Issue #27: January 30, 2022
Doré, firearms regulations, appellate standard of review, policy interpretation
Greetings SEAR readers,
I want to spotlight the Social Security Tribunal’s [SST] new website, which outlines the relationship of the SST to the other organs of government, the impact of Vavilov on its work, and information about the SST itself. It also provides information on how the tribunal makes its decisions and operates (including information on performance evaluations, how SST members prepare reasons, etc).
I am a critic of some administrative agencies, in part because they sometimes operate in the dark or without adequate public consultation. Couple this with sometimes- arcane appeal procedures and other technical guidelines, people may have a hard time navigating the administrative justice system. The SST is clearly not one of the agencies contributing to the problem. The website is written to assist those who need to navigate the Tribunal, many of whom will be self-represented.
The website also provides another function; it helps to inform those in the system about the context in which the SST operates. Knowing more about the institutional context of specific administrative actors can only help those who care about the quality of administrative decision-making.
Guelph and Area Right to Life v City of Guelph, 2022 ONSC 43 (January 26, 2022)
Context: Under its “Advertising Acceptability Policy” [Policy], the City approved the applicant’s anti-abortion advertisements subject to a disclaimer that the advertisement does not represent the opinions of the City. The Policy, among other things, incorporates the Canadian Code of Advertising Standards, which provides that an advertisement shall not be misleading or a false representation. Under the Policy, any member of the public can file a complaint to Advertising Standards Canada, which will investigate the complaint and rule on whether the impugned advertisement breaches the Code. In this case, three complaints were filed with Advertising Standards against the applicant’s ads, based on the requirement that advertisements not be misleading. One such complaint, for example, expressed that an advertisement was misleading because it provided that a fetus was a “human being” Advertising Standards agreed with the complaint and notified the City accordingly, reasoning that the City Council had essentially adopted the definition of “human being” in the Criminal Code in its Policy, which provides that a child only becomes a human being after live birth. The other complaints were similarly allowed by Advertising Standards.
The City accepted Advertising Standards’ conclusion.
Issue: Is the decision reasonable?
Holding: Since the City failed to properly conduct a Charter analysis, the decision should be remitted.
Analysis: This case shows an oddity in the Doré approach, which asks courts to review for reasonableness decisions made by administrators that engage Charter rights. A decision will be reasonable if a decision-maker engages in a proportionate balancing of the Charter rights (or values) at issue and the statutory objectives.
This case shows how Doré makes judicial review quite practically difficult to undertake. In this case, and at the time of the impugned decisions, the only rationale offered by the City was the decision of Advertising Standards. Only on judicial review did the City attempt to supplement the record with an affidavit from a City representative that said she undertook a review of the Charter and the relevant policies and concluded that the advertisements were misleading [33]. At first blush, this seems like a problem: shouldn’t decision-makers actually decide?
A solution might appear: courts have pointed out that transit managers cannot be expected to engage in the Doré analysis [75; see also Canadian Centre for Bio-Ethical Reform v Grand Prairie (City), 2018 ABCA 154 at para 36]. But this leaves a judicial review court in an odd position. It can, as some courts have done, simply accept affidavi offered on judicial review as properly supplementary, since courts cannot expect decision-makers to weigh the Charter: see Grand Prairie. On the other hand, some courts have rejected this approach, holding that courts cannot do the job of administrative decision-makers: Canadian Centre for Bio-Ethical Reform v South Coast British Columbia Transportation Authority, 2018 BCCA 344. On this thinking, the orthodox rule of the record (record is the same on judicial review) applies because it preserves the difference between court and decision-maker.
The Court here rightly does not permit the City to supplement its decision. On normative grounds, this makes sense. If the Constitution is not a holy grail that only judicial initiates can touch, it means that decision-makers are also subject to the burden of Charter limitations. They must engage with these limitations at the time of making a decision. Supplementing a decision does not answer the core question a judicial review court must answer in this case: did the decision-maker adequately weigh the Charter rights at issue? We simply don’t know. I’m reminded of a point made by Stratas JA in a pre-Vavilov case: it is not the job of courts to impersonate decision-makers: see Bonnybrook Park Industrial Development Co Ltd v Canada (National Revenue), 2018 FCA 136 at para 91. On constitutional matters, this takes on extraordinary importance: the Constitution is a restriction on, not a facilitation of, administrative power.
Even if supplementation was permitted here, the Court rightly notes that this would not save the decision [76]. Recall here that the affidavit on judicial review only indicated that the City representative considered the Charter. Generally, decision-makers must do more than simply state they considered the Charter: they must weigh the rights engaged [87]. So, if the City chooses to offer an advertisement service, it must offer that service consistently with the law [93], and it must actually demonstrate that it did so in compelling reasons.
This is only one reason why, in my view, Doré is fundamentally inconsistent with Vavilov. The Court here relies on Vavilov to conclude that courts cannot reverse engineer decisions (Vavilov, at para 91). This makes sense. Vavilov stands for the proposition that justification is the coin of the realm: deference is owed on the basis of reasons that engage with the factual and legal constraints bearing on the decision. Where no reasons exist, or the reasons are deficient, courts cannot actually conduct judicial review. Yet does not advert to this possibility because it endorses an extreme light-touch review, perhaps leaving the door open to supplementation, as demonstrated in some of the pre-Vavilov case law. I continue to hope that Doré’s days are numbered.
Dhalla v College of Physicians and Surgeons of Manitoba, 2022 MBCA 7 (January 25, 2022)
Context: Dhalla appealed a decision of a panel of the Inquiry Committee of the College which reprimanded him and suspended his licence.
Issue: What is the standard of review applied by a court to the suspension decision?
Holding: The standard is the one previously endorsed by the MBCA for discretionary decisions: “absent a misdirection in law or on the facts, an appellate court will not intervene unless the decision on penalty is so wrong as to amount to an injustice” [71].
Analysis: This case raises a fairly niche issue. What happens when a person brings a challenge to a discretionary decision via a right of appeal? What is the standard of review?
Prior to Vavilov, of course, the penalty decisions of professionary disciplinary bodies were reviewed on a reasonableness standard [51]. This makes sense because remedial decisions are typically balancing exercises engaging different considerations. But post-Vavilov, the penalty challenged here, subject to a right of appeal, would be reviewed under the appellate standards of review.
But which ones? One might say that Housen provides the answer: reversible error is a palpable and overriding error on facts or an incorrect conclusion on the law. But prior to Vavilov, some courts had cut out a special standard of review for “discretionary” decisions. In the Federal Courts, the matter was resolved by simply applying Housen to all discretionary decisions made by prothonotaries and judges on appeal (see Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 at paras 69, 72).
But here, the Court does not go so far. It concludes that “Vavilov was not intended to constitute an examination or variation of the law governing civil standards of review” [66]. And so a standalone standard of review for discretionary decisions—in this case, those made by a College on a remedy for misconduct—applies. In other words, the Court does not go the Hospira route: it retains a distinction between Housen and what it calls the “deferential standard” applicable to discretionary decisions [69-71].
Whether this will be a difference in practice is hard to tell. Hospira assumes that the “deferential standard” and the Housen standard expressed the same principles: Hospira, at para 26. This seems right to me. But since the MBCA was in no position to re-evaluate its own precedent on the issue, there is a theoretical difference that remains.
Canada (Attorney General) v Smykot, 2022 ABQB 61 (January 21, 2022)
Context: This case concerned whether the Provincial Court of Alberta has jurisdiction to consider relief sought by applicants whose firearms were reclassified by federal regulations promulgated by the Governor-in-Council. The respondents received notices from the Registrar of Firearms, under these regulations, providing that the respondents’ firearms were “now classified as prohibited and the previous registration certificates are automatically nullified and are therefore no longer valid…” [21]. Canada argued that the respondents’ firearm certificates were revoked not by the Registrar’s decision but by operation of law, in which case the Provincial Court wrongly assumed jurisdiction.
Issue: What is the standard of review? Did the Provincial Court wrongly assume jurisdiction?
Holding: The standard of reasonableness applies to the jurisdictional issue. The Provincial Court properly assumed jurisdiction.
Analysis: The Court here rebuffed an argument made by some of the respondents that the correctness standard should apply. They argued that because there were other, similar proceedings in Alberta and Canada, the decision will have binding effect, and so it is a “general question of central importance”. This is a classic example of construing this category far more broadly than the Vavilov majority intended. As the Court here says, “…the questions must be of fundamental importance and broad applicability with significant consequences for the justice or governmental system as a whole” [33].
On the jurisdictional issue, the Court here does not accept Canada’s “operation by law” argument. For one, under this statutory scheme governing possession of firearms makes explicit reference to cases where a licence will be revoked without a decision of the Registrar [57]. In this case, no such explicit provision was made by the legislature.
More importantly, the Court relies on the unwritten principles of the Rule of Law and parliamentary sovereignty to reject the “operation by law” argument [62]. Central is s.118 of the Firearms Act, which provides that while the Governor in Council may make regulations governing issuance and revocation of certificates, those regulations must “be laid before each House of Parliament” [15]. Allowing the interpretation proposed by Canada to succeed would empower the Governor-in-Council to revoke these licences without any legal accountability, as set out in s.118 [65, 67]. And given that the interpretation advanced by Canada was in no way obvious, it was easy and justifiable for the Court to deny the Governor-in-Council a power that it had not expressly been granted.
Mercer Estate v Moose Jaw Board of Police Commissioners, 2022 SKQB 8 (January 11, 2021)
Context: This is a decision of the Workers’ Compensation Board Appeal Tribunal in relation to the death by suicide of Officer Jason Mercer. The core issue is whether Mercer’s suicide arose out of and in the course of the claimant’s employment, in relation to PTSD suffered in his work. Under s.28.1 of the Workers’ Compensation Act, if a worker is diagnosed with a psychological injury, there is a presumption that the injury arose out of and in the course of employment. In this case, the Appeal Tribunal relied on an internal manual which endorses this presumption but also adds additional steps that are required to be met before the presumption can be rebutted [5]. For example, the Appeal Board focused on whether Mercer’s job stress was the “predominant cause” of his eventual death, even though this requirement is not provided in the statutory scheme. The Appeal Tribunal concluded that the PTSD and traumatic events suffered by Mercer were not a proximate cause of his death.
Issue: Is this interpretation reasonable?
Holding: The decision is unreasonable.
Analysis: This is a sad case that stands for something important: legality matters. Here, the estate’s entitlement to benefits was denied because of a restrictive policy that simply does not track to the statute—no requirement of “predominant cause” appears in the scheme. Accordingly, while it may be bureaucratically efficient or desirable for WCB to make it more difficult to pay out, the Court lambasts this assumption:
WCB and the Appeal Board appear to be under the misapprehension that it is entirely up to them to make their own policy regarding injured workers, and how to interpret and apply s. 28.1 even if they stretch or break the plain meaning of the words used in that section. That is an erroneous assumption [86].
The statutory presumption, in this case, inures to the benefit of people like Officer Mercer and his estate. To read this presumption out of the law under the guise of a “policy interpretation” undermines the purpose and text of the provision.
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: “Always forgive your enemies; nothing annoys them so much.”
― Oscar Wilde