For readers interested:
(1) This is a short article I wrote on the Supreme Court of the United States’ decision in Loper Bright, which overturned Chevron deference. This piece addresses possible connections to Canada, and might be interesting to SEAR subscribers.
(2) Statutory interpretation, under the Vavilov framework, is more important than ever. In a forthcoming piece that will be published in Oxford University Press’ Statute Law Review, I address an interesting issue: how should Canadian courts, when looking at “text, context, and purpose,” consider purpose? The abstract:
Despite apparent agreement on the approach to the interpretation of statutes in Canada, a system of presumptive parliamentary sovereignty, judges differ on a fundamental point: how purpose is used in interpretation. Some judges craft arguments that view the text as the medium through which the legislature expresses its intention, using purpose to shed light on the meaning of the text in defined ways ("text-as-medium" interpretation). Others see the background purposes or values of the statutory context as binding constraints in a coherent legal order, with text as merely a signal to meaning ("purpose-as-medium" interpretation). This paper argues that text-as-medium interpretation offers the most persuasive account of the use of purpose in interpretation, especially in a system of legislative sovereignty, which constrains interpretive choice. By bringing to light the commitments of these two interpretive arguments in the Canadian context for the first time, the paper also raises deeper normative questions about how to view legislation in a Westminster-type parliamentary democracy. These questions are fundamental to the relationship between sovereign legislatures and courts.
Teksavvy Solutions Inc v Bell Canada, 2024 FCA 121 (July 22, 2024)
Category: Rights of appeal//procedural fairness.
Context: This is an appeal from a decision of the CRTC to vary a 2019 decision setting certain rates. By s.64(1) of the Telecommunications Act, Teksavvy was limited to raising “questions of law or of jurisdiction,” with leave.
Issues: Teksavvy raised several arguments: (1) the CRTC committed an error of law in establishing the revised rates; (2) Teksavvy had a legitimate expectation that the “CRTC would conduct an exhaustive costing exercise in establishing the revised rates” [32]; (3) the CRTC was impermissibly biased.
Holding: The appeal should be dismissed.
Analysis: In this case, the Court (per Stratas JA) offers some intriguing comments on the scope of appeals limited to questions of law and jurisdiction. He also offers some worthwhile thoughts on procedural fairness, legitimate expectations and bias.
On the scope of the appeal in this case, Stratas JA pays close attention to the legislature’s institutional design choice—the selection of a limited right of appeal. As he eloquently says, “We cannot take on things that Parliament forbids us to take” (citing, among other things, Penn v Lord Baltimore (1750) for this principle). Accordingly, “[i]n considering our jurisdiction in cases like this, we must remain on high alert” [18]. While, as we explored last week, litigants can raise certain questions of law that nonetheless deal with questions of evidence, the situations in which they can do so are limited: see R v Hodgson, 2024 SCC 25, Issue #145. This is a matter of respecting Parliament’s institutional design choices, a key feature of the Vavilov framework, and a principle carrying important implications across our law.
Here, Teksavvy did not raise a proper question of law. The CRTC is given a wide berth to maneuver when it sets rates: rates need only be “just and reasonable”: “language that is just about as broad as can be conceived” [23]. This is a classic example of a situation where the text of the statute contemplates flexibility. So it was no help for Teksavvy to say that the CRTC didn’t apply a particular “method” or “technique”—this is not a question of law. The CRTC doesn’t have free rein; it cannot “pluck figures from the air or throw darts at a dartboard” [31]. But, here, it adopted a particular technique, which fits the statutory criteria.
On the question of legitimate expectations, Teksavvy argued that it had an expectation that the CRTC “would conduct an exhaustive costing exercise in establishing the revised rates” [32]. Stratas JA rejects the argument, and does so for important reasons. First, the statement that Teksavvy argued gave rise to an expectation was rendered as a “single statement at a single point of time” [36]. Where a “regulatory decision is merely the latest chapter in a saga where many chapters are written,” it will be hard to isolate one statement in that saga and identify a legitimate expectation in it [37]. Moreover, the expectation that the CRTC would use a particular costing methodology goes to substance, not procedure, a move forboden by the law of procedural fairness [46]. Interestingly, too, where a decision-maker has a reconsideration power—a power to “review and rescind or vary any decision made by it”—the decision-maker “should not be fettered by statements it may have made in a different context at a different time by a different author” [47]. These are all common sense conclusions, ones we should save, about the law of legitimate expectations.
Finally, Stratas JA offers some comments on the thorny issue of private meetings between a regulator and regulated party outside of an official hearing. The CRTC has come under fire for this, and Stratas JA properly takes this opportunity to offer legal comments on a practice that—at first blush—is a very bad look. Teksavvy argued that the CRTC’s Chair made certain public comments evincing bias. But Teksavvy did not raise the issue promptly: “Our administrative law never rewards purely tactical behaviour that benefits a party to the detriment of the larger public interest or the proper administration of justice” [62]. On private meetings:
[65] Meetings between regulators and regulatees outside of the hearing room are a tricky area.
[66] At one end of the spectrum are meetings that are in the public interest, particularly where the regulator has a policy-making mandate and the regulator and the regulatee are in a long term relationship. Regulators need to understand the industry they regulate and the parties in it, their challenges, needs, aspirations, and plans. And regulatees need to understand the motivations of regulators, their view of the public interest and their need to protect it. It is evident from the register maintained under the Lobbying Act, most regulatees in sectors such as this engage in these meetings. It is accepted that they are part of doing business. For good measure, the preamble to the Lobbying Act has declared lobbying to be a “legitimate activity”. And the CRTC’s Code of Conduct correctly recognizes that “[f]ormal and informal contacts with parties with an interest in the communications industry are essential to maintaining and enhancing our expertise and knowledge”.
[67] At the other end of the spectrum are meetings to discuss live issues coming before the regulator or already before the regulator for hearing and decision. In effect, these meetings are means by which secret submissions can be offered outside of the hearing room, away from the eyes and ears of other parties to the hearing and the public. This subverts fairness and should not happen.
[68] Somewhere in the middle are social gatherings. The CRTC’s Code of Conduct permits attendance at social events and other meetings between CRTC members and industry representatives as long as CRTC members do not discuss matters before the CRTC during the events. But this can still invite unwelcome questions that can multiply, with mounting risk.
[69] Looking at this case as an example, why were the two together? What was discussed? Why were just the two of them there without any witnesses? Quite simply, meetings between two people, one a regulator and one a regulatee, without any independent witnesses or other evidence to substantiate why the meeting happened and what was discussed can be a recipe for trouble.
Halton (Regional Municipality) v Canada (Transportation Agency), 2024 FCA 122 (July 23, 2024)
Category: Adequacy of reasons (right of appeal).
Context: This is a decision of the Canadian Transportation Agency, granting CN’s application for the approval of certain railway lines. Halton et al appealed, making substantive and procedural arguments.
Issue: While there are several issues in this case, I highlight it for the Court’s (per Stratas JA) comments on adequacy of reasons in the case of a statutory appeal from an administrative decision.
Holding: The Agency’s reasons in this case are adequate.
Analysis: There is a percolating question bubbling up. How do courts review the adequacy of reasons on a statutory right of appeal? Stratas JA puts the problem starkly: “…do we apply the legal standard to evaluate first-instance courts’ reasons in cases like R v Sheppard, 2002 SCC 26, [2002] 1 SCR 869? Or must we consider some or all of the Court’s observations in Vavilov on the adequacy of administrative decision-makers’ reasons when they are assessed under reasonableness review?” [22].
In this case, Stratas JA says that “under any legal standard” the reasons pass muster [25], and that at any rate, the Sheppard and Vavilov standards share some characteristics [22]. But in setting out the shared commitments between these standards, Stratas JA helpfully elucidates the connection between reasons and the purpose of judicial supervision: to ensure that decision-makers remain in their statutory kens.
Stratas JA says that two broad considerations inform how courts should review reasons on a statutory appeal. First, parties must be able to “articulate to this Court why, in their view, the Agency’s evaluation of whether or not the location of the railway lines was ‘reasonable’ should be sustained or quashed on appeal” [25]. In other words, the parties—from the reasons—must be able to separate the wheat from the chaff. The purpose of this requirement is simple: to ensure that decision-makers remain within their statutory authorizations, judicial review must remain practically available, a point that Stratas JA has emphasized in another context: see Tsleil-Waututh, 2017 FCA 128 at para 78.
Secondly, and relatedly, the adequacy of reasons must be determined in relation to what the decision-maker is tasked with deciding [27]. Decision-makers tasked with deciding a narrow point of law will be expected to be more precise, addressing the legal criteria and applying it to the facts [29]. More policy-laden decisions made against a “vague standard” will be informed by complex evidence, and in such cases, we do not expect encyclopedic reasons [29]. Rather, in any cases, we expect reasons linking the evidence to the legal standard, allowing the parties to understand the basis for the decision. Nothing more, nothing less.
This is a helpful explanation because it bridges a sometimes confusing gap in the law of judicial review: how do we link the adequacy of reasons to the legal standards by which decision-makers must live and breathe? This question is a consequence of merging legality and rationality review—two separate grounds of review at common law—under one banner of “reasonableness.” The reasons must permit a court to determine whether and how the decision-maker grappled with the evidence and the law constraining it. As Stratas JA pointed out in the important post-Vavilov case of Alexion Pharmaceuticals, 2021 FCA 157, (Issue #3), errors of law are sometimes inevitable if reasoning is not adequate; a court simply cannot be sure that a decision-maker properly complied with its statutory authorization of the reasons do not disclose it. While we do not expect perfection, courts in the post-Vavilov world should not cooper up deficient reasons, lest they forego their constitutional duty to police the boundaries of administrative action: see Cavendish Farms Corporation v Lethbridge (City), 2022 ABCA 312 at para 28 (Issue #60).
Index Investments v Paradise (Town), 2024 NLCA 25 (July 16, 2024)
Category: Municipal bylaws.
Context: This is an appeal from a judicial review of a municipal rezoning decision and from a court decision dismissing a claim for constructive taking. The rezoning occurred in the context of the municipality carrying out its Municipal Plan Review. On judicial review, the applicants argued that the rezoning decision was an improper exercise of power under the Urban and Rural Planning Act; they suggested that the decision had the effect of “down-zoning” the properties. The NLSC dismissed the application for judicial review.
I profiled the NLSC decision in this matter in Issue #103.
Issue: Putting aside the issue of constructive taking, is the Town’s rezoning decision unreasonable?
Holding:
[10] For the reasons that follow, I would dismiss the judicial review appeal because the Appellants have not established that the Town’s rezoning decision was unreasonable. They have not shown that the Town denied them procedural fairness, or acted beyond its statutory authority or for an unauthorized purpose.
Analysis: This is a fascinating decision on several grounds, but I want to focus on how the NLCA (per O’Brien JA) conducts reasonableness review in a context where there are no “reasons” to speak of. Courts have sometimes differed on the standard that should be applied when determining whether the record adequately discloses a reasonable basis for decision. As I have said, courts should not try to draw blood from a stone. But where there is “no doubt” that the record indicates a reasonable explanation, implicit reasons can be harvested from the record: see, for this standard, Zeifmans LLP v Canada, 2022 FCA 160 at para 11.
Here, as in the Superior Court, the record was adequate. As O’Brien JA says, “[t]he record reveals that the Town decided to rezone land that had a slope over 20% as Conservation because the Town deemed it too steep to develop and thus a hazard area” [30]. This didn’t require extensive mining of the record or hard squinting. The explanation was littered through the record [30-35].
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