Issue #5-August 15, 2021
Canada (Public Safety and Emergency Preparedness) v Gaytan, 2021 FCA 163 (August 12, 2021)
Context: The Minister appealed a Federal Court decision that held that the Immigration Division and Immigration Appeal Division were legally entitled to “consider the criminal law defence of duress when assessing whether a permanent resident or a foreign national is inadmissible to Canada for being a member of a criminal organization or for engaging in criminal activities of said organization”: s.37(1)(a) of the IRPA.
Holding: On appeal, the Court (per LeBlanc JA) agreed with the Federal Court, rebuffing the Minister’s argument that s.37(1)(a) vests an exclusive power in the Minister to consider criminal law defences in the inadmissibility analysis. The Court held that the standard of review on the question of duress was reasonableness.
Analysis: This is a decision with obvious ramifications for practice before the ID and IAD, but the Court had to deal with a somewhat bespoke standard of review issue: is the duress issue a “jurisdictional boundary between two or more administrative bodies” (the Minister and the IAD) that attracts a correctness standard under Vavilov? The Court left this question for another day, but ventured that this exception is most relevant where there are two separate statutory regimes nourishing two different decision-makers, and the question concerns the line between these decision-makers [24]. I think the Court’s obiter comments are easily justified by the Rule of Law concerns underlying the various correctness exceptions, which are concerned with ensuring consistent judicial answers where required (Vavilov, at para 53). As we know from the “general questions” category, courts are most willing to apply that exception where some issue has a wide impact on a number of statutory regimes (see, ex, Vavilov, at para 59). The same logic applies here. A potential conflict between decision-makers in one statute is not sufficient to engage the Rule of Law concerns undergirding the Vavilov majority’s correctness categories. Indeed, a judicial review court, under the reasonableness standard, can easily apply the principles of interpretation to minimize conflict within a particular statute (the presumption of coherence, for example, is such a defeasible tool).
Zaki v University of Manitoba, 2021 MBQB 178 (August 6, 2021)
Context: Zaki was a medical student at the University of Manitoba and a Coptic Orthodox Christian. He wrote three posts on Facebook that the Court characterized as “pro-gun and pro-life” [7]. 18 anonymous complaints were received about the posts raising “concerns about the applicant’s professionalism” [11]. Zaki was expelled for the posts, and the ultimate decision-maker, the University Discipline Committee, upheld the expulsion. Zaki sought judicial review, arguing among other things that the decision infringed his Charter rights, but the Committee concluded that it lacked “jurisdiction” to consider the Charter complaint [127].
Holding: The Court concluded that the Charter applied to non-academic student discipline in the university [154]. On this point, the Court concluded that, given the Committee’s conclusion on jurisdiction “it is impossible to review and improper for me to conduct the balancing exercise” required by Doré v Barreau du Quebec, 2012 SCC 12.
Analysis: It will be interesting to see if courts begin to become more creative in subjecting various aspects of university life to Charter scrutiny. Zaki holds that the Charter applies to the university, but only in respect of “non-academic discipline” which is plausibly “in furtherance of government policies” [154]. This is not to say that the universities are part of the government apparatus, as required by McKinney v University of Guelph, [1990] 3 SCR 229. Rather, it is simply to say that in implementing various statutes, the university is “acting as an agent of government” [168, see also Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624]. This piecemeal approach to Charter applicability is probably due to the various, sometimes confusing branches of Charter applicability the SCC has set out for s.32.
More interestingly, Zaki picks up on a theme that Vavilov invites: the function of reasons-giving prevents the evil of “immunization” of administrative decisions: see Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 at paras 104-106). However, Doré itself was rather silent on the bar required for administrators to jump to demonstrate that they adequately considered Charter issues, and the Court has seemingly endorsed a low hurdle, requiring only that decision-makers be “alive” to the Charter issues (see Law Society of BC v TWU, 2018 SCC 32 at para 55, though in the context of a Law Society decision). The Court in Zaki, however, concludes that it cannot review the merits of the Charter decision because there were no reasons on it, despite the record disclosing submissions [173]. This, I think, should become a part of the way we assess administrative decisions for their constitutionality; similar to what Vavilov and other cases have done with the idea of “immunization.”
E.Z. Automotive Ltd v Regina (City), 2021 SKCA 109 (August 12, 2021)
Context: EZ Automotive operates an autobody repair shop where it keeps a salvage yard. The City issued an Order that compelled EZ to cease operation of the salvage yard because it allegedly violated the Zoning Bylaw. EZ appealed the Order to the City of Regina’s Development Appeals Board [the Board]. The Board dismissed the appeal but asked the City to specify the number of junked vehicles that could remain. The City and EZ both appealed to the Planning Appeals Committee [PAC] of the Saskatchewan Municipal Board [SMB] under an internal right of appeal. The PAC allowed the City’s appeal and reinstated the original Order, holding that. EZ was granted leave to appeal the PAC decision.
Question and Holding: The question was what internal standard of review should apply as between the PAC, as an “appellate” body, and the Board. The Court held that Vavilov and its holding on rights of appeal do not answer this question, because Vavilov concerns the relationship between courts and administrative bodies [66]. Instead, the Court applied a standard of correctness to questions of law and reasonableness to other questions [94-98].
Analysis: A long decision that confirms two things: (1) Vavilov is not directly relevant to the determination of the internal standard of review; and (2) the normal rules of interpretation apply in determining the internal standard of review (see also: Yee v Chartered Professional Accountants of Alberta, 2020 ABCA 98 at para 32; City Centre Equities v Regina (City), 2018 SKCA 43; Moffat v Edmonton (City) Police Service, 2021 ABCA 183). In general, this makes sense. Vavilov=standard of judicial review.
That said, because Vavilov’s holding on rights of appeal relies on general interpretive principles, those principles should be relevant in the internal context—though this, too, raises problems (note that this is different than saying Vavilov itself applies to the internal standard issue simply because it is concerned with a similar subject matter: this would be a category error, as Prof. Daly points out (see here)). The way appeals are treated in Vavilov hinges on the fact that a legislature is presumed to mean what it says, so the use of the word “appeal” ushers in the appellate standards of review. This presumption was, to be fair, attacked by Abella and Karakatsanis JJ in concurrence in Vavilov. But if this rule is a majority pronouncement of the law, what is good for the goose… “appeal” means “appeal,” so surely this is a strong persuasive factor to consider in determining the internal standard of review, on the basis of the same general principle adopted in Vavilov (and even though administrative regimes may look different). This may not be determinative because appeals come in different shapes and sizes, and legislative language can circumscribe the scope of appeals. But the use of the word “appeal” should, presumptively, mean something.
But there is a problem if this is the case: an extreme version of the “double deference” problem, which the Court in E.Z. Automotive essentially alluded to when discussing questions of law [93-94]. This can occur in different ways. Here, the problem arises because of the stacking of palpable and overriding error review (applied by the judicial review court to the appellate body, appellate body to lower administrative decision) on questions of fact and mixed fact and law. On questions of fact and mixed fact and law, I am not as exercised about this as I would be on questions of law. But this could be a concern for some because it may, as the Court adverted to in E.Z. Automotive, deprive an appellate body of corrective power it may have on the statute’s terms [98]. Practically, does this make a difference? Not sure. But this is a clearly an issue on which more ink will be spilled.
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. Please complement the SEAR with your own research and study. Any mistakes are my own.
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