Issue #6-August 22, 2021

Morningstar v WSIAT, 2021 ONSC 5576 (August 18, 2021)

Context: The Workplace Safety and Insurance Appeals Tribunal [WSIAT], in a decision and a reconsideration, decided that Morningstar was barred from civil suit against her employer for constructive dismissal, among other things. The WSIAT decided that s.31 of the Workplace Safety and Insurance Act—which grants exclusive jurisdiction to the WSIAT to determine whether the statute takes away a “right to commence an act"—barred the suit. Morningstar tried to advance the argument that the correctness standard of review should apply to the WSIAT in this case, given an alleged “jurisdictional boundar[y] between two or more administrative bodies.” In this case, the boundary would concern the WSIAT, which traditionally deals with workplace accidents, and the Superior Court, which has original jurisdiction over claims for constructive dismissal.

Holding: The Div Ct (per Kurke J for the panel) held that (1) the standard of review is reasonableness, because the WSIAT is owed the “highest level of deference,” and because of the grant of exclusive jurisdiction to decide whether claims are barred, protected by privative clauses; and (2) the WSIAT’s decision was unreasonable because it barred Morningstar’s claim for constructive dismissal.

Analysis: This is obviously an important decision for those who practice in the subject area. Three issues to look at:

1) On the “jurisdictional lines” argument, this was—to me anyways—doomed to failure. As I pointed out in Issue #5, this exception to the Vavilov reasonableness presumption is narrow, rooted in the Rule of Law. Confusion over the “jurisdictional” (that old chestnut) lines between different administrators raises concerns about the stability of the administrative justice system, which the Superior Court oversees through its judicial review function. This directly engages the Rule of Law justification for the correctness standard. While the Court justified its holding on this point by focusing on the WSIAT as an “expert” administrative body [37], this was unnecessary and probably undesirable; the correctness exception does not apply because the case does not present a conflict between two administrative bodies. The Superior Court is designed to police the boundaries of administrative power—it isn’t itself an administrative body.

2) On the merits, the Court’s approach shows how Vavilovian reasonableness can be rigorous. Here, the WSIAT erred by failing to properly account for the “historic trade-off” embodied in the legislation between the worker’s ability to claim accident benefits with respect to workplace injuries and an employer’s right to be free from civil suit in tort for personal injury [48]. The legislation embodying that tradeoff focuses on preventing employees from filing these specific civil claims [53], but it requires the WSIAT to adopt a “position of restraint” when dealing with claims—like constructive dismissal—that fall out of the personal injury category and for which a remedy is not provided in the legislation [56]. In such cases, the WSIAT must determine the bona fides of the claim (is it a disguised tort action?) and the type of damages that are sought [87]. Here, the WSIAT’s failure to analyze the purpose of the legislation and the way it was instantiated in text had the effect of sweeping up up all of Morningstar’s claims and connecting them all to a workplace injury. But for the Court, this was an error because the dismissal claim sounds in employment or contract [124], not personal injury. In this case, this seems to be a material error that is not just a “minor” omission as contemplated by Vavilov, at para 122. Similarly, the WSIAT error here is comparable to the errors in interpretation explored in Issue #3, and specifically the case of Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 (per Stratas JA), where unsatisfying reasoning led to an unreasonable interpretation of law (Morningstar, at para 122).

3) The Court refused to remit the decision, and listed a number of typical reasons why a court would refuse to do so (see also Vavilov, para 142). These included that there was a reconsideration in this case, the applicant brought suit more than three years ago, and the “substantial delay [and] the mounting costs” [127]. In so many words, this appears to be the “endless merry-go-round” that Vavilov envisioned, and provides a good example of the things to take into account when asking a court not to remit.

Conlin v Edmonton (City) Police Service, 2021 ABCA 287 (August 18, 2021)

Context: These cases, argued together, raised questions about the standard applied by the Law Enforcement Review Board when reviewing decisions of the chief of police to refer complaints about the conduct of police officers to a hearing under the Police Act.

Holding: The Court dealt with two issues: the “charging threshold” required for a chief to refer a case to a hearing; and the standard applied by the LERB. The Court held that, relying on its decision in Moffat v Edmonton (City) Police Service, 2021 ABCA 183, that the reasonableness standard applied as the internal standard of review between the LERB and the chief. The Court also held that the LERB did not erroneously apply the reasonableness standard by stating that there was only one reasonable outcome [62].

Analysis: This deals with the internal standard of review, but the ABCA’s description of reasonableness raises an important point. Even if the result of such reviews are functionally the same, there is a principled difference between the application of a reasonableness standard that produces “one right answer” and the rote application of the correctness standard. In the former case, the reviewing body (let’s say a court) will give an administrator a presumption of deference that allows that administrator to consider the statutory context; the administrator has an opportunity to advance a justification for an interpretation that may fit into the bounds of the statute, whatever they are. In the latter case, no such opportunity is afforded, and the court will pronounce definitively on the meaning of the statute [62]. While the result of these analytical paths may end up being the same, the posture of the court operating under different standards of review should be distinct.

Ahmed v Canada (Citizenship and Immigration), 2021 FC 756 (August 17, 2021)

Context: Ahmed sought judicial review of a denial of his permanent residency application. The parties agreed that the application should be granted because the decision-maker breached the applicant’s procedural fairness rights. But the applicant also sought remedies of prohibition, mandamus, and “estoppel.”

Holding: The Court (per Ahmed J) held that (1) prohibition is available for breaches of procedural fairness, but that the norm of remittal for breaches of procedural fairness should apply here; (2) mandamus was not available in law because there was no refusal to undertake a public duty on the part of the government; (3) estoppel is a doctrine, not a remedy.

Analysis: The remedial arguments advanced here were pretty far-fetched (“estoppel,” for example, is not available under the Federal Courts Act, s.18(1) because it is a doctrine rather than a remedy), but for those interested in the technical aspect of judicial review remedies, there are some interesting little tidbits. More broadly, it is interesting how the arcane world of the prerogative writs sometimes runs into judicial deference.

The government advanced the argument that prohibition was not available for breaches of procedural fairness. I am not sure what authority it relied on for this proposition, but courts have generally held that prohibition is available to prevent breaches of procedural fairness that are clear “and beyond doubt” on the record (though the phraseology used by courts generally refers to restraining an inferior body from taking an act that would exceed its “jurisdiction”): see Psychologist Y v Nova Scotia Board of Examiners in Psychology, 2005 NSCA 116 at para 21 et seq. But as Ahmed demonstrates, the availability of prohibition runs into the modern tendency towards judicial deference. Generally, even if prohibition is available, remittal will be the usual remedy ordered for breaches of procedural fairness, and prohibition will be disfavoured because it would “preclude judicial deference” (Psychologist Y, at para 24).

Conklin v University of British Columbia, 2021 BCSC 1569 (August 12, 2021)

Context: Conklin applied for judicial review of two decisions of the BC Human Rights Tribunal. In essence, the Tribunal dimissed his complaint of employment discrimination based on sexual orientation. The BCSC (per Iyer J) applied the standard of patent unreasonableness to the decisions and dismissed the application.

Analysis: As readers of SEAR know (see Issue #2 and the decision of Byelkova v Fraser Health Authority, 2021 BCSC 1312), there is an issue post-Vavilov about whether that decision impacts the statutory standard of patent unreasonableness in the BC Administrative Tribunals Act. The majority of judges are saying: sort of, but not officially (for an outlier see College of New Caledonia v Faculty Association of the College of New Caledonia, 2020 BCSC 384 at para 33). Conklin adverts to this majority position at para 50 (see also UBC Okanagan v Hale, 2021 BCSC 729 at para 98): “While Vavilov does not alter the statutory standard, the court should focus on the reasons provided by the tribunal.”

The takeaway here is that the reasons-first approach permeates the patent unreasonableness standard, even if it is its own statutory standard of review. I will keep an eye on this issue to see if the majority position changes.

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.

Quote of the Week: “In The Lion, the Witch and the Wardrobe, a bunch of hippies walk around and paint stuff. They eat lunch, and then they find a magical camel, which they have to eat to stay alive. And that's pretty much it. I give it a B-minus”—Cartman, South Park