Elementary Teachers Federation of Ontario v York Region District School Board, 2022 ONCA 476 (June 21, 2022)
Category: Selection of the standard of review (Doré)
Context: In this case, a school Principal took screenshots of a “log” kept by a contract teacher about workplace concerns. The Principal, then, on the Superintendent’s instructions, confiscated the laptops of the contract teacher and another teacher who had access to the log. The Principal also forwarded all of the material he captured to the Board. In response, the Board issued letters of discipline to the grievors for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice. Specifically, “[t]he letters referred to the fact that the grievors had used Board technology to access and maintain a log during Board time and had made approximately 100 entries about the principle and another teacher” [13]. A reprimand was placed on their file for three years.
The union filed a grievance which proceeded to arbitration. The sole issue was whether the grievors’ “right to privacy” had been breached. The arbitrator ultimately found that, for a number of reasons, the grievors’ expectation of privacy was not breached. Specifically, the arbitrator found that the principal had a duty to maintain order and discipline in the school under the Education Act, and that these circumstances justified his actions.
At the Divisional Court, the Court agreed with the arbitrator. The Court noted that the onus on the challenging union was “particularly difficult to satisfy” because of “two levels of deference.” As the Court of Appeal recounted, the Divisional Court said that “not only is the decision protected by the ‘reasonableness’ standard, but it must be kept in mind that the Arbitrator was only required to determine whether the actions of the Board constituted a reasonable search” [29]. Based on this deference, the Divisional Court found that the principal’s actions were founded in the legislative duty to maintain order, even though it “may be true” that the grievors’ log was not evidence of a crime or breakdown in safety or discipline [27]. The Divisional Court also concluded that none of the searches violated a reasonable expectation of privacy, and specifically that the grievors did not have the right to the protection of s.8 in their workplace [71].
Issue: What is the standard of review, and does the decision satisfy that standard?
Holding: The standard of review on whether the grievors had a reasonable expectation of privacy is subject to review for correctness [44]. The Court concluded that the Divisional Court erred in concluding that there was no reasonable expectation of privacy. The Court also concluded that the expectation of privacy was breached in this case.
Analysis: An interesting question arises here involving Doré v Barreau du Québec, 2012 SCC 12. At the Divisional Court, and in a dissent, Justice Sachs concluded that the Doré framework was appropriate in this case, concluding that the arbitrator was required to balance the s.8 Charter rights against the statutory objectives at play [30].
But the ONCA, rightly in my view, concludes that Doré is simply inapplicable in this sort of case. The ONCA persuasively notes that “[g]iven that the arbitrator misunderstood s.8, she could not balance s.8 Charter values with the statutory objectives” [32]. What’s more, in this case, the object of the challenge was not the exercise of discretion by the arbitrator, which would invite the Doré analysis: rather, it was whether the school board’s sanctioning of the search, based on the evidence collected, was justified in the circumstances. The arbitrator merely had to decide whether there was an expectation of privacy and whether it was breached. If it was, the Court says that the only question was whether the evidence should be excluded under s.24(2) of the Charter [44]. In this case, then, the school board is akin to a police officer or other state agent that conducts a potentially unlawful search, though of course there are contextual differences [3].
I think this is right. Doré is triggered when an administrative, discretionary decision impacts Charter rights. This is not strictly the case here. However, it is not out of the realm of possibility for one to think that Doré applies here, if one is concerned about efforts to “eat away” at Doré’s domain. Justice Sachs applied it in dissent at the Divisional Court, and those inclined to see Doré as a sort of all-encompassing approach to any “administrative” decision that could engage any constitutional right may be more inclined to think it applies here. Nonetheless, I think Doré should be taken for what it is—a framework for analyzing discretionary decisions. Though the judicial review pertained to the arbitrator’s decision, the attack was to the search itself.
Cliff v Canada (Attorney General), 2022 FC 930 (June 21, 2022)
Category: Application of the reasonableness standard (adequacy of reasons)
Context: Cliff, a prisoner, was charged with a disciplinary offence “for being in possession of, or dealing in, contraband, contrary to the Corrections and Conditional Release Act” [1]. After a lawful search, two jail-made weapons and a key were found in the leg of his bed that was not bolted to the floor. An Independent Chairperson [ICP] who presided over the administrative trial found Cliff guilty of possessing contraband, and fined him. Cliff sought judicial review.
Issue: Is this decision reasonable?
Holding: No.
Analysis: The Court skewers this decision on the grounds that the reasons are so deficient that “a reviewing court cannot conduct reasonableness review of central aspects of the ICP’s decision [10, see also the Federal Court of Appeal’s statement on judicial review of prison decisions in Sharif v Canada (Attorney General), 2018 FCA 205 at para 13. The specific problem was that the ICP did not explain “how the surrounding facts here establish the Applicant’s guilt beyond a reasonable doubt” [11]. Specifically:
Mr. Cliff moved into a cell for which there is no log to show that it was searched by the institution beforehand, and he occupied the cell for about 30 days before the cell was searched lawfully and the contraband was discovered in the bed legs. In addition, there is no evidence to establish whether Mr. Cliff had the necessary tools or means to remove or add the bolts needed for securing the bed to the floor.
In addition to this, the ICP provided “no insight how the standard of proof was met in this case” [17], specifically in light of the institution’s arguments that a finding in favour of Cliff “would be basically condoning somebody for finding a very good hiding spot” [13]. While the Court accepts that deterrence may be in the institution’s interests, it cannot provide a reason in this instance to show that the standard of proof was met.
As I have written before, Vavilov seems to be making a difference in contexts like this—so-called “front-line” contexts where the administrator is dealing with an individual, and the decision arguably interferes with protected rights and interests. Courts are expecting decision-makers to connect the dots in relation to the relevant Vavilovian constraints. In this case, the standard of proof set out in the precedents is such a constraint, and the decision-maker’s lack of engagement with that constraint makes this decision understandably unreasonable.
Levett v Canada (Attorney General), 2022 FCA 117 (June 17, 2022)
Category: Selection of standard of review (Doré)
Context: In this case, the appellants sought judicial review relating to three “requests for information” sent by the Canadian Revenue Agency [CRA] to the Swiss Federal Tax Administration. Among other things, the appellants alleged that the CRA “exceeded what it was allowed to communicate to the Swiss authorities” [44]. They argued that the CRA failed to balance its Charter rights—ss.7 and 8— with the applicable statutory objectives [9, 49].
Issue: Is Doré applicable?
Holding: No.
Analysis: There are a number of issues in this case, but I want to focus on the Doré issue. The Court concludes here that Doré is not applicable because ss.7 and 8 of the Charter are not engaged by the issuances of the requests for information. Given that they were not engaged, there was “no need to embark in the balancing exercise set out in Doré…” [49].
One wonders whether this is consistent with Doré. As I have argued before, Doré does not mention a standalone analysis to determine whether a Charter right is engaged; the sort of analysis that applies when a litigant challenges legislation under the Charter. For example, Doré did not consider whether the typical test for s.2(b) of the Charter (the right at issue in Doré) applied on the facts. While this may be because it was obvious in Doré, that case merely mentions that an alleged Charter value—not the right—must be subject to a balancing. And this was, apparently, for good reason: what was envisioned in Doré was a “more flexible administrative approach” that did not depend on special legal tests (Doré, at para 37). That said, the Supreme Court has not been consistent on this, and has done what the FCA did here, applying the traditional tests associated with freedom of religion, for example: see Law Society of British Columbia v Trinity Western University, 2018 SCC 62 at para 37.
My answer to this and the other confusions with Doré , as I have said before, is to simply re-evaluate the approach in a future case. Until then, we should at least point out that Doré is not applied consistently.
Ceguerra v Canada (Citizenship and Immigration), 2022 FC 910 (June 16, 2022)
Category: Application of reasonableness standard (adequacy of reasons)
Context: This is a judicial review of a decision made by a Senior Immigration Officer, rejecting the applicant’s permanent residence application made on humanitarian and compassionate grounds. Ceguerra is a citizen of the Philippines “who identifies as an out lesbian,” and sought relief based on the many difficulties and discrimination faced in the Philippines “particularly as an acknowledged lesbian seeking employment” [4].
Issue: Is the decision reasonable?
Holding: No.
Analysis: This case really presents the same point that Cliff makes, above, but I wanted to quote directly. If you practice in immigration and refugee law, this is a very good and useful summary of what I’d call the emerging position on these kinds of applications, at least in the Federal Court:
[55] The Decision is a set of factual statements, summaries of arguments and peremptory conclusions made without any clear weighing or analysis. The reasons do not help the Court to understand the rationale underlying the decision. Nor does review of the underlying record provide any assistance in that respect, as the reasons do not engage with much of the evidence in the record.
[56] Reasons that simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion, as is the case here, will rarely assist a reviewing court to understand the rationale underlying a decision. They are no substitute for statements of fact, analysis, inference and judgment: Vavilov at para 102.
[57] Officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 25. The Officer’s reasons do not show that this was done, particularly in light of the extensive affidavit evidence of the Applicant and documentation that is not addressed in the Decision.
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: “Life is a long lesson in humility”—James M. Barrie