Prince Edward Island Potato Board v Canada (Agriculture and Agri-Food), 2024 FCA 180
Category: Reasonableness review.
Context: The PEI Potato Board challenged an Order issued by the Minister of Agriculture and Agri-Food, which declared the entire province of PEI as “a place infested with potato wart” under the Plant Protection Act. The Order also prohibited the movement of PEI seed potatoes from PEI without written authorization from an inspector. The Federal Court dismissed the Board’s application for judicial review.
Issue: Is the Order reasonable?
Holding: Yes (per Heckman JA).
Analysis: Though this case was rendered before the Supreme Court’s landmark decision last week in Auer v Auer, 2024 SCC 36 (Issue #158), it neatly demonstrates how ministerial orders and regulations should be reviewed post-Auer.
This is a typical case where much of the dispute turns on statutory interpretation, especially here, where “the Ministerial Order does not itself contain an analysis of the question whether the requirements of [the Act] are satisfied” [59]. Instead, the question is whether the Minister had the power under the relevant enabling provision to declare the whole of PEI as an infested place [61]—under Vavilov and Auer, “the reviewing court must still examine the decision in light of the relevant constraints on the decision-maker to determine whether the decision is reasonable” [58]. Here, the main constraint is a specific statutory provision:
15 (3) The Minister may, by order,
(a) declare any place to be infested that is not already the subject of a declaration under section 11 or 12
The appellant, challenging the ministerial declaration, argued that “to justify a declaration that the entire province of PEI is infested with PW, the legislative and regulatory framework requires evidence that each and every unregulated field in PEI either contains PW or is so exposed to PW that one can reasonably suspect that PW is in that field” [68]. There was something to this: the fields in which PW was detected represent approximately 0.4% of the approximately 350,000 acres of potato fields in PEI [11].
But Heckman JA, properly I think, concludes that the term “place” can refer to an entire province. Since the matter is one of interpretation, we have to consider the text, context, and purpose of the provision. Heckman JA notes that the statutory provision does not require a field-by-field analysis; and, in reality, the term “place"
“can be interpreted as extending to physical environments of various dimensions” [69]. The statutory context supported this broad reading (see s.16, at para 69). And because the term “place” is broad, it lines up with the purpose of the provision, which Heckman JA also sees as broad, defined in a written statement of purpose: “Section 2 of the Act states that it aims “to protect…the agricultural and forestry sectors of the Canadian economy by preventing…the exportation and spread of pests…” [80]. Though statements of purpose should be approached with caution, they are useful where they confirm an interpretation disclosed by the text of the provision. This purpose confirms the broad reading given by Heckman JA to the word “place,” and provides a counter-argument that the term must be read more narrowly. This is a sound approach to interpretation.
Reasonableness review contains a second component: whether, in addition to the legal standards, the order is justified on the evidence. The statute incorporates the standard of “reasonable suspicion,” a standard well-known in law (particularly criminal law) [50]. Reasonable suspicion only requires a supposition based on objectively discernible facts that a particular pest may be present in certain areas. Even on the appellant’s narrow formulation of the word “place,” the Minister was entitled to issue the order based on this standard [94].
Morabito v British Columbia (Securities Commission), 2024 BCCA 377 (November 15, 2024)
Category: Procedural fairness.
Context: Morabito transferred shares of the Company to his spouse and, as an insider, he made timely disclosure of the trade by reporting it just a few days later. Following the transfer, the Commission’s chair issued an investigation order pursuant to section 142 of the Securities Act, alleging that insider trading rules had been violated.
Morabito and the Company then filed an application to stay the proceedings, alleging an abuse of proceeding. The Commission dismissed the application. It was the Appellant’s position that the Panel endorsed an unfair process when it dismissed their abuse of process application via a “blended hearing.” They pointed to an inability to prove their claims due to limits placed on opportunity to cross examine investigators
Issue: Did the Panel err by instituting a procedurally unfair process?
Holding: Yes.
Analysis: Winteringham JA finds a procedural fairness violation in the “blended hearing.” In this context, a blended hearing is a hearing that combines both the liability aspect of the case with the appellants’ abuse of process allegation. As Winteringham JA says: “At the case management conference, the executive director took the position that prejudice was a key factor for the Panel to assess and that the Panel could only perform this task with the benefit of the liability evidence. As such, the executive director, over the objection of the appellants, advocated for a procedure that permitted the executive director to call their case in conjunction with the abuse of process application” [60]. This, for Winteringham JA, was a “fundamentally flawed” procedural choice [60]. The blended hearing confused matters, denying the appellants a fair hearing. As but one example, when the appellants “attempted to inquire into issues relevant to their abuse of process applications, the executive director objected, citing relevance” [31]. This meaningfully impacted the ability of the appellants to have their arguments heard. It is generally true that administrators—especially in this context—have a wide latitude under the Baker test to make procedural choices. The general rule is that decision-makers are masters of their own procedure. But this case shows how this is not always true. Here, the procedural choice—a blended hearing—prejudicially affected the conduct of the appellants’ abuse of process allegation.
Trozzi v College of Physicians and Surgeons of Ontario, 2024 ONSC 6096 (November 1, 2024)
Category: Doré.
Context: Trozzi was disciplined by the Ontario Physicians and Surgeons Discipline Tribunal, and issued a penalty of the revocation of his lience. There is no dispute that Trozzi “lost his licence due, in part at least, to things he wrote” [9]. Specifically, Trozzi wrote several comments about the “criminal COVID enterprise,” the “murderous criminals running the scam, including Bill Gates who has profited more than 200 billion dollars,” and the like (see para 14). He also called for the “lawful” killing of several public personalities, including Gates and TV anchor Don Lemon [15]. Additionally, Trozzi “provided medical exemption letters from vaccines to 27 patients based on his and their views rather than any examination of the patient’s personal health circumstances” [17].
Issue: The main issue I will address is whether the Tribunal’s decision was reasonable under the Doré v. Barreau du Québec, 2012 SCC 12 test.
Holding: The decision is reasonable.
Analysis: Myers J concludes that “the tribunal’s Doré’s analysis was impeccable and stands as a guide for future tribunals confronted with serious constitutional considerations” [71]. It is worth pointing out what the tribunal did.
As Myers J recounts, the tribunal clearly identified Trozzi had the right to express his own views on COVID-19. It recognized that a finding of misconduct could have a chilling effect on other members, and that these severe impacts on free expression should figure in the balance [53]. Unlike some cases where the Doré analysis does not clearly identify the rights at stake, this decision does so quite explicitly. As Myers J notes, “[t]his is not a case where a tribunal fails to grapple with Doré directly and the court is called upon to assess whether the tribunal considered the correct factors nevertheless” [46]. Here, unlike Peterson v College of Psychologists of Ontario, 2023 ONSC 4685, the Court did not have to dig through a record to discern a cogent analysis. It appeared in the reasons, with those reasons engaging (1) the statutory objective; (2) the impact on the rights; and (3) proportionality.
Dealing with the statutory objective, the tribunal also noted that the speech in this case was not “high-value” speech [60]. The tribunal identified the relevant statutory objectives that counter-balanced the speech: “[t]he tribunal considered it vital in a pandemic in particular to protect the public from the spread of disinformation by its regulated professionals and to maintain the integrity of the profession by rejecting unprofessional and uncivil discourse” [52].
Taking this balance into account, the tribunal then explicitly considered whether the penalty of revocation was justified in light of the invasion of Trozzi’s free expression rights—in other words, “…whether a penalty other than revocation would give effect to the registrant’s Charter rights while still achieving public protection objectives” [66]. This is important. Revocation is an extreme penalty, and given the connection to the appellant’s speech, it must be adequately justified in a manner akin to the Oakes test—is there a less rights-impairing option available? Given Trozzi’s recalcitrance, the tribunal found “no other reasonable possibilities that would give effec tto Charter protections more fully, while fulfilling statutory objectives” [66].
There are rightful concerns about regulatory overreach to off-duty conduct. In such cases, a weak and loose Doré analysis has the potential to underpower the exercise of protected rights in factual contexts largely disconnected from the reach of the regulator’s statutory authority. This is not that sort of situation—here, the comments were directly related to medical practice, and in some cases, affected Trozzi’s actual practice. In any case, this decision does not furnish an example of a regulator engaging in a loose analysis that can “elide key steps” of the constitutional framework (see Lauzon v Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (Issue #93). Indeed, the regualtor’s analysis in this case resembles what Lauwers JA envisioned in Lauzon as a proper constitutional analysis—ensuring that the decision-maker does not limit the right more than necessary (Lauzon, at para 150). Under this approach, Oakes and Doré are closer in nature. But I repeat an often stated position—if they are so close, what is the point of the Doré analysis?
For other cases of this sort this week, see:
Christian Heritage Party of Canada v City of Hamilton, 2024 ONSC 6181
LaGrange v Red Deer Catholic Separate School Division, 2024 ABKB 665
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