Saskatchewan Hospital North Battleford v Isaac, 2022 SKCA 26 (February 25, 2022)
Context: This is a decision of the Saskatchewan Review Board respecting Shawn Isaac. Isaac was found unfit to stand trial, and so came under the jurisdiction of the Board. The Review Board decided that Isaac should be transferred to Saskatchewan Hospital North Battleford [SHNB], a move that was opposed by the hospital, which expressed concerns about Isaac’s “violent behaviour” [1]. In this case, SHNB brought an appeal under the Criminal Code, and “[argued] that the decision is unreasonable,” also seeking an order that Isaac remain at his current location.
Issue: Is the decision reasonable?
Holding: The decision is reasonable.
Analysis: This case raises an interesting question post Vavilov—in this section of the Criminal Code dealing with Review Board dispositions (s.672.78)(1)(a)), what does a “reasonable” decision mean? In R v Owen, 2003 SCC 33, the Supreme Court held that the “reasonableness simpliciter” standard, as it then was, applied to these sorts of decisions. The Court concludes now, however, that “Vavilov should now be taken as informing the proper way to approach the term “unreasonable” in s. 672.78(1)(a)…” [49]. So the status quo remains: administrative law standards inform the definition of “unreasonable” in this statutory context.
Boyles v Public Service Pension Plan Corporation (Provident10), 2022 NLSC 28 (February 28, 2022)
Context/Facts: This is an appeal of a decision made by an Appeal Commissioner of the Public Service Pension Plan Corporation to reject the Applicant’s (Donald Boyles) application for medical disability retirement. The Applicant claimed that the Appeal Commissioner erred in concluding “’that there did not exist sufficient evidence that an erroneous decision was reached based upon the reliance by the medical expert on inaccurate reports” and “in denying [him] procedural fairness by neglecting to conduct a hearing” (at para 1).
Issue: What standard of review should be applied? Was the Appeal Commissioner’s decision reasonable?
Holding: The standard of review to be applied is reasonableness. Although s 15 of the Public Service Pensions Act, 2019, SNL 2019, c-P44.01 is entitled “Appeal,” this does not attract the appellate standard of review in this case. Furthermore, because this appeal proceeds under s 15(2) of the Act where the procedure is described as “judicial review” the court concluded that this “leaves no doubt, in the first instance, about the legislature’s intent for the procedure than an applicant under that section has available” (at para 50). Even when using the reasonableness standard, the court found that the Appeal Commissioner’s decision was unreasonable.
Analysis:
At paras 47-48, the court opines on the relevance of headings in legislation when interpreting a particular provision in a statute that governs the standard of review. Boyles argued that the appellate standards of review applied because the provision under which he was proceeding was titled “Appeal” [46]. Referring to s 15 of the Interpretation Act, R.S.N.L. 1990, c. I-19, the court states that “headings in the body of an Act […] do[es] not form part of the Act and shall be considered to be inserted for convenience of reference only” [47]. As such, the court concludes that headings should only be referred to as an interpretive aide if the text of the provision is ambiguous. And given the fact that s 15(2) of the Public Services Pensions Act uses the term “judicial review,” and this is the specific provision under which Boyles is proceeding, the court finds that it is sufficiently clear that the reasonableness standard of review ought to apply in this case.
The consideration of the evidence in this cases raises an interesting question about how Vavilov's deference operates. The crux of the Appeal Commissioner’s decision seemed to rest on the report of one physician [75]. It appeared that the Appeal Commissioner addressed contrary reports [62]. But this was not enough: “[t]he Appeal Commissioner failed to consider as fulsomely as needed the lingering concerns that pervade the file…” [79]. This could be seen in two ways. On one hand, a more deferential approach might not support the Court’s conclusion, because the Appeal Commissioner need not name every piece of evidence and render an opinion on its relevance, nor should the decision-maker reweigh the evidence—the record can be considered as a whole, so long as the Appeal Commissioner did not fundamentally misapprehend or fail to account the evidence before it (Vavilov, at paras 125-126). On the other, a more stringent review might agree with the Court’s conclusion, reasoning that the decision-maker must explain why he or she prefers one piece of evidence over others—this is part of justification. I can see both sides, and which approach is adopted is of course a function of specific cases. In this case, I think the Court comes close to re-weighing the evidence. But if the Appeal Commissioner truly did not explain why one tranche of evidence was better than another, then I think the Court got it right.
The Court declines to remit here, relying on Vavilov, at para 195 [85]. The Court seems to rest this conclusion on the fact that the “matter has languished too long already…” [84]. But a more practical concern also drove the Court’s conclusion. Because the matter had languished, the record “as it was [when the matter began] is all that is available now on which to reassess Mr. Boyles’ eligibility…” [87]. So as a result, remitting would be pointless with the record as it is.
Moore v The Estate of Lou Ferro et al, 2022 ONSC 1343 (March 1, 2022)
Context: This is an application for judicial review of a decision of the Ontario Human Rights Tribunal [HRTO]. The applicant alleged discrimination in employment by the respondent on a number of grounds, and sought a number of remedies.
Issue: What is the standard of review?
Holding: The standard of review is reasonableness.
Analysis: As is common in these cases now, the HRTO continues to argue that the standard of review under the Ontario Human Rights Code is patent unreasonableness. I sense a bit of frustration in this case as the Divisional Court rejects the HRTO’s submission again: “[t]his court has already addressed this submission in a number of cases and has found that the standard of review remains reasonableness” [66]. As I noted in Issue #14:
Wallwork is another chapter in the ongoing saga on patent unreasonableness under the Ontario Human Rights Code (see Issue #13 and Tang v HRTO, 2021 ONSC 6523). The Human Rights Tribunal continues to advance the position that s.45.8 of the Code means what it says: patent unreasonableness review. Post-Vavilov, the courts have not taken this approach and have generally defined patent unreasonableness either partly or in totality as equivalent to reasonableness.
The Court in Wallwork continues this trend, applying the reasonableness standard [30]. This question will continue to percolate in the lower courts, especially in cases involving the HRTO. The HRTO’s position finds plausible support in Vavilov, with its focus on legislative intent (Vavilov, at para 23). But there is a problem: the Court has previously noted that the Rule of Law cannot counsel a standard of patent unreasonableness, one that may permit otherwise deficient decisions to stand despite their clear unreasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9 at para 42). So far, it appears that the Dunsmuir line of thinking has prevailed in the lower courts post-Vavilov.
Simmons v Royal Newfoundland Constabulary Public Complaints Commission, 2022 NLSC 27 (February 24, 2022)
Context: Constable Steven Simmons is the subject of a public complaint filed with the Royal Newfoundland Constabulary Public Complaints Commission. He seeks judicial review of two decisions by the Adjudicator: the first concluded that the applicant’s counsel of choice was in a conflict of interest and must be removed (conflict decision); the second was a refusal by the Adjudicator to reconsider this decision (reconsideration decision) [2].
Issues: Is the application for judicial review premature or otherwise improper? Are the decisions legal under the relevant standards of review?
Holding: Both decisions are unreasonable.
Analysis:
The Commission and Chief of Police seemed to suggest that the hearing process should continue without counsel of the applicant’s choice—in part because these particular decisions do not fall within a scope of a statutory right of appeal [37-38]. But Vavilov says that we have to pay attention to the scope of statutory rights of appeal to determine if there are issues falling outside the scope of the right of appeal that might be amenable to judicial review. Put differently, the presence of a right of appeal does not preclude judicial review on issues not covered by the right of appeal. Here, the conflict and reconsiderations do not fall within the right of appeal, so it might be tempting to argue that they are not amenable to review. But to draw this conclusion would mean that the right of appeal ousts judicial review, something which is constitutionally impermissible. Issues falling outside the scope of a right of appeal can still be amenable to judicial review.
These decisions are interlocutory—they concern legal representation for the applicant before the rendering of a decision on the merits. As such, they are definitionally premature [46]. The general rule is that courts should not hear premature judicial reviews: Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at para 31. “Absent exceptional circumstances,” this rule should be followed (C.B. Powell, at para 33). Relying primarily on a multi-factoral test [56], the Court concluded that “exceptional circumstances” were present here: the inability of the applicant to proceed with counsel of his choice would “visit a real unfairness” on him [45].
The acceptance of this multi-factoral test stands at odds with CB Powell and other FCA precedent (see especially Dugré v. Canada (Attorney General), 2021 FCA 8 at para 37. In the Federal Court of Appeal, the “exceptional circumstances” rider is very narrow, and exceptional circumstances will only exist in cases of the sort where the writ of prohibition lies (CB Powell, at para 33). The bar is “next to absolute” (Dugré, at para 37). “Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue…are not exceptional circumstances allowing the parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted” (CB Powell, at para 33).
For my part, I prefer the FCA’s approach. The doctrine as formulated in the FCA enforces a clear rule: all administrative regimes should be exhausted as a matter of respect for legislative delegation and efficiency: see Wilson v Atomic Energy, 2015 FCA 17, rev’d by SCC but not on this point, at paras 31-32. A multi-factoral test may permit judicial intervention in more cases than envisioned by the high bar of CB Powell, beyond cases where there are compelling public law values that outweigh those engaged by the doctrine of prematurity. There is a good argument here that legal representation engages important public law values, but to me it isn't a knockdown argument—especially when we consider the values underlying the “next to absolute bar.” But more importantly, and regardless of result, we should be aware that the NLSC approach may loosen the doctrine, bypassing administrative regimes, in a way that undermines the values at play.
On the conflict decision, the applicant suggested that the Court should review on correctness, relying on pre-Vavilov Alberta precedent [61]. The argument for correctness review is that applying the test for conflicts is a question of law of central importance to the legal system as a whole” [60]. For such a question to be recognized, the question must transcend the statute at hand or raise constitutional or quasi-constitutional concerns. Here, the Court rejects these arguments, noting that the Adjudicator was only applying well-worn rules and principles to the specific facts of this case [64]. This seems right—there is nothing transcendental about this question that goes beyond the individual right to representation. That said, we get relatively stringent reasonableness review here, and the Court quashes the conflict decision because the Adjudicator failed to properly apply the test for conflicts set out in the Supreme Court’s jurisprudence [89-90, 93-94].
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: “For my friends, everything; for my enemies, the law”—General Oscar Benavides