Issue #148: August 25, 2024
Airline policy, statutory interpretation, a new paper on Auer/TransAlta
Welcome back to SEAR.
For your interest, a paper of mine about the Supreme Court’s upcoming decisions in Auer/TransAlta (dealing with standard of review for subordinate legislation) has now been published in the Ottawa Law Review. In the paper, I argue that the Supreme Court should jettison the special, hyperdeferential Katz standard, and simply apply the ordinary tools of interpretation endorsed in Vavilov to determine whether an exercise of delegated legislative power fits within the primary authority. More broadly, the paper outlines what the resolution of this problem may mean for our administrative law.
The citation: Mark P. Mancini, "One Rule to Rule Them All: Subordinate Legislation and the Law of Judicial Review" (2024) 55:2 Ottawa L Rev 245.
Air Passenger Rights v Canada (Attorney General), 2024 FCA 128 (August 12, 2024)
Category: Preliminary objection (amenability to review)
Context: The Canadian Transportation Agency [CTA] published a “Statement on Vouchers” on a webpage. As the Court (per Walker JA) recounts, the Statement “was issued in response to the mass cancellation of domestic and international flights that occurred during the first weeks of the COVID-19 pandemic in Canada in March 2020” [1]. Air Passenger Rights [APR], a non-profit, sought judicial review of the Statement, alleging that that it “violated the CTA’s Code of Conduct and gave rise to a reasonable apprehension of bias on the part of the CTA as a whole and on the part of CTA members who endorsed the Statement” [1]. The respondent argued that the Statement is not amenable to judicial review because it is not a “matter, decision or order that falls within subsection 18.1(1) of the Federal Courts Act” [12].
Issue: Is the matter amenable to judicial review?
Holding: No.
Analysis: This case contains some interesting general and specific remarks about justiciability. First, Walker JA reiterates that courts can review instruments that do not necessarily take the form of an official order or decision—ie statements, bulletins, etc [18]. Form does not necessarily dictate whether a matter is judicially reviewable. Substance, instead, is the issue. As Stratas JA wrote for the Court in Canada (Citizenship and Immigration) v Council of Refugees, 2021 FCA 72, at para 94. “[a]pplications for judicial review are possible where a matter—usually administrative conduct or inaction—affects legal rights, imposes legal obligations or causes real prejudicial effects.”
Here, though, no such rights, obligations, or effects were at issue [31]. APR’s argument centred on the prejudicial effects on passengers of mass cancellations occuring at the start of the pandemic: specifically, the Statement “adversely affected passengers’ refund rights because airlines relied on the Statement to refuse refund claims and issue vouchers, while credit card companies denied their clients’ attempts to claim chargebacks” [25]. However, the evidence here was scanty, and at any rate “[t]he actions of third parties are not the actions of the CTA…” [30].
Walker JA also addresses an argument advanced by the APR that issues of procedural fairness somehow stand outside the normal rules of justiciability (ie) “procedural fairness is an independent basis that is always justiciable, despite that the contents of the subject document may not be amenable to judicial review” [39]. This rather creative argument, bolstered by a reference to the FCA’s recent decision in Sierra Club Canada Foundation v. Canada (Environment and Climate Change), 2024 FCA 86, was rejected by Walker JA. Sierra Club pertained to a situation where, as a condition precedent to the exercise of a regulatory power, a preliminary report is prepared in procedurally flawed circumstances. In that case, the procedural flaw infects the subsequent administrative action [40]. But that is not the case with the Statement, and there is no special dispensation from the rules of justiciability for procedural fairness.
Onex Corporation v Canada (Attorney General), 2024 FC 1247 (August 9, 2024)
Category: Application of the reasonableness standard (statutory interpretation)
Context: The applicants sought judicial review of two decisions of the Minister of National Revenue. The facts of the case are complex and demand close reading. But for our purposes, the Minister refused the applicants’ requests under provisions of the Income Tax Act “to allow Onex to benefit from certain amendments to the ITA’s complex foreign accrual property income [FAPI] regime” [1]. In essence, Onex failed to elect to take advantage of the measures, believing that a complex structure they had erected would allow them to benefit. Onex sought a ministerial authorization, under s.220(2.1) of the ITA, to waive the requirement to file an election. The CRA, acting on behalf of the Minister, rejected Onex’s request, concluding that the Minister (1) did not have the authority to waive the election; and (2) any discretion should not be exercised in favour of Onex.
Issue: Is this a reasonable interpretation of the statute?
Holding: The interpretation of the statute is unreasonable:
While the CRA did apply the principles of statutory interpretation, it failed to consider the context within which subsection 220(2.1) and subsection 220(3) of the ITA were adopted, that the subsections are remedial in nature, and that those subsections were adopted as part of a “Fairness Package” adopted by Parliament to grant the Minister extensive discretion to provide remedies for undue hardship resulting from the application of the ITA. The CRA also failed to consider section 12 of the Interpretation Act, RSC 1985, c I-21 [Interpretation Act], requiring that every enactment be deemed remedial and given fair, large and liberal interpretation to best ensure the attainment of its objectives [7].
The CRA should have considered the harsh consequences against Onex in failing to exercise discretion to allow the filing.
Analysis: This is an interesting statutory interpretation case. Here, Régimbald J reinforces two conclusions about the Vavilov framework: (1) the ordinary rules of interpretation apply—so we should master them; and (2) focus on the consequences of a decision play a special role in judicial review.
On the principles of interpretation, Régimbald J helpfully provides some guidance on s.12 of the Interpretation Act. Section 12 is often trotted out by enterprising counsel to gild the lily of statutory texts—to expand them beyond the ordinary meaning of text, context, and purpose. Rather, s.12 should simply be a restatement of our ordinary approach to interpretation: we interpret statutory texts so that they have a rational connection to their purposes, no more or less. Régimbald J is alive to this. He first demonstrates that the statute, ordinarily interpreted, is not as restrictive as the CRA intimates. Following FCA precedent on this issue, the provisions were designed by Parliament as a package of fairness measures to blunt the potentially unfair effects of strict filing deadlines. In other words, Parliament itself enshrined remedial relief mechanisms. A narrow interpretation of those provisions does not best attain Parliament’s objectives. Régimbald J connects s.12 to these rules of interpretation, and impliedly deploys the old saw that, where there are rival interpretations, we prefer the one that more clearly maps onto statutory purposes (see Duff J’s opinion in McBratney v McBratney, 1919 CanLII 42 (SCC).
The problem here was the CRA’s failure to consider the “plausible alternative interpretation” offered by reflection on the legislative scheme and s.12. This is a classic Vavilov failure—as we know, decision-makers cannot adopt plausible but inferior interpretations of statutes. The CRA should have explained how and why its narrower interpretation jibed with the statute.
On the exercise of discretion in this case, the CRA also committed a classic Vavilov failure: a failure to respond to potentially harsh consequences, especially when those consequences are disclosed to the decision-maker in the record or submissions. As readers will know, this is—maybe—the most important part of the SCC’s recent decision in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108)
Kennedie v Canada, 2024 FC 1262 (August 14, 2024)
Category: Application of the reasonableness standard.
Context: Kennedie filed an application for permanent residence within Canada on humanitarian and compassionate grounds. Her application was rejected. On judicial review, she arguedf that the officer failed to address various factors related to her application, including a failure to consider her circumstances as a victim of sexual assault and domestic abuse.
Issue: Is the decision reasonable?
Holding: No—the application for judicial review is granted.
Analysis: As Fuhrer J says, this case turns on a frequent issue in immigration and refugee JRs: do the applicant’s arguments amount to an invitation to reweigh evidence, or do they simply invite the court to find that the decision-maker misapprehended the evidence? In a well-phrased passage, Fuhrer J is alive to the problem:
[9] There is a fine line, in my view, between reweighing evidence, which is not the role of the Court in judicially reviewing an administrative decision, and assessing whether the administrative decision maker misapprehended the evidence before them. The latter nonetheless requires the Court to delve into the evidence to make the necessary determination in the face of an assertion of misapprehension, including ignoring the evidence
After Vavilov, this line is even harder to navigate. While the rule remains that courts do not reweigh evidence on judicial review, determining whether a decision is properly justified does involve reading the reasons as they are and assessing whether they engage with key submissions.
So, in this case, even though the officer “reasonably noted Ms. Kennedie’s difficult childhood and marriage,” [14] it was not enough: “…the officer did not consider these circumstances compassionately” because there was “ ‘no weight’ [given] to her fear regarding her former spouse because there is little evidence that he has attempted to contact her in Canada” [15]. Under Vavilov, “[s]tating only that the Officer considered Ms. Kennedie’s circumstances and examined all the documentation” is not enough [17].
It is hard to know, sometimes, whether a particular decision reweighs the evidence or merely measures it against the reasons. This decision has some qualities of both postures. Nonetheless, there is no doubt that Vavilov makes this line harder to walk, even if—for the better—it raised the bar for justification.
T.A. v Ontario, 2024 ONSC 4580 (August 21, 2024)
Category: Selection of standard of review.
Context: This is a judicial review of a decision by the Human Rights Tribunal of Ontario. The applicants alleged prohibited discrimination based on age and family status— “the alleged discrimination arose from the denial of the applicants’ access to the COVID-19 vaccine of their choice” [2]. The claim was settled. The decision at issue held that the application was moot.
Issue: What is the standard of review?
Holding & Analysis: The Court (per Reid J) applies the correctness standard to the “legal principles applicable to a finding of mootness” [48]. However, the basis for doing so is not clear. Reid J cites David Suzuki Foundation v Canada (Fisheries and Oceans), 2012 FCA 40 for the proposition that the mootness analysis raises a question of law. No doubt this is true. But this is no longer determinative of the standard of review analysis. For example, Reid J does not discuss whether the mootness analysis is a general question of central importance contemplated in Vavilov. And there is at least some reason to think that mootness, a common law doctrine, could fall to be resolved under the reasonableness standard, given Vavilov’s incorporation of “common law constraints” in the reasonableness standard.
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