Issue #45: June 19, 2022
Patent unreasonableness, rights of appeal, questions of central importance, reasons, Charter jurisdiction
Greetings SEAR readers. This newsletter covers cases from both this week and last week that I think are important. Many thanks to all the readers who wrote last week with condolences about the loss of my grandfather. Your well-wishes are so much appreciated.
Mark
Ontario (Health) v Association of Ontario Midwives, 2022 ONCA 458 (June 13, 2022)
Category: Selection of the standard of review (patent unreasonableness)
Context: This is a decision of the Human Rights Tribunal of Ontario (HRTO). The Association of Ontario Midwives alleged systemic gender discrimination by the Ministry of Health and Long-Term Care. From the period of 2005-2013, the Adjudicator found the Ministry liable for discrimination under the Human Rights Code. In a separate decision, the Ministry made certain compensatory remedial orders [5]. The Ministry sought judicial review. Its application was dismissed. The Ministry appealed.
Issues: (1) What is the standard of review of HRTO decisions post-Vavilov? (2) are the decisions reasonable?
Holding: The standard of review is reasonableness. The decisions are reasonable.
Analysis: As readers of the SEAR know (see Issues #13 and 14), the HRTO has continued to argue post-Vavilov that their decisions are reviewable on a patent unreasonableness standard (following the explicit text of s.45.8 of the Human Rights Code). Vavilov could provide support for this position: it says that “[a]ny framework rooted in legislative intent must, to the extent possible, respect clear statutory language that prescribes the applicable standard of review” (Vavilov, at para 34). However, in Shaw v Phipps, 2010 ONSC 3884 (aff’d 2012 ONCA 155), the Divisional Court applied the reasonableness standard to a decision of the Human Rights Tribunal, in part relying on Dunsmuir v New Brunswick, 2008 SCC 9. The thinking is: (1) there is no “meaningful way in practice of distinguishing between a patently unreasonable and an unreasonable decision” (Shaw v Phipps, at para 41); (2) there is a rule of law problem with upholding decisions that are irrational, but not irrational enough under the patent unreasonableness standard.
The Court in Midwives concludes that Shaw v Phipps is “entirely consistent with Vavilov.” The idea, endorsing the view of Paul Daly, is that “the goals of patent unreasonableness can be achieved through the application of the reasonableness standard” [77, see Paul Daly, “Patent Unreasonableness After Vavilov” (2021) 34 Can J Admin L & Prac 167, 175-76].
I agree that this is a cleaner way to proceed, and that the HRTO’s position did not have much chance of success. Implicitly, the Court seems to accept that a legislated standard of review—in this case patent unreasonableness—must give way to the principle of the Rule of Law. The patent unreasonableness standard was dispatched in Dunsmuir because it might shelter otherwise unreasonable decisions from scrutinty. Vavilov seems to gesture at the possibility that legislated standards of review can be blunted by the principle of the Rule of Law: see Vavilov, at para 35. Practically, the reasonableness standard can handle any specific concerns that were live under the patent unreasonableness standard.
Nagy v University of Ottawa, 2022 ONSC 3399 (June 8, 2022)
Category: Selection of the standard of review (general questions of central importance)
Context: This is a decision of the HRTO dismissing Nagy’s judicial review application as an abuse of process. The Tribunal held that Nagy had “unfairly split his case” by not raising issues of discrimination before university committees where he appealed his suspension from a program, and instead raising them for the first time before the Tribunal.
Issue: What is the standard of review?
Holding: On the question of abuse of process, the standard of review is reasonableness.
Analysis: In Toronto (City) v CUPE, 2003 SCC 63, the SCC held that the body of law governing relitigation of issues “finally decided in previous judicial proceedings” stands at the heart of the administration of justice, and accordingly, that the correctness standard applies (CUPE, at para 15). While this holding was reached under the previous law governing the “general questions of central importance category” (which required that an issue also be outside the expertise of a decision-maker), pre-Vavilov, it was relatively clear that res judicata and other issues pertaining to relitigation should be reviewed on a correctness standard.
The Court here says that CUPE does not survive Vavilov, and that the question of abuse of process should be reviewed on a reasonableness standard [10, 14]. It says that this is because (1) “…the Supreme Court made it clear that it was revising the framework of judicial review of administrative bodies”; and (2) “[i]t also made clear that the starting point was the legislature’s intent, not the expertise of the tribunal” [10].
In my view, this conclusion is underdeveloped in Nagy, but I think the underlying thought in the case can be justified. On one hand, nothing in Vavilov undermines CUPE—the abuse of process doctrine does broadly engage the administration of justice, and could transcend particular statutes. And the fact that expertise is no longer a factor to consider does not weigh against the application of the correctness standard; rather, one might say it makes it easier to find that a certain issue is beyond the ken of the administrator and should be reviewed on a correctness standard.
But in my view there are important differences between CUPE and this case. Note that, Charron J in CUPE, above, framed the issue as one pertaining to issues finally decided in previous judicial proceedings. Additionally, as LeBel J noted in CUPE, “the application of correctness here is very much a product of the nature of this particular legal question: determining whether relitigating an employee’s criminal conviction is permissible in an arbitration proceeding is a question of law involving the interpretation of the arbitrator’s constitutive statute, an external statute, and a complex body of common law rules and conflicting jurisprudence” (CUPE, at para 70). In CUPE, the issue is a criminal conviction being relitigated in an administrative forum, and the detrimental effects that might flow from casting doubt over that conviction. In Nagy, the issue is apparent relitigation of issues as between two administrative bodies. The problem is not the impugning of a criminal conviction; it is whether Nagy is colourably attempting to frame his case as one of discrimination when those arguments may have already, in substance, been dealt with.
Maybe this is a distinction without a difference. But I can see the argument in Nagy for a reasonableness standard, because in this case, the issue of abuse of process pertains not to the integrity of a judicial process, which might engage the need for a correctness standard, but rather the integrity of the Tribunal’s process, over which it is master (see Prassad v Canada (Minister of Employment and Immigration), [1989] 1 SCR 650 at 569). So while the Court in Nagy may be on solid ground, more is needed to demonstrate so.
Yendamuri v Immigration Consultants of Canada Regulatory Council, 2022 FC 888 (June 14, 2022)
Category: Application of the reasonableness standard (adequacy of reasons)
Context: Yendamuri, who was an immigration consultant, sought judicial review of a decision of the Disciplinary Committee of the Immigration Consultants of Canada Regulatory Council (ICCRC). That decision imposed disciplinary measures on Yendamuri for breaching the ICCRC Code of Professional Ethics. The core issue, from a few different perspectives, is whether the reasons for decisions survive the reasonableness standard.
Issue: Is the decision reasonable?
Holding: Yes
Analysis: This decision contains a few items of note on adequacy of reasons under the reasonableness standard. The Applicant here focused on what I consider to be the dominant trend post-Vavilov: a heightened standard for the adequacy of reasons, and a need for decision-makers to adapt accordingly. Here, the Court acknowledges this position, and as far as it goes, agrees with it [23]. But the Court also notes that Vavilov “contains several other key elements.” Some of these include: (1) reasons need not be perfect [26]; (2) reasons need not be written in lawyerly prose [31]; and (3) errors need to be material to undermine the entirety of the decision [39: “The Disciplinary Committee’s reasoning stands even if paragraph 60 is deleted from the Decision”]. As far as it goes, this is all true and important. Nonetheless, none of this undermines the central point, which is that in appropriate cases, reasons can be inadequate because they fail to address the appropriate Vavilovian constraints.
One point: the Court notes that the Disciplinary Committee “is part of the apparatus of the regulatory body that sets the standards and governs the conduct of Immigration Consultants. It is not solely comprised of lawyers, and the expertise and experience it brings to the task goes beyond that which legal practitioners or judges will generally possess” [25]. Flowing from this, the Court notes that administrative penalty decisions should only be overturned if “demonstrably unfit” [25]. It also concludes that it need not be determined whether this approach is sound post-Vavilov [25]. But for reasons I’ve stated before, and when the time comes, I think this approach should be assimilated to the Vavilov framework. For one, expertise is no longer a presumptive reason for deference, so it need not matter that the Disciplinary Committee is expert or not, unless it demonstrates so in a particular set of reasons, as applied to a particular set of issues. And any bespoke or specific standards of review governing particular areas: regulations, administrative penalties (as here), etc. should be assimilated to the Vavilov framework. The approach to regulations is heading in this direction, and so should administrative penalties (see Portnov v Canada (Attorney General), 2021 FCA 171). Vavilov, if anything, was a simplifying exercise, and its ambit stretches broadly.
Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446 (June 7, 2022)
Category: Scope of appeal rights/judicial review
Context: Yatar brought both an appeal and an application of judicial review in relation to a decision of the Licence Appeal Tribunal, which administers statutory accident benefits. The Divisional Court dismissed the appeal, holding that Yatar had not identified a question of law, which is required on appeal [22]. On the application for judicial review, the Divisional Court held that only in “exceptional circumstances” would judicial review be available where there is a statutory right of appeal. The Divisional Court also offered additional reasons, internal to the statutory scheme, to justify the refusal to proceed with judicial review.
Issue: Did the Divisional Court properly refuse judicial review?
Holding: Yes, but the Divisional Court’s framing of the test as “exceptional circumstances” is not the proper articulation of the test.
Analysis: A very interesting case about the interaction between rights of appeal and judicial review. I think there are two issues here: (1) the actual substantive law that governs the distinction between appeals and judicial review; and (2) the articulation of that law—the test.
On (1), we know that Vavilov held that the existence of a right of appeal does not preclude a judicial review application on issues that are not covered by the right of appeal (Vavilov, at para 45). This is coupled with the basic point that legislatures can limit the scope of judicial review within constitutional limits (those limits are outlined in Crevier v AG Quebec et al, [1981] 2 SCR 220). Those limits have been understood, in at least one sense, as preventing immunization on the basis of fundamental legality (see Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 at para 102). Put differently, judicial review is always available on fundamental legality. Additionally, statutes can extend or limit rights of judicial review with this fundamental constitutional limit in mind (see below the ON Judicial Review Procedure Act).
But the question is what, specifically, these constitutional limits entail, and here the ONCA seems to part ways with what is going on in the Federal Court of Appeal: see Canada (Attorney General) v Best Buy Canada, 2021 FCA 161, Issue #4). In that case, Gleason JA seemed to suggest that Vavilovian reasonableness, on a broader range of factual and mixed-fact-law questions (as opposed to just fundamental legality), may be constitutionally protected (see Best Buy, at paras 71, 100 et seq, and 118). Near JA took a narrower view, concluding that, in the context of the scheme at hand, the appeal right clearly ousted the ability of the court to review factual issues and mixed-fact-law issues (Best Buy, at para 46).
Here, the ONCA seems closer to Near JA’s view, which was the minority in the FCA. The ONCA concludes that “judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case” [45]. What these “rare cases” may be is left unanswered. Needless to say, there is no broad right to judicial review over everything at all times, even matters of great importance, as essentially advanced by some interveners in Yatar—such an argument “ignores the fact that the legislature has the right, through legislation, to restrict appeal rights” [46]. While the door is left open to factual review in distinct cases (as we shall see, as a result of the legislation in Ontario)—there is no constitutional hue to Vavilovian reasonableness on fact and mixed fact and law in Yatar.
But on (2), the Divisional Court’s articulation of the test was clearly wrong. The Div Ct said that judicial review is only available “if at all” in exceptional circumstances. As the ONCA says, this is not quite right: s.280(3) of the Insurance Act, coupled with s.2(1) of the Ontario Judicial Review Procedure Act, seems to contemplate a right to judicial review [40]. Nonetheless, judicial review remains discretionary, and if the appeal right is inadequate in particular circumstances, an applicant can take advantage of judicial review. But as a matter of reality, in most cases, the statutory appeal will be adequate for factual issues [42]. While this captures the spirit of the Div Ct decision in Yatar, there is no need for an arguably higher bar of “exceptional circumstances.”
Stadler v St Boniface/St Vital (Director), 2022 MBCA 56 (June 14, 2022)
Category: Administrative/constitutional jurisdiction
Context: In this case, the Social Services Appeal Board of Manitoba decided that it did not have jurisdiction to consider Charter arguments in making decisions under its enabling statute, specifically relating to whether the Director infringed Stadler’s Charter rights by forcing him to apply early for Canadian Pension Plan benefits.
Issue: Did the Board properly conclude that it lacked jurisdiction to consider Charter rights?
Holding: Yes.
Analysis: This case is a short reminder: it is appropriate for legislatures to limit a decision-maker’s ability to consider Charter arguments. Here, the appellant attempted to creatively argue that there may be constitutional issues with a legislature attempting to remove Charter jurisdiction from a decision-maker [16, though this argument was not properly before the MBCA], or that the administrator should have interpreted the provision withdrawing jurisdiction in a certain way [17]. Administrators can take provisions that expressly withdraw Charter jurisdiction at face value: “The Board did not err by not attempting to look behind the facial validity of that provision to assess its constitutionality—an act specifically prohibited by the provision itself” [19].
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:
My name is Ozymandias, King of Kings;
Look on my Works, ye Mighty, and despair!
Nothing beside remains. Round the decay
Of that colossal Wreck, boundless and bare
The lone and level sands stretch far away.
Percy Shelley, “Ozymandias”