There will be no SEAR next week, as I am moving to Kamloops. The newsletter will return Sunday, April 7.
Sran v University of Saskatchewan Academic Misconduct Appeal Board, 2024 SKCA 32 (March 20, 2024)
Category: Standard of review, procedural fairness.
Context: This is a judicial review of a decision of the University of Saskatchewan Misconduct Appeal Board. The applicants were accused of academic misconduct in early 2020. Due to the COVID-19 lockdowns, the applicants did not have a misconduct hearing until August 2020. The applicants argued before a first-instance Hearing Board and before the Appeal Board that the Hearing Board lost jurisdiction: the academic misconduct Regulations “required that a hearing be held within 60 days of receipt of the complaint” [2]. Failure to abide by this mandatory direction, according to the applicants, was fatal to the hearing process. The Appeal Board interpreted the Regulations as directory, rather than mandatory, therefore concluding that they did not render the hearing invalid.
Issue: (1) What is the standard of review? (2) Was the Appeal Board’s decision reasonable, and was the process fair?
Holding: (1) The standard of review is reasonableness on the question of the interpretation of the Regulations; whether the process was fair is assessed on a correctness standard; (2) The Appeal Board’s decision is reasonable, and the process was fair.
Analysis: Interestingly, both parties in this case originally took the position that all questions—the “jurisdictional” question, and the question of fairness—should be evaluated on a correctness standard [30]. In oral argument, the University properly revised its position to assert that reasonableness was the standard on the “jurisdictional” question, with correctness remaining for the balance of the issues relating to the fairness of the process.
The Court accepts the University’s revised framework for standard of review—and properly so, in my view. The standard of review in this case turns on how one characterizes the issue. One could say that this is an issue of fairness, because it concerns timelines, embedded in a “procedural code” so that any challenges to the application of the code attract correctness review [37]. On the other hand, the “jurisdictional” question is really just a question of the interpretation of the Regulations, which is now reviewed under the reasonableness standard according to Vavilov [33]. Whether the Regulations are mandatory or directive is central to the case, and that question is resolved by the ordinary tools of interpretation.
This case is an example of how many procedural fairness issues are, in reality, issues of interpretation wrapped in the garb of a procedural dispute. If this is so, the reasonableness standard—as it did here—can address the issue. Now, this is not to say that this explanation is complete. Some fairness issues are not issues of interpretation. This case is demonstrative—the question whether it was “fair for the misconduct hearing to go forward…given the delay” is a clearer question of fairness [52]. This includes whether the parties had a legitimate expectation [58]. Where the case, however, turns on interpretation, there is no need to apply a special standard of review.
On the substance, the Court applies rather deferential reasonableness review, giving weight to operational realities identified by the Appeal Board, including the possibility of permitting academic misconduct to go unpunished because of a technical breach [50-51]. Indeed, even though the Court and the Appeal Board accept that “plain language” imposes a mandatory rule, they nonetheless permit it to be read in a directory way in light of these operational realities [43]. Under Vavilovian reasonableness, this is permissible provided it is justified—and the Court believes that to be the case.
Association of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Ministry of the Attorney General), 2024 ONSC 1555 (March 18, 2024)
Category: Selection of the standard of review.
Context: This is a judicial review of an arbitrator’s decision arising out of an incident in which the applicant was shoved by a fellow employee. It was disputed what happened between the parties, and whether the shove was intentional. A workplace investigation concluded that the incident “did not occur as the grievor described,” and doubted the credibility and motives of the applicant [13-14]. An arbitrator found that the investigation process was biased, but that the dominant possible cause of the bias was not racism [21]. He was unable to conclude that race played a role in the investigation, and applying the test for discrimination, the respondent was not required to provide a “reasonable explanation for the behaviour” [23].
Issue: What is the standard of review?
Holding:
[36] I agree with the reasoning of the Alberta Court of Appeal. The protection of human rights and the rule of law would be undermined if the test for prima facie discrimination were interpreted and applied a certain way by one adjudicator and in an entirely different manner by another. As the Court put it in United Nurses, “[d]ifferent tests or evidentiary gradations of the same test beget inequality”: at para. 99.
The Court also concludes that the arbitrator misapprehended the test under the Human Rights Code for prima facie discrimination. This included a misapprehension of the applicant’s burden; and “the nature and sufficiency of the evidence required before an inference of discrimination is permitted” [47-48].
Analysis: Relying on the ABCA decision in United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194, the Court concludes that because of the quasi-constitutional status of human rights legislation, and because this legislation “provide[s] some of the most important protections in our society,” the standard of review should be correctness [34, United Nurses at para 55—as a “general question of central importance”).
I do not think that the logic of these decisions follows under Vavilov. I fear the Court fell into the trap, identified in Vavilov, of equating correctness review with the perceived public importance of human rights legislation and abstract principles of equality. It is true that human rights legislation has been described in the Supreme Court’s cases as “quasi-constitutional” (see New Brunswick (Human Rights Commission) v Potash Corporation of Saskatchewan, 2008 SCC 45 at para 19). It is also true that, sometimes, courts have described the “general questions” category as encompassing “quasi-constitutional principle” (see Portnov v Canada (Attorney General), 2021 FCA 171 at paras 13, 17). But these comments have specific legal connotations. The Supreme Court’s statement about quasi-constitutional legislation can be understood as a comment about interpretation—ensuring that any interpretation is justified by the purposes of human rights legislation. But this injunction is now covered by ordinary rules of purposive interpretation, and at any rate, quasi-constitutional legislation is legislation like any other, interpretation of which must be grounded to its wording (Potash, at para 19). For more on this, and other reasons to favour this understanding of quasi-constitutional legislation, see Paul Daly.
If this is so, then there is no special reason to favour consistent interpretation of human rights legislation as opposed to any other sort of legislation that might also be important in a general sense. Perhaps this is why most of the “quasi-constitutional” principles recognized in the Supreme Court’s cases as generally important concern quasi-constitutional privileges and powers that are sourced outside ordinary legislation, and even then, the Court has arguably been inconsistent on these grounds, as in the Mandate Letters Case, 2024 SCC 4 (Issue #123).
More could be said on this: the place, status, and scope of “quasi-constitutional legislation” are notoriously tough questions. But, to me, a rule is a rule, and we mustn’t let the “importance” of the issue, in a general sense, drive the analysis.
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.