This upcoming week, the Supreme Court will hear the appeals in the Auer/TransAlta cases, which deal with the question of how to review subordinate legislative instruments, specifically executive regulations. I have discussed this issue in this newsletter frequently: see Issue #68, Issue #114, Issue #118. For those interested, I again link to my forthcoming paper in the Ottawa Law Review on the question: “One Rule to Rule Them All: Subordinate Legislation and the Law of Judicial Review.” The paper will undergo some changes before publication, but it outlines my position on the issues and the stakes.
Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13 (April 19, 2024)
Category: Standard of review in constitutional challenges.
Context: The substantive issue in this case concerns whether certain “first-level” casino managers in Quebec are unconstitutionally barred from the statutory labour relations regime.
Issue: For our purposes, the specific issue involves the standard of review. It was common ground that “[t]he parties agree that the standard of correctness applies to the findings of law made by the [decision-maker] in the context of analyzing the constitutional question before it” [92, Côté J’s reasons]. However, there was disagreement over “the standard that should apply to findings of mixed fact and law and findings of fact made in connection with a constitutional question” [93].
Holding and Analysis: The standard of review portion of the judgment is written in a concurring opinion by Côté J, but is adopted by a plurality opinion written by Jamal J at para 45. Côté J holds that no deference is owed on questions of mixed fact and law when related to a constitutional question, though findings of fact are still owed deference [96].
This is a rare example of a clean administrative law case from the Supreme Court. I think Côté J is right. As she says, questions of mixed fact and law are bound up with the constitutional norms that administrators are asked to apply. Here, “determining whether the exclusion from the…regime constitutes substantial interference with the freedom of association of the Association’s members is not a simple question of fact” and instead involves “weighing ‘the constitutional significance’ of the findings of fact made on the basis of the members’ situation by reference to freedom of association” [94]. As she says—importantly—”[t]o some extent, this amounts to defining the constitutional standard of ‘substantial interference’” [94].
Some great common sense from Côté J. Attempting to parse out mixed fact and law questions to which deference should be owed is tricky business. To the extent that these norms are owed protection because they transcend the particular case—they require a “determinate and final answer”—granting deference to factual matters deeply intertwined with the constitutional norms would underpower those norms.
Westjet v Lareau, 2024 FCA 77 (April 19, 2024)
· Category: Practice and procedure.
Context: This is an appeal from a decision of the Canadian Transportation Agency [Agency]. At issue is an interesting provision of the Canada Transportation Act [CTA], which provides that the Agency “is entitled to be heard by counsel or otherwise on the argument of an appeal.” The Agency argued that this provision is a statutory indication that it can participate as of right in an appeal from its own decision.
Issue: Does this provision permit the Agency to participate in the appeal by filing its own memorandum of fact and law?
Holding: Yes: “The Court will grant this motion. It directs that the Agency’s memorandum of fact and law shall be filed and the Agency may participate in the hearing of this appeal” [7].
Analysis: I have highlighted this single judge decision (per Stratas JA) for two reasons. First, the provision of the Canada Transportation Act is “rather unique in Canadian law” [8]. It is not standard operating procedure for a decision-maker to be heard on an appeal of its own decision as of right [11]. There are common law rules about administrative decision-makers intervening in proceedings: see Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684. These rules do not absolutely prohibit administrative interventions, but they do caution that restraint is the name of the game. Why? Because an administrative decision-maker must be impartial, and interventions can undermine that impartiality.
Stratas JA, rightly in my view, construes the CTA provision with these rules in mind. He is right to note that the CTA provision must mean something: it is statutory grant of a right to an administrative agency [19]. This might mean that the provision ousts the concerns expressed in the common law cases involving interventions. But the provision here is also silent on several important matters: it “does not impose any limits on what the Agency may address during its participation in the appeal” [30]. As a result, Stratas JA appears to conclude that the provision does not oust the common law rules with irresistible clarity—for that reason, courts acting under the common law rules can control the participation of the Agency in order to uphold the perception and reality of impartiality.
I’ve highlighted this case for a second reason: a valuable comment on recent Supreme Court decisions. Remitting for redetermination can be an issue where the Agency participates in the judicial review. If it “has involved itself in a judicial review or an appeal and aggressively advocates for the position it adopted in its reasons, its appearance and reality of impartiality may suffer” [14]. This might be a temptation for the judicial review court to decline to remit. However, even with this provision in mind, redetermination is the norm. And so Stratas JA says:
[16] On this point, the Supreme Court’s decision in Vavilov remains the law. Recent unexplained deviations from this principle by the Supreme Court, seemingly at odds with Vavilov, should not be seen as a departure from the principle: see Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 and Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583; and for the significance to be attributed to the Supreme Court’s unexplained deviations in individual cases, see Paul Daly, “The Signal and the Noise in Administrative Law” (2017), 2016 CanLIIDocs 275.
These cases were unfortunate because of the lack of clarity on this key point, alongside unexplained and unprincipled deviations from the normal rule of quashing and remitting. I agree with Stratas JA that these cases should not be interpreted to abridge the normal rules of administrative law.
Saravanabavanathan v. Canada (Citizenship and Immigration) (April 10, 2024)
Category: Mandamus.
Context:
[1] The Applicants, Thuvaraka Saravanabavanathan and Sanjeevan Murugiah, seek an order of mandamus compelling the Respondents to finish processing Mr. Murugiah’s application for permanent residence under the spousal sponsorship class. The Respondents maintain that the Applicants have not met the test for mandamus, primarily because the delays associated with their application are not unreasonable.
Issue: Should mandamus be granted?
Holding: The order for mandamus should be granted.
Analysis: Last week, I profiled a case in the Federal Court rejecting an application for mandamus and holding that a threshold of “significant prejudice” was required to grant mandamus on the basis of unreasonable delay. I noted that while many Federal Court cases adverted to this requirement, at least one and likely others did not. In this case, the term “significant prejudice” does not appear in the substantive analysis in the judgment. It only appears once when Grant J is summarizing the Respondent’s arguments (at para 44). Here, Grant J seemed particularly unimpressed by the government’s blanket justifications for the delay—the old canard often offered by the government, that “security assessments” were causing the delay [34-35]. These justifications, without more, have grounded decisions to grant mandamus.
Nonetheless, it is telling that “significant prejudice” isn’t mentioned in the decision, though perhaps it can be read to incorporate that threshold sub silentio. This is especially so given the weight Grant J puts on IRCC processing guidelines [30-31]. But it still appears to me as if there are two different thresholds operating for mandamus in the Federal Courts.
Alberta Energy v Alberta (Information and Privacy Commissioner), 2024 ABKB 198 (April 12, 2024)
Category: Reasonableness review
Context: This is a judicial review of a decision of a Freedom of Information and Protection of Privacy Act [FOIPP] Adjudicator. The Adjudicator ordered production of materials withheld by Alberta Energy under stated legislative exceptions.
Issue: What is the standard of review? Is the decision to order production reasonable?
Holding: The standard of review is reasonableness on all issues [10-11]; the Adjudicator’s decision is reasonable.
Analysis: This is a scathing decision of Alberta Energy’s conduct. Teskey J says: “the bottom line is that the release of information in this matter has been so slow as to be practically non-existent. I further find that the Public Body’s application for judicial review has further delayed the process such that it engages questions of public confidence about the practical reality of the right to information in Alberta” [78].
In evaluating the arguments, Teskey J begins with the standard of review. He notes that in the recent case of Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2024 SCC 4, Issue #123) applied the reasonableness standard, but did so without deciding the standard of review issue. Here, Teskey J follows the vibe of the Supreme Court’s opinion, applying the reasonableness standard because “it is consistent with the principles of Vavilov to use this standard absent express direction otherwise” [12]. While this is an available conclusion, on principle, I prefer the opinion expressed after the Mandate Letters Case by Gomery J in British Columbia (Minister of Public Safety) v British Columbia (Information and Privacy Commissioner), 2024 BCSC 345 (see Issue #127): the correctness standard should apply to claims of Cabinet confidence.
On the reasonableness of the Adjudicator’s decision, Teskey J seems to have no time for Alberta Energy’s arguments. There were claims of Cabinet confidence based on “the general title and topic of a presentation…” [38]. While in some cases this information can shed light on protected deliberations, the Adjudicator in this case finds that the information does not provide detail on deliberations, and is therefore not subject to Cabinet Confidence. As Teskey J says, even on a correctness standard, this seems right [38]. Distinguish this case from the Mandate Letters Case, where all agreed the substance of deliberations was directly at issue.
Moreover, on reasonableness, Teskey J notes that the Alberta FOIPP statute casts a burden on a public body to justify the reasonableness of withholding a record [15]. This means that the public body must “put its best foot forward with evidence to support its denials” [21] such that “[w]here a public body chooses to apply a heavy hand to redacting records, it is required to justify these redactions line by line” [20]. Teskey J reaches this conclusion through a reading of the legislation [17-20]. While the bar Teskey J erects to justify withholding records in this case is quite high—and one wonders whether this is a plausible translation of the statutory scheme—it does appear to be an available interpretation in this case.
Teskey J concludes with comments on the availability of judicial review. The applicants complained that Alberta Energy’s choice to seek judicial review “represents a deliberate effort to withhold the production of these documents into the public domain” [74]. Teskey J notes that delay is reason to sometimes decline the invitation to take on judicial review: this is so because judicial review can exacerbate any delays, such that “the pace of a specific request for information can become totally disconnected from the Legislature’s intention for timeliness” [78]. He notes that, as a result, where FOIPP deadlines are missed, public bodies “should expect that Courts may apply a high level of scrutiny on the availability of judicial review in the future” [82].
This an interesting set of reflections, obviously informed by Alberta Energy’s conduct in these proceedings. However, I believe it is important to reiterate that so long as an application for judicial review is not an abuse of process or vexatious, a public body’s right to seek judicial review should not be unduly foreclosed—even if FOIPP delays are common. This raises the issue that courts will increasingly need to face in a world where delays in the administrative state are increasingly common. Tools like mandamus, for example, are well-worn judicial remedies. But they cannot replace the political responsibility held by legislatures and politicians to create administrative schemes that actually work.
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