Clearview AI Inc. v Information and Privacy Commissioner for British Columbia, 2024 BCSC 2311 (December 18, 2024)
Context:
This case relates to the British Columbia Information and Privacy Commissioner’s effort to regulate conduct of a United States based company that provides facial recognition services using images of individuals “scraped” from the Internet.
In its petition for judicial review, Clearview seeks judicial review of a decision of the Information and Privacy Commissioner for BC. The decision does the following:
1) prohibits Clearview from offering its facial recognition services to clients in British Columbia using images and biometric facial arrays (“personal information”) collected from individuals in British Columbia without their consent;
2) orders Clearview to make best efforts to cease the collection, use, and disclosure of personal information collected from individuals in British Columbia without their consent; and
3) orders Clearview to make best efforts to delete personal information collected from individuals in British Columbia without their consent.
Clearview seeks judicial review on several bases. For our purposes, the msot important ground relates to the Commissioner’s conclusion that “Clearview’s purpose for collecting, using, and disclosing the personal information was not a purpose that “a reasonable person” would consider appropriate in the circumstances, and further failing to consider whether this interpretation of “reasonable purpose” within the meaning of PIPA, was consistent with the values set out in the [Charter]” [4].
Issue and Analysis: Clearview suggested that it should be allowed to raise a Charter values argument for the first time on judicial review, relying on Doré v. Barreau du Québec, 2012 SCC 12. It tried to get around the well-established prohibition against the advancement of new arguments for the first time on judicial review. It argued that because it advanced a Charter argument with reference to another provision of the statute at first instance, it should be allowed to raise similar arguments in relation to the “reasonable purpose” interpretive question; it also argued that “[t]he tribunal is always required to consider the values underlying the Charter in the exercise of its discretion…” [214].
The Court (per Shergill J) rightly rejects this invitation and maintains the clear prohibiton against raising new issues on judicial review. For one, the interpretation of “reasonable purpose” “requires different considerations,” and the decision-maker must “…account for the central issues and concerns raised by the parties, not divine what those arguments may be” [217]. Moreover, Shergill J outright rejects Clearview’s reliance on Doré, persuasively concluding that “it would be incorrect to say that Doré stood for the principle that a party can raise Charter values on judicial review at first instance” [222]. In Doré itself, the Charter argument was before the Disciplinary Council at first instance.
Notably, Shergill J cites Stratas JA’s decision in Sullivan v Canada (Attorney General), 2024 FCA 7 at para 8 (see Issue #120) for the proposition that all Charter arguments “must be supported by a rich evidentiary record, which may be absent if the matter is heard by the reviewing court in the first instance” [209]. Sullivan was a response to an attempt, on the strength of the Supreme Court’s decision in Commission scolaire, 2023 SCC 31 (Issue #117). After Commission scolaire, I was concerned that courts might take up its implicit invitation to address Charter values arguments for the first time on judicial review (where the values argument was not put to the decision-maker but where there is a link between the matter and the value at issue). Sullivan put a kibosh on that worry, and this Clearview case does so as well.
Judt v Canada (Attorney General), 2024 FC 2012 (January 9, 2025)
Category: Statutory interpretation
Context: This is an application for judicial reivew of two decisions by the CRA to deny the applicant the Canada Emergency Response Benefit and the Canada Recovery Benefit.
Issue: Are the decisions reasonable?
Holding: The Court (per Diner J) concludes that the decisions are unreasonable.
Analysis: According to Diner J, the CRA’s error here was a failure to properly apply the rules of statutory interpretation. In denying the applicant the benefits, the decision-maker failed to “clearly indicate the selection of a stricter interpretation as opposed to a remedial one that better reflects the statutory scheme as required by s.12 of the Interpretation Act” [28]. In this way, Diner J follows Régimbald J’s decision in Onex Corporation v Canada (Attorney General), 2024 FC 1247 (Issue #148), which also found fault with an administrative decision for failing to justify an interpretive choice with respect to s.12 of the Interpretation Act. Here, “[t]he restrictive interpretation given to the ITA vis-a-vis Ms. Judt’s income in the context of the CERB/CRB Acts neither addresses the context nor the purpose for that legislation…” [33]. The CRA “failed entirely to indicate why it preferred a more restrictive interpretation when another plausible remedial interpretation existed which would have favoured Ms. Judt…” [35].
Two points about this decision. First, Diner J’s insistence on justifying a chosen interpretation is entirely consistent with Vavilov’s comments on statutory interpretation, and does not represent “disguised correctness review.” As Vavilov clearly states, decision-makers must engage the text, context, and purpose of the provision, and explain why a chosen interpretation abides by the constraints imposed by these tools of interpretation. There are also internal rules about the relationship between text, context, and purpose that decision-makers must follow. One of these is that where there are two plausible interpretations of a provision, the one that better connects to the purpose of a provision should be preferred (this is an old rule: see Duff J’s opinion in McBratney v McBratney, 1919 CanLII 42 (SCC)). All s.12 does is enshrine this rule. It is a failure of justification—as it was in Onex—for a decision-maker to fail to explain how and why a chosen interpretation connects to a statutory purpose.
Second, and related to the first point, s.12 of the Interpretation Act is sometimes relied upon by counsel to justify arguments leading to an expansive interpretation of provisions to “better attain” statutory purposes. As a matter of course, this is unsound. That is because, as the Supreme Court recently explained, statutory interpretation must be anchored in the text of the statute actually enacted by Parliament (see CISSS A, 2024 SCC 43, Issue #162). This means that s.12 is applicable in cases where the text discloses two plausible interpretations, as in Judt. It is not an invitation to expand the clear semantic meaning of the text to better encompass purpose.
Zarabi-Majd v Toronto Police Service, 2025 ONSC 277 (January 14, 2024)
Category: Charter.
Context: The applicant was a police officer who was found guilty of several counts of professional misconduct. She sought judicial review of the ultimate decision by the Ontario Civilian Police Commission to dismiss her appeal. Among other things, she argued that “[t]he Commission erred in finding that the right to security of the person and the right to equality were not engaged in this case…” [7].
Issue: What is the standard of review on the Charter issues?
Holding and Analysis: The Court (per McGee J) holds: “[42] We, therefore, find the standard of review of the Commission’s decision that ss. 7 and 15 are not engaged is correctness. But a reasonableness standard applies to the Commission’s decision that Ms. Zarabi-Majd’s dismissal is a proportionate limit on her freedom of expression.”
The standard of review discussion was occasioned by the parties’ disagreement over the standard of review. As the Court says, “[t]his difference in position stems from two recent decisions of the Supreme Court of Canada: [Commission scolaire] and York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22” [41]. McGee J has this to say about these two decisions in an intriguing paragraph:
[41] At first blush, the Supreme Court’s rulings in Commission scolaire francophone and York Region may appear inconsistent. In our view, however, there is a way to reconcile the two decisions, which is to apply a correctness standard to the issue of whether the Charter applies or how a Charter right should be defined (following the decision in York Region) and to apply a reasonableness standard to the issue of whether the decision is a proportionate limit on the applicable Charter rights or values (following the decisions in Commission scolaire francophone and Doré).
As readers will know, this was a plausible reconciliation of the Charter values framework and Vavilov that I mooted in a previous paper. The idea that a scope of a right should be reviewed on a correctness standard, while balancing can be assessed on reasonableness, goes some way to reconciling—doctrinally at least—any inconsistencies between Vavilov and the Charter values framework. For his part, Southcott J in the Federal Court also has reconciled York Region and Commission scolaire in this way: see Robinson v Canada, 2024 FC 2092 (Issue #162).
This is a plausible way to move forward, but I speculate that the theoretical differences between York Region and Commission scolaire will end up being too much to bear for this nascent scope/application distinction. York Region speaks in the language of Charter rights and orthodox Charter analysis, justified by a certain understanding of the courts as a bulwark against unconstitutional arbitrariness. Commission scolaire speaks in the language of values, deference, and seems to view the courts as engaged in a collaborative partnership with administrative decision-makers in fleshing out the content of constitutional norms. It may be that these different views of administrative law can “fake it.” But as Robinson shows, the reasons motivating York Region might similarly motivate a presumption of de novo review even on the application side of the equation. In other words, the scope/application distinction might be a temporary waystation on the road to a more lasting and principled framework for the Charter in administrative law.
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