Del Grande v Toronto Catholic District School Board, 2024 ONCA 769 (October 23, 2024
Category: Charter values/application of reasonableness standard.
Context: Del Grande, a trustee of the Toronto Catholic District School Board, challenged four decisions of the Board of Trustees, which found that he breached the School Board’s Code of Conduct during a public meeting. The gist of Del Grande’s comments are included in the ONCA decision (per Gomery JA):
[5] At a November 2019 public meeting of trustees, the Board considered a motion to add four new grounds on which discriminatory practices are specifically barred: gender identity, gender expression, family status, and marital status. Based on submissions at the meeting, the Catholic Archdiocese of Toronto supported the addition of these grounds. Mr. Del Grande, however, questioned how the TCDSB would deal with teachers involved in polygamous marriages. He proposed an amendment to the motion such that, if the four new proposed grounds were added, so too should a long list of sexual fetishes and paraphilias, including pedophilia, cannibalism, bestiality, and vampirism. When a fellow trustee pointed out that many of the practices mentioned by Mr. Del Grande were criminal, he responded that “God made them all”.
In a first decision, the Board voted on a resolution that Del Grande violated the Code of Conduct; that resolution failed. After complaints, a motion to rewconsider was passed, and by a 2/3rds majority, a new resolution was adopted finding that Del Grande had violated the Code of Conduct. Sanctions included a censure, a request for a public apology, a requirement to complete training, and a bar on certain Board work for three months. After exhausting an internal appeal, Del Grande sought judicial review. The Divisional Court dismissed his application. On appeal, Del Grande renewed his arguments, specifically: (1) that re-litigation doctrines prevented the reconsideration; and (2) that the decision violated his rights under ss.2 and 3 of the Charter.
Issues: (1) What is the standard of review for the re-litigation issue?; (2) Did the decisions properly balance Del Grande’s Charter rights?
Holding and Analysis:
Readers will be aware that there has been somewhat of a split on how courts review decisions engaging common law doctrines involving re-litigation. There is some pre-Vavilov authority for the proposition that the question of "when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process” will attract a correctness standard (see also Vavilov, at para 60). Vavilov contemplates administrators applying common law doctrines under the reasonableness standard, and at least some courts post-Vavilov has seen it this way when it comes to res judicata: see e.g. Del Grande v Toronto Catholic District School Board, 2023 ONSC 349; Immigration Consultants of Canada Regulatory Council v Rahman, 2020 FC 832.
Gomery JA comes down on the side of reasonableness review, at least in these circumstances. She points out that Del Grande “seeks to apply the doctrines in narrow and specific circumstances” [18]. This, interestingly, leaves the question open: are doctrines like res judicata preventing re-litigation systemic doctrines that deserve correctness review in all cases, presumably under the “general questions of central importance” category?
On the constitutional issues, Gomery JA does not find that the decisions disproportionately limited Del Grande’s rights. Here, the problem was not Del Grande’s opposition to the new grounds; it was the comparison to destructive social practices like bestiality [41]. This conclusion is justified by precedent [40]. Nonetheless, Gomery JA’s acceptance of the Divisional Court’s broad statement that the “Board, which is composed of Catholic Trustees, is presumed to have expertise as to its processes and standards of behaviour…” is interesting [43]. Citing York Region District School Board, 2024 SCC 22 (Issue #141) for the proposition that tribunals have a “primary role” in determining Charter issues within their jurisdiction, Gomery JA seems to suggest that these tribunals are owed deference as a result. It is worth pointing out that while it is true that litigants cannot make Charter arguments at first instance—and in this sense the decision-maker is the first port of call for those issues—York Region suggested that at least in some cases a decision-maker’s failure to apprehend a Charter argument will lead to correctness review. This suggests that the passage from York Region should not be marshalled in favour of an argument of deferential review on constitutional issues writ large, as Gomery JA does here.
Burwell et al v. Wozniak, 2024 ONSC 5851 (October 22, 2024)
Category: Selection of the standard of review
Context: This is an appeal of an arbitrator’s proprietary estoppel award.
Issues: What is the standard of review? Should the award be upheld
Holding and Analysis: The Court (per Rees J) holds that the appellate standards of review apply and that the appeal of the award should be allowed.
On the standard of review, readers will recall that there is a burgeoning debate in the lower courts over the standard of review that should apply to arbitral appeals (see Issue #66; Issue #101. Even the SCC has had a crack at the problem. In Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District , 2021 SCC 7, the Supreme Court majority declined to opine on the impact of Vavilov on the standard of review for arbitral appeals—which was previously settled as reasonableness review in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53— and concluded that the decision would not survive under either standard of review (Wastech, at para 46). The minority opinion (per Brown and Rowe JJ) felt that the reasoning in Vavilov displaced previous case law confirming the standard of review as reasonableness. This was because Vavilov simply enshrined a principle of statutory interpretation that should apply across the board—appeal means appeal, and the appellate standards of review apply (Wastech, at paras 119-121).
Rees J nicely articulates the case for the appellate standards of review to apply in this context, following Wastech and, indeed, at least one other judge on the ONSC: see Issue #66 and Le v Nguyen, 2022 ONSC 6265. While appellate courts across the country have split on the question, Rees J’s reasons for favouring appellate review are well-justified (see this paper from James Plotkin & I). For him, “[t]he arbitral context does not change the need to give effect to the legislature’s intention in creating a statutory appeal mechanism” [43]. As he notes, the strongest—perhaps only—counterarguments to this position rest on worries that appellate review would upset the policy goals behind arbitration, including the efficient and final resolution of disputes by expert arbitrators chosen by the parties. But there are two reasons to think these policy arguments cannot defeat the argument from legislative intention. First, if appeal truly means appeal, then that particualr signal of legislative intention would be probative no matter the subject matter of the statute in which it arises—arbitral or not. Second, and as Rees J says, where the parties have agreed to an appeal in the arbitration agreement, there is no worry of upsetting party autonomy—the parties themselves have contemplated judicial intervention via appeal.
Canadian National Railway Company v. Canada (Attorney General), 2024 FC 1667 (October 22, 2024)
Category: Reasonableness review (application)
Context: Canadian National Railway Company (“CNR”) sought judicial review of a decision made by a Transportation Appeal Tribunal of Canada Appeal Panel (the ”Panel”). The Panel’s decision upheld two monetary penalties for contravention of section 17.2 of the Railway Safety Act. The penalties were issued in relation to 12 stop violations committed by the Applicant. In one of those incidents, the improper use of the locomotive’s emergency brake caused four freight cars to derail. In another, the employees were operating a train while “impaired”.
Issue: Are the penalties unreasonable?
Holding and Analysis:
The Court (per Ahmed J) concludes that the penalties, and the Panel’s consideration of the so-called “similar fact evidence,” was reasonable. The rules governing similar fact evidence derive from the common law, and so the problem in this case can be framed as whether the Panel properly considered common law constraints on the exercise of its power.
Ahmed J concludes that the Panel did assess the relevancy of 12 previous contraventions, even though it did not discuss the Supreme Court’s seminal case on the matter, R v Handy, 2002 SCC 56. Further, the Panel was not bound by “legal or technical rules of evidence” as per section 15(1) of the Transportation Appeal Tribunal of Canada Act. Nonetheless, Ahmed J—properly in my view—does not expressly rule out that the common law principles of evidence governing prior incident offences must be properly considered in reasonableness review. He holds, instead, that the Panel’s reasons demonstrated substantive engagement with the prior incidents in a manner consistent with the principles of the law of evidence and the applicant’s submissions.
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