Issue #58: September 18, 2022
Procedural fairness, immigration decision-making, Starbucks unions, bias
NAIT Students’ Association v NAIT, 2022 ABKB 611 (September 12, 2022)
Category: Procedural fairness
Context: The student association challenged a decision of the Board of Governors of the Northern Alberta Institute of Technology setting 2021/2022 tuition fees. The student association argued that a tuition fee increase exceeded what was permitted under law; and that the Board did not engage in meaningful consultations with the association, thus breaching a duty of procedural fairness. Under s.8 of the Tuition Fees Regulation, a consultation “mechanism” must be established with the institution’s student councils “to discuss increases to tuition fees adn mandatory non-instructional fees to allow for ongoing input by each students’ council to the budget process relative to the determination of those fees” [21]. Other institution policies also mandated consultation [22-24]. Section 8 (2) of that regulation outlines that a consultation must “include an outline” of the consultation process and “provide for at least two meetings per year” [21].
The student association argued that the common law duty of fairness and the regulation both provided for “a high degree of fairness,” mandating a bi-lateral consultation process [27, 31]. The Board responded that once it had met the requirements under s.8(2), which it did in this case, that exhausted the requirements of fairness, and there was nothing else required.
Issue: Is the decision reasonable and fair? What is the appropriate remedy?
Holding: The decision is reasonable but there was a lack of meaningful consultation. The appropriate remedy is a declaration [4].
Analysis: I specifically want to focus on the issues of procedural fairness and remedy. The Court holds that s.8(2) is not exhaustive of the duty of fairness in this case because it does not define the full scope of consultation, instead only setting necessary, but not sufficient, criteria [35]. Accordingly, the fact that the student association was not provided with “meaningful data” in time to understand the impacts of the tuition model change was fatal [76]. Despite raising concerns about the Regulation, the student association “received a conclusory statement…with no explanation” from a Board delegate [76]. This, to the Court, means that the consultation did not meet the standard imposed by the Regulation, which requires the Board “to engage in a meaningful exchange of information and views regarding tuition fee increases” [43].
As far as I am concerned, I think the Court generally gets this right. The regulation provides for a process of “ongoing input.” That ongoing input, and the interpretation given to the term “consultation” in the case law, means that the student association was not given enough time to meaningfully challenge and raise concerns about the new tuition model. Specifically, once the student association received the data, the record discloses that the Board delegate basically did not respond to the student association’s claim that the new tuition model did not meet the terms of the law. It is true that s.8 imposes a high standard of consultation. But this is an available reading of the regulation, even if the consequences (a relatively high standard of consultation) might appear odd. The Board’s interpretation of s.8, then, is incorrect (or unreasonable…).
That said, the Court’s remedy here is appropriate. It grants a declaration that there was a breach of procedural fairness, and leaves the parties to reach an agreement on what might happen next [122-123]. The Court remains seized of the case if an agreement cannot be reached [123]. However, I do not see what other remedial options are open here. The most that a court could do is remit to the Board to consult with the student association, but the student association does not—rightly so—have a veto over a tuition increase [79]. There is no inevitable result, here. Given concerns about university independence and self-management, as well as the Regulation which spells out some aspects of the consultation process (see e.g. Gitxaala Nation v Canada, 2016 FCA 187 at paras 333-341) it makes sense to issue the declaration and allow the parties to sort it out.
Zoie v Canada (Citizenship and Immigration), 2022 FC 1297 (September 15, 2022)
Category: Application of the reasonableness standard
Context: This is an application for judicial review of the denial of a work permit under the Temporary Foreign Worker Program. An immigration officer was not satisfied that the principal applicant would leave Canada at the end of his stay based on the application material.
Issue: Is the denial unreasonable?
Holding: Yes.
Analysis: The Court finds the decision unreasonable because, among other things, the officer concluded that the principal applicant was unlikely to leave Canada because of a lack of “family ties in both Canada and in his country of residence” [17]. This was despite material filed by the applicant that showed that he had deep ties in Iran, including siblings and parents (and specifically a mother for whom he is responsible) [19]. The Court concludes that “there was an obligation on the Officer to demonstrate that he has considered the Applicants’ family in Iran, and to explain how he weighed the relationships in Canada against the family that was still present in Iran” [21].
I highlight this case because of the language used by the Court: an “obligation” to demonstrate that an officer “considered” something that was raised in the application materials. The language is interesting. Practitioners of immigration law will recall the presumption set out in Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 that a decision-maker is presumed to have considered all the evidence. This presumption exists to protect against a judicial review court re-weighing the evidence. The onus lies on the challenger to show that something is missing in the decision that makes the lack of a consideration of a certain factor material. As I have noted before (Issue #29), this presumption is inconsistent with Vavilov’s culture of justification, and this case is proof-positive of that argument. The Court here tells us that those who make administrative decisions are obligated to demonstrate that they considered something; the Cepeda-Gutierrez presumption appears to be doing less work (see also Canada (Citizenship and Immigration) v Montoya, 2022 FC 105 at paras 17-18).
Starbucks Coffee Canada Inc v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 2009, 2022 BCLRB 107 (September 14, 2022)
Category: Vavilov and justification
Context: This is a decision of the BC Labour Relations Board. The Union applied for and was granted certification for a bargaining unit at a Starbucks in Surrey. Starbucks “took no issue with the Union being certified for the Unit” but requested that the Board disclose the number of union membership cards submitted. In other words, it wanted to know how many employees had signed membership cards.
Under BC Labour Relations Board Rule 24(4), the Board has the power to disclose this information if it wishes.
Issue: Should the number of signed membership cards be disclosed?
Holding: No.
Analysis: From time to time, I will include tribunal/first-instance decisions in the newsletter if they highlight an issue of importance. Here, Starbucks takes Vavilov for a ride to try to obtain disclosure. It argues that:
… Justification, intelligibility and transparency, where the employer does not have access to the underlying membership evidence, requires disclosure of the membership count, rather than simply a statement that the statutory 55% threshold has been met. Disclosing the membership count after certification also aligns with the purpose of giving reasons for administrative decision-making: to show the parties that "the decision was made in a fair and lawful manner"; "to shield against arbitrariness as well as the perception of arbitrariness" (Vavilov, para. 79).
All things equal, this argument makes sense. Where possible, those affected by administrative action should know the basis on which the decision is made. And the Board leaves open the possibility that in some cases, this principle will operate to mandate disclosure of the number of signed membership cards. But here, there are countervailing reasons supporting the Board’s interpretation. For one, the information sought by Starbucks does not relate to the basis of the decision that affected it:
Consequently, provided the Board is satisfied that an applicant union has demonstrated that it has among its members in good standing at least 55% of employees in the bargaining unit applied for, it is legally immaterial whether the union has 55% or 99% of employees in the unit as members in good standing. The precise number of cards submitted by an applicant union (once the Board is satisfied that the Union has met the 55% threshold) is superfluous to the Board’s decision to grant a certification. That is presumably why the Employer did not, at the hearing, object to the Certification being granted notwithstanding that it did not know the precise number of cards submitted by the Union.
This makes sense: whether the 55% threshold is met is the legally relevant question, which does not require the disclosure of signed cards. Additionally, as I have written before (and with some regret), Vavilov’s requirement of justification can be limited by statutory schemes. Here, there is a strong statutory policy in favour of secrecy, especially when it comes to protecting union membership. Whatever one’s view of the wisdom of this policy, it probably loomed large here to limit the role Vavilov could legitimately play. Starbucks tried, but it was a stretch.
Yates v Springdale (Town), 2022 NLSC 139 (September 12, 2022)
Category: Procedural fairness and bias
Context: This is a decision of the Central Newfoundland Regional Appeal Board which upheld a demolition order issued by the Town of Springdale against a building. Among other things, Yates argued that the Town Council was biased against him [67].
Issues: There are a number of issues in this application, but the one I will address relates to whether there were sufficient reasons offered to reject the bias argument, which was raised at first instance.
Holding: The Board’s reasons were sufficient.
Analysis: This is a case where, at first blush, it might appear that the Board’s reasoning was vulnerable to attack. This is especially so given the higher bar for reasons that has been erected post-Vavilov. Here, the Court admits that “the reasons of the Board…are quite brief and they could have expenaded more fully on their reasoning process” [115]. However, one consideration to keep in mind when evaluating whether reasons are sufficient includes the procedural history of the case: see Vavilov, at para 94. Here, the Court chalks up the insufficient reasoning to “the lack of supporting evidence” supporting the allegation of bias [117]. In such a case, the requirement to reason extensively on certain issues is, of course, not present.
It is also worth noting that the Court cites and applies Vavilov here in relation to an issue of procedural fairness—bias. In theory, the orthodox position is that the correctness standard applies, which would mean that the reasons offered by the decision-maker takes a back seat. But because the bias issue was argued at first instance, there are reasons—or lack thereof—to analyze in this case. But Vavilov’s focus on reasons applies just as strongly here.
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.
