explain the reasons for his decision taking into account the arguments that had been put before him, not to consider every aspect of the statutory context that might bear upon his decision” [57].
This position makes some sense, even in adjudicative contexts. It is true that the statute is an always binding constraint on administrative practice, but my own view is that decision-makers are mostly required to consider contested aspects of the statutory context when raised to them. Of course, it is best practice for decision-makers to link their interpretation to a purpose—something that, admittedly, does not seem to have been done here (notwithstanding the Court’s arguable supplementation of the reasons at paras 60-61). Nonetheless, legal disputes do not arise at-large, and the parties’ submissions do play a special role in administrative interpretation (see the next case).
I note that the Court’s decision in this case, and on this score, is somewhat inconsistent with Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (see Issue #108). There, Jamal J for a majority found fault with the Immigration Appeal Division [IAD] for failing to address certain legal constraints imposed by international law. These constraints, however, were not raised at first instance. Nonetheless, Jamal J found them applicable. This, of course, is inconsistent with basic rules of administrative law, justified only—perhaps—by the embedding of international law in the IAD’s enabling statute. At any rate, strictly following Mason in this case should give us a different result, especially if an always-applicable element of the statutory context—purpose—was excluded. Not so here. Perhaps the Div Ct was taken by the Federal Court of Appeal’s read of Mason in Klos v Canada (Attorney General), 2023 FCA 205 (Issue #109). There, the Court (per Stratas JA) concludes that Mason cannot be taken to overrule the basic rules of leading with arguments at first instance.
On Charter values, the Div Ct in New Blue is also on solid ground. The Applicants sought to rely on the Supreme Court’s most recent Charter values case, CSFTNO, 2023 SCC 31 (Issue #117). That case, in broad strokes, provided that Charter values can become relevant for decision-makers to consider, even in situations where they are not raised by a particular party (where there is a “link between the value and the matter under consideration”) (CSFTNO, at para 66). Relying on this possibility, the Applicants suggested that the CEO failed to consider “the values underlying s.3 of the Charter” [65].
For reasons I have pointed out elsewhere, I believe this argumentative move is unprincipled. While not delving far into the merits, the Court nonetheless concludes that because the Charter was nor raised before the CEO, the values argument cannot be raised for the first time on judicial review [65]. Additionally, this is not a case of “discretion,” as the Court points out. It is a case of interpretation, which means Charter values should not be addressed unless ambiguity is first established under the normal rules of interpretation. In offering these clarifications, the Div Ct follows the Federal Court of Appeal in cabining CSFTNO (see Sullivan v Canada (Attorney General), 2024 FCA 7, Issue #117).
I should note that the constitutional argument, put this way, should have been directed towards the statute, and not towards the CEO’s decision. Properly constituted and argued, the statute could be vulnerable to constitutional challenge. But it cannot be subject to a “values” challenge.
Canada (Public Safety and Emergency Preparedness) v Abdi, 2024 FC 279 (February 16, 2024)
Reasonableness review
Context: This is a motion for a a stay of the Respondent’s release from detention, until resolution of an underlying application for leave and judicial review.
Issue: Should the stay be granted?
Holding: Applying the tri-partite test for stays, the Court dismisses the motion.
Analysis: I have highlighted one portion of Ahmed J’s analysis that, I think, identifies what is becoming a key feature of reasonableness review: the submissions of the parties. Here, the Member of the Immigration Division concluded that the Respondent should be released, subject to several conditions. Some of Ahmed J’s reasoning for denying the stay rest on the conclusion that the Member carefully applied these conditions, and that the parties were offered opportunities for submissions. Relying on Mason, Ahmed J says:
[38] I am further mindful of the fact that the parties had the opportunity to provide submissions regarding release conditions both before and during the hearing, demonstrating that the Member was alive and responsive to the submissions of the parties. This is a seminal feature of reasonableness review [citations omitted].
This is well-said, and a good reminder for decision-makers: pay close attention to the submissions.
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.