Toth v Canada (Mental Health and Addictions), 2025 FCA 119 (June 18, 2025)
Category: Charter rights/values.
Context: I profiled the Federal Court’s judgment in Issue #108. From that issue:
This is a judicial review of several consolidated decisions made by the Minister of Mental Health and Addictions. The Minister refused requests for exemptions under s.56(1) of the Controlled Drugs and Substances Act. The relevant requests were filed by healthcare practitioners (HCPs) so that they “possess and consume raw psilocybin mushrooms in the course of their own professional training for psilocybin-assisted psychotherapy” [4]. In other words, the HCPs want to use psilocybin themselves as part of their training: “...for optimal results, qualified practitioners should have experienced with the psychedelic medicines that will be used to treat their patients” [6]. The Minister rejected the exemption requests, determining that the exemption was not necessary for “medical or scientific purpose[s] or otherwise in the public interest…” [14]. The Minister believed that the HCPs had an alternative path: to go through a clinical trial [14]. The applicants argued that the decisions could not stand for several reasons; particularly, for our purposes, they suggested that the decisions did not “address arguments about the impact a refusal would have on the HCPs’ and patients’ rights under s.7 of the [Charter]” [18].
At the Federal Court, Pallotta J concluded that the standard of review for all issues—including the Charter issues—was reasonableness, and that the decisions were reasonable.
Issue: What is the standard of review, and do the decisions satisfy the standard?
Holding: The Court (per Rennie JA) concludes that a bifurcated standard of review applies to the Charter issues, with the question of whether the Charter is engaged addressed via a correctness standard, and the standard for assessing the decision-maker’s weighing of Charter values is reasonableness [17]. He concludes that the Minister engaged the factual underpinnings of the Charter argument, and that at any rate, section 7 is not engaged [55-56]. Rennie JA concludes that the appeal should be allowed because of inconsistency with prior decisions—particularly, the grant of 19 exemptions in 2020 [85].
Analysis: For those following the twists and turns of the Charter in administrative law, this case is another entry in the pantheon. Rennie JA, relying on York Region, 2024 SCC 22 (Issue #141) for the proposition that a bifurcated standard of review applies to issues of Charter “engagement”—ie) whether an administrative decision meets the test established for the infringement of a Charter right. A nitpicker might reason that Toth represents an extension of York. York, relying on Sharpe JA’s view in CBC v Ferrier, 2019 ONCA 1025, involved a very specific situation: a decision-maker’s failure to appreciate that the Charter arose in front of her, at all. Strictly speaking, York did not address the standard for whether reasonableness would apply to the weighing of Charter rights/values (that issue did not arise), and—again strictly speaking—nor did it engage the standard of review of a separate issue: if a decision-maker appreciates that the Charter arises in front of her, what standard of review applies to determine whether the decision-maker properly met the standards of a relevant Charter test? For example, do the decisions in these cases engage s.7 by implicating a life, liberty, or security of the person interest? Toth seems to assume that these questions are reviewed for correctness, and that the resulting balancing (if required) is reviewed for reasonableness.
Perhaps this is an extension of York, but if it is, it is a justifiable one. This was the position of Southcott J in Robinson v Canada (Attorney General), 2024 FC 2092 (Issue #162) and Horsman JA in Vabuolas v British Columbia (Information and Privacy Commissioner), 2025 BCCA 83 (Issue #172). It is a justifiable extension because it falls out of the sound bases for the York decision itself. As I wrote in relation to Robinson:
Recall the justification for the correctness standard in York Region-type cases: whether a constitutional right is engaged is a question that requires consistent answers because it goes to the scope and force of the Charter and whether it is relevant in a particular case. That is an issue that transcends any one decision-maker. Whether a decision-maker fails to understand that the Charter is engaged, or erroneously concludes that the Charter is not engaged, the result is the same—an incorrect appreciation of the relevance of the Charter. The theory of York Region covers both sorts of errors.
Because Rowe J built York on sound foundations, its underlying justification can be recognized in comparable circumstances. If, as Rowe J says in York, correctness review applies where the issue is “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis,” that list seems to cover a broader array of issues than the very issue in York itself. These issues engage the role of the courts in preserving a baseline consistency in the interpretation of constitutional rights.
In this sense, Toth can be seen as an endorsement of a bifurcated standard of review analysis: correctness for any issues related broadly to whether the scope of a Charter right is “engaged,” with any balancing with statutory objectives amenable to review on the reasonableness standard. This is merely a working out of York’s underlying structure. As these cases show, the line between “engagement”/ “scope” questions and “application questions” can be thin. But I suspect courts will continue to work out the contours of the line as the consequences of York work their way through the system.
Canada (Prime Minister) v Hameed, 2025 FCA 118 (June 18, 2025)
Category: Jurisdiction.
Context: This case originated as an application for judicial review in the Federal Court, seeking an order of mandamus or a declaration to compel the Prime Minister and Minister of Justice to appoint judges to fill vacancies in the Federal Courts and s.96 courts [2]. The Federal Court issued a declaration based on a newly recognized convention that judicial vacancies must be filled within a reasonable time to a certain level [5].
Issues: Does the Federal Court have jurisdiction to hear this case, and if it does, can it issue any relief?
Holding: The Court (per Boivin JA) concludes that the Federal Court lacks jurisdiction to hear and decide the case because the Prime Minister and Minister of Justice, in their advisory role on judicial appointments, do not act as a “federal board” for the purposes of the Federal Courts Act. Boivin JA went on to conclude that the Federal Court erred in its analysis of conventions and its declaration of a new constitutional convention [57-62].
Analysis: I will leave discussion and analysis of the conventions issue to the experts: see Leonid Sirota and Emmett Macfarlane, who commented on the FC judgment. I had serious concerns about the Federal Court’s declaration of a new constitutional convention, and on balance, I think Boivin JA usefully distinguishes between legally enforceable obligations and conventions.
I am more interested in the question of the Federal Court’s jurisdiction. To be honest, I think this is a tricky case, and so my comments are advanced tentatively and without a pretense of full detail. Federal judicial appointments are made by the Governor General, on advice of Cabinet, who acts on the advice of the Minister of Justice (the PM advises on Chief Justices and Associate Chief Justices). The case turns on one’s view of the legal status of the advisory roles of the PM and Minister of Justice.
On one hand, I can certainly see the argument for why the Federal Court may have jurisdiction in this case. The respondents argued that this advisory function was entrenched and refracted through certain legal instruments like the Department of Justice Act and the Letters Patent Constituting the Office of Governor General of Canada (1947). These sources could, according to the respondents, constitute a statutory grant of jurisdiction in the Federal Courts. At any rate, one might argue that the conventions surrounding advice should serve as an interpretive backdrop to these legal instruments, and the Federal Courts Act itself, which contemplates appointments “by the Governor in Council by letters patent under the Great Seal” (Federal Courts Act, s.5.2). So the argument goes, the advisory function is necessarily implied.
On the other hand, there are convincing arguments supporting Boivin JA’s conclusion. Jurisdiction in the Federal Court must arise from a federal statutory or prerogative source (see the definition of federal board, commission, or other tribunal in the Federal Courts Act). For Boivin JA, no such clear and explicit statutory recognition of the advisory power arose from the instruments cited by respondents [48-50]. Boivin JA appears reticent to look too deeply behind the texts of the legal instruments to recognize a latent convention that should influence the interpretation of the provisions. And what’s more, any statutory provisions related to the Governor in Council are not at issue: the respondents framed their challenge as against the PM and Minister of Justice [53].
I share this reticence. It may be that, in a close case, one should prefer a liberal interpretation of the Federal Courts Act. However, the Federal Courts Act seems clear that jurisdiction must arise from an express or implied statutory source. I acknowledge that it is possible to read these conventions as impliedly included in the legal instruments cited by the respondents. But like Boivin JA, I would hesitate to say so unless there was a specific legal instrument contemplating the advisory function. For example, while the respondents pointed to s.4 of the Department of Justice Act, that section recognizes general duties imposed on the Minister of Justice. One could read the advisory function into these general duties, but I share Boivin JA’s reticence to do so. You might think of this as comparable to a situation of administrative discrimination. Courts do not easily conclude that a broadly worded statutory power contains a power to discriminate. Nor should we conclude, absent clearer indications, that a conventional power has been entrenched in a statutory source nourishing the Federal Court’s jurisdiction.
Whatever the merits of this view, it does serve a constitutional function: it preserves the distinction between law and conventional practice. As Boivin JA says, “…it remains that the judicial branch of government, like the other two branches of government…fortify themselves by acting properly within their legitimate spheres of competence” [62]. By limiting the jurisdiction of the Federal Court to clear statutory sources (for the most part), this decision attempts to erect a limit to the power of the judiciary to review the advisory function. I think Boivin JA is right to say that reflection on jurisdictional limits is an important precondition for the institutional legitimacy of the courts. That said, I think this is a close case.
Ricketts v Veerisingham, 2025 ONSC 841 (June 19, 2025)
Category: New evidence/argument on appeal.
Context: This is a review of an order of the Landlord and Tenant Board terminating the tenancy of Ricketts, the tenant. Ricketts is on a fixed income and “suffers from ongoing physical and psychological conditions.” The landlords served notice terminating Ricketts’ tenancy because they wanted to move an elderly parent into the residence. Ricketts argued that the notice to end tenancy, and the eviction, was made in bad faith. However, she alleged that her paralegal failed to properly advance this argument before the LTB, against her instructions.
The dispute on judicial review centred on whether Ricketts could raise the ineffectiveness of counsel argument (see paras 25-26).
Holding: Corbett J concluded that Ricketts was barred from raising the ineffectiveness of counsel argument because she failed to do so before the LTB at first instance or on reconsideration [4]. He would have also concluded that the counsel argument could not, in any event, be used to attack the LTB order—the proper remedy, instead, should be found in a civil or professional suit against the paralegal [5]. Finally, he concluded that even if the counsel argument could have been used to attack the LTB order, the proper remedy would be to remit the matter to the LTB to decide whether and how to deal with ineffectiveness of counsel arguments.
Newton RSJ, concurring, agreed with Corbett J’s disposition and his conclusions on ineffectiveness of counsel.
Nakatsuru J dissented on the ineffectiveness of counsel point and would have allowed Ricketts to raise the argument on appeal.
Analysis: This case presents several interesting divisions that reflect different perspectives on the role of courts on judicial review. A note that this case was heard in Divisional Court via an appeal on a question of law and an application for judicial review on all other questions.
On the first issue of whether the counsel argument could be raised, Ricketts attempted to raise evidence showing that her disability precluded her from raising, before the LTB, the shortcomings in her paralegal’s representation [39]. Keeping a strict bar from the introduction of new evidence or arguments on appeal/judicial review, Corbett J found that Ricketts had many opportunities to raise the argument “between the end of the hearing and the release of the Tribunal’s decision—a period of about ten weeks” [39]. For his part, Nakasturu J disagreed and would allow the counsel argument to be raised as a defence in LTB proceedings, but Corbett J responded by noting that Nakatsuru J mostly relied on support from criminal cases in which ineffectiveness of counsel was argued, and not civil cases [33-34].
Even if the counsel argument could have been raised, Corbett J and Nakatsuru J disagree on remedy. Corbett J concludes that the appeal should be dismissed entirely. However, differing from Nakatsuru J, he concludes that he would have remitted back to the LTB for reconsideration if he gave effect to the ineffectiveness of counsel argument [56]. Nakatsuru J, however, would remit for a rehearing on the merits, concluding that a result on reconsideration would be “inevitable” [142].
Recent cases in Canadian administrative law demonstrate a tendency to relax traditional evidentiary and argumentative rules when important interests are at stake. In Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108), an SCC majority faulted the IAD for failing to consider international law arguments, even when they were not before it (though the IRPA contains a statutory hook re; international law). In the Cabinet Mandate Letters Case, 2024 SCC 4 (Issue #123), an SCC majority faulted a privacy adjudicator for failing to consider a certain definition of Cabinet privilege. In Commission scolaire, 2023 SCC 31 (Issue #117), the SCC left open the possibility that litigants could, on judicial review, find fault with administrative decisions that fail to consider Charter values—even when not argued before the original decision-maker. All these cases can be seen as raising a tension between important legal interests (many of which serve to protect individual interests) and the preservation of space for a decision-maker in these cases.
Ricketts can be refracted through these cases. On one hand, the differences between Corbett and Nakatsuru JJ can be viewed as factual: they disagreed over whether there really was an opportunity for Ricketts to raise the argument. But there appears to be something deeper dividing these opinions. Nakatsuru J was clearly motivated by the undoubted “significant life and security of the person interests” raised by eviction proceedings [102]. Given Ricketts’ personal circumstances, Nakatsuru J takes seriously her perspective, and is willing both to allow the new evidence and arguments, as well as to declare that the LTB reconsideration process would be inadequate to deal with ineffectiveness of counsel arguments:
[119] Based on these factors, it is objectively reasonable that Ms. Ricketts may have not fully appreciated what she was giving up by not inquiring, insisting more forcefully, or ultimately discharging her paralegal during the review process when he did not appear to be acting in accordance with her instructions. From Ms. Ricketts’ perspective, her paralegal, someone she had privately retained, who knew her case, and whom she trusted at the time, was a lifeline in this landlord-tenant dispute, especially given the brief 30-day period that she had to make submissions on the review. I find it understandable and reasonable that in these circumstances, she would have been reluctant to let go of that lifeline.
Corbett J, on the other hand, takes a more traditional approach. He notes that despite the social significance of security of tenure for residents, the issue of counsel ineffectiveness is one that should be dealt with before the LTB [5-6]. In other words, despite the social significance of eviction proceedings, the ordinary rules of appeals and judicial review remain.
Like Newton RSJ, I am sympathetic to Ricketts’ arguments, and I suspect that (knowing a bit about counsel for the appellant!) they were delivered with aplomb and skill. They engage an interesting tension in administrative law. However, I have cautioned against the tendency to relax rules of administrative law in cases like Commission scolaire. Lower courts have also resisted this tendency: see e.g. Clearview AI Inc v Alberta (Information and Privacy Commissioner), 2025 ABKB 287. Though this is somewhat of a different context, I think Corbett J is right to register worries about Nakatsuru J’s approach.
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.