Issue #37: April 10, 2022
Doré, preliminary JR objections, central questions, reasonableness review post-Vavilov
A busy week this week, 5 cases. Also, you will notice that I have included a new “category” feature under each case. This feature will hopefully allow you to identify quickly which cases you wish to read. As well, I hope to create a chart on the website that will include the categories and the cases in those categories going forward. I hope this will help you in your practice and study. I will create the chart in the near future and populate it accordingly.
Canada (Attorney General) v Robinson, 2022 FCA 59 (April 7, 2022)
Context: Robinson is challenging a decision of the Deputy Minister which ended his ability to use a “medical substitute officer” [MSO] to fish on his behalf under a licence granted by the Department of Fisheries and Oceans [DFO]. Under regulations, a licence holder may apply for permission to have someone else fish under the licence. A “Commercial Fisheries Licensing Policy for Eastern Canada,” adopted in 1996, governs the conditions under which a MSO may exercise the rights under a licence when a licenceholder is ill. DFO, under the Policy, established a “five-year limit,” on MSOs, after which “extensions would only be approved on a case-by-case basis” . Robinson argued that the adoption of the five-year limit in the Policy violated his rights under s.15(1) of the Charter. At the Federal Court, Southcott J held that the analysis in Doré/Loyola/TWU applied, under which a court must first ask whether a decision affected or engaged a Charter protection, and then, if so, whether that decision reflected a proportionate balance between the Charter protection and statutory objectives. He decided that, as regards the first part of the Doré/Loyola/TWU framework, the standard of review is correctness; and as regards the second part, the standard of review is reasonableness . The Court found the Deputy Minister’s decision unreasonable, on the basis that the Deputy Minister simply did not balance the Charter claim raised by Robinson with the policy objectives , relying on Vavilov.
Issue: What is the standard of review? Is the decision unreasonable?
Holding: The decision is unreasonable.
Analysis: A short but interesting decision on two points. First, the Federal Court adopted the bifurcated standard of review approach endorsed by the ONCA in Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025. The approach in that case splits the Doré test into two parts, applying a correctness standard to the question of whether Charter rights are “engaged” and a reasonableness standard to whether they are balanced appropriately.
I have written about Ferrier before, and I think there are pros and cons to this approach. One “con” is that it may artifically divide the standard of review analysis for these constitutional questions in a way that is not very robust. As I noted before:
But it would be hard to distinguish between these cases. In other words, what is the compelling justification to treat Charter cases separately from all other questions of constitutional law, and going a step further, what is the justification for distinguishing cases where the Charter was considered versus where it was not? While one might say that the factual component changes things, in both cases […] it is the court’s task to delineate the scope of constitutional rights. This is true in both the abstract and as applied to proportionality analysis. If this is true, the distinction, then, falls apart.
The FCA here does not deal with this standard of review problem, saying that the issue should only be decided “when it must and with the benefit of a full argument” . This is the right thing to do in this case. But Ferrier—and this case—will loom large as a potential response to dissatisfaction with Doré.
Second, the Federal Court (as endorsed by the FCA) expressly cites Vavilov here. This is despite the fact that Vavilov said that it did not apply to constitutional questions raised in an administrative context (Vavilov, at para 53). While this conclusion was drawn respecting the “constitutional questions” correctness category, we can see that there is a natural application of Vavilov’s justificatory ethic in the context of constitutional decision-making by administrators. This case demonstrates how Vavilov could and should be integrated into Doré-type cases. The FCA concludes that “…where, as in this case, a Charter protection is dquarely raised by a party, the unexplained failure to address whether the Charter was engaged cannot survive reasonableness review” .
Kilgour v Canada (Attorney General), 2022 FC 472 (April 5, 2022)
Category: Preliminary objection to JR (“matter” under Federal Courts Act)
Context: The applicants, a group of individuals (along with an intervener), requested that CBSA “institute a presumption that would generally prohibit the import of goods from Xinjiang, China, on the basis that they have been mined, manufactured or produced wholly or in part by forced labour, absent clear and convincing evidence to the contrary” . In response, a Programs Manager at CBSA responded via email that CBSA does not have the authority to prohibit or regulate goods for production by forced labour” on the sole basis of origination in a specific region or country, under the Customs Tariff. The applicants sought judicial review of the Program Manager’s email.
Issues: (1) Is the email a “matter” subject to judicial review under the Federal Courts Act?; (2) Do the applicants have standing?; (3) Is the CBSA’s interpretation reasonable?
Holding: The email is not subject to judicial review; the applicants do not have standing; and the CBSA’s interpretation is reasonable.
Analysis: I focus on the first issue i.e. whether the email is a matter subject to judicial review. This preliminary issue is relevant in part because emails could be subject to judicial review—judicial review under the Federal Courts Act “is not limited to decisions or orders” . But here, “the Applicants have put no evidence on the record to suggest that they have rights or obligations affected by the contents of this email…” . The basic problem is that there is no statutory “hook,” here, that imposes a duty on the CBSA to make the requested decision . Since the applicants only indicated, in their request, general facts about forced labour in China, this is not enough to transform CBSA’s response into a decision that is dispositive of legal rights .
Le-Vel Brands, LLC v Canada (Attorney General), 2022 FC 459 (April 1, 2022)
Context: Record on judicial review
Context: This is a decision of the Minister of Health which found that the applicant’s “premium lifestyle patch” should be classified as a “natural health product,” for which a licence is required, rather than a cosmetic. Health Canada issued a compliance letter to the applicant, requiring the cessation of sales of the product in Canada. The applicant sought judicial review of this decision, arguing primarily that the decision was not justified under the Vavilov reasonableness standard.
Issue: Is the decision reasonable? Was the applicant denied procedural fairness?
Holding: The decision is reasonable. The applicant’s procedural fairness rights were not violated.
Analysis: This case demonstrates how the record on judicial review can legitimately impact whether a decision is reasonable. As the Court recognizes, it cannot “…pick up Health Canada’s pen an effectively write supplemental reasons supporting Health Canada’s decision” . This is an inheritance of Vavilov. However, a Court can look to the record to enrich the final decision, or put it in context. This is a fine line: the record should not be used to provide new reasons for decision, but can be used to understand a final decision.
This case presents a good example. Here, “the Applicant and Health Canada engaged in a detailed exchange of submissions and prelimintary determinations prior to the release of Health Canada’s final decision” . During the course of these submissions, Health Canada raised concerns, some of which “were addressed and remedied by the Applicant, whereas others were not addressed or were rejected by the Applicant” . The Minister’s final decision also incorporated some of the reasons adopted in this earlier correspondence . For that reason, the Applicant’s argument that it could not trace the logic of the decision is simply untenable. Where the record indicates a chain of events, and that chain of events gives context to a decision, it is appropriate to look to the record. This is not done to replace a decision but to better understand it, especially in a case like this, which envisions a two-way dialogue before a final regulatory decision.
Canada Fluorspar (NL) Inc v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Workers International Union, Local 9220, 2022 NLCA 21 (April 7, 2022)
Category: Application of reasonableness standard
Context: The applicant Pipefitters Union sought certification as the bargaining agent for Canada Fluorspar before the Labour Relations Board. The Steelworkers Union was granted intervenor status, because it asserted that it had “successor rights” as the bargaining agent for the employees. This is because of a “transfer” of the business , which requires the Board to determine if the Steelworkers’ Union retained successor rights. The Board rejected both applications. On judicial review, the judge upheld the Board’s decision respecting the Pipefitters Union, but set aside the decision dismissing the Steelworkers’ Union claim to successor rights.
Issue: Are the decisions reasonable?
Holding: The NLCA upheld the Board’s decision respecting the Steelworkers Union, and agreed that the Pipefitters Union appeal should be dismissed. Therefore, the Steelworkers Union is the successor bargaining agent.
Analysis: The Court finds fault with the judicial review judge’s application of the reasonableness standard. Prior to Vavilov, it was common for judges—especially SCC judges— to fall into “disguised correctness review”: the nominal application of the reasonableness standard with the actual application of the correctness standard. The “reasons-first” approach from Vavilov is designed to avoid these sorts of situations, and in many cases post-Vavilov, it has. However, here, the NLCA concludes that the judicial review judge was “usurping the role of the Board and imposing his view of the correct analysis…” . This was because the judicial review judge essentially re-weighed the factors the Board considered as to whether the Steelworkers Union was a successor bargaining agent . The Board, specifically, ignored the holistic assessment of the factors the Board was mandated to consider. Since the Board was delegated power to make a decision on the merits at first instance, the NLCA concluded that the judicial review judge erred in his analysis of the reasonableness standard.
YUDC v Information and Privacy Commissioner, 2022 ONSC 1755 (April 1, 2022)
Category: Selection of standard of review (central questions)
Context: Two York professors sought records from York and the York University Development Corporation [YUDC] related to renovations to two university properties. The issue at hand is whether, under s.10(1) of the Freedom of Information and Protection of Privacy Act [FIPPA], the records are “in custody or under the control of” an institution that is subject to FIPPA; York is, but YUDC is not . It is a separate corporate entity . An Information and Privacy Adjudicator denied a request for reconsideration, brought by York and YUDC, of a decision which ordered the production of records.
Issue: What is the standard of review?
Holding: The standard of review is reasonableness and the decision is reasonable.
Analysis: YUDC and York argued that the standard of review on the interpretation of s.10(1) of the FIPPA is correctness, because the issue raises a question of law of central importance to the legal system under Vavilov. The Court says that this alleged question concerns “separate corporate personality” . In my view, the Court rightly rejects this invitation to recognize a new central question. A reminder that most of the central questions recognized by courts pre and post-Vavilov have concerned either (1) a question which transcends the statute and/or (2) a constitutional or quasi-constitutional issue (see Portnov v Canada (Attorney General), 2021 FCA 171 at para 13; see also Issue #31). This question concerns FIPPA, and FIPPA alone. The same goes for another attempt by York and YUDC to raise a central question with respect to the onus of proof on a “reconsideration” .
Whissell c. Tribunal adminstratif du travail du Québec, 2022 QCCS 1113 (April 4, 2022)
Category: Application of reasonableness standard
Context: This is a decision of the Tribunal administratif du travail du Quebec [TAT], which found that Whissell’s claim for compensation to the SAAQ was out of time. The TAT had discretion to allow the claim regardless if a person demonstrates a reason to explain the delay .
Issue: Is the decision unreasonable?
Holding: The decision is unreasonable.
Analysis: This case is a good example of how a decision can fail the reasonableness standard.
As we have seen before (see e.g. Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 at paras 51-52), a failure to properly account for a statutory purpose will render a decision unreasonable under Vavilov. This case, in principle, shows how this is so. The Court finds here that, though the purpose of the legislation is ameliorative (ie to provide compensation), the TAT deprived her of that compensation. No reasons were provided for this departure from the statutory purpose [30-31]. While it does not follow that because the statute is purposively ameliorative, compensation is presumptively required (see e.g. Hillier v Canada (Attorney General), 2019 FCA 44 at paras 25-26), a failure to explain the statutory purpose by the TAT is a recognizable failure of reasonableness.
The TAT failed to take into account the impact on Whissell, who would be denied compensation indefinitely [41 et seq].
In whole, this case is a good example of the sorts of errors that might cause a court to find a decision unreasonable.
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: “Folks are usually about as happy as they make their minds up to be”: Abraham Lincoln