**Last edited Jun 24**
York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (June 21, 2024)
Category: Constitutional review of administrative discretion
Context: I profiled the ONCA’s decision in this matter in Issue #46. From the Supreme Court’s headnote:
Two teachers employed by an Ontario public school board recorded their private communications regarding workplace concerns on a shared personal, password‑protected log stored in the cloud. The school principal, who had been made aware of the log, entered the classroom of one of the teachers and, in her absence, touched the mousepad of her board laptop, saw the log that opened on the screen, read what was visible, then scrolled through the document and took screenshots with his cellphone. These communications then formed the basis for the school board to issue written reprimands. The teachers’ union grieved the discipline, claiming that the search violated the teachers’ right to privacy at work. No Charter breach was alleged. A labour arbitrator, appointed pursuant to the collective agreement, dismissed the grievance. Applying the arbitral balancing of interests framework, the arbitrator found there was no breach of the teachers’ reasonable expectation of privacy when balanced against the school board’s interest in managing the workplace.
At the Court of Appeal (per Huscroft JA), the panel quashed the arbitrator’s decision. On a correctness standard of review, the Court concluded that the search was unreasonable under s.8 of the Charter.
Issues: The questions in this case include whether the Charter applies to Ontario school boards under s.32(1) of the Charter; if so, whether the arbitral decision is consistent with s.8 of the Charter; and there is a need to determine the appropriate standard of review for both of these issues.
Holding: Rowe J, for the majority, concludes the following: (1) The correctness standard applies to the determination of whether the Charter applies to school boards pursuant to s.32(1) of the Charter, because it is a constitutional question as contemplated in Vavilov; (2) The correctness standard also applies to the arbitrator’s decision itself, since “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis” is a constitutional question as contemplated in Vavilov [63]; (3) The arbitrator’s award should be quashed on this standard, since it failed to “proactively address the s.8 issue that manifested itself on the facts of the grievance” [91].
Karakatsanis J (joined by Martin J) concurred in result, and with the conclusion that correctness review is applicable on the question of whether the Charter applies to school boards. However, the concurring judges would have applied a reasonableness standard to the arbitrator’s decision, on the theory that individualized exercises of administrative discretion, even applied to a constitutional issue, do not fall into Vavilov’s correctness categories [122-123].
Analysis: At first blush, this is a significant case on its own terms, both for what it says, and what it does not say, about the standard of review and mode of analysis on Charter issues in administrative law. Unanswered questions remain: perceptive readers will note that CSFTNO, 2023 SCC 31 (see Issue #117) is conspicuously absent (interestingly, Rowe J was not part of the 7-judge panel that heard CSFTNO). I shed no tears over its absence. But, as I have said before, the Supreme Court has a habit in administrative law cases to say one thing in one case, and then to ignore it in the next case on point. This habit means that drawing any long-term implications from York Region would itself be a fool’s game, any hopes aside. But let me give it a shot.
Taking this case at its narrowest, there appears to be a bifurcation between questions going to the scope of Charter rights (York Region), and questions pertaining to balancing or application (CSFTNO). The latter will seemingly attract reasonableness review and be framed in the language of values, the former will attract correctness review and be framed in the language of rights (see para 67-69). There is a bifurcation now, not only of the standard of review, but of the mode of analysis. I opined that the bifurcation of the standard of review may be a plausible response after Vavilov, even though I ultimately believe that this move should only be a waystation onto a more fundamental dismantling of the Charter values framework.
A few comments about the case and where we may go from here.
(1) Standard of Review on Constitutional Questions: Rowe J offers compelling reasons to adopt correctness review, a refreshing shift from the posture in CSFTNO. More importantly, we get a much more powerful statement of the role of courts in judicial review, one that is rooted in orthodox constitutional principles from which the Court has sometimes resiled—in Doré itself, for example. This, too, is welcome. For Rowe J, the identification and definition of a Charter right in a particular context transcends a regulatory scheme. Even if its application is individualized, the scope of the right must be consistently interpreted. For this, he relies on a developing line of cases in the lower courts reaching this conclusion: see e.g. CBC v Ferrier, 2019 ONCA 1025. Since the existence, application, and scope of Charter rights must be consistently interpreted regardless of the regulatory forum in which they arise, correctness review is appropriate.
For as long as it sticks—again, the Court is notoriously inconsistent—this is good. As Rowe J says, the legal content of Charter rights should not change depending on whether the legislature proceeds by delegation or direct enactment [64]. He essentially makes this aspect of McLachlin CJC’s concurring opinion in Trinity Western, 2018 SCC 32 the new standard. Any alternative would subvert the hierarchy of laws by permitting the technical legislative design choice—delegation—to potentially change and distort the meaning of a Charter right in this individualized context. I have long believed that the scope of Charter rights—whether raised in administrative proceedings or in an attack on a statutory provision—should be consistently framed by decision-makers.
Not everyone sees things this way. Karakatsanis J suggests in her concurring opinion that Rowe J’s view “overshoots the ambit of the correctness exceptions laid down in Vavilov” [112] because any “individualized decisions involving the application of the Charter that are intrinsically linked to a specific factual and statutory context will generally not engage the same rule of law concern about potential inconsistency as that which motivated the correctness exception for “constitutional questions” in Vavilov” [122].
Rowe J’s view, at least to me, better coheres with the language of Vavilov. Vavilov was quite clear that new correctness categories could be recognized, and that the constitutional questions category itself could encompass “other constitutional matters” in appropriate cases (Vavilov, at para 55). While modifications to the Vavilov framework should be rare and judiciously chosen, where certain questions share features with previously recognized categories of correctess review, courts should not hesitate. I agree that the constitutional questions category should not be “unduly narrowed” [65]. Again, Karakatsanis J reads Vavilov as if it were frozen in time (see my comments on her opinion in SOCAN v ESA, 2022 SCC 30, indicating a general unwillingness to recognize new questions subject to correctness review).
(2) Rights, Not Values: The scope/application distinction means that, to survive judicial review on a Charter issue, the decision-maker will need to properly identify and define a Charter right in a particular case. This seems to be a high standard, but I think the standard flows from the trade-off inherent in cases like NS (Workers’ Compensation Board) v Martin, 2003 SCC 54. There is no doubt that administrators can be legally empowered to decide Charter issues, but correctness review ensures that any administrative decision “based on the Charter” is eligible for review on a correctness basis (Martin, at para 31). It’s a direct line from here to Rowe J in York Region “[w]here a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision” [91].
In my view, this requires administrators to do two things.
First, where a Charter right applies, “it is not sufficient that the arbitrator made some references to Charter jurisprudence” [94]. The decision-maker must offer a “clear acknowledgment of and analysis of that right” [94]. General references or citations will likely not suffice. Notably, this is all done without values talk of any kind.
Second, the room for error seems non-existent. Here, rather than engaging s.8 of the Charter, the arbitrator balanced the interests at stake according to an arbitral “‘balancing of interests framework’” [2]. But on the standard articulated by Rowe J, the arbitrator was required to do more: she “was required to decide the grievance consistent with the requirements of s.8 [of the Charter]”, which would “properly entail drawing on both the relevant body of arbitral decisions and the s.8 jurisprudence” [91]. In other words, and on a correctness standard, what courts say about the scope of Charter rights is strictly binding on administrative decision-making. And as Rowe J states, courts must have regard “to the justification for the decision actually given by the decision-maker, and not the justification that the decision-maker might have, but did not provide” [94]. We must take the reasons as they are. Gone are the days of supplementation, absent an obvious indication in the record (see e.g. Zeifmans LLP v Canada, 2022 FCA 160). This, too, is consistent with Vavilov.
(3) The Ugly Duckling?: All of this is good. But the non-mention of CSFTNO can’t itself go unmentioned, even if I shed no tears over its evident lack of influence in this case. Is CSFTNO the ugly duckling of the administrative law family? For now, we do appear to be in a world where scope and application are two distinct questions, attracting two different standards and modes of analysis. The common law is imperfect, inching towards a “more perfect” system, but these cases must be explicitly reconciled if we care about principle. Let’s think through the pressures that courts could face in maintaining this distinction.
First, York Region is framed in the language of rights, judicial decisions interpreting those rights, and the provisions of the Charter itself. CSFTNO is framed in the language of values, reasonableness (if “robust”), and deference. This is not just aesthetically or conceptually odd. Practically, to survive review, administrators will need to identify the proper scope of Charter rights—as courts understand them—and will need to refer to the governing jurisprudence. That is a good thing. But then, when determining whether the statutory objectives properly “outweigh” the Charter right, the administrator will need to speak of values. This seems like a distraction. Having already demanded that administrators properly scope a right, what use is there in the values framework when it comes to proportionality? Again, we can meaningfully re-frame s.1 so that it need not rely on the language of values. Or, as Brar below shows, values—in the end—are not, and cannot, be different than rights.
Second, litigants may be incentivized to push for correctness review by identifying their issue as going to existence or scope of a Charter right rather than “balancing.” We see a version of this in the interaction between procedural fairness (a duty to provide reasons) and substantive review (whether the reasons are adequate); inevitably, litigants argue that reasons that might appear inadequate do not actually fulfill the procedural fairness duty (see Toutsaint, 2023 SKCA 11, Issue #74). Same here. Sometimes—as in York Region itself—the real problem with administrative “reasoning” about the Charter is that it is not reasoning at all. “Reasoning” may count as a note in the record, or a general citation to a Charter provision, or even an implied finding of consideration. In these cases, it’s unclear whether the decision-maker properly identified and scoped the Charter right at all. It may be that many of these cases would fall on a reasonableness review: see Lance v Canada (Attorney General), 2024 FC 787 (Issue #138). But this need not be the case on a deferential standard. To the extent there is a difference between the standards, it may invite different ways of framing the issues, leaving the Doré values framework as a sort of second best option in cases where decision-makers simply don’t reason about the right at all.
This is just speculation, because this case offers no insight into how these frameworks will work together. That the Court cannot commit itself to Doré, 12 years on, is interesting but not surprising given the problems that case has created. Nonetheless, CSFTNO remains as a barnacle on the ship of Canadian administrative law. If York Region is to survive, it will depend on the Court sticking to its guns and not allowing the vibes, facts, or parties in the next case to sway it. Better yet, perhaps we can combine this decision and the below FCA decision and put an end to “values talk” altogether. Even still, it would be a poor use of money to bet on Supreme Court outcomes on any of these questions. Better to use it on the Stanley Cup finals.
Singh Brar v Canada, 2024 FCA 114 (June 19, 2024)
Category: Charter values.
Context: This is a judicial review of a ministerial decision under the Secure Air Travel Act. The Minister decided to place the appellants on the “sometimes colloquially but erroneously” named “no-fly list” [1]. After the Minister refused to de-list the appellants, they exercised a statutory right of appeal to review the decision in the Federal Court, advancing various arguments: that the statute and the Minister’s decision violated ss 6 and 7 of the Charter, and that the decisions were unreasonable. The Federal Court disagreed with the appellants [6].
Issue: Did the Minister and the Federal Court fail to consider Charter values, particularly the values underlying ss. 2, 6, and 7 of the Charter?
Holding and Analysis: For a unanimous panel, Stratas JA offers some excellent comments on the role of Charter values: (a) their weak doctrinal grounding and (b) the use of Charter values on a palpable and overriding error standard.
Stratas JA sees no difference between Charter rights and values, reinforcing the implicit message of York Region. Charter values “…do not change, supplement or override the written text of the rights and freedoms in the Charter, the written justification provision in s.1 of the Charter, or the cases decided under the Charter during the past forty-three years. Nor are they putty to fill unwanted gaps in the Charter.” I agree. This was precisely the worry after CSFTNO: that a penumbral “Charter of Values” would emerge, overshadowing the Charter of Rights. Here, Stratas JA is clear: “[t]o the extent the values have the same content as the rights and freedoms under the Charter that the appellants have invoked in this case, I have already found justification under s.1 of the Charter and consistency with the principles of fundamental justice” [67]. Again, this case is an example of how much of our administrative law can be expressed without the values language.
Second, Stratas JA identifies a potential issue with the use of Charter values. Recall that in CSFTNO, the Court concluded that it is possible for courts to re-weigh Charter values on judicial review, even though traditional principles of judicial review preclude this move. Now consider what incentive this provides to litigants where a decision-maker “fails” to consider a Charter value that was, potentially, not argued to it. A litigant can argue on review and appeal that the decision is erroneous on this basis. This is bad enough. But, in this case, the relevant standard was palpable and overriding error, and here, “the appellants seem to be using Charter values…as a vehicle to quibble about the weight the Minister and the Federal Court gave to certain considerations the appellants wish to stress—an argument foreclosed to them given the standard of palpable and overriding error” [67].
This case follows others in the Federal Court of Appeal that assigns a very narrow function to Charter values. On this account—the right one, I think—Charter values have no independent force beyond the written Charter. This case helps us to imagine a sort of alternative administrative law where Charter issues require no special framework, without a distinction between scope and application.
District Director, Metro Vancouver v Environmental Appeal Board, 2024 BCSC 1064 (June 19, 2024)
Category: Procedural fairness (bias)
Context and Analysis: This is a judicial review of a decision of the BC Environmental Appeal Board, carying an air emissions permit issued to GFL Environmental Inc. On judicial review, the District Director Metro Vancouver argued that the decision ought to be set aside owing to a reasonable apprehension of bias.
The Court (per Baker J) issues a rare finding that because of the conduct of the decision-maker in the hearing, there was an apprehension of bias [see conclusions at paras 203-206]. Baker J concludes that the Chair of the panel, through various interim rulngs and during examinations, evinced a preference for the witnesses of GFL:
The attitude of the Chair towards the witnesses for GFL was of an entirely different tenor. The GFL witnesses were not subject to intense cross examination, their counsel was not constantly interrupted during their direct examination, and their answers given in direct examination were not systematically curtailed. The cross examination of the GFL witnesses by counsel for the District Director was not assisted by the Chair adopting and pursuing lines of questions posed by the District Director [205].
In defense, GFL argued that the District Director waived the right to bring forward an allegation of bias because he was late in raising that allegation. Waiver can be an acceptable defense in particular cases. But as the Court here notes, how waiver is assessed will depend on the nature of the bias argument; on the kind of bias alleged:
[224] I agree with the statement in Rothesay, relied upon by the District Director. Other categories of bias, such as a pre-existing relationship or financial interest between the decision maker and one party, rely on information that is or can be known to the parties or the decision maker in advance of the hearing. If a party is fully informed of the facts underlying such an allegation of bias, and still continues with the hearing, the defence of waiver is available to counter the bias allegation. However, in the case at bar, the allegation of bias arises out of the conduct of the decision makers themselves in the course of the hearing. It was only through their conduct in the hearing that the District Director was able to inform himself of the basis for a claim in bias.
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