Law Society of British Columbia v Harding, 2022 BCCA 229 (June 30, 2022)
Category: Selection of standard of review (Doré)
Context: The appellant was found guilty of professional misconduct by a hearing panel of the Law Society of British Columbia (LSBC Panel). The findings were based on statements he made in court in an address to a jury that resulted in a mistrial, and subsequent statements he made to a journalist (see para 32, specifically).
Issue: While there are a few issues in the case, for our purposes, Harding argued that the LSBC “failed to apply the test for professional misconduct with respect to out-of-court statements made by lawyers” set out in Doré by failing “to consider how his statements engaged the Charter value of freedom of expression” [47].
Holding: The BCCA set aside the LSBC Panels’s findings of professional misconduct.
Analysis: Here, the BCCA joins some other courts in concluding that a failure to consider Charter rights at all cannot survive judicial review (see e.g. Canada (Attorney General) v Robinson, 2022 FCA 59, Issue #37). On this point, there should be little controversy, especially after Vavilov, which instructs us that courts cannot, themselves, supplement such deficiencies.
On the issue of the standard of review, recall that in Robinson, the FCA put aside the question of how to deal with the standard of review on Doré-type issues. Specifically, it addressed the ONCA’s decision in CBC v Ferrier, 2019 ONCA 1025, which bifurcated the standard of review analysis on Doré-type questions, such that the decision as to whether a Charter right is engaged is subject to review for correctness, but the balancing exercise is reviewed for reasonableness (see here for more information). In this case, the specific problem raised in Ferrier and Robinson does not squarely arise, because the BCCA heard this case under a statutory right of appeal. This means that “[f]ailure by a decision-maker to consider a required factor under a legal test is an extricable error of law subject to the correctness standard” [69, see also Housen v Nikolaisen, 2002 SCC 33 at para 27). Since the identification and consideration of the Charter right is a fundamental factor under Doré, Housen fixes the standard of review as correctness.
Blair v Canada (Attorney General), 2022 FC 957 (June 27, 2022)
Category: Preliminary objections (exhaustion)
Context: This is a motion to strike brought by the AG against Blair’s application for judicial review of a decision of an institutional head at Beaver Creek Institution. Blair had brought a so-called “Faint Hope” application under the Criminal Code, in order to reduce the number of years of imprisonment during which he is ineligible for parole [1]. While this application was pending, the institutional head modified Blair’s security threat group affiliation status, noting him as an active member of a gang. The AG argued that the application is premature because Blair did not exhaust the grievance process available under the Corrections and Conditional Release Act and Regulations. Blair responded that there were “exceptional circumstances” in this case allowing him to bypass the grievance procedure; namely, that the decision may impact his Faint Hope application, and that the grievance process will not be completed in time.
Issue: Is the application for judicial review premature?
Holding: Yes.
Analysis: As I have noted in this newsletter before (Issue #32), in the Federal Courts, the doctrine of exhaustion sets a high bar (see e.g. Dugré v Canada (Attorney General), 2021 FCA 8). Absent truly exceptional circumstances—such as those involving which the writ of prohibition may lie—the delegation of power to an administrative decision-maker should be respected. In contrast to other formulations of the test for exhaustion that may permit deviation from internal procedures in a broader array of cases (see e.g. Simmons v Royal Newfoundland Constabulary Public Complaints Commission, 2022 NLSC 27), the higher bar suggested by the Federal Courts best respects the delegation of power to an administrator.
At the same time, this case shows what exceptional circumstances may mean in the prison context. Here, relying on earlier precedent, the Court concludes that “the potential impact of a decision on an applicant’s prospects of success in a separate ‘Faint Hope’ application does not constitute an ‘exceptional circumstance’ that should permit the applicant to by-pass the obligation to exhaust the alternative grievance process available to him” [50]. I share the view that this sort of situation, in this case, cannot be enough to bypass the high bar: this is because Blair did not advance evidence or otherwise about the “alleged prejudicial impact” of the decision on the Faint Hope application [51]. The cases that could satisfy the high bar are few and far between.
That said, the FCA has left open the door to bypassing an administrative process where the “consequences of an interlocutory decision are so ‘immediate and radical’ that they call into question the rule of law” (Dugré, at para 35, and cases cited therein). To be clear, this is not the all-things-considered, looser standard endorsed by other courts: it is a limited exception. Nonetheless, we can envision situations where an interlocutory grievance decision in a prison context could visit consequences on an applicant that do fall into the sorts of things contemplated in Dugré. For example, in Gates v Canada (Attorney General), 2007 FC 1058, the Court says that “where there are urgent substantive matters and evident inadequacy in the internal procedures,” bypassing the itnernal grievance process is permissible [28]. That case involved cold temperatures in a temporary detention unit, which implicated Correctional Services Canada’s statutory duty to maintain a healthy environment for offenders in penitentiaries. The concerns in that case were quite immediate, relating to “physical or mental harm to an inmate” (Blair, at para 52), and a violation of the law was not speculative. In Blair, the concern is more speculative. Where an immediate concern related to health and safety can be demonstrated, and evidence raised to that effect, courts—even under the higher bar suggested by the Federal Courts—need not insist on exhaustion. After all, even the Supreme Court has raised questions about the completeness, comprehensiveness, and adequacy of the CSC grievance procedure (though in the context of habeas corpus; see May v Ferndale Institution, 2005 SCC 82).
1617312 Alberta Ltd v Edmonton (City), 2022 ABQB 454 (June 30, 2022)
Category: Application of reasonableness of standard (materiality)
Context: This is an application for judicial review of a decision of the City of Edmonton Composite Assessment Review Board [CARB]. The applicant challenges the 2020 municipal tax assessment of its lands.
Issue: Is the decision reasonable?
Holding: Yes.
Analysis: There are a few issues here, including whether the CARB’s departure from internal authority was justified, but for our purposes I want to focus on the issue of materiality. The CARB referred to this as an issue of “zoning,” but as the Court notes, this case involved a subdivision. The Court does not think this is a problem:
[54] However, I must read the Decision as a whole and doing so mitigates the effect of the reference to “zoning” being registered at the LTO. While this was a careless choice of words, I am mindful of Vavilov’s direction that an administrative decision maker’s reasons do not need to be perfect: at para 91. The reference to zoning is an error, but it is not significant enough to render this portion of the decision unreasonable: see Vavilov at para 100
This seems like a scrivener’s error-type situation, and clearly is not material. But you can add this to your list of cases where an error, identified by a court, was not enough to find the 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.
No quote this week, but my wiener dog, Hugo, hopes you had a very relaxing Canada Day weekend.
