Issue #34: March 20, 2022
Statutory interpretation, fundamental misapprehension of evidence, remedy + delay
Greetings SEAR readers,
For those who practice prison law, here is a copy of my recent paper on the writ of habeas corpus. I argue that Vavilov’s focus on justification should change a number of aspects of review on habeas corpus applications to ensure review more consistent with the ideal of legality. I also show how some courts across the country are failing to properly implement Vavilov in this context. Check it out, and comments always welcome!
Canada (Attorney General) v Burke, 2022 FCA 44 (March 15, 2022)
Context: This is a decision of the Appeal Division of the Social Security Tribunal (SST-AD) in relation to Burke’s old age security benefits. For years, Burke collected old age security benefits without disclosing that she was residing in the United States, contrary to the Old Age Security Act. The SST-AD decided that the Minister of Employment and Social Development could not revisit the original decisions awarding benefits to Burke—the Minister could only reassess Burke’s entitlement going-forward. The Minister sought judicial review.
Issue: Is the decision reasonable?
Decision: The application for judicial review is granted; the SST-AD’s decision is unreasonable.
Analysis: The core issue here was whether the legislation supported the SST-AD’s “restrictive view” of the Minister’s powers [57]. This was an issue which has, since 2018, divided the General and Appeal Divisions of the SST [57-59]. Despite the discord on this question, as Vavilov confirms, the standard of review is reasonableness, recognizing that the legislation—evidently—can support more than one meaning [59].
Here, the text is silent, to begin with: “…there is no provision in either the Act or the [Old Age Security Regulations] providing the Minister with the express power to go back and change initial eligibility decisions” [60]. But this is not the end. The structure and context of the Act and Regulations showed that the Minister was permitted to “at any time make an investigation into the eligibility of a person to receive a benefit” (s.23, Regulations). Under the Act, s.37(1) provides that a person who receives a payment to which she is not entitled shall return the payment [71]. So this appears to make possible a Minister re-visiting eligibility.
The SST-AD seems to have avoided this conclusion by, in part, limiting the Minister’s discretion out of concern for the purpose of the legislation. The SST-AD’s view was that allowing the Minister’s this power would undermine the purpose of the statute to provide income assistance to seniors: it had a “fundamental discomfort” with clawing back “giant overpayments” to seniors after the fact [76]. The Court rejects this reasoning, for two reasons. First, the SST-AD’s description of the purpose of the legislation was incomplete: sound financial management of the program is also a legitimate purpose [103-107], which could run against the SST-AD interpretation. Additionally, the Court misplaced the object of interpretation. As the Court correctly notes, at para 109:
[109] With respect, the goal of statutory interpretation is not to arrive at a conclusion with respect to the meaning of legislation that is “not wholly inconsistent” with the object and purpose of the legislation in question. It is, rather, to ascertain the authentic meaning of that legislation – one that best reflects the text, context and purpose of the Act, and is harmonious with the scheme of the Act as a whole.
I agree with this statement. We see here a particular error related to using purpose in administrative interpretations of law. The miscasting and misuse of purpose in interpretation is an ongoing issue that I have highlighted in this newsletter post-Vavilov: see Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157; Issue #3). The result of such a miscasting is a “reading-in” of a restriction on the Minister’s power to investigate and reassess eligibility. As we have seen, an administrator “reading-in” an additional restriction into a statutory grant is also an error that we have seen post-Vavilov: see Belmont Nominee Ltd v Vancouver (City), 2021 BCSC 2492; Issue #24.
I should also note that this case, in my view, demonstrates why the Supreme Court was wrong in Vavilov not to recognize “persistent discord” as a category warranting correctness review. The end result of this decision is an overruling of the “restrictive view” of the SST-AD. Whether the Court believes so or not, the discord has been resolved, even if proper deference was given to the SST-AD’s view in the process. The product was a judicial determination, in essence, that there is only one reasonable view. I think there are good reasons to think that many cases like this will result in a court definitively pronouncing on the meaning of a statute, excluding possible alternative administrative interpretations.
Canada Christian College and School of Graduate Theological Studies v Postsecondary Education Quality Assessment Board, 2022 ONSC 1608 (March 17, 2022)
Context: Canada Christian College was granted naming and degree granting rights by the Ontario legislature in 2020. Prior to proclamation, the Minister of Colleges and Universities (Minister) asked the Postsecondary Education Quality Assessment Board (Board) to provide recommendations on the feasability of the College as a degree granting institution. The recommendations said: (1) the term “University” should not apply to the institution; and (2) the institution “was not ready for expanded degree granting” [3]. The Minister accepted the recommendations, on the advice of ministry staff, and did not proclaim the legislation. The College sought judicial review against the Board and Ministerial recommendations and decisions.
Issues: The College challenged (1) the Minister’s decision to seek input from the Board as ultra vires enabling legislation; (2) the Board’s process was unfair; (3) the Minister’s decision to recommend against proclamation was unreasonable.
Holding: The judicial review was dismissed.
Analysis: There are many issues in this case, but here are a few to highlight.
The legislation at issue did not foreclose the Minister seeking Board recommendations. The College’s argument was that the legislation did not contemplate the Minister seeking recommendations in cases where there is a legislative proclamation. But the text of the legislation gives “the Board jurisdiction to consider any matter that may be referred to it by the Minister” [63]. Though the legislation is clear, the failure of this argument also shows how difficult it will be, in general, to challenge processes that feed into an ultimate decision, particularly a ministerial one.
The College argued that because the Minister did not give reasons for the decision, there was a breach of the duty of procedural fairness. But such a duty does not arise in these circumstances, and even if it did, the Court notes that the ministerial advice provided reasons for decision [89]. As I have noted before, there may be times where an uncritical acceptance of a report by a decision-maker could fail the requirement to give responsive reasons. But here, the minister’s “decision” was a checkbox [43]. No reasons were actually required.
Catalyst Pharmaceuticals Inc v Canada (Attorney General), 2022 FC 292 (March 10, 2022)
Context: The applicants challenged the Minister of Health’s decision to issue a Notice of Compliance [NOC] in relation to Medunik’s new drug submission. The challenge is based on the argument that the Minister’s decision is inconsistent with the data protection provisions of the Food and Drug Regulations.
Issue: Is the decision reasonable?
Holding: No, the decision is unreasonable.
Analysis: While there are many interpretive nuances to this decision, and its subject matter is somewhat complex, the issues can be boiled down:
Like in Burke, above, the Minister of Health here committed an error in misapprehending purpose [138]. This led it astray on a number of counts.
The Court finds the decision here unreasonable, in part, because of an “evidentiary gap” in the record [183]. We know from Vavilov that a decision could be unreasonable if a decision-maker fundamentally “failed to account for the evidence before it” (Vavilov, at para 126). This is a high threshold, as recently recognized by the Federal Court of Appeal (Makivik Corporation v Canada (Attorney General), 2021 FCA 184 at para 98. This is because courts cannot reweigh evidence on judicial review. But here, the problem was that there was contradictory evidence in the record that was not dealt with. This is an error (see e.g. Boyles v Public Service Pension Plan Corporation (Provident10), 2022 NLSC 28, profiled in Issue #32). General presumptions that a decision-maker considered all the evidence, then, can be rebutted.
McQuoid v Workplace Safety and Insurance Appeals Tribunal, 2022 ONSC 1629 (March 16, 2022)
Context: McQuoid seeks judicial review of a decision of the WSIB Appeals Tribunal [Tribunal], which decided that McQuoid failed to establish that a workplace fall was a significant contributing factor to his low back injury. McQuoid argued that the Tribunal’s decision failed to account for the evidence.
Issue: Is the decision unreasonable?
Holding: The decision is unreasonable.
Analysis: As I noted above, it is a high bar to find a decision unreasonable based on a misapprehension of evidence. Courts on judicial review cannot re-weigh evidence. So to find a decision unreasonable solely on the basis of evidentiary considerations is somewhat rare. Here, though, the errors were so egregious as to rise to the level of unreasonableness. I can do no better that cite the Court’s reasoning, at paras 54-55:
[54] Deference is owed to the decision of an administrative decision-maker. However, in the present case, the adjudicator has rendered a decision with serious deficiencies in the reasoning process. He has focused on delay in reporting pain and delay in the apparent onset of pain. However, in doing so, he has failed to apply the uncontradicted medical evidence of both the family doctor and the physiotherapist about the serious pain the applicant was experiencing in late December and early January… And finally, there is no question that there was a workplace accident on November 23 reported to the employer and by the employer to the WSIB, and that the applicant suffered from a back injury.
[55] As the Supreme Court said in Vavilov (at para. 126), “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” Here, the cumulative problems – the treatment of the medical evidence, the rejection of the physiotherapist’s evidence, the failure to deal with the applicant’s own evidence, and the total focus on delay of pain and delay in obtaining treatment - demonstrate that the decision suffers from serious logical flaws, with the result that the outcome is unreasonable, based on the record.
The evidentiary failures here were compounded by the unexplained delay in processing McQuoid’s case. The accident occurred in 2005. So the Court decided itself that McQuoid is entitled to benefits, and it “remitted” to the Tribunal to make a determination accordingly [56-60]. As delays continue to characterize important aspects of Canada’s administrative justice system, declining to remit may become a more common occurence.
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: “It isn’t the mountains ahead to climb that wear you out; it’s the pebble in your shoe”—Muhammad Ali