Issue #16: October 31, 2021

Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 (October 29, 2021)

Context: Ward, a comedian, made “disparaging comments” about Mr. Gabriel, a child with a disability who is a public figure in Quebec (a singer). Gabriel’s parents filed a complaint with the Commission on their own behalf and on Gabriel’s behalf. The Commission referred the complaint to the Tribunal, which decided that “Mr. Ward’s comments exceeded the limits of what a reasonable person can tolerate in the name of freedom of expression” [17]. The Tribunal assessed damages against Mr. Ward ($25 000 in moral damages, $10 000 in punitives). The majority of the Quebec Court of Appeal rejected Ward’s appeal.

Issues: There are many issues in this case worth considering, particularly around freedom of expression (see para 82 et seq). However, for our purposes, I will address the standard of review and the the Court’s reliance on the concept of “jurisdiction.”

Holding: The majority (per Wagner and Côté JJ) held that Mr. Ward’s appeal should be allowed.


1) On the standard of review, the Quebec Court of Appeal rendered its decision before Vavilov was released. Here, the Quebec Charter provides a right of appeal to the Quebec Court of Appeal. Following Vavilov’s instruction that such a right of appeal attracts the appellate standards of review, the Court applied those standards here [24]. The result is that the issues under the Quebec Charter were assessed on a correctness standard. This is a good example of a case that, prior to Vavilov, would have been assessed on a reasonableness standard in full (indeed, the Quebec Court of Appeal pre-Vavilov applied the reasonableness standard [24]. At any rate, this application of the appellate standards gets around any potential Doré issues.

2) The Court spends part of its decision discussing the “jurisdiction” of the Tribunal. Particularly, the Court notes that the Tribunal’s “limited direct jurisdiction” over certain types of expressions has been “extended indirectly” by the Tribunal [28]. The jurisdiction, for the Court, has been extended to cases involving “hurtful expression” “even if the harm suffered is relative and the social effects of discrimination…are absent” [28].

Two things of note here. First, the Court keeps referring to that pesky notion of “jurisdiction.” This is a bit odd considering Vavilov’s comments that (1) jurisdictional questions attracting the correctness standard should no longer be recognized as a category (Vavilov, at para 65) and; (2) there are no “clear” markers available to distinguish “jurisdictional questions” from “other questions related to the interpretation of an administrative decision-maker’s enabling statute” (Vavilov, at para 66). Taken together, these comments suggest that to speak of “jurisdiction” in Canadian administrative law is a no-go-zone. And yet, the Court cannot help itself.

This illustrates the problem with one plausible reading of Vavilov. The concept of jurisdiction is ubiquitous, and like the Court says in Vavilov, one can call a certain breed of legal questions either questions relating to a decision-maker’s statute or a “jurisdictional” question. In many cases, they mean the same thing in the administrative law context. In this sense, jurisdiction itself should not be seen as the issue: the separate recognition of “jurisdictional questions” as a category attracting correctness review is the real issue, on this account, because all legal questions should be treated consistently. One can identify jurisdictional issues without inviting a stricter standard of review. To my mind, this should have been made clearer in Vavilov. I do not think one can understand the law of judicial review without some concept of “jurisdiction” or “statutory authority.”

Second, it is interesting how the Court’s application of the correctness standard here allows it to dive rather deeply into a line of cases from the Tribunal that runs afoul of the idea of freedom of expression. Here, that idea is defined by the Court, and the Court’s definition is then used to hem in the Tribunal’s line of cases.

Right to Life Association of Toronto v Canada (Employment, Workforce, and Labour), 2021 FC 1125 (October 22, 2021)

Context: As is well known, the Minister of Employment, Workforce, and Labour decided to add an “attestation” as en eligibility requirements of the 2018 Canada Summer Jobs Program. The attestaion required funding recipients to attest to several statements, “including that the job and the applicant organization’s mandated respected individual human rights, Charter rights, and reproductive rights” [1]. The Right to Life Association of Toronto and other applicants did not make the Attestation, and so its application for funding under the program was not considered.

The applicants challenged the Minister’s decision to add the attestation as beyond the powers of the enabling statute; as a violation of procedural fairness (bias); and as a violation of sections 2(a), 2(b), and 15 of the Charter.

Issue: Is the attestation substantively reasonable, was it adopted in a procedurally fair manner, and is it consistent with the Charter?

Holding: The Court upheld the attestation.

Analysis: This is a decision worth reading in full. Two small items of note:

1) The Federal Court here raises no concerns with the application of Dore post-Vavilov.

2) The Federal Court continues the odd trend of conflating the traditional Charter tests that are applied in conjunction with the Oakes test, and the Doré test, which ostensibly focuses on “values” [157]. To my mind, this undermines the original purpose of Doré—misguided as it is— which was to informalize constitutional reasoning at the administrative level, with a concomitant relaxation at the level of the judicial review court. Doré will, one hopes, be revisited one day. If it survives, the Court should at least clarify how it is supposed to work in reality (on this score, for a fun Halloween activity, compare Doré’s comments re values to post-Doré cases, including Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para 61).

Resource Development Trades Council of Newfoundland and Labrador v Long Harbour Employers Association Inc, 2021 NLSC 134 (October 22, 2021)

Context: From the Court’s decision, a succinct summary:

Fourteen unionized janitors were employed by AECON to clean facilities at the site of the construction of the Vale Inco nickel processing plant. They were laid off due to lack of work. Their union grieved the termination, but an arbitrator dismissed the grievance. The union asks this Court to review and quash the Arbitrator’s decision. The application requires the Court to consider the standard of reasonableness as applied to the arbitral remedy of estoppel [1].

Specifically, the issue was whether it was reasonable for the arbitrator to dismiss the grievance because the workers were estopped from asserting the rights of the dismissed employees.

Issue: Is the arbitrator’s decision reasonable? More particularly, was the arbitrator’s assessment of estoppel reasonable?

Holding: The Court held that the arbitrator’s decision was unreasonable.

Analysis: This decision is short, but a goldmine of administrative law goodies:

1) The Court writes an exemplar paragraph, summarizing what Vavilov says about expertise in the particular context of labour arbitrators, the central case for judicial deference. I reproduce it in full:

Labour arbitrators develop expertise in the resolution of those disputes. In Vavilov, the Supreme Court of Canada held that expertise alone is not a foundation for judicial deference to the decisions of specialized tribunals. But, the court recognized that expertise is still a factor to be taken into account in considering the factual and legal context within which an arbitral decision is made [32].

So, no automatic deference because of expertise—but rather, a case-by-case assessment based on the other legal and factual constraints bearing on the decision.

2) Here, the Court' clarifies the role of common law legal concepts in administrative decision-making post-Vavilov. Prior to Vavilov, the central authority on this was Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals, 2011 SCC 59. In that case, the Court held that administrative decision-makers are not bound to apply common law/equitable legal principles to a T: in that case, the Court said that labour arbitrators are permitted to apply estoppel in a more flexible manner, in a way consistent with the statutory scheme, the context, and the facts (Nor-Man, at para 6). Vavilov endorsed Nor-Man: Vavilov, at para 113, where the Court said “…it may be reasonable for a decision maker to adapt a common law or equitable doctrine to its administrative context.”

At first blush, there is little day light between Nor-Man and Vavilov. And yet, here, it is arguable that Vavilov may have made a difference through its “reasons-first” approach. In finding that the union was estopped in this case, the arbitrator relied on a supposed “acquiescence” from the union [41-42]. But the arbitrator did not apply a core part of the test for estoppel. Specifically, the arbitrator did not cite any evidence of detrimental reliance—a requirement of the law of estoppel [36-37]. This is a requirement because, as the Court notes, the notion of estoppel is fundamentally about fairness, and a factual finding of detrimental reliance is needed to establish unfairness [47, 50]. This is a gap in the reasons that would, it seems, fall into Vavilov’s description of unreasonableness.

How does Vavilov change things going forward? The argument was put to the Court that an arbitrator need not “analyze each element of estoppel separately so long as it is obvious that the arbitrator understood the doctrine” [48]. Here the Court frankly says: “I am not sure if this statement can stand in light of Vavilov” [48]. The Court is right to question this. Where there is a major gap in the articulation of a common law/equitable principle, a court should assess whether the gap was material, as Vavilov instructs in the interpretation context (Vavilov, para 122). Here, the gap was material: in absence of a factual finding of detrimental reliance, the doctrine can be asserted in more circumstances than allowable at law. This is far from simply adapting a doctrine to an administrative setting, as envisioned by Nor-Man and Vavilov.

Gateway Bible Baptist Church et al v Manitoba et al, 2021 MBQB 218 (October 21, 2021) (Not available on CanLII)

Context/Facts: The Applicants seek to challenge the constitutionality of the various Emergency Public Health Orders made under ss 13 and 67 of the Public Health Act, CCSM c P210 (“PHA”). These were orders made and issues for the purpose of addressing the ongoing public health threat posed by the COVID-19 pandemic. More specifically, the Applicants submit that these sections of the PHA violate “an unwritten constitutional principle that only the Legislative Assembly can make laws of general application and that such laws cannot be delegated to the Chief Public Health Officer (CPHO) or to individual ministers […] insofar as s 13 and s 67 of the Act enable such delegation, they are unconstitutional” (at para 2).

Issue: Are ss 13 and 67 of the Public Health Act, CCSM c P210 unconstitutional? Is it unconstitutional for a legislature to delegate broad lawmaking power of general application (which can be used to override constitutional rights and freedoms) to an unelected public health official?

Holding: The court found that the statutory delegation in s 67 of the PHA is constitutional and that the applicants’ challenge should be dismissed.

Analysis: The Court here is presented an opportunity to reassess the constitutional foundations of delegation. Of course, the standard rule is that there is little-to-no limits on the ability of legislatures to delegate power [21]. Here, the Court emphasizes that the delegation of legislative powers is a “necessary reality of Canada’s modern regulatory state” [30]. The Court rebuffed attempts to suggest that the delegation was a violation of the unwritten principles of democracy, the Rule of Law, and the separation of powers [38]. For the Court, specifically with reference to the Rule of Law, “the rule of law is preserved by judicial review…” [41].

As a positive law matter, this case does not move the ground. Notwithstanding Cote J’s scholarly opinion in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, arguments based on the constitutionality of delegating power have generally received short shrift. It is worth noting, though, that the Court does not address the impact, if any, from Toronto (City) v Ontario (Attorney General), 2021 SCC 34. While the Supreme Court in that case closed the door on unwritten principles being used to invalidate legislation, it does leave the door open to those principles being used to create doctrine [56]. I have made an attempt to show how a limitation on delegation can be constructed in such a manner (though pre-Toronto (City): see here. I would not be so sure that Toronto (City) closes the door on delegation limits generally, flowing from unwritten principles.

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: “Eye of newt, and toe of frog,
Wool of bat, and tongue of dog,
Adder's fork, and blind-worm's sting,
Lizard's leg, and owlet's wing,—
For a charm of powerful trouble,
Like a hell-broth boil and bubble.
Double, double toil and trouble;
Fire burn, and caldron bubble.”