There will be no SEAR until August 25, as I prepare for the new school year. The regular, weekly newsletter will resume at that point.
I am grateful that some of you have sent me recent cases; cases you may have argued, or otherwise cases that you think the SEAR community would be interested in reading. I encourage you to continue to do so!
Zoghbi v Air Canada, 2024 FCA 123 (July 29, 2024)
Category: Selection of standard of review// constitutional issues on JR.
Context: This is a judicial review of a decision of the Canadian Human Rights Commission to screen out the appellant’s complaint on the ground that financial relief was not available owing to an international convention incorporated into Canadian domestic law. Among other things, the appellant argued before the Commission that “the law incorporating the international convention into Canadian domestic law violated his equality rights under section 15 of the Charter” [6]. However, because the Commission screened out the complaint, it did not deal with the Charter issue (though the Federal Court did so).
Issues: There are several issues in this application, but for our purposes, I highlight two: (1) the standard of review; (2) whether the constitutional challenge was properly raised.
Holding and Analysis: The Court (per Stratas JA) allows the appeal in part, sending the constitutional issue back for redetermination [81].
On the issue of whether the constitutional challenge was properly constituted, the Federal Court should not have dealt with the issue, considering the Commission did not deal with it. As such, we get some practical advice from Stratas JA on how to challenge a decision-maker’s “failure to deal with a constitutional issue placed before it” where it is also argued that the Commission had jurisdiction to deal with the matter [31]. In such circumstances, “an applicant should attack that failure and ask for the constitutional issue to be remitted back for redetermination” [31]. In other words, the applicant should not attack the failure by asking the Court on judicial review to decide the issue on the merits, as tempting as that might be.
On the standard of review, the appellant argued that the Commission’s decision “should be reviewed on the basis of correctness because there is a fundamental issue whether the Commission has jurisdiction to consider questions of law” [35]. Under the relevant tests, a decision-maker that has jurisdiction to decide questions of law also has presumptive power to decide constitutional issues arising under its mandate. One might argue that such a question should be reviewed on the correctness standard, perhaps with analogy to the Supreme Court’s recent decision in York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (Issue #141). There, a majority affirmed that decisions about “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis” attracts correctness review (York, at para 63). In one general sense, whether the Commission can consider Charter questions goes to whether a Charter claim is even plausible on the facts.
But I do not think this is the way to frame the issue in this case. The issue is specific—as a matter of statutory interpretation, can the Commission decide questions of law? While the result of this question will, in a very general sense, speak to the scope of the Charter’s protection, the legal question is narrower. It is this narrower question that drives the standard of review analysis. Ditto for the appellant’s argument that the issue of interpretation in this case engages the scope of a treaty, and thus deserves treatment under the correctness standard. The interpretation of a treaty obligation may engage broader public issues that could be said to be "generally important.” But, fundamentally, we are dealing with an issue of interpretation relevant to this statute.
Khorsand v Toronto Police Services Board, 2024 ONCA 597 (August 1, 2024)
Category: Preliminary objections (amenability to judicial review)
Context: The question is whether a security pre-screening decision made by the Toronto Police Service in connection with an employment application is amenable to judicial review. Khorsand, the applicant, challenged the pre-screening decision and the TPS decision not to disclose reasons or information relied upon in the application process. At the Divisional Court, a majority concluded that the decision was sufficiently public to attract judicial review because “[t]here is a serious public interest in ensuring that unregulated use of police records does not result in the perpetuation of systemic discrimination.”
Issue: Is the pre-screening decision judicially reviewable?
Holding: No [10].
Analysis: In deciding that the pre-screening decision is not judicially reviewable, the Court (per Fairburn ACJO) offers insights into the interaction between the various frameworks sometimes used to decide issues of amenability to judicial review. As readers will know, the Supreme Court’s decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 is the standard statement on the issue. Wall sets out two requirements for a decision to be amenable to judicial review on the basis of its public character: (1) there must be an exercise of state authority, and (2) the exercise of that authority must be of a sufficiently public character. Prior to Wall, the Federal Court of Appeal’s decision in Air Canada v Toronto Port Authority, 2011 FCA 347 offered a list of factors for determining whether a matter was public or private for the purposes of the judicial review jurisdiction of the Federal Courts. At stake is whether the Air Canada factors continue to have any relevance outside of the Federal Courts.
Fairburn ACJO reviews the academic commentary and the lower court cases, which have diverged on whether the Air Canada factors remain relevant after Wall. In terms of court decisions, some “make no mention of the Air Canada factors, some employ them as a supplement, especially in relation to Wall’s functional criterion, and others…rely more heavily on them” [72]. Here, Fairburn ACJO keeps Air Canada alive and well:
[73] In my view, Wall does not preclude reference to the Air Canada factors in teasing out why, at a minimum, the functional criterion is or is not met when determining whether a decision is public or not..
[74] In other words, to the extent they have continuing relevance, the Air Canada factors do not operate as a strict test or checklist. In my view, they simply play a helpful role in focusing the court’s attention and reasoning process, especially when analyzing the second criterion from Wall. Indeed, in Air Canada itself, Stratas J.A. acknowledged that “[w]hether or not any one factor or a combination of particular factors tips the balance and makes a matter ‘public’ depends on the facts of the case and the overall impression registered upon the Court”: at para. 60.
Put this way, and as Wall cautioned, the Air Canada factors are not an at-large set of considerations that could transform the decision of a private actor into a public one. Rather, they help to guide a court’s reasoning when determining whether a particular decision is public in the administrative law sense. So, in this case, it was not enough that the pre-screening decision may have a wider public import because of the risk of abuse of police records. Putting aside that such risks were not borne out in record before the court, it is not enough that a matter be important to a large member of the public. As Wall eloquently and simply said, judicial review is about the legality of state decision-making, which may or may not engage “important” issues. This is why a decision must be, in its essence, promulgated by a public actor in pursuit of public purposes. Importance of an issue at any given time does not necessarily map onto Wall’s functional requirements. Permitting judicial review in those circumstances would quite likely distort the court’s reviewing function, making it run into areas where the legality of state decision-making is simply not at issue. In this way, despite the unquestioned importance of the underlying issues in this case, I think Fairburn ACJO had the better of the argument.
Santiago Cruceta v Canada (Citizenship and Immigration), 2024 FC 1194 (July 26, 2024)
**Thank you to a SEAR reader for sending this case**
Category: Application of the reasonableness standard.
Context: This is a judicial review of a decision of a member of the Immigration Division, finding the applicant inadmissible to Canada for serious criminality.
Holding and Analysis: The Court (per Ahmed J) finds the decision unreasonable.
As part of the serious criminality analysis, the member was compelled to consider whether any defences were available to the Applicant. But Ahmed J, rightly in my view, refuses to cooper up the deficient reasons that, in this case, failed to consider the applicant’s submissions regarding defenses:
[24] Whether this defence would (or even could) apply to the Applicant’s circumstances, I find that the Member had to meaningfully address this submission, especially given the consequences of a finding of inadmissibility and ensuing removal from Canada (Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (“Mason”) at paras 74, 76, citing Vavilov at paras 127-128, 133-135). The Member did not. In my view, this lack of responsiveness is a serious enough shortcoming to render the Member’s decision unreasonable (Vavilov at para 100).
[25] I am mindful of the Federal Court of Appeal’s holding that the analysis of the essential elements of the two offences in an equivalency analysis includes comparing “defences particular to those offences or those classes of offences” (Li v Canada (Minister of Citizenship and Immigration (CA), [1997] 1 FC 235, 1996 CanLII 4086 (FCA) at para 19). Again, the decision could have been made finding that the defence of impossibility did not apply to the Applicant’s circumstances. But that decision was not made, and I will not supplement the Member’s reasons. My role is the review of the decision “actually made” (Vavilov at para 15).
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