Issue #13: October 10, 2021
Happy Thanksgiving to all SEAR readers. I hope you enjoy your long weekend!
As always, if you have any thoughts/questions about the cases in this issue or other important administrative law developments, feel free to reach out.
Tang v Human Rights Tribunal of Ontario, 2021 ONSC 6523 (October 6, 2021)
Context: The Applicant’s application to the Ontario Human Rights Tribunal (alleging discrimination with respect to employment on the grounds of disability and sex) was deferred on consent pending a resolution of a workplace grievance. After the grievance was withdrawn, the Applicant asked the Tribunal to re-activate her application. The Applicant’s request was denied as was her subsequent request for reconsideration given that she failed to reactivate the application within the mandated sixty days, and could not provide sufficient evidence that the delay was in good faith. The Applicant sought judicial review of those decisions.
Issue: What is the standard of review? Did the Tribunal err by adopting the wrong test for an extension of time?
Analysis:
1) On the standard of review, the issue involved s.45.8 of the Human Rights Code, which prescribes a standard of patent unreasonableness for HRTO decisions. Post-Vavilov, there is a question whether this standard (as it appears in the Code and in the BC Administrative Tribunals Act) can survive as a standalone statutory standard; and if so, is patent unreasonableness informed by Vavilovian reasonableness? Tang hedges on this:
Whether there is a difference between patent unreasonableness and reasonableness, and if so which standard applies, is currently before the Court of Appeal for Ontario. In the case before us we need not resolve the issue as the same determination follows in either event [4].
The question is unsettled, but for the most part, the lower courts have defined patent unreasonableness with reference to reasonableness defined in Vavilov (see Issue #2). The real question will be whether the “Rule of Law” unwritten principle defined in Vavilov can serve to “read down” patent unreasonableness (see the comments in Intercounty Tennis Association v HRTO, 2020 ONSC 1632 at paras 36-38; and Dunsmuir v New Brunswick, 2008 SCC 9 at para 42). After Toronto (City) v Ontario (Attorney General), 2021 SCC 34, this prospect is probably dimmer (although there is room for unwritten principles to still do their work, see Toronto, at para 56). Tang hedges, but it does show the relevance of this issue as it makes its way to the ONCA.
2) On the merits, Tang argued that the Tribunal applied the wrong test in determining whether an extension of time on her application was warranted [8]. Indeed, the Tribunal “acknowledged the existence of another line of decisions applying a different test…[but] found that the test it was applying in this case was the test predominately used in its jurisprudence” [9]. This raised the prospect of assessing how Domtar Inc v Quebec, [1993] 2 SCR 756 applies post-Vavilov. Domtar held that a lack of unanimity in administrative decision-making is “the price to pay” for a decision-maker’s independence (Domtar, at 800). The Court in Tang, as it should have, held that Vavilov qualified this statement. A persistent lack of unanimity raises Rule of Law problems (Vavilov, at para 72). As such, as a positive law matter it is important for decision-makers to justify why they chose one legal test over another, both evident in the internal jurisprudence, when they decide these sorts of cases. In this case, the HRTO did [9, 11]. And so Domtar is still relevant, but it is qualified by Vavilov’s justification requirement.
The Court does say that “it may well be preferable that the Tribunal reach a measure of unanimity on the issue…” [11] and I agree. Query: does justification really solve the problem of incoherent lines of case law in administrative jurisprudence? Wouldn’t it be better to face the Rule of Law problem up front and apply a correctness standard in the face of persistent discord? Vavilov says no, but in my view, justification is a poor substitute in these circumstances.
Akram v Canada (Citizenship and Immigration), 2021 FC 1024 (October 4, 2021)
Context: The Refugee Protection Division [RPD] denied Akram’s request for a stay of proceedings and granted the Minister’s request to vacate a Citizenship Judge’s decision that granted Akram Convention refugee protection. Akram sought judicial review.
Issue: The core issue is “whether the RPD erred in its determination that the pursuit of the application for vacation is not an abuse of process” [13]. The standard of review for this question was at issue. Akram argued that the correctness standard applied because: (1) the question of delay leading to an abuse of process is a matter of procedural fairness; (2) the question falls into the Vavilov exception of a “general question of central importance” [14]. The Minister argued that Vavilov provides a presumptive standard of reasonableness on the merits, except for those questions recognized in Vavilov. For the Minister, the question “is still related to the merits of the RPD decision” and so the presumption should apply [15].
Holding: The Court rejected Akram’s standard of review argument in full, and ultimately found that the decision would satisfy either standard of review [19]. On the core issue of procedural fairness, the Court held that:
…I am inclined towards the view that the analysis required of this Court is whether in applying that test the RPD reasonably concluded that the delay in bringing the application to vacate did not amount to an abuse of process—a breach of procedural fairness—that would justify the granting of a stay of the application [17].
Analysis: This question is important, as a case considering it is currently under appeal to the Supreme Court of Canada: Abrametz v Law Society of Saskatchewan, 2020 SKCA 81 at para 100. In my view, until the Supreme Court deals with the standard of review on delay, Akram is questionable in the Federal Courts both on principle and precedent.
On precedent, both Vavilov and jurisprudence in the Federal Court of Appeal suggest that questions of inordinate delay should be reviewed in totality on a correctness standard. Vavilov says that for questions of procedural fairness/natural justice, the reasonableness presumption does not apply (Vavilov, at para 23). Delay can be characterized as an issue of procedural fairness (see e.g. Behn v Moulton Contracting Ltd, 2013 SCC 26 at para 41). To my mind, this means that courts should not divide the question of delay—it should simply assess whether, in all the circumstances, there was a delay leading to an abuse of process. More specifically, pre-Vavilov, the Federal Court of Appeal in Canada v Air Transat, 2019 FCA 286 at para 54 held that (1) delay is an issue of procedural fairness; and (2) as an issue of procedural fairness, it is assessed on the correctness standard. For this reason, Akram stands on at least shaky precedential ground (though see my comment below).
On principle, the question of delay is one that clearly connects to the power and duty of judicial review courts to police the legality and fairness of administrative action. The Supreme Court has recognized the importance of access to justice in general. It would be odd, on this basis, for the Court to simply disregard the huge delays that sometimes characterize the administrative process. While courts should not do the jobs of legislatures in ensuring a functioning administrative justice system, when widespread delay affects the rights of parties, courts should vindicate those rights. References to a tribunal’s “choice of procedure” does not vitiate this duty of judicial review courts. Indeed, this may be a rare candidate for a question of importance to the legal system as a whole under Vavilov, in part because abuse of process also impacts the integrity of courts themselves.
I recommend reading Mr. Abrametz’s factum at the Supreme Court of Canada for more nuance on this issue, particularly on the divergent line of cases that might give some support to Akram. Mr. Abrametz also advances an important argument, with which I agree, in assessing the question of delay.
Alberta March for Life Association v Edmonton (City), 2021 ABQB 802 (October 7, 2021)
Context: The Applicant, Alberta March for Life Association (a pro-life/anti-abortion rights group), submitted an application to the City of Edmonton to light the High Level Bridge pink, blue, and white in conjunction with a public march they organized. The City initially approved the application [6], however, the Applicants were later informed through a short email that upon further review, the application was denied given the “polarizing nature of the subject matter” [196]. The Applicants sought judicial review of this decision.
Issue: While the Applicants raised many issues—including Charter issues—there are two main issues for our purposes (1) the sufficiency of the reasons; (2) the role of the test in Doré v Barreau du Québec, 2012 SCC 12.
Holding: The Court found the City’s decision reasonable [207].
Analysis:
1) This is an interesting case on the difference between standard administrative decision-makers—tribunals and the like—and “line decision-makers” or decision-makers that make “simple administrative decisions” [195]. The Applicants argued that, here, there was no explanation given for why the bridge lighting would be “polarizing.” The Court was fine with this, seemingly because the decision-maker here was making a “simple administrative decision.”
In my view, Vavilov cuts against this distinction and for good reason. The Court only cites pre-Vavilov case law for the distinction between “simple administrative decisions” and tribunal decisions but Vavilov eschews categorical distinctions between different types of administrative decision-makers under the reasonableness standard. It adopts a contextual approach that narrows various constraints on administrative decisions as the context requires it. There are times when more reasoning may be required from line decision-makers because of the interests to the affected individual or the legal context, and these constraints can operate strongly in many cases involving line decision-makers. To say that simply because a “simple administrative decision” is at issue is unhelpful; what matters are the legal and factual constraints on the decision-maker in question. Sometimes, for line decision-makers, these constraints might be loose—other times not. The point is that the legal context will dictate whether this is so, not a court- created distinction between certain types of decision-makers.
2) The Court here continues a trend in addressing constitutional cases in the administrative context. It says that the analysis in Doré is not engaged “unless a Charter right is infringed” [192]. Admittedly, this approach has been adopted by the Supreme Court post-Doré : see TWU v LSBC, 2018 SCC 32 at para 60 et seq. Under this approach, the Court applies the traditional tests associated with various sections of the Charter (ie) freedom of expression to determine whether a right or value has been limited; it then asks whether the limit is proportionate. This is where the Doré analysis kicks in.
One of Doré’s worst features is its lack of clarity and rather flabby analysis, but since it is—apparently—a “binding precedent” of the Supreme Court (TWU, at para 59), ideally it should be followed until it is overturned. Doré itself did not ask the preliminary question of whether the freedom of expression guarantee in that case was “infringed”; it simply applied the Charter value of freedom of expression. While I’d rather Doré simply be overturned, what courts (including the Supreme Court) are doing in these post- Doré cases is inconsistent with the approach in Doré itself. Courts can get away with this because of Doré’s imprecision.
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: “In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute” (Rand J in Roncarelli v Duplessis)