Issue #31: February 27, 2022
A new central question, deference under a correctness standard, bilingual interpretation
City of Sherbrooke v Charles River Laboratories Preclinical Services Montreal, 2022 QCCA 263 (February 22, 2022)
Context: This case involves a dispute by owners of the valuation of their buildings under a municipal taxation statute [9]. The dispute was brought before the Administrative Tribunal of Quebec [TAQ]. The core question: under the relevant legislation, was it necessary for a lawyer to prepare and file the form instituting process according to the Loi sur le barreau? Or is it permissible for the owner—or an officer associated with the owner’s corporation —to prepare and file the form?
Issue: What is the standard of review?
Holding: The standard of review is correctness—this falls into Vavilov’s “general questions of central importance to the legal system” [50].
Analysis: Another one in the wild! The QCCA holds, following the Superior Court, that the issue of legal representation before the TAQ is a question of central importance to the legal system inviting a correctness standard. Post-Vavilov, only a handful of questions have been recognized under this category: see e.g. Century Hospitality Group v Alberta (Appeals), 2021 ABQB 767 (timelines under the Interpretation Act, Issue #11); College of Physicians and Surgeons v SJO, 2020 ONSC 1047 (disclosure and production issues and privilege in the context of a professional conduct investigation). This category can be trouble because it is not enough for a question to be of great public importance. Instead, the question must either (1) transcend the statute at hand; or (2) involve a constitutional or quasi constitutional issue (see Portnov v Canada (Attorney General), 2021 FCA 171 at para 13, Issue #7).
This, like Century Hospitality Group, is a tough one. As the QCCA notes, the Vavilov Court specifically cited an example of what would not be a question of central importance: “the scope of an exception allowing non-advocates to represent a minister in certain proceedings” (Vavilov, at para 61, citing Barreau du Quebec v Quebec (Attorney General), 2017 SCC 56 at paras 17-18). The case before the QCCA looks a lot like this: at issue is whether, under the Loi sur le barreau, this case falls under an “exception” (it is not quite an exception in the technical sense, but I put that to one side) that would permit the owners or their officers/agents to prepare and file the pleading before the TAQ.
However, I think the QCCA got this right, though I say this tentatively. This is because the question of legal representation in this case is far broader than it was under the Barreau du Quebec case. In that case, at issue was a specific exception that purported to provide a Minister with an exception, allowing him/her to be represented before the TAQ, Social Affairs Division by a non-lawyer in certain proceedings. In that sense, the exception concerned one administrative tribunal (and a specific division, no less) and it only pertained to the Minister.
This is arguably broader situation. The relevant provisions of the Loi sur le barreau in this case provide (1) that certain acts fall within the exclusive competence of a lawyer; (2) in some cases, except in cases where a body exercises a quasi-judicial function, a public or private body may be represented by a non-lawyer. This framework applies to many administrative bodies, not just the TAQ’s Social Affairs Section. It concerns the scope of legal representation across the administrative justice system in Quebec, an issue which directly implicates the protection of the public in the assertion of their legal rights [30]. This is like the Interpretation Act in Century Hospitality Group; the question concerns one statute, but the statute—and the particular provision at issue— applies to many different instances of decision-making and legal practice. One can say, then, that the question transcends just the operation of the statute. But this is close, and I can certainly see and accept arguments saying otherwise, especially because of the reticence of other courts to recognize these questions.
Association des cadres de la Société des casinos du Québec c. Société des casinos du Québec, 2022 QCCA 180 (February 8, 2022)
**Thank you to a SEAR reader for sending in this case**
Context: This is a constitutional challenge to a provision of the Quebec Labor Code. At issue is whether the definition of “employee” under the Labor Code, which excludes “managers,” is unconstitutional because it violates the freedom of association of the members of an “executive association”—a sort of union, I gather, for “first-level” managers. The case was argued before the Tribunal administratif du travail (TAT), which concluded that the exclusion violates the freedom of association protected under the Canadian and Quebec Charters. The trial judge disagreed. In reviewing the TAT’s decision, the judge applied a correctness standard.
Issue: What is the standard of review?
Holding: The standard of review is correctness, but the trial judge failed to give appropriate deference to certain conclusions rendered by the TAT.
Analysis: This case demonstrates that correctness and reasonableness are not necessarily a binary, especially in constitutional cases. The Superior Court judge recognized that she must apply deference to factual findings underlying a constitutional analysis [77]. This is well-known and is not particular to constitutional issues raised in administrative proceedings [78-79]. But the QCCA finds that the Superior Court did not give proper heed to the TAT’s conclusions on particular questions that could be classified as evidentiary or factual, such as whether there was access to an effective dispute mechanism [140-141]. It is important—especially for students—to know that even under a correctness standard, deference is not out of the equation.
Bureau de la sécurité privée c. Aurélien, 2022 QCCA 239 (February 17, 2022)
Context: This is a review of a decision of the TAQ. The TAQ decided to annul the Bureau’s revocation of Aurelien’s guard and investigation licence. It did so because he was conditionally discharged after being found guilty under the Criminal Code for assault causing bodily harm. In reaching this decision, the TAQ concluded that a licence revocation should only occur, under the Private Security Act, once a conviction has been entered and sentencing has been completed; rather than on the simple finding of guilt. To reach this conclusion, the TAQ was faced with a problem of bilingual interpretation. The English version of the law would support the TAQ’s interpretation; the French version of the law would not. The TAQ obviously chose the English version. The Superior Court agreed.
Issue: Did the TAQ render a reasonable interpretation of the relevant law?
Holding: The TAQ erred in its bilingual interpretation, in part because it failed to reason in relation to previous TAQ practice
Analysis: Whether to prefer an English or French version of a statute is governed by the framework in R v Daoust, 2004 SCC 6. This requires a “common sense” interpretation of the French and English versions of the law, leading to a conclusion that the governing law should usually be the law that is less broad in scope (Daoust, at para 2)—subject to the point about ambiguity I note below. This requires a court to determine if the French and English versions conflict; and whether there is a common meaning between the statutes that is consistent with “legislative intent” (Daoust, at para 32). The common meaning will normally be the narrower version: of course, especially in the context of regulatory statutes where application is contingent on criminal convictions and/or sentencing, this is a version of lenity.
Here, the QCCA finds that the TAQ erred in the bilingual analysis. For the QCCA, the text of the English provision was ambiguous, and so the TAQ should have identified the French version as the version to be assessed [Daoust, at para 29, 68-69]. Under Vavilov, this is a specific error: because the result of the case could have been different had the TAQ applied the proper tools of interpretation, the error is material according to Vavilov (Vavilov, at para 122). The error was compounded by the TAQ’s failure to compare its interpretation to the “legislative intent” as set out in Daoust [73].
Another error: the TAQ failed to deal with its own practices that addressed related issues under the statute [105]. This is a failure of justification under Vavilov (see Vavilov, at para 129; Canada (Attorney General) v Honey Fashions Ltd, 2020 FCA 64 at paras 37-38].
All told, this could be read as fairly searching reasonableness review. The rules of bilingual interpretation are connected to the overall search for “legislative intent” in statutory interpretation. These rules, like the canons of construction, are tools for determining the meaning of a provision. An error in their application could lead to an unreasonable decision. So one could analogize this case to a case like Canadian National Railway Company v Richardson International Limited, 2020 FCA 20 at para 48, where the Federal Court of Appeal found a decision incorrect because it failed to properly apply a canon of construction. On the other hand, this could be seen as a natural product of Vavilov, under which courts need not puzzle over specific applications of statutory interpretation rules. Where a decision-maker goes wrong in determining the “legislative intent,” and the error is material, the decision is unreasonable. As I have mentioned before, these are two separate but related ways of saying the same thing; however, the approach in Richardson is more particular (though under a correctness standard). For more on this distinction, compare Richardson with Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157.
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: “One day President Roosevelt told me that he was asking publicly for suggestions about what the war should be called. I said at once ‘The Unnecessary War’.”
― Winston S. Churchill