Issue #2-July 25, 2021
The Redeemed Christian Church of God v New Westminster (City), 2021 BCSC 1401 (July 19, 2021)
Context: The church sought judicial review of a decision of the City of New Westminster to cancel a contract. The church booked space in a local event centre for a conference, but following a complaint, the city cancelled the event because one of the speakers at the event would be “anti-LGBTQ” [2]. The church argued for various administrative law and Charter remedies [3]. The City primarily argued that the application was not amenable to review because the dispute concerned a commercial contract, without the requisite public character or exercise of a statutory power.
Holding: The Court held that the administrative law arguments were not validly brought because the issue fundamentally involved a contract without a public character. The Court further held, however, that the church’s right to freedom of expression was abridged.
Analysis: On the Charter claims, the Court found itself in “novel legal territory” because it found that neither the frameworks in R v Oakes, [1986] 1 SCR 103 or Doré v. Barreau du Québec, 2012 SCC 12 were applicable—this was a decision taken by a public authority pursuant to a contract; it is not a challenge to a law or to a decision enabled by a statute [102, see also para 104]. So the Court said at [110]:
In the instant case, which is neither a challenge to a law of general application nor a judicial review of an administrative decision, I am of the view that “analytical harmony” can be found by upholding the Charter values at play, through applying the criteria of minimal impairment and the proportionate balancing of Charter protections, viewed through the lens of reasonableness.
I am candidly not sure what this means. The Court goes on to speak of the City’s failure to “proportionately balance competing Charter rights” [113] which sounds a lot like Doré. But as the Court rightly says, there is no decision taken under a statutory power here. So Doré should, ideally, not apply. That said, Oakes does not either—there is no “law” being challenged. But the problem is the Charter still does apply, even to the City’s private dealings: see Eldridge v British Columbia (AG) , [1997] 2 SCR 624 at para 40. The Court, I suppose, did what it could, but it remains to be seen what the scope of the various Charter tests is when applied to a government actor’s private dealings
Byelkova v Fraser Health Authority, 2021 BCSC 1312 (July 16, 2021)
Context: The BC Human Rights Tribunal dismissed Byelkova’s complaint as disclosing no reasonable cause of action. Is patent unreasonableness its own standalone standard of review, or is it influenced by Vavilovian reasonableness?
Holding: The Court held that patent unreasonableness is the standard of review, and it is influenced by Vavilov’s description of reasonableness. See paragraphs 15-22, but particularly para 19, which expressly adopts the Vavilov indicia of reasonableness.
Analysis: Patent unreasonableness is still codified as a standard of review in the BC Administrative Tribunals Act and in s.45.8 of the Ontario Human Rights Code. So far, it seems that patent unreasonableness will be applied with reference to Vavilovian reasonableness. This conclusion is consistent with pre-Vavilov case law from the SCC: see Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 19. In BC, the bulk of the case law seems to support the approach in Byelkova: see Guevara v Louie, 2020 BCSC 380; University v British Columbia Okanagan v Hale, 2021 BCSC 729. Even though patent unreasonableness is its own standard (see Hale, at para 95), it is not true that Vavilov will not affect its application (see, for this argument—which should not to be followed—College of New Caledonia v Faculty Association of the College of New Caledonia, 2020 BCSC 384 at para 33). Similarly, in Ontario, lower courts have followed Byelkova (see Intercounty Tennis Association v HRTO, 2020 ONSC 1632 at para 38, and the Court of Appeal has stayed its hand post-Vavilov (see Longueépée v. University of Waterloo, 2020 ONCA 830, though it has historically applied the common law definition of reasonableness (Shaw v Phipps, 2012 ONCA 155).
For now, if you find yourself in BC or Ontario (under the Human Rights Code), you should draw heavily from Vavilov in describing what “patent unreasonableness” is.
*Thanks to a SEAR reader for suggesting this case*
Coalspur Mines (Operations) Ltd v Canada (Environment and Climate Change), 2021 FC 759 (July 19, 2021)
Context and Holdin g: The Court found that application brought by Coalspur to be moot. In deciding that the application was moot, the Court looked to Borowski v Canada (Attorney General), [1989] 1 SCR 342. But it also considered what Vavilov said about remedies as a factor in deciding that the application should not be decided. The Court said, following the Federal Court of Appeal in Public Employees (Air Canada Component) v Air Canada, 2021 FCA 67:
[18] In addition, I note CUPE’s direction to the effect that in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, “the Supreme Court underscored that courts must consider expediency and cost-efficiency when considering applications for judicial review and should not grant remedies when they serve no useful purpose”. This points away from deciding this case.
Analysis: Given that the question of mootness is fundamentally discretionary, the Court (and the FCA’s) synthesis of the mootness doctrine with Vavilov is welcome. Questions of judicial economy overlay the exercise of discretion and Vavilov has a lot to say on that point when it comes to remedies. If you find yourself in the Federal Courts, it is useful for advocates to bring Vavilov into the picture when arguing on mootness in judicial review applications.
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. Please complement the SEAR with your own research and study. Any mistakes are my own.
Quote of the Week: “He who is not courageous enough to take risks will accomplish nothing in life”—Muhammad Ali.