British Columbia (Minister of Public Safety) v British Columbia (Information and Privacy Commissioner), 2024 BCSC 345 (February 29, 2024)
Category: Selection of standard of review.
Context: This is a judicial review of a decision of an Information and Privacy Commissioner adjudicator. The adjudicator was faced with the Ministry of Public Safety’s redactions in relation to a freedom of information request filed by the BCCLA. The underlying issue involves the Province’s implementation and delayed proclamation of the Community Safety Act.
One category of redactions involved “a draft budget paper” that was considered by Treasury Board—a Cabinet committee. The redactions were justified with reference to s.12 of the Freedom of Information and Protection of Privacy Act [FIPPA], which bars disclosure of the “substance of deliberations” of Cabinet or its committees. Typically, this provision had been read broadly, capturing material that “would permit the drawing of accurate inferences with respect to the deliberations” [70, citing Aquasource Ltd v The Freedom of Information and Protection of Privacy Commissioner for the Province of British Columbia, 1998 CanLII 6444].
Issues: The Ministry advanced claims of solicitor-client privilege and Cabinet confidence. I will address the Cabinet confidence issue, and particularly the choice of standard of review.
Holding: On Cabinet confidences, the Court concludes that “the Ministry has failed to establish that the withheld material is protected from disclosure under s.12(1) of FIPPA on the basis that it would reveal the substance of Treasury Board deliberations.” In reaching this conclusion, the Court—interestingly—applies a correctness standard of review [59].
Analysis: I am particularly interested in the Court’s reasoning on standard of review, especially in light of the Supreme Court’s recent decision in Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2024 SCC 4, Issue #123). That decision applied the reasonableness standard to the adjudication of a claim of Cabinet confidence over Cabinet mandate letters —though, in that case, the Court finds that its review is highly constrained by the constitutional nature of Cabinet confidence, suggesting only one “right” answer. Given this hedge, the Court ultimately declines to weigh in on the application of the correctness standard, given that the result would be the same either way.
Prior to this decision, in BC, the standard of review was reasonableness on the issue [46]. Nonetheless, in this case, the Ministry tried to argue, relying on Côté J’s concurring reasons in the SCC Mandate Letters case, that the standard of review should be correctness. The Court is alive to the fact that Côté J’s view is not controlling, but is nonetheless forced to re-evaluate the matter anew, because it is unclear whether pre-Vavilov BC precedents are controlling [50].
Comparing the cases for reasonableness and correctness, the Court notes that the disagreement lies in the “differing assessements of the importance of the protection afforded to Cabinet confidences to the legal system as a whole” [57]. The Court, surprisingly, does not strictly follow SCC precedent. Rather, it decides that the scope of Cabinet confidence raises a general question of central importance, warranting correctness review. Why? Because, given the potential applications of Cabinet confidence in diverse statutory regimes, the scope of the confidence can affect “the ability of individuals to challenge or seek compensation for state action and the relationship between individuals and the state generally” [58].
I agree with this statement wholeheartedly, as I wrote in Issue #123. The SCC’s hedge in Mandate Letters was unfortunate, not only for clarity of the law, but because it led Karakatsanis J in the majority to essentially apply disguised correctness review under the guise of reasonableness review. But the “correctness” view did not win the day in the SCC, and so it is somewhat surprising to see the Court in this case rely on Côté J’s opinion. It is true that the SCC majority in the Mandate Letters case left open the door—ever so slightly—to the application of the correctness standard in some future case. But given the similarity between this case and Mandate Letters, one wouldn’t necessarily expect much of a difference in result on standard of review. Perhaps this is a sign of more “overruling from below” in administrative law cases…
Akbari et al v Blenkinsop et al, 2024 ONSC 1184 (February 27, 2024)
Category: Statutory interpretation.
Context: This is a statutory appeal of three decisions made by members of the Landlord Tenant Board [LTB]. At issue was the role of a third party interlocutor, acting on behalf of landlords, who served the tenants with a notice to end tenancy, because the landlords intended to occupy the unit [6]. The tenants later discovered the property was listed for sale less than a year after they vacated it; they filed a “Bad Faith” application with the LTB. Section 57(5) of the Residential Tenancies Act establishes a presumption that a notice to end tenancy is in bad faith if “within one year of the Tenant vacating the rental unit, that unit…is advertised for sale” [9]. The Landlord Tenant Board concluded that the third party interlocutor (the Appellant in these proceedings) “acted as a Landlord for the duration of the tenancy” [12].
Issue: The Appellant argued that the LTB erred in concluding he was a landlord and holding that he was jointly liable for the amounts ordered by the LTB. Is he so liable?
Holding: Yes, the LTB did not err.
Analysis: The Court ultimately concludes that there is no requirement for the LTB to approprtion liability between multiple Landlords [30]. This conclusion flows from a close look at the statute and the lines it draws. The statute, as the Court notes, draws a line between tenants and landlords [31-32]. It does not draw lines for the purposes of this application between multiple landlords. A conclusion that it does—that the LTB is required to apportion liability in the case of a bad-faith application—would create a separate process under the legislation. That process would require a fact-finding function to understand the degree of responsibility of each of the multiple landlords. That function is simply not prescribed by any existing authority in the Residential Tenancies Act.
This case is a decent example of how simple statutory interpretation can be in many cases, even on a right of appeal where there is no deference owed on questions of law. It is also a good example of Vavilov’s underlying dedication to the centrality of legislative design choices.
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.