Forum des maires de la Péninsule acadienne Inc. v. Minister of Justice and Public Safety, 2024 NBKB 58
Category: Charter values.
**This is a case from March just recently uploaded to CanLII. It is a significant application of the Supreme Court’s recent Charter values case, Commission scolaire francophone des Territoires de Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 (see Issue #117).**
Context: This is an application for judicial review challenging a decision of the Minister of Justice and Public Safety making changes to “court services in the Judicial District of Bathurst, namely the closure of the Caraquet courthouse, the conversion of the Tracadie courthouse into a satellite court and the transfer of two judges to Bathurst and Miramichi…” [1]. The applicant suggested that closing a courthouse in a mainly Francophone region is “contrary to the rights guaranteed under the Charter as well as to the quasi-constitutional rights protected under [New Brunswick legislation]” [32]. The applicant argues that the Minister “should have considered the impact of his decision on the Francophone community, not in terms of access to services in French, but rather in terms of fulfilling his obligation to promote the cultural, economic, educational, and social development of the Francophone minority” [18].
Issue: Is the Minister’s decision reasonable?
Holding: “In light of the above, I find that the appropriate standard of review is the reasonableness standard and that the Doré analysis remains relevant. As the following analysis will show, I consider that the Minister’s decision to close the Caraquet courthouse, to convert the Tracadie courthouse into a satellite court and to transfer the judges is unreasonable” [66].
Analysis: By now, the effect of the Supreme Court’s decision in Commission scolaire is clear. Even if the Charter does not strictly apply, decision-makers (including Ministers of the Crown making quintessentially polycentric decisions) will need to take account of an undefined set of “Charter values” where there is a link between those values and the matter under consideration. This is so even where these values are not put before the decision-maker in any meaningful sense. Here, Bourque J applies these principles, as she must, and there is now precedential force in the approach she took. As I have previously argued, however, the Commission scolaire move is suspect for reasons of principle. These problems relate to the Charter’s status as a legal document—one which confers rights under certain circumstances, according to certain rules of law. Commission scolaire distorts these orthodox rules of adjudication, and I fear Forum des maires is further demonstrative of the weaknesses in the approach.
To be fair, and as background, the theory of Commission scolaire seems most applicable in the language rights context—and, perhaps, there is a sort of Charter values “language rights exceptionalism,” because it is in this context that Charter values have exerted a strong force. Because these rights are unique and collective, one could argue that decision-makers have the obligation to consider the values underlying them even where there is no rights-holder before the court; a decision could negatively impact the collective right more generally. In such cases, underlying constitutional principles and values can be used to stand-in for the fact that the Charter does not strictly “apply.” Indeed, this sort of argument has found support in language rights cases: consider Commission scolaire itself, and the older case of Lalonde v Ontario (Commission de restructuration des services de sante), 2001 CanLII 21164 (ONCA) (involving the closing of the Montfort Hospital). These cases use values (and in the case of Lalonde, unwritten principles) to impose binding duties of consideration on decision-makers when they make executive decisions impacting minority language communities. Again, Bourque J at least starts from a position of support in the jurisprudence.
My view aside, I think it is fair to say that Forum des maires is a step further. In Commission scolaire, there was at the very least a “right” lurking in the background: s.23 of the Charter, which guarantees minority language education rights in certain circumstances. The move in Commission scolaire—though only imposing a duty of consideration on the Minister—abstracts away from the textual limits enshrined in s.23. But at the very least, the right is in view, and the “link” between the right and the matter is plausible: the admission of non-rights holders could, in large numbers, “have an impact on a minority language educational environment” (Commission scolaire, at para 78).
In this case, there are no clearly defined “values” for the Minister to consider, nor is the link between the “values” and the matter of courtroom closing well-explained. In terms of the values at issue, Bourque J relied on the New Brunswick-specific provisions of the Charter to distill distinction obligations that the Minister had to consider. Section 16.1 (1) of the Charter, for example, enshrines equality of status for the French and English linguistic communities in New Brunswick, and protects “the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.” She notes that the “values” underlying these provisions include “collective remedial rights, taking into account past injustices in order to preserve and promote the cultural development of the Francophone minority” [87]. But these are hardly well-defined “values.” They present little to no legally cognizable content to meaningfully guide a Minister’s discretion, beyond “the vibe of the thing.” Does a right to promote equality of language in “educational” and “cultural” institutions imply a duty to consider generalized claims about the role of a particular court in rectifying historical injustice? How does this value meaningfully constrain and condition how a Minister makes decisions? The link in Commission scolaire, on the other hand, was at least rooted in a specific institutional context.
There is a telling turn of phrase in Bourque J’s reasons. For her, the “values” that underlie the Charter provisions at issue include “collective remedial rights.” On this account, the tail appears to wag the dog. Rather than values helping to ascertain the scope of distinct Charter rights (a venerable form of purposive interpretation, articulated by Rowe J in Trinity Western, 2018 SCC 32), the values themselves are enveloping the rights, stretching or compressing them to suit the circumstances. Beyond judicial say-so, one is left wondering—still—about the relationship between Charter rights and Charter values.
Further, one wonders how Bourque J’s reasoning squares with the Supreme Court’s instruction that the text of the Constitution represents the law, establishing an outer limit on purposive analysis. It was this very concern that led the Court in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 to claw back on the use of unwritten constitutional principles. Though the holding of City of Toronto is limited to legislation, the same concern holds in this context as well. This concern is not just a matter of methodology. Ensuring the application of the Charter is kept to its text, read in light of its purposes, maintains the balance between the judiciary and the legislatures. When that balance is upset, there is good reason to be worried about judicial overreach.
What of the link to the matter under consideration? The matter in this case is a Ministerial decision to close a courthouse and convert another to a satellite court in a predominately Francophone region of New Brunswick. The Minister’s decision was based on economic and efficiency concerns. Note that the Charter’s New Brunswick provisions deal with minority language education as well as cultural institutions. There is no mention of courthouses, nor their connection to language and geographical location. The Constitution does protect superior court jurisdiction, and it does also protect the equality of official languages in various contexts, including in existing judicial settings. But unlike the minority education context (which is quite explicitly tailored in the Charter), there is no similar context compelling or binding the Minister in the same way on these facts in relation to court organization. The “link” is simply not as strong
The “vibe” analysis is particularly strong when Bourque J attempts to strengthen the link between the institutional context at hand and the purported “values” at stake. She relies, first, on the old saw that the Charter is a living tree, and that the “rights entrenched therein are constantly evolving” [69]. From here, Bourque J reasons that the Charter exists to promote “the emergence of a just and democratic society” [70]. For her, the closure of the courthouse without the consideration of the dynamic and evolutionary nature of Charter values undermines the fundamental values of the judicial system [94]. Because a courthouse “is a symbol of justice and the rule of law within a community, embodying the principles of equity, accountability, and access to justice for all members of society,” a closure of a courthouse can negatively impact a particular language community.
This might be true, or it may not. But the question is rather more particular: does the Charter compel the consideration of an abstract set of values in this institutional context? If we squint hard enough, there may be a link between a courthouse and an appeal to cultural preservation. But this requires squinting, and a heavy dose of living treeism. Because of the looseness of Commission scolaire, it is unclear if a weaker link, less rooted to positive law materials as in this case, suffices.
No one can doubt the importance of community courthouses and their role in minority language communities. The decision of the Minister may be something for which the government should suffer political consequences. But the government’s choice to rearrange the judicial system is one that is polycentric in nature, one which admits of no easy or clear answers. The Charter, seemingly intentionally, leaves ample room in this area for governments to operate. Expanding the Charter through the use of Charter values not only undermines the democratic settlement that led to the Charter in the first place, but transforms a difficult, polycentric question into one that is closer to a legal question: whether the Minister adequately considered Charter values, whatever those may be. In absence of an explicit Charter right commanding this result, I think the Government of NB is right to appeal this decision to at least get appellate clarification on this particular application of the Charter values framework.
Utano v Canada (Public Safety), 2024 FC 805 (May 28, 2024)
Category: Preliminary objections (new evidence)
Context: In an underlying application for judicial review, the applicants challenge two documents (Preliminary Statements of Fact, PSF) supporting their suspension from their current public service positions. The documents were prepared and distributed to the applicants’ current employers as part of an ongoing investigation into the applicants’ conduct during their previous employment at the Canada Border Services Agency [CBSA]. The applicants brought a request for an interlocutory order suspending the effect of the PSFs until the underlying judicial review is heard. In return, the respondent brought its own motion to strike, arguing among other things that the applicants failed to exhaust the grievance process under the Federal Public Sector Labour Relations Act. In support of this motion, the respondent sought to introduce affidavit evidence as background, explaining the grievance process as part of its arguments about
Issue and Analysis: The applicants sought to contest the background evidence as inadmissible “arguing that the Supreme Court’s decision in [Vavilov] precludes recognizing an exception for admitting affidavit evidence relating to jurisdictional issues” [37].
The Court (Zinn J) rightly, in my view, rejects this invitation. As Zinn J mentions, Vavilov’s holding on jurisdictional questions relates to the standard of review—even if the concept of “jurisdiction” is slippery in this context as well [38]. Here, Zinn J notes that “…it is the Court’s own jurisdiction which is raised” [38]. On this thinking, since the “jurisdiction” of the Court depends on the assessment of adequate alternative remedies, the evidence on these remedies is admissible.
I wonder if the entire issue can be dispatched without reference to jurisdiction. Strictly speaking, the issue of adequate alternative remedy goes to whether there is a basis on which a judicial review court can decline to grant relief, even if it has jurisdiction to hear and decide the application. This distinction was re-affirmed recently in Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 at para 54: courts must consider the judicial review application, but if a ground to decline a remedy is present, the court can refuse to consider the merits. As a result, I wonder if the evidence could simply be admitted as “general background” that “assist[s] [the Court] in understanding the issues relevant to the judicial review” (see Access Copyright, 2012 FCA 22 at para 20). Since the adequacy of the alternative is relevant to the issue of whether the court could decline a remedy, it could be admissible on this basis.
Payne v Saskatoon Housing Authority, 2024 SKKB 92 (May 22, 2024)
Category: Rights of appeal/judicial review.
Context: Payne is a tenant of the Saskatoon Housing Authority. A hearing officer ordered that possession of the rental premises be granted to the Housing Authority. Under the laws of Saskatchewan, “a person against whom such an order has been made may appeal to this court, provided that the person files a certificate of payment of rent” [2]. The appeal runs over questions of law or jurisdiction. Payne did not obtain the certificate and applied to declare the certificate requirement unconstitutional: he argued that the certificate requirement “prevents him from accessing the province’s superior court, the Court of King’s Bench” [21].
Issue: Is this limitation on the right of appeal constitutional? If so, is the right of appeal an adequate alternative remedy?
Holding: The limitation is constitutional because the core powers of the superior court do not include unfettered access to a right of appeal, but it does include common law judicial review, which remains in this case [42-44]. Though Payne cannot access the right of appeal over questions of law, the jurisdiction of the superior courts is preserved.
Analysis: This case presents an interesting look at a percolating question: just how far can legislatures go in restricting access to the courts? As Yatar and Vavilov together demonstrate, one must gain an authentic appreciation of the institutional design choices that the legislature made to determine whether and how they preserve access to judicial review. Generally speaking, where those design choices preserve access to the superior courts for (a) some class of people and (b) over certain questions (just which questions is up for debate), any constitutional minimum of judicial review is preserved, even if leave requirements are present. The lines, however, are blurry—and this case helpfully shows where those lines are as courts explore the constitutional scope of judicial review.
In my view, Currie J in this case reaches the correct result. Let’s begin with the easy arguments first. Payne argued that his case was comparable to Trial Lawyers, 2014 SCC 59, which required that a hearing fee be paid by a person who wished to have a matter dealt with by the superior court. The effect of this institutional design choice was the complete elimination of the right to access the courts at all for some groups of people. Not so here, where the right of appeal is limited, but common law judicial review remains. Where there is no complete ousting of judicial review, no constitutional problem arises (contrast with a full private clause that would, read ordinarily, bar such access).
This means that judicial review remains. Payne then tried to argue that, in considering the application for judicial review, the leave requirement has the effect of ousting review over questions of law in the superior courts [55]. In other words, because Payne cannot, in reality, access the right of appeal, his ability to seek review on questions of law is ousted—and to meet the constitutional minimum, it must remain [55, 60]. Bolstering this argument is the Court’s conclusion that the right of appeal is not an adequate alternative remedy in this case, in part because the cost of access the remedy is prohibitive for Payne [48].
But there is a difference between a remedy that is adequate in the circumstances of a particular case and an institutional design choice that is constitutionally adequate. Here, Currie J properly draws a distinction: “Having no right of appeal is not the same thing as having a right of appeal but being unable to exercise that right” [56]. Where the right of appeal is limited, but nonetheless legislated, it preserves superior court review over questions of law, and in the absence of a privative clause, that right of appeal leaves open the ability to seek judicial review.
Currie J’s holding in this case could show the way forward for the issue of how far the legislatures can go in conditioning review through rights of appeal. The throughline through the decision seems to be this: judicial review cannot be entirely removed, but it can be limited and rearranged in any number of ways. Legislatures can, as here, combine limited rights of appeal (scoped to certain questions, available only to certain people) so long as it leaves open the ability of a party to seek judicial review. More problems will arise where the legislature directly attempts to limit common law judicial review through, for example, privative clauses.
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