Issue #150: September 8, 2024
A bumper crop of cases to read & save, and 5 years of Vavilov
In December, we will have spent five years under the Vavilov framework. To commemorate the occasion, I will run a “Vavilov at 5 Symposium” on the Sunday Evening Administrative Review. The Symposium will feature short reflections on Vavilov—reflections from all walks of the legal profession. Vavilov at 5 Symposium posts will start in the coming weeks & months, and will be sent to subscribers on Fridays, once it begins.
Consider this a friendly request: anyone who would like to write an entry for the newsletter, please let me know. The pieces can be short, focused on your particular area of practice or interest. They can also offer broader reflections; critical or otherwise. No positions are off-limits, and all are welcome.
Please email mmancini@tru.ca if you are interested in writing a reflection.
Patel v New Brunswick (Executive Director of Assessment), 2024 NBCA 108 (August 29, 2024)
Category: Rights of appeal
Context: This is an appeal of decisions of the Assessment and Planning Appeal Tribunal relating to the assessment of land value. The appellants appealed the decisions to the Court of King’s Bench under the Assessment Act, which confers a right of appeal on “any question of law.”
Issue: What is the scope of the right of appeal?
Holding and Analysis: The appellants, relying on NB authority, argued that a “palpable and overriding error of fact is an error of law.” The NB authority, decided before Vavilov, gave this argument weight—this was because rights of appeal and judicial review were not distinguished, and so factual and legal errors were equated. But after Vavilov, the argument has no legs, and here, a palpable and overriding error of fact cannot be raised when a right of appeal is limited to questions of law. Vavilov invited close attention to the institutional design choices made by legislatures in delegating power to an administrative decision-maker. This includes the choice to subject decisions of that body to appellate review, and it also includes the choice to limit the scope of the right of appeal, within constitutional boundaries. Because Vavilov introduces a distinction between judicial review and appeals, this much follows.
When it comes to rights of appeal, respecting institutional design choices means respecting how the legislature expressed its choices, through the text of the enactment. This includes words of limitation—limiting the scope of the right of appeal. Otherwise, as French JA says, “the words in the statute limiting the right of appeal would be meaningless, and the legislative intent to confer a limited right of appeal would be frustrated.” For that reason, a palpable and overriding error of fact is excluded from review entirely under appeals limited to questions of law (although an even narrower, more particular subset of factual errors is available for review as questions of law: those factual and evidentiary conclusions that run counter to what the common law requires for fact-finding and treatment of evidence).
Flegel v Canada (Attorney General), 2024 FC 1389 (September 5, 2024)
Category: Standard of review//remedy
Context: This is a judicial review of a decision of the Independent Chairperson of Warkworth Institution. The Chairperson found the applicant guilty of a correctional offence by failing or refusing to provide a urine sample upon demand. The demand was based on “two recent incidents of tobacco smell" as well as “two indications by a detector dog” [9].
Issues: (1) What is the standard of review? (2) Is the decision reasonable? (3) If not, what remedy should follow?
Holding and Analysis: The Court (per Norris J) concludes (1) that the standard of review is reasonableness (2) that the decision is unreasonable; and (3) that the matter should be remitted for a new hearing, alongside a direction that the charge be dismissed.
On (1), Norris J concludes that the standard of review is reasonableness. However, he suggests that there could be a case for correctness here, given the decision’s “constitutional implications” [19]. He cites Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13 (Issue #133) and York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (Issue #141) for this proposition. However, because the parties did not argue the issue, Norris J is content to review the question on a reasonableness standard. But, perhaps, this is an indication that Casinos and York, together, invite courts to review constitutional matters on a correctness standard—at least when it pertains to a constitutional challenge to a legislative provision, or a delineation of the scope of a right in administrative proceedings.
Applying the reasonableness standard, Norris J finds that the Chairperson’s decision failed to grapple with the legal standards embedded in the CCRA—or, put differently, misapplied them because of logical fallacies in the decision. Under the Corrections and Conditional Release Act [CCRA], the legal standard for this offence is clear:
[7] There is no dispute that, where the disciplinary offence is the failure or refusal to provide a urine sample when demanded, among the elements of the offence that must be proved beyond a reasonable doubt is that the demand that the inmate submit to urinalysis was a lawful one. As set out above, to be lawful, a demand under paragraph 54(a) of the CCRA must be based on reasonable grounds to believe that the inmate has committed or is committing the offence of taking an intoxicant into their body and that a urine sample is necessary to provide evidence of the offence.
The standard encapsulated in the CCRA is one well-known to law: “reasonable grounds to believe” is littered through the statute book. The standard requires “individualized grounds” that raise a belief on “credible and objectively discernible facts” [24]. And here, the Chairperson’s decision was not appropriately individualized. Most notably, Norris J accuses the Chairperson of the “fallacy of division,” a sure-fire way to fail under Vavilov: “the Chairperson has inferred that since there were individualized grounds with respect to the residents of House 22 as a whole, there were individualized grounds with respect to each resident” [27]. This is sound.
On remedy, Norris J crafts an interesting solution. On one hand, it was necessary that the matter be returned to the “disciplinary court so that the charge against the applicant can be disposed of” [35]. This is a reality of the grievance mechanism. But in recognition of the fact that there is no other reasonable outcome beyond an acquittal on the evidence, Norris J essentially grants mandamus: “…I direct the Chairperson to dismiss the charge against the applicant” [35].
Governors of the University of Calgary v Alberta Information and Privacy Commissioner, 2024 ABKB 522 (August 30, 2024)
Category: Selection and application of standard of review.
Context: This is a judicial review of a decision of an Adjudicator under Alberta’s Freedom of Information and Protection of Privacy Act [FOIPPA]. A Requestor sought access to a complaint made by two University of Calgary law professors to the Canadian Judicial Council pertaining to the Robin Camp situation, alongside any relevant documents and messages. The University denied the request, declaring that FOIPPA prevented release because the records were “teaching materials” or “research information.” In the decision under review, the Adjudicator applied certain, narrow definitions of “teaching materials” and “research information,” concluding that the exemptions applied to some of the documents, although the definitions used by the Adjudicator “captured mostly finished projects” [61].
Issue: What is the standard of review? Does the decision satisfy that standard?
Holding: The standard of review is reasonableness; the decision is unreasonable.
On the standard of review, the Court (per Devlin J), somewhat hedges, adopting a similar approach that the SCC deployed in the Mandate Letters Case, 2024 SCC 4 (Issue #123). At issue in that case, as you will recall, was an access to information request for Cabinet mandate letters. In that case, a majority of the Supreme Court—in my view, wrongly—shoehorned the reasonableness standard into the equation even though the case arguably raised a constitutional principle involving Cabinet privilege. This was a type of “super-duper” reasonableness review: a more rigorous standard was required because the question implicated constitutional conventions governing Cabinet confidentiality. My own view is that this move blurred the lines between reasonableness and correctness, undermining Vavilov’s assertion that correctness and reasonableness are methodologically distinct: see Côté J’s excellent reasons in the Mandate Letters Case.
Unfortunately, I think this case also blurs lines. Devlin J says that, in this case, “a more nuanced analysis, more tightly circumscribing the ambity of reasonableness, is required for several reasons,” analogizing to the Mandate Letters Case [28]. I am not sure the analogy precisely works: to the extent Mandate Letters blurred lines, it did so in the name of a constitutional principle—academic freedom is simply not that, whatever other value it undoubtedly has. But Devlin J lists three reasons why this case might actually attract something closer to correctness review: (1) the structure of the statute raises the prospect of adjudication over jurisdictional lines, particularly pertaining to records of courts, the legislature, or other officers of the legislature; (2) “the societal importance of the values embodied in FOIPPA may dictate a less deferential approach”; and (3) s.75 of FOIPPA permits a Justice of the Court to serve as an adjudicator in certain instances, setting up concurrent first-instance jurisdiction within the meaning of SOCAN v ESA, 2022 SCC 30 at para 28 (Issue #49). But on closer examination, one wonders whether any of this is relevant. On jurisdictional lines, it seems at best unclear whether a request for documents held by the University are akin to requests involving other instititutions (like the legislature). On the societal importance of FOIPPA, that much is uncontested; but not every “important” issue deserves a higher level of judicial scrutiny. And in terms of first-instance jurisdiction: s.75 of FOIPPA permits the Lieutenant Governor in Council to appoint a judge of the Court to act as an adjudicator in certain situations, but none of these situations are relevant in the case at hand (so concurrence does not run over the precise question), and at any rate, one wonders whether the appointment of a judge in specific cases is the same as true, concurrent, original jurisdiction in all cases over the precise question at issue.
The unfortunate blurring of the standards of review aside, Devlin J makes some welcome comments about the interpretation of FOIPPA, and at any rate, I do not think the standard of review matters here. I agree with Devlin J that the Adjudicator’s reasons in this case might have been too narrow, leading to an unreasonable decision. However, and helpfully, Devlin J lays a marker in the sand: there is a distinction between research and activism, and some activities of professors should be—and are—subject to public scrutiny and cannot be shielded by academic freedom. These days, this is a welcome reminder:
[79] That said, a distinction can and should be drawn between academic study of social activism and direct participation in social activism. The fact that this distinction is not easily drawn does not mean it does not exist or should be overlooked. Academics who personally involve themselves in social actions/causes do so with the advantage of time, resources, and status afforded to them by virtue of their affiliation with, and funding by, public institutions. It is appropriate, and in line with the fundamental purposes of freedom of information legislation, that their activities in this realm be subject to scrutiny and oversight.
[80] In this case, there is no question that the Complaint was a product of the high-level legal skills of its authors, including their “research” into the underlying facts and the marshalling of arguments in support of their contention that the judicial conduct at hand was both improper and worthy of the ultimate sanction.
[81] However socially utile their work in their regard may have been, it falls outside the scope of the research exception. It is analogous to a law professor acting for a client in a criminal case. While proper and worthwhile endeavours, arguably offering collateral benefits to teaching and research functions, these direct forays into the direct field of practice are not research or teaching activity in and of themselves.
Lopez v Bank of Nova Scotia, 2024 FC 1372 (September 4, 2024)
Category: Procedural fairness (bias).
Context: This is an application for judicial review pertaining to four decisions (one final, three interlocutory) addressing an unjust dismissal complaint. In the course of these complex proceedings, the applicant raised the argument that the Adjudicator addressing the complaint had a reasonable apprehension of bias.
Issue: There are several issues in this case, but I’d like to focus on the issues of fairness: is there a reasonable apprehension of bias in this case?
Holding: No.
Analysis: To be specific, the applicant pointed to three instances where she felt the Adjudicator evinced a reasonable apprehension of bias [59]. The bulk of these instances were situations in which the Adjudicator asked for further submissions and directed the parties to address specific issues. In at least two instances, he “expressed preliminary views on the potential relevance of [a] legislative provision and directed the parties to jurisprudence for their consideration” [59]. Some of these issues were raised because of the Adjudicator’s own research [66].
Of course, it is true that interventions in an ongoing proceeding by an adjudicator can demonstrate pre-judgment. But here, Tsimberis J appears to believe that these interventions simply did not cross the line. Relying on cases to this effect, she notes that “the forming of a preliminary opinion does not, in and of itself, suggest bias [66]. The same is true of an Adjudicator conducting research—this, too, does not by itself evince an apprehension of bias. This makes sense. On the facts of this case, it appears the Adjudicator put issues and relevant legislation to the parties in a tentative way, suggesting an initial position on the relevance of the issues, but inviting the parties to address the issues themselves. Contrast this with a situation where an adjudicator does his own research and does not give parties an opportunity to respond; or, a situation where the Adjudicator intervenes and advances hardened positions that appear impervious on the substance of contested issues.
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