dicta recording to follow.
Samarakoone v The Law Society of British Columbia, 2025 BCSC 492 (March 19, 2025)
Category: Procedural fairness, reasonableness.
Context: This is a judicial review of a decision of the Law Society of BC to impose an administrative penalty of $5000 for an alleged breach of the Law Society Rules in relation to a trust audit.
Issues: Was the decision reached in a procedurally fair manner, and is the decision reasonable?
Holding: The decision was reached in a procedurally unfair manner and the decision is unreasonable.
Analysis: This seemingly mundane case is anything but—it is an extraordinary rebuke of the LSBC’s conduct.
First, the Court (per Tammen J) concludes that the decision was reached via a process that “was significantly unfair to Mr. Samarakoone in one discrete but extremely important respect. There was no opportunity for Mr. Samarakoone to make submissions on the central question of whether a penalty should be imposed” [65]. The problem: Samarakoone was extended an opportunity to make submissions by the LSBC “after the critical question had already been decided against the petitioner…” [69].
The reasonableness of the decision turned on the interpretation of the Law Society’s Rules. The Court’s ultimate decision rests on the conclusion that the transaction for which Samarakoone was penalized was exempted from the scope of the Law Society’s Rules [73-74]. As a result, the Law Society’s investigations and penalty were “premised on some very fundamental but mistaken conclusions in relation to only one transaction….” [87]. However, at least from a plain reading of the decision, it does not appear that the exemption argument was clearly placed before the decision-maker or the court. Nonetheless, Tammen J reviewed documents provided by the LSBC after the judicial review hearing and noticed the exemption issue, after which he “formed the tentative view that the…transaction was likely exempt” [93]. After this, Tammen J sent a memorandum to the parties inviting further submissions on the exemption issue [93]. Though counsel for the LSBC appeared to agree that the transaction was exempt, she “nonetheless sought to have the petition dismissed” [94].
This is a weird situation, to be blunt. Normally, it is not for the court on judicial review to offer grounds on which to challenge a decision that were not clearly advanced before the decision-maker. This might be a special case, because the LSBC appeared to conclude that the relevant Rule applied without reference to the exemptions—that is a clear misapprehension of the statutory framework, on which repeated requests for information by the LSBC were premised. Generally speaking, however, an inquisitorial process on judicial review should not be the norm.
Tammen J refuses to remit, and even goes a step further, ordering special costs against the LSBC [91]. That is extraordinarily rare in judicial review proceedings. Those costs were ordered because of the sitaution: “a case of a regulator simply refusing to acknowledge a mistake” [95].
Vabuolas v British Columbia (Information and Privacy Commissioner), 2025 BCCA 83 (March 21, 2025)
Category: Charter values.
Context: From the Court’s summary:
Two of the respondents applied, pursuant to s. 23(1) of the Personal Information Protection Act (“PIPA”), for disclosure of their personal information from two Jehovah’s Witnesses congregations. In response, the congregations withheld certain information on the basis that it was privileged and confidential religious communication.
An adjudicator acting as a delegate of the commissioner under PIPA reviewed the congregations’ decisions to withhold information. She ultimately ordered that the information must be disclosed to her under s. 38(1)(b) of PIPA so that she could determine whether it needed to be provided to the respondents. The adjudicator considered the congregations’ argument that PIPA breached their right to freedom of religion protected in s. 2(a) of the Charter. She found that while ss. 23(1)(a) and 38(1)(b) of PIPA infringed s. 2(a) of the Charter, the infringement was justified under s. 1. On judicial review, the chambers judge dismissed the appellants’ petition, expressing substantial agreement with the reasons of the adjudicator.
Issue: Do the impugned provisions violate s. 2(a) of the Charter?
Holding: No—appeal dismissed. The Court (per Horsman JA) concludes that the relevant statutory provisions are not unconstitutional, and that any constitutional challenge to the statute must be framed in relation to individual production orders, inviting the Charter values analysis.
Analysis: This case is interesting on the facts, but I highlight it because of Horsman JA’s synthesis of the current state of play in the confusing world of Charter values. Horsman JA outlines “at least two remaining areas of uncertainty in the application of the Doré/Loyola framework” [93]. While she finds them unnecessary to address in this case, I agree that these two areas require clarification.
First, Horsman JA highlights the core issue with Charter values— “there is the question of the precise content of Charter values, and whether such values have an independent function in the exercise of administrative discretion where no Charter right is implicated” [94]. That question is seemingly settled by CSFTNO, 2023 SCC 31 (Issue 117), in which the Supreme Court endorsed the use of Charter values in a language rights case where the claimants did not have the benefit of the Charter right. However, lower courts have not accepted CSFTNO will anything resembling a full embrace. Moreover, CSFTNO might be reserved to the language rights context. Horsman JA is right to leave this question open.
Second, Horsman JA points to the Supreme Court’s recent decision in York Region, 2024 SCC 2 (Issue #141). That case held that, in situations where a decision-maker simply fails to appreciate that a Charter right is raised on the facts—in cases where the claimant has the benefit of the right—correctness is the applicable standard (for cases involving whether a Charter right arises, its scope, and the “appropriate framework of analysis” [95]. Of course, York Region did not need to address the standard of review for situations where a decision-maker correctly appreciates that a right is at stake—is her balancing of the right and statutory objectives reviewable on reasonableness? Because York Region did not need to address this question, Horsman JA says that “[i]t is difficult to assess the full implications of York Region for the standard of review analysis under the Doré/Loyola framework…” [96]. Nonetheless, she ventures the view that York Region may signal a bifurcated standard of review analysis: “(1) correctness to the preliminary question identified in Loyola as to whether the Charter applies (which would include the scope of the Charter protection and the appropriate framework of analysis), and (2) reasonableness to the proportionate balancing that occurs at the second stage” [96].
I think this is a plausible way forward—although I would prefer to simplify matters and say that the entire Charter exercise is reviewable on correctness review, with deference appropriate on factual or evidentiary matters. However, it will require another Supreme Court case to clearly say this.
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