Walker v Alberta (Election Commissioner), 2022 ABQB 499 (July 20, 2022)
Category: Selection of the standard of review (procedural fairness)
Context: Walker contributed $800 over the statutory political contribution limit of $4000 set out in the Election Finances and Contributions Disclosure Act [EFCDA]. He was given an administrative penalty of $1600. In the letter advising Walker of the penalty, the Office of the Election Commissioner applied each of the seven factors noted in the EFCDA to apply the appropriate penalty.
Issue: What is the standard of review? Did the Commissioner fetter their discretion when they applied the maximum penalty to all over-contributions?
Holding: (1) The standard of review on the fettering question is correctness [25]; (2) though the case was decided on other grounds, if it was necessary, the Court would have concluded that the Commissioner fettered his discretion by applying the maximum penalty as a matter of course [50].
Analysis: On the standard of review, and though Walker was presumably argued before Law Society of Saskatchewan v Abrametz, 2022 SCC 29, Abrametz would be decisive of the standard of review question because this case arose under a statutory right of appeal [17]. The main issue was whether the Election Commissioner fettered his discretion by applying a maximum penalty as a matter of course. As the Court notes, the orthodox position is that fettering is an issue of procedural fairness (though the parties did not argue it this way, see para 41), and the standard of review would be correctness [23]. However, after Abrametz, this issue of procedural fairness would be covered by the right of appeal, subject to appellate standards (see Issue #48).
Nonetheless, without considering Abrametz, we get a discussion here of the debate over standard of review on procedural fairness issues in judicial review. The Court notes the authorities that have applied a reasonableness standard to procedural fairness issues, specifically fettering [24], though it ultimately adopts the orthodox position of correctness. The weight of authority at this point supports that choice.
However, and for my part, the case shows why “correctness” is sometimes an ill-fit when it comes to issues of procedure. Consider the case of Delta Air Lines v Lukacs, 2018 SCC 2, cited by the Court. In that case, the particular issue—at bottom—was an interpretation of a power apparently granted by statute. The discretion at issue was one related to the grant of standing. Though standing is a “procedural” issue, the Court treated it as a statutory interpretation issue—(ie) is the Agency’s test for standing, as articulated, consistent with the statute? In that case, the Court concluded that the Agency’s interpretation was per se an unreasonable interpretation of the statutory power (see also e.g. Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at para 24). Similarly, in Walker, it was the fixation on a maximum penalty unsupported by the statutory factors. At least in these cases, however we define and categorize the issue, I am not sure it matters from a standard of review perspective. They involve issues of legislative interpretation, and one should ask whether it fundamentally changes the court’s posture on review for the issue to be classified as “procedural” or “substantive” (of course, the sort of right at issue in each case—procedural or substantive—will and should matter for the purposes of reasonableness review).
United Steel Workers (Local 2251) v Algoma Steel Inc, 2022 ONSC 4011 (July 15, 2022)
Category: Application of the reasonableness standard & remedy
Context: This is a labour arbitrator award dismissing the Union’s grievance.
Issue: Is the award reasonable, and if it is not, what should be the remedy?
Holding: The award is unreasonable, and the matter should not be remitted.
Analysis: On the analysis of the reasonableness of the award, we see the application of Vavilov’s strong reasonableness standard in a place we might least expect it: labour arbitration. As I have pointed out before, in immigration & refugee cases, Vavilov’s reasonableness standard is doing much work to prevent rote boilerplate and under-reasoned legal conclusions. This is for the best.
The same conclusion should apply to labour arbitration where the circumstances warrant it. Here, the Court issues a broadside against boilerplate in labour arbitrations:
[38] Conclusions on disputed central issues without any reasons or logical underpinning cannot be justified, transparent, or intelligible. When issues of central importance are met simply with conclusions without explanations, the conclusions will appear unjustified and unintelligible. Transparency requires some roadmap of how the arbitrator travelled from problem to conclusion. There is no such guidance in the award.
On remedy, the Court remits to a new arbitrator [42]. While Algoma pleaded cost-effectiveness as a reason to remit to the same arbitrator, this case provides a useful summary of the sorts of considerations that would cut against a remittal to the same arbitrator [41]. Here, the basis on which the decision was unreasonable matters: “…the arbitrator’s repeated summary conclusions require this court to be concerned about the arbitrator’s ability to divorce himself from decisions already reached and to consider the matter afresh” [41]. For advocates, I would save this case as an example of the considerations that can be weighed on remedies in judicial review.
Pereira v Hamilton Police Services Board, 2022 ONSC 4150 (July 20, 2022)
Category: Application of the reasonableness standard
Context: This is a decision of the Human Rights Tribunal of Ontario [HRTO] to deny Pereira’s late request to reactivate her application under the Human Rights Code against her employer. The application was deferred due to other legal proceedings involving the parties, but Pereira’s request to reactivate the application was 40 days late—after the 60-day timelimit in the Tribunal’s Rules— due to counsel inadvertence [1]. The HRTO denied the request to reactivate, concluding that s.34(2) of the HRTO (statutory test for late original applications) applied to bar the application.
Issue: Is the decision reasonable?
Holding: No.
Analysis: The Tribunal made two errors here. First, it imported the test for original applications set out in s.34(2), rather than the broader test under the Rules [33]. Second, in so doing, the Tribunal refused to consider the issue of prejudice to either party [35-36, 39].
For the Court, this was an error of statutory interpretation. Consideration of prejudice is a factor that, for the Court, runs through the Human Rights Code and the common law [35]. This is a binding constraint on the Tribunal’s discretion, wide as it is, narrowing the range of possible results available to it. Under Vavilov, ignoring this binding constraint—the purpose of a time limit extension in the Rules, which necessarily involves a consideration of prejudice—leads to an unreasonable interpretation of law, even where the discretion vested is broad [34]. This just reinforces a fundamental principle of the law of judicial review, endorsed in Vavilov: every grant of authority has limits. There is no such thing as an unrestricted delegation, even when it appears that way.
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.
