Issue #15: October 24, 2021
Greetings SEAR readers. Every now and then I will include some valuable resources for Canadian administrative law watchers. This week, I feature Justice David Stratas’ “The Canadian Law of Judicial Review: Some Doctrine and Cases.” Justice Stratas regularly updates the slideshow with new cases, including recent cases noted below. For what my recommendation is worth, I think there is no better resource for Canadian administrative law watchers.
Northern Regional Health Authority v Horrocks, 2021 SCC 42 (October 22, 2021)
Facts: Horrocks, a unionized worker, had problems with alcohol addiction. She was eventually dismissed from her position. Subject to a collective agreement grievance procedure, Horrocks instead brought a human rights complaint.
Issues: There were three main issues in this important standard of review case, the first post-Vavilov.
1) What is the appellate standard of review on judicial review matters?
2) What is the standard of review on the “jurisdictional lines” between the labour grievance procedure and the human rights tribunal?
3) On the merits, and where labour legislation provides for the final settlement of disputes arising from a collective agreement, does a human rights tribunal have jurisdiction over a human rights complaint arising from workplace conduct?
Holding: The Court (Brown J for a majority of 8; Karakatsanis J dissenting) held that Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 is good law, and that the ordinary appellate standards in Housen v Nikolaisen, 2002 SCC 33 do not apply in appellate review of first instance judicial review matters; that the standard of review on the issue of jurisdictional lines is correctness; and that, in this case, the labour arbitrator has exclusive jurisdiction over the dispute.
Analysis:
1) Brown J for the majority held that Agraira is still good law [12]. This means that, on judicial review matters, a first-instance judge’s selection and application of the standard of review will be reviewed, on appeal, on a correctness standard. The appeal court will simply re-do the analysis [10].
I was hoping the Court would do away with Agraira. I was at least hoping the Court would—beyond general appeals to stare decisis—justify why Agraira is better than Housen [12]. This did not happen. To my mind, a bespoke standard for judicial review matters ignores the fact that an appeal court is not reviewing the administrative decision; it is reviewing the lower court’s review of that decision. Notwithstanding concerns about sheltering administrative errors from review, there is no principled reason for an appeal court to completely re-do the first instance court’s review. Here, it seems to me that some deference is appropriate.
Brown J’s analysis does not close the door completely to deference filtering its way into an appellate court’s analysis. Where a first instance reviewing judge “acts as a decision-maker of first instance,” making findings of fact, the palpable and overriding error standard would apply [12]. And as Paul Daly notes, the Federal Court of Appeal has adopted the idea of a “strong tactical burden” held by appellants (Bank of Montreal v Canada (Attorney General), 2021 FCA 189 at para 4), which gives weight to the reasons of a first instance reviewing court.
In theory, then, there is a difference between Housen and Agraira review. But the caveats provided in Horrocks and by the Federal Court of Appeal may narrow the difference.
2) The Court reaffirms that the standard of correctness applies as between the jurisdictional lines between different tribunals. This category was re-affirmed in Vavilov. The Court rejected an argument that the analysis of jurisdiction, even based as it is on facts, is still subject to a correctness standard [9]. This makes sense: the Rule of Law focus of this correctness category would be undermined if deference was owed on the question of what the “essential character” of the dispute was.
Of course, it is also true that in this case the debate between Housen and Agraira does not arise [12]. This is because “[e]ven under Housen, no deference would have been owed to the reviewing judge’s analysis” [12]. Again, the question of jurisdictional lines is one on which no deference is owed at any level.
3) In holding that the labour arbitrator here had exclusive jurisdiction, the Court doubles down on the Vavilovian idea of legislative intent. The test to determine the jurisdictional boundaries between a labour tribunal and other tribunals involves determining whether the labour arbitrator has exclusive jurisdiction over certain matters; and then determining whether the essential character of that dispute falls within the scope of the jurisdiction. For Brown J, there was no specific conferral of concurrent jurisdiction over matters under an arbitration clause to the human rights commission [45], and there was exclusivity conferred on the labour arbitrator. It would take “clearly expressed” legislative intent to the contrary to change the situation [5]. The quasi-constitutional status of human rights legislation is not such a specific, clearly expressed intent [35]. Here, Brown J parts ways with Karakatsanis J, who frames “legislative intent” at a higher level of abstraction; she concludes that the decisions to set up tribunals with sometimes overlapping jurisdiction is itself a legislative choice that should be respected [74]. Concerns about exclusivity of decision-making by labour arbitrators, for Karakatsanis J, are apposite when it concerns the relationship between a court and a tribunal; not necessarily when we are concerned with two statutory tribunals [72].
The conception of legislative intent incorporated in Horrocks tracks that set out in Vavilov. In Vavilov, legislative intent is represented in what the legislature says: when it includes an appeal right, for example, or when it specifically provides a standard of review. In Horrocks, legislative intent is similarly nitty-gritty: where exclusive jurisdiction is conferred, there must be clear indications otherwise to grant the human rights commission jurisdiction. And what’s more, to say otherwise (as Karakatsanis J does) would open the door to swaths of concurrency, which would undermine the promise of Vavilov in general and with particular reference to the “jurisdictional lines” correctness category [31].
Xu v Canada (Citizenship and Immigration), 2021 FC 1102 (October 20, 2021)
Context: The Applicant, a 24-year-old Chinese national studying in Canada, married a Canadian citizen, and with her husband’s sponsorship became a permanent resident of Canada, and later a citizen. After obtaining citizenship, it was later revealed that the marriage was one of convenience for the purpose of obtaining status in Canada. Once this was discovered, Immigration, Refugees and Citizenship Canada (IRCC) undertook proceedings to revoke the Applicant’s citizenship on the basis that the Applicant had contravened ss 19(1) and 10.2 of the Citizenship Act, RSC 1985, c C-29.
Issue: Was the decision by the Senior Analyst with IRCC to revoke the Applicant’s citizenship unreasonable?
Holding: The decision by the Senior Analyst was unreasonable and as such, the application for judicial review was granted.
Analysis: This case is a good example of how Vavilovian reasonableness can, especially on legal questions, be quite stringent. Under the relevant provision of the Citizenship Act (s. 10(3.1)(a), the Senior Analyst was required to ask whether any “personal circumstances” warranted relief from removal [71]. Even though the Senior Analyst turned her attention to the applicant’s personal circumstances [76], she did not explain why these personal circumstances did not outweigh the seriousness of the misrepresentation [75-76]. As the Court aptly notes:
[72] When a decision maker determines that special relief is not warranted, the principle of responsive justification requires that reasons be provided that are commensurate with the seriousness of the issues at stake and the consequences of the adverse decision for the person concerned.
The reasoning the Court is looking for is quite specific: a weighing of the strengths and weaknesses of the applicant’s case. The legislation calls for a holistic appraisal of circumstances that might trigger relief. When reasoning is not offered that demonstrates that a decision-maker actually engaged with the legislation, a decision cannot be reasonable under Vavilov. Here the culture of justification is doing a lot of work.
Alhomsi v British Columbia (Ministry of Justice), 2021 BCSC 2057 (October 21, 2021)
Context: Alhomsi was an inmate at North Fraser Pretrial Centre. He was charged on thirteen difference occasions with failure to obey an order to move to a protective custody unity. Ten of the thirteen charges were confirmed after a disciplinary hearing and three were dismissed. Alhomsi appealed three of the confirmed charges to the Investigation and Standards Office (ISO). The ISO oversees the BC Corrections disciplinary process. Alhomsi sought, in the main, a declaration that the repeated charges constituted an abuse of process [4]. The decisions were also amenable to judicial review.
Issue: Should the relief be granted?
Holding: The decisions are reasonable.
Analysis: This is an interesting case to read in whole, but I want to highlight a problem with the reasoning employed by the Court. The Court rebuffed the applicant’s claim that the correctness standard should apply, saying:
[54] To put it another way, if correctness was the applicable standard, this Court on judicial review would be invited to micromanage the day to day operations in correctional facilities. Specifically, the Court would be asked to scrutinize the day to day decisions of classification officers concerning the classification of inmates.
[55] Classification officers have a unique duty to keep inmates safe, based on the reasonable care standard: Pete, supra, at para 53. Judicial interference by way of an application of the correctness standard is neither legally necessary nor practically justified in the particular context of this judicial review.
In my view, this sort of reasoning is wholly unnecessary. As I have noted before, courts are continuing to apply a sort of “atmospheric deference” to certain decision-makers: prisons are one of them. By this, I mean that certain decision-makers seem to command an air of deference from courts no matter what framework is applied. Here, the only thing the Court needed to say was that correctness does not apply because the case does not fall into the Vavilov categories. The Court, however, went on to signal worries about “micromanagement” and “practical justification” for intervention. These worries are not apposite under the Vavilov framework. If the case falls into a correctness category, that’s the end—no matter how much “micromanagement” results.
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.
Quote of the Week: “If you never know failure, you will never know success”—Sugar Ray Leonard