Issue #26: January 23, 2022
Municipal bylaws, Vavilovian reasonableness, Metis bylaws, Alberta JR
Canadian Natural Resources Limited v Fishing Lake Metis Settlement, 2022 ABQB 53 (January 18, 2022)
Context: The Métis Settlements General Council [“General Council”] acts as the collective government for eight Métis Settlements in Alberta, one of which is Fishing Lake Métis Settlement. The Métis Settlement Act, RSA 2000, c M-14 [“MSA”] promotes self-governance of the Settlements, and delegates policy and bylaw making powers. In May 2019, Fishing Lake passed their Annual Property Tax Bylaw #005/2019. This judicial review is brought by four companies [“Applicants”] who own and operate natural resource businesses in Fishing Lake. They submit that the Tax Bylaw is ultra vires the statutory authority of the MSA and that the General Council acted in a manner which was procedurally unfair.
Issue: Is the Tax Bylaw law unreasonable?
Holding: The Tax Bylaw is substantively reasonable as it “exhibits the level of justification, transparency and intelligibility that is required in this unique context” [158]. Further, no duty of procedural fairness was owed to the Applicants in passing the policies. However, the bylaw was not adopted according to the procedural rules in the MSA.
Analysis: Some interesting takeaways here.
First, the Court applies Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 for the proposition that “greater deference” is granted to “elected municipal decision-makers” [140]. As a matter of law, this seems to be correct post-Vavilov (see the cases cited in para 140). But as I have said before, I query whether this is always and everywhere the case. Vavilov is contextual, and so in some cases, even municipal decision-makers may have less room to manuever.
Second, the Court here endorses “[a]n additional layer of context” when reviewing acts of Metis Settlements [144]. That layer is the quasi-constitutional basis of Metis rights and the legislation that grants certain powers to Metis communities [144-145]. The Court agreed with previous cases that construed a broad ambit for these sort of taxation powers [144], even if the tax rate here could have been said to be “excessive” [146-147]. In general, administrative law is not the best means to deal with high taxes (though see Natural Resources Limited v Elizabeth Metis Settlement, 2020 ABQB 210).
Finally, though the Court found that the bylaw abrogated the MSA, it did find that the the challenge to its substance should not succeed. Interestingly, it endorsed the idea that where taxation policy choices “are reached through an inclusive and consultative decision-making process, they will be afforded a higher level of deference” [151]. This process should involve a weighing of the “available policy alternatives, and the costs and benefits associated with them…” [151]. This dovetails, of course, with Vavilov’s view regarding a culture of justification in administrative decision-making, even on regulatory matters (see the expanded review contemplated in Portnov v Canada (Attorney General), 2021 FCA 171).
Burlacu v Canada (Attorney General), 2022 FCA 10 (January 19, 2022)
Context/Facts: The appellant, a Senior Program Officer with the Canada Border Services Agency [“CBSA”], appeals from a judgment by the Federal Court that dismissed his application for judicial review of a decision of the Public Sector Integrity Commissioner [“the Commissioner”]. In their decision, the Commissioner determined that they would not conduct an investigation into disclosures of wrongdoing made by the appellant who alleged having witnessed wrongdoings by the CBSA and Immigration, Refugee and Citizenship Canada [“IRCC”] officials, as well as a member of the Immigration and Refugee Board of Canada [“IRB”].
Issue: Was the decision of the Commissioner to not investigate a series of complaints regarding the alleged wrongdoings reasonable?
Holding: The appeal should be dismissed. The reasons provided by the Commissioner satisfy the Vavilov requirements of being “rational and logical” without “fatal flaws in its overarching logic” (at para 33, citing Vavilov at paras 85 and 102-103).
Analysis: I think this case represents a good example of where deference in statutory interpretation matters will be most relevant post-Vavilov. As I have noted before, in my view, Vavilov has raised the bar when it comes to (1) statutory interpretation cases; and (2) general reasoning in these and other cases (see e.g. English v Richmond (City), 2021 BCCA 442 at para 59, Issue #20) . This should be taken for as much as it is worth, and no more. This case shows what will likely not constitute an “error” for the purposes of Vavilovian reasonableness, especially on statutory questions.
It is still important, as the Court points out here, to start with the reasons. Here, the Commissioner’s reasons generally engaged with the text, context, and purpose of the statute. Accordingly, the fact that the Commissioner did not explain why he referred to a certain statutory provision [55], or that he could have provided more detail in the reasons [65], will not be enough. What applicants on judicial review need is something more: for example, the complete failure to address or misapprehension of the purpose of a statutory provision bearing on the problem (see Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157, summarized in Issue #23); or relevant text or co-text (see Belmont Nominee Ltd v Vancouver (City), 2021 BCSC 2492, Issue #24). The proxility of the reasons doesn’t matter (see, recently, Grant v Unifor, 2022 FCA 6 at para 9) though boilerplate could be problematic. What matters is engagement with the modern approach to interpretation (see the Lemieux case, below).
Young v Red Deer County, 2022 ABQB 13 (January 7, 2022)
Context: This is an application for judicial review under the Municipal Government Act [MGA] challenging a bylaw adopted by Red Deer County. The applicants alleged that the bylaw was not enacted in accordance with the MGA, that the bylaw itself is unreasonable, and that the public hearing process was procedurally unfair. Under s.539 of the MGA in Alberta, “No bylaw or resolution may be challenged on the ground that it is unreasonable.”
Issue: The main issue is the status of s.539 of the MGA and what standard of review it prescribes for municipal bylaws.
Analysis: Alberta courts have differed on the meaning of s.539. One camp has held that s.539 refers only to grounds of review (as opposed to standards of review) and prohibits sole challenges to bylaws on the merits on the grounds of unreasonableness: see Bergman v Innisfree (Village), 2020 ABQB 661. This is reminiscent, of course, of the direction in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 51 that courts will generally not interpret grounds of review as standards of review. Another camp suggests that s.539 actually prescribes the patent unreasonableness standard of review (see Koebisch v Rocky View (County), 2019 ABQB 508). This is because, at the time of the adoption of the MGA, the patent unreasonableness standard was a live one in Canadian administrative law; and the MGA also permits appeals on certain issues to the ABQB on the grounds that a decision is patently unreasonable. On this account, reading the statute as a whole, the reference to “unreasonable” in s.539 must refer to the reasonableness standard of review in contrast to the patent unreasonableness standard of review.
Young follows the decision of the ABCA in Koebisch v Rocky View (County), 2021 ABCA 265 in holding that (1) s.539 speaks to the ground of review of unreasonableness and does not speak to the standard of review; (2) the standard of review is therefore presumptively reasonableness, as outlined in Vavilov and Catalyst. What this means is that applicants may challenge bylaws on all sorts of substantive grounds—but not on the sole basis that the bylaw is “unreasonable” on the merits—but that these substantive grounds will be assessed on a reasonableness standard. So, if you are in Alberta, s.539 really speaks to the wider margin of appreciation under which municipal bylaws will be assessed, even on other legal grounds—it does not revive patent unreasonableness.
I am of two minds on this. The approach adopted in Young is good because it doesn’t keep patent unreasonableness on arbitrary life support. Most of Canadian administrative law (with the exception of some statutes) has retired patent unreasonableness, reading it down to meet the Vavilov standard (see Wallwork v Toyota Manufacturing Canada Inc, 2021 ONSC 6785 at para 30 re ON HRTO, Issue #13, Issue #14). Moreover, there could be a constitutional avoidance argument here: if Vavilovian reasonableness is constitutionally protected as a minimum on certain legal questions, then retaining patent unreasonableness (and ousting reasonableness) could present constitutional problems (see Daly here). For what it’s worth, s.539 is also out of sync with Vavilovian reasonableness review, which arguably now embraces reasonableness review on the merits (see the blog post by Prof. Martin Olszynski and I).
Another part of me is a purist and is unhappy with this position. Statutes mean what they say and s.539 clearly bars review for reasonableness; and if we apply the “original meaning” canon of interpretation, in conjunction with the reference to patent unreasonableness in the MGA, there could be an interpretive argument that s.539 should be read as a direction to apply a patent unreasonableness standard of review, meaning that a claim based on the merits is only barred to the extent it is framed as a challenge on a reasonableness standard rather than patent unreasonableness. Of course, we are then faced with any constitutional objection head-on, and this argument does not give much effect to Khosa, which encouraged the use of common law standards to help define statutory standards of review.
For now, the former argument has won out: patent unreasonableness, seems sidelined in the MGA.
Lemieux v Ontario College of Teachers, 2021 ONSC 8164 (December 14, 2021)
** Thanks to a SEAR reader for sending this in from back in December 2021. I’ve included this because it is a good example, in my view, of the Vavilov method being “done well.”**
Context: This is a judicial review of a decision of the Registrar of the Ontario College of Teachers. In the decision, the Registrar concluded that the Applicant’s request for reinstatement (after the submission of a plea that admitted no contest to certain allegations of professional misconduct in 2015) was prematurely filed outside of the timelimit prescribed by s.33(4.1) of the Ontario College of Teachers Act (the issuance of a new certificate may not be made less than five years after the date of the order of revocation). Complicating matters was that a new provision of the statute (s.30.3) came into force in 2020, which created a deemed revocation provision--if an order was made by the Discipline Committee on certain matters before the day of coming into force, revocation is deemed to have occurred. This creates two possible interpretations: the order referred to in s.30.3 is the 2015 order, which means the applicant is not premature under s.33(4.1); the order referred to in s.30.3 is “created” at the time of coming into force of s.30.3, and so the applicant would have to wait five more years from 2020.
Issue: Was the Registrar’s decision reasonable?
Holding: The decision is unreasonable.
Analysis: As mentioned above, I think this case is a good example of Vavilov being “done well,” and that doing Vavilov well may require more stringent review in some cases. Notably, the Court begins with the Registrar’s reasons, measuring the extent to which they dealt with the text, context, and purpose of the provision [24 et seq]. The Court, soundly, began with the text of s.33(4.1) [26]. It concluded that the Registrar’s reasons ignored the wording of the provision, particular the word “order” which, in this case, the Registrar equated to the deemed revocation in 2020 rather than the original order in 2015 [28]. But there is only one order, as the Court says. In this case, it is the 2015 order—the statute did not create any order in 2020 [36-37].
There was also a major purpose error here. The Registrar held that the applicant’s proposed interpretation was contrary to the purpose of some of the provisions at issue, because the purpose contemplates public protection. Allowing the applicant to file an application now would undermine that goal. But this interpretation would do violence to the stautory text and structure. First, it would have the effect of adding an additional 5 year “sanction” to the statute’s scheme, ensuring the applicant would actually need to wait 10 years for his reinstatement. This is, for the Court, needlessly punitive [55]. Second, all that is at issue here is the applicant’s ability to request reinstatement—the Discipline Committee still decides whether to accept or decline the request [53]. The Registrar’s interpretation gave no regard to the Discipline Committee’s role.
So, we see here what sorts of things are relevant on Vavilovian reasonableness review. Courts should start with the reasons. But decision-makers will be held to account if their reasons fundamentally ignore or misapprehend the text or purpose. This stands in contrast, of course, to the sorts of errors pointed out in Burlacu, above, where the errors were surface-level.
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: “But you must believe me, one cannot have everything one wants—not only in practice, but even in theory”—Isaiah Berlin