Issue #203: May 2026
A wide array of cases this month.
The Supreme Court’s Charter Values Leaves
The Supreme Court has granted some very interesting leaves in administrative law matters over the last while. Two are particularly intriguing if you spend your nights up worried about Charter values. While it is hazardous to read the grant or denial of leaves as anything more than what they say, permit me to read the tea leaves.
First, the Supreme Court granted leave in Forum des maires, 2025 NBCA 99 (see Issue #191). This is significant. The case involves the closure of courthouses in a predominantly Francophone region of New Brunswick. On judicial review, the judge found the Minister’s decision unreasonable for failure to take account of Charter values underlying s.16.1 of the Charter, which recognizes the equality of status of the French and English populations of New Brunswick through the protection of distinct educational and cultural institutions. The NBCA disagreed, holding that s.16.1 can’t be expanded to cover courthouses, which are not “distinct institutions” listed or contemplated by s.16.1. LeBlanc JA noted that “[e]xtending the scope of s. 16.1 by way of values that exceed those expressed therein would constitute an inadmissible change to this provision.” This approach follows the one inaugurated in the Federal Courts by Stratas JA. As I have written in my newsletter, the NBCA decision provided a useful corrective to the Charter values framework. LeBlanc JA faulted the judge below for failing to first consider the wording of the relevant provision before asking whether there is a link between any values embedded in that wording and the matter at issue. This approach seems to dovetail with the approach endorsed in York Region, which focuses the question of “engagement” of a Charter interest on rights, reviewable on a correctness standard. On the other hand, CSFTNO might already mean that the die is cast, and that this objection to the Charter values framework simply will no longer fly.
The Supreme Court previously granted leave in Vabuolas, 2025 BCCA 83 (Issue #172). This case also involves Charter values, but in a different way: it concerns whether a legislative grant to the BC Information and Privacy Commissioner can be exercised in a constitutionally-compliant manner. A related question is how such an exercise of administrative discretion would be assessed. In her learned opinion, Horsman JA raised the question of how the standard of review would apply. Broadly speaking, she endorsed a bifurcated standard, implied by York Region, in which the correctness standard applies to the determination of the scope of a Charter right—and importantly, that in a case like Vabuolas where there is a clear Charter right implicated (unlike CSFTNO where there was not), we speak of rights.
The grants of leave in these cases might shed light on how the post-Vavilov approach to Charter values may develop. Again, at the risk of reading too much, recall that our framework has evolved in the following way:
Where a Charter right applies to a dispute (where an individual has the benefit of a right), York Region is applicable. The standard of review on whether a Charter right is engaged, and its scope, is correctness. As some lower courts have held, this implies that a question whether a right is proportionately balanced with a statutory objective will be reviewable on reasonableness: see Vabuolas itself.
Where the Charter is not directly applicable, there may still be a procedural duty to consider Charter values.
It may be that Vabuolas provides us guidance on (1), and Forum des maires on (2).
General Law of Judicial Review: Sierra Club Canada Foundation v Canada (Environment and Climate Change), 2026 FCA 110 (June 3, 2026)
Anytime Justice Stratas clarifies the law of judicial review, we should pay close attention. Here, he offers guidance on two points: (1) the exercise of judicial discretion in the law of judicial review; and (2) the role of courts in reviewing major project approvals.
This case involved the Bay du Nord Development Project and the technical, environmental, and Indigenous consultation requirements for the project. Equinor, which has an interest in the project, alleged that the appellants could have raised several environmental issues at a much earlier point in the process under the Canadian Environmental Assessment Act. It said that the Federal Court should have dismissed the application for judicial review on that basis alone [51].
Equinor’s legal basis for this argument was the general proposition that judicial review is discretionary [54]. Sometimes, this can be taken at face value—that the exercise of discretion is driven by the court’s own personal view of the equities of the case. But as Stratas JA says, this cannot be so:
[58] If it were, then the results of cases would depend on the sensibilities of a judge, or, as the English jurist and scholar John Selden once memorably put it back in the seventeenth century, relief would depend on “the length of the Chancellor’s foot,” a very “uncertain measure” indeed: John Selden, Table-Talk: Being the Discourses of John Selden, Esq. (ed. Richard Milward, 1689); see also Lord Denning, Landmarks in the Law (London: Butterworths, 1984). That would be the rule of whim, not the rule of law.
So, it was not enough for Equinor to point to the clean hands doctrine [61]. But this did not mean that Equinor’s concerns were inapposite. Because of a proper appreciation of the statutory purpose, Stratas JA notes that while the statute contemplates consideration of environmental and Indigenous impacts, the direct purpose statement in the law compels the completion of environmental assessments in a timely manner. Parties must live and die by this. So, “[t]his means that those with concerns must advance them meaningfully in a responsive, timely way,” because “The Act is not to be interpreted and applied as if it were a long, multi-year stoplight designed to delay projects just for the sake of delay” [66].
As Stratas JA nicely explains, rules relating to timeliness are not just important for environmental assessments under this statute. They are riddled throughout our law, including in the law of procedural fairness, which requires parties to raise procedural concerns as soon as they become aware of them. And similar rules apply in Indigenous consultations, which are often attached to multi-year, complex project approvals. Parliament has created two different design choices relevant in this case. For one, it entrenched a general principle of timeliness in the statutory framework. It has also set up a statutory and regulatory process for project approvals that impose environmental and Indigenous consultation requirements. Both things must be kept in mind at once. And so to permit parties to raise concerns at any particular point would not be consistent with one of the central design choices in the statute. This is a solid example of a case where statutory purpose can legitimately be relied upon in the exercise of discretion.
This case is an important reminder of several fundamental principles. Discretion is never unbounded. Even the loosest discretionary frameworks contemplate the exercise of discretion according to law. So, it is not a free-for-all. And as Stratas JA points out, the presence of rules is just as important even when the stakes are high, like in Indigenous or environmental contexts.
Procedural Fairness: Cespedes Leon v Canada (Citizenship and Immigration), 2026 FC 669 (May 25, 2026)
Eagle-eyed Supreme Court observers will know that the Court granted leave in a key case on the standard of review for procedural fairness. The case raises the prospect of whether the Quebec Court of Appeal’s approach to procedural fairness—applying the reasonableness standard—is appropriate. Of course, that approach differs in the rest of the country, where the standard of review is “akin to correctness” or “correctness” or “fairness in all the circumstances.”
In Cespedes Leon v Canada (Citizenship and Immigration), 2026 FC 669, the Federal Court was faced with perhaps the best case scenario for the application of the reasonableness standard. The question raised by the case was whether there was an oral hearing owed to an applicant on a pre-removal risk assessment application, under s.113(b) of the IRPA. There is a split on the issue in the Federal Court [12]. For his part, however, Régimbald J notes that the Federal Court’s decision in Huang v Canada (Citizenship and Immigration), 2018 FC 940 presents a “compelling case that the reasonableness standard should apply, because the issue as to whether a hearing should be held involves the interpretation of the IRPA,” a garden variety statutory interpretation issue [13]. However, the Federal Court of Appeal has, apparently, held otherwise [14].
On the facts of this case, Régimbald J notes that a failure to provide an oral hearing when required would fail any standard of review [14]. But he lays out the key issue: what is the standard of review when there is an exercise of discretion to hold a hearing as permitted under an enabling statute? When the issue is one of statute interpretation, it is very difficult to distinguish why—merely because the label of the issue is “fairness”—it should be treated any differently for standard of review purposes: see Maritime Broadcasting, 2014 FCA 59. Of course, there are other types of procedural fairness cases that do not involve the interpretation of a statute. Those are the hard cases.
Statutory Interpretation: Droits collectifs Québec v. Office of the Registrar of the Supreme Court of Canada, 2026 FC 706
Statutory interpretation has been on our minds recently, given the Supreme Court’s apparent interest in the matter. Readers will recall the controversy over the translation of the Supreme Court’s historical precedents, decisions rendered before the passage of the Official Languages Act [OLA]. The applicants in this case sought a remedy under the OLA, on the theory that the SCC’s historical decisions fall within the ambit of the OLA as services and communications to and with the public.
In deciding the case, Deputy Judge LeBlanc was faced with a statutory interpretation argument that I see frequently: that the OLA must be given a broad and liberal interpretation. This is a common phrase across the law of interpretation. Something like this exists in s.12 of the Interpretation Act, which requires enactments to be given “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Specific types of legislation, including the OLA, are sometimes said to require this broad and liberal type of interpretation: Abrahams v Attorney General, [1983] 1 SCR 2.
This argument is apt for abuse. It is sometimes used to “drive” legislation to a pre-determined result (see Hillier v Canada (Attorney General), 2019 FCA 44 at para 25). In light of this, Deputy Judge LeBlanc is completely correct to say that “[t]he principles of broad and liberal interpretation do not preclude the application of recognized methods of statutory interpretation” [63]. She notes that the presumption of broad and liberal interpretation is strongest “where [interpretation] leads to two potential interpretations” such that a broad and liberal approach will be preferred. In other words, we cannot use “broad and liberal” as a talisman to get around the hard work of statutory interpretation.
Reasonableness Review: Oleynik v Canada (Attorney General), 2026 FC 657 (May 22, 2026)
One of the core constraints in reasonableness review under Vavilov involves considering the impact on the affected individual. In this case, Gascon J provides what I think is a very valuable clarification for decision-makers and reviewing courts: decision-makers need not ready their pens for long decisions every time there is an “impact” on an individual.
This case is a judicial review of a decision of the Judicial Conduct Committee of the Canadian Judicial Council. The Committee dismissed a complaint alleging misconduct by a judge.
In this case, Gascon J properly notes that “the degree of responsive justification” varies depending on the circumstances of the case. He says the following:
[74] I stress that the degree of responsive justification varies. On the one hand, where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect these high stakes. This is the case for decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood (Vavilov at para 133). On the other hand, where the stakes are on the lower end — as in the case of potentially frivolous complaints to the CJC —, less justification is required, even though some is still needed.
A valuable point. Vavilov requires a decision-maker to provide reasons addressing consequential impacts on an individual. But not every impact requires a dissertation. Some can be dispatched carefully but quickly.
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.