Issue #22: December 12, 2021
Municipal decision-making, material errors, consequences
A reminder that next week (December 19, 2021) will be the last SEAR of the year. I will present “Administrative Law Wrapped,” a summary and analysis of the most important administrative law cases of 2021. There will be no SEAR on December 26, 2021 or January 2, 2022.
Annapolis (County) v E.A. Farren Limited, 2021 NSSC 327 (December 7, 2021)
Context: Annapolis sold/let land to E.A. Farren to build a private school. Following a municipal election, the outgoing council passed resolutions approving the conveyance and lease. The new Annapolis council, in this case, sought a declaration that the resolutions were unlawful.
Issues: What is the standard of review, and on that standard of review, is the decision legal?
Holding: The Court quashed the resolutions of the outgoing council because the outgoing council transacted business regarding E.A. Farren at a special meeting post-election, when the new council should have been sworn in.
Analysis: This is a interesting case about municipal legislation and councils post-Vavilov. It suggests that broad assumptions of deference to municipal councils is probably misplaced; much will depend on the statutory and factual context. It also raises an interesting niche question about the scope of the presumption of reasonableness review in Vavilov.
At issue here was whether the Municipal Elections Act [MEA] and the Municipal Government Act [MGA], taken together, prevented the outgoing council from passing resolutions affirming the deal with E.A. Farren at its final meeting. More specifically, since the outgoing council received advice that it had authority to meet and transact business “until the swearing-in of the new Councillors,” was the outgoing council properly empowered to approve the negotiations with E.A. Farren?
The Court concluded that the “plain and ordinary reading” of the statutes led to the conclusion that, at the first meeting post-election, “the Municipal clerk is obligated to declare elected the candidate and their term of office” . But here, this did not happen. The outgoing council, instead, decided to approve the deal with E.A. Farren.
The Court dealt with the issues involved on the reasonableness standard, but it left open the door—as Vavilov does—to the idea that there may only be one “reasonable interpretation” of a statute . And here, that appears to have been the case. Two statutes were at issue. The first, the Municipal Elections Act, is not the constating statute of the municipal council, but rather provides for the “democratic constitution” of the council . The second statute, the Municipal Government Act, is the enabling statute of the council. In assessing the standard of review, the Court noted that the council has no “particular expertise in the interpretation of election legislation and are accordingly…owed little or no deference” . This must have fed into the Court’s conclusion that, because the new council was not sworn in at the first “regular or special meeting,” as per the statutory requirements, the land transfers were invalid .
A few takeaways. First, as noted above, this is an example where the statutory language tightly constrained the former council. While it was empowered to conduct business until the new council was sworn in, the new council should have been sworn in at the meeting in which the land transfers were approved. This strict requirement shows how, even in the municipal context, deference is not endless. It is probably most relevant where bylaws “engage broader social, economic, and political factors that are relevant to the electorate…” .
Secondly, this case made me think of the old rider attached to the presumption of reasonableness related to “closely related statutes.” The presumption pre-Vavilov used to provide that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir v New Brunswick, 2008 SCC 9, at para 54). On this understanding, one might argue that the MEA is a closely-related statute to the MGA, providing as it does for restrictions on how the outgoing council should operate after an election. Vavilov, interestingly, does not seem to mention that the presumption of reasonableness review should apply to closely related statutes. It only says that “[w]here a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it” (Vavilov, at para 24). Assumedly following Vavilov, then, the Court here drew a distinction between an election-related statute and a power-conferring statute. I find this distinction persuasive but pre-Vavilov, the presumption of expertise might (I say this with trepidation) have extended even to the MEA.
Battcock v Eastern Newfoundland Regional Appeal Board, 2021 NLSC 164 (December 8, 2021)
Context: The Town of Holyrood granted a permit to Battcock to build a fence which took in a small piece of Crawley’s Road, which is a historical public right of way . The road is governed by the Municipalities Act, s. 163(1), which vests control of highways (except highways vested in the Crown) to the council. Warren, who owns property that is only accessible by way of Crawley’s Road, appealed the decision of the town to the Eastern Newfoundland Regional Appeal Board. The Board found that the town erroneously granted the permit.
Issue: Under the relevant standard of review, is the decision legal?
Holding: The Court allowed the application, and remitted to the Board to make a decision “in accordance with the interpretation of the Act as providing the Town the authority to approve Mr. Battcock’s construction of the fence over a portion of Crawley’s Road” .
Analysis: Another interesting little municipal case. Here, we see an interesting error of law: a Board taking a minimalist approach to the interpretation of a town’s power, rather than a more expansive one.
The problem here: the grant of authority to the Town is expansive . It contains few restrictions. The grant gives the town the powers of ownership, management, and control, which would extend to "a “right to sell the land over which the roadway runs, grant an easement over it, or manage it through the powers of the Town over development within the municipality” . When the Board concluded that the town did not have the power to allow the fence development, it failed to explain why this was so, and on a correctness standard of review (as this was a statutory appeal on a legal question), its restrictive interpretation of an expansive grant of power is a clear legal error [19-20].
This illustrates an example of one particular legal problem that can arise in administrative law. Vavilov speaks of administrators arrogating power to themselves “they were never intended to have” (Vavilov, at para 109, though in the context of reasonableness review). This line represents one particular issue: administrators, for various reasons, may have incentives to expand their powers beyond the legal limits. But another problem can arise: the decision-maker can interpret its powers too narrowly, rejecting an applicant’s otherwise founded legal claim. While we should be worried about undue expansion of administrative power, an overly restrictive interpretation can also fail to account for the language a legislature used in delegating power. This is just as much of a legal error as an overly-expansive interpretation.
Jean-Baptiste c Canada (Citoyenneté et Immigration), 2021 CF 1362 (December 7, 2021)
Context: The Refugee Appeal Division [RAD] concluded that Jean-Baptiste was not a refugee or person in need of protection under the Immigration and Refugee Protection Act [IRPA]. This is because it concluded that there are serious reasons to believe that he was complicit in torture in Haiti in the mid-90s.
Issue: Is the decision reasonable?
Holding: The decision is unreasonable.
Analysis: One of the core parts of Vavilov’s definition of reasonableness concerns materiality: “[b]efore a decision can be set aside…the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligbility, and transparency (Vavilov, at para 100). This case demonstrates an example of such a material error.
Here, the RAD failed to consider whether the evidence as to tortue met the actual legal standard of torture. The RAD referred to strong interrogation techniques, for example, but the Court was not convinced that the evidence it cited and the standards it applied were relevant to the central standard of what constitutes torture [29-31]. The failure to tie the evidence to the legal standard is an example of a sufficiently serious shortcoming.
This is all the more so because of Vavilov’s requirement that the consequences to an applicant can act as a particular constraint under the reasonableness standard. Since a finding of torture can carry significant consequences for the applicant under the IRPA (rejection of refugee claim, and no grant of protection) , the RAD should have gone the extra mile to tie its findings to the appropriate legal standard with solid justification. This Vavilovian constraint is important in many areas of administrative decision-making, even though it may not be getting much play in the cases (in a forthcoming study of habeas corpus cases post-Vavilov, for example, I find very little—if any—reliance by courts on this constraint, despite its obvious application in a prison context).
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.
Quote of the Week: “Have a holly jolly Christmas, it’s the best time of the year”—Johnny Marks, performed by Burl Ives.