Issue #14: October 17, 2021
Wallwork v Toyota Manufacturing Canada Inc, 2021 ONSC 6785 (October 13, 2021)
Context: The Applicant is seeking judicial review of two Human Rights Tribunal of Ontario (HRTO) decisions. The first concerned whether the Respondent, Toyota Manufacturing Canada Inc., discriminated against the Applicant by treating absences due to work-related injuries differently than absences due to non work-related injuries. In that decision, the HRTO found in favour of the Respondent. The second decision concerned a request for reconsideration of the original decision.
Issue: What is the standard of review?
Analysis: Wallwork is another chapter in the ongoing saga on patent unreasonableness under the Ontario Human Rights Code (see Issue #13 and Tang v HRTO, 2021 ONSC 6523). The Human Rights Tribunal continues to advance the position that s.45.8 of the Code means what it says: patent unreasonableness review. Post-Vavilov, the courts have not taken this approach and have generally defined patent unreasonableness either partly or in totality as equivalent to reasonableness.
The Court in Wallwork continues this trend, applying the reasonableness standard [30]. This question will continue to percolate in the lower courts, especially in cases involving the HRTO. The HRTO’s position finds plausible support in Vavilov, with its focus on legislative intent (Vavilov, at para 23). But there is a problem: the Court has previously noted that the Rule of Law cannot counsel a standard of patent unreasonableness, one that may permit otherwise deficient decisions to stand despite their clear unreasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9 at para 42). So far, it appears that the Dunsmuir line of thinking has prevailed in the lower courts post-Vavilov.
Canada (Health) v Elanco Canada Limited, 2021 FCA 191 (oral judgment delivered in Ottawa, September 24, 2021)
Context: This is an appeal of a Federal Court decision regarding disclosure under the Access to Information Act. An application was made under s.6 of that statute for Health Canada to disclose certain records containing submissions made by Elanco for the approval of a drug. The controversy concerned the fact that the sought-after information constituted so-called “third party records,” governed by s.20 of the statute, which provides that disclosure of these records may not occur in certain defined circumstances.
The Federal Court, applying s.20, found that the records identified by Elanco did not need to be disclosed by Health Canada [13].
Issue: On appeal, a core question was the standard of review to be applied by the Federal Court of Appeal to the Federal Court’s disclosure decision. Under s.44 (1) of the statute, “[a]ny third party” that is entitled to notice of disclosure may “apply to the Court for a review of the matter.” Section 44.1 provides that an application under this section is “to be heard and determined as a new proceeding.”
Elanco argued that the typical appellate standards of review in Housen v Nikolaisen, 2002 SCC 33 apply to decisions made by the Federal Court in access to information matters (palpable and overriding error for fact/mixed fact and law, correctness on questions of law). The Crown argued, instead, that the framework in Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 applies (correctness on all issues, the FCA “steps into the shoes” of the Federal Court). Agraira has found a home in appellate review of first-instance judicial review courts, particularly as it applies to ministerial decisions. This matters because under Agraira there is no deference on fact/mixed fact and law.
Holding: The Court held that the Housen framework applies [22].
Analysis: The Supreme Court will soon decide the case of Horrocks which will decide whether Agraira should be the dominant standard of appellate review on judicial review matters. The Federal Court of Appeal, for good reason, has applied the Housen framework in at least some judicial review cases ( see e.g. Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 at para 75). Until Horrocks is decided, the question remains unresolved.
But at least when it comes to the access to information regime, Housen wins out because Agraira, on its own terms, simply does not apply. The statutory scheme is dispositive, since s.44.1 contemplates a new proceeding in the Federal Court [23-24]. That means that the judge hears the evidence and makes findings of fact. This is not an appellate review of a first-instance judicial review. Section 44.1 makes that clear [32].
Waquan v Mikisew Cree First Nation, 2021 FC 1063 (October 12, 2021)
Context: “Mr. Waquan was an unsuccessful candidate in the 2020 election for the Council of the Mikisew Cree First Nation [Mikisew]. The Election Appeal Committee [the Committee] dismissed his appeal of the results of the election. He now seeks judicial review of this decision” [1].
Among other things, Waquan argued that two people who were elected as councillors were ineligible to run in the election because they owed debts to Mikisew, contrary to a Customary Election Regulation.
Issue: Was the decision reasonable?
Holding: The Court upheld the decision. In particular, given that “the Committee is composed on Mikisew elders who must be aware of the manner in which elections are conducted and the rule regarding debts, […] it was reasonable for the Committee to rely on a well-known process that inform candidates of any debts they may have, provides them with an opportunity to pay these debts and generates a neutral certification of the outcome. […] The Committee was entitled to take notice of [the well-known process’s] existence and to rely on its outcome” [25].
Analysis: Two takeaways from this case
1) This is a good example of an applicant taking Vavilov’s “reasons first” approach a bit further than Vavilov can support. Waquan argued that the Committee “had a duty to determine the existence of a debt and to provide detailed reasons for its conclusion” [26]. While the Regulation here did not precisely spell out the process relied on by the Committee, the Committee’s “choice of procedure” here was given weight. As I will note below, the unique decision-making context of Indigenous decision-makers probably gives Vavilov’s reasoning requirements less work to do in this context. Grist for the mill, perhaps, of those who see deference as a natural accompaniment to procedural fairness review.
2) This case is interesting because it assesses the conceptual bases for deference in the context of Indigenous self-government. Much is made of “pluralism” as a reason for deference—the idea that various administrative decision-makers in their own areas of policy expertise can contribute differently to the meaning of law. The extent to which this should be a reason for deference is, in my view, an open question. But where Indigenous governments are at play, there is indeed a question of pluralism at play: a pluralism that is recognized, at least to some extent (though not to the extent of protecting Indigenous self-government as an order of government) in s.35 of the Constitution Act, 1982. So, as Grammond J says, “[d]eference promotes Indigenous self-government by ensuring that decisions relevant to First Nations governance are made, to the extent possible, within the communities…” [13]. This is especially so with electoral codes, since the Indigenous decision-makers themselves are “better able than courts to understand how written laws have been implemented and how they are related to customary practices or Indigenous governance principles” [14].
Yet this will be a tough balance to always strike. As Grammond J notes, “First Nations councils, of course, are subject to the rule of law, which includes Indigenous law” [40]. While Indigenous decision-makers cannot “disregard provisions of election codes,” they do have a specialized advantage in determining how those codes work in relation to community custom. While recognizing this fact, courts still have a duty to uphold the procedural and substantive rights of individuals in the communities who turn to courts for redress. Walking this line for courts will be difficult.
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.
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