Issue #64: October 30, 2022
Masking in schools, regulations, procedural fairness and Indigenous custom, statutory interpretation.
CM v Alberta, 2022 ABKB 716 (October 26, 2022)
Category: Reasonableness review (regulations/orders)
Context: The applicants are children “whose parents have been told their children are at heightened risk of severe outcomes if they contract COVID” and the Alberta Federation of Labour. They challenge (1) an Order of the Chief Medical Officer of Health [CMOH] that rescinds an order previously requiring masking in schools for grades 4-12; and (2) the purported legal effect of a statement made by the Minister of Education that “school boards may not impose masking requirements for children”. Against the order, the applicants assert that it is unreasonable and unconstitutional; against the Minister’s statement, the applicants allege that it violates sections 7 and 15 of the Charter.
Issue: There are a number of preliminary evidentiary issues that I will not address, and I will also not address the Charter arguments, which the Court dismissed as having no factual foundation [129-130]. The issues: (1) Is the Order reasonable? (2) What is the legal effect of the Minister’s statement?; (3) What remedy?
Holding: The Order is not reasonable because it is based on an interpretation of the statute that improperly subdelegated power to a Cabinet committee to make the order [132]; the Minister can only prohibit masking in schools through regulation, and her statement had no legal effect [97-98]; while the Order is now moot, a declaration should follow that the Order is unreasonable [131], and similarly, a declaration should follow that the Minister’s statement does not prohibit school boards from imposing mask mandates [133].
Analysis: There is a lot going on in this decision, but I highlight a few points:
(1) The Court here applies the Supreme Court’s decision in Katz v Ontario (Health and Long-Term Care), 2013 SCC 64, holding that “the legislative nature of the Order limits the scope of judicial review” such that review is limited to vires—or whether the regulations are “irrelevant,” “extraneous,” or “completely unrelated” to the statutory purpose [49, 53]. The Court cites another ABKB case that found that that Vavilov confirmed Katz (Auer v Auer, 2021 ABQB 370 at paras 13, 15 and 16, citing Vavilov, at para 111) . But as I have written before (Issue #7), there are very good reasons to doubt this conclusion. Courts in other jurisdictions have suggested that Vavilov means that the deferential Katz approach should give way to Vavilov’s comprehensive simplifying mission: a decision is a decision is a decision, and we should ideally avoid bespoke standards of review for different state action, absent compelling reasons. More specifically, Auer’s claim that Vavilov endorses Katz is deeply questionable: while Vavilov mentions Katz, it does so in the context of the common law constraints on statutory decision-making (Vavilov, at para 111). Para 111 should not be read more broadly than what it means. The paragraph does not suggest that Vavilov is inapplicable to Katz. Instead, in reality, we should look to Vavilov’s principles to determine whether Katz survives. Conducting this analysis leaves Katz in bad shape. For confirmation of this argument, see Portnov v Canada (Attorney General), 2021 FCA 171 at paras 26, 28; Canada Mink Breeders Association v British Columbia, 2022 BCSC 1731 at para 31; Le v British Columbia (Attorney General), 2022 BCSC 1146; cf Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367.
(2) The result here is not surprising. The statute seems quite clear—it is the CMOH who has been vested the power to issue medical orders. Other statutes in other provinces make different choices, involving elected officials [65]. While we might expect a more fulsome statutory interpretation analysis here, the Court’s result is defensible based on the statute—whether framed as an unreasonable interpretation of the statute or an improper subdelegation. The statute can be amended, of course. But any appeal of this decision is unlikely to go far. The legal conclusion is hard to assail, and it depends on a finding of fact: that it was the Cabinet committee, not the CMOH, who in reality made the decision to promulgate the Order [76, 81]. This finding will be subject to the palpable and overriding error standard on appeal, a high bar to clear.
(3) The Minister’s statement is quite clearly not ripe for review, to put the Court’s conclusion differently. It has no legal effect.
Saulteaux v Carry the Kettle First Nation, 2022 FC 1435 (October 21, 2022)
Category: Procedural fairness
Context: The applicant sought judicial review of a Carry the Kettle First Nation Band Council decision which removed her as a Band Councillor. After some back and forth, a special meeting was set which listed a number of allegations directed towards the applicant. Prior to the special meeting, the First Nation invited the applicant to provide written arguments and evidence, which were provided. However, the applicant alleged that the First Nation “did not consider the Applicant’s written submissions” because “[r]espondent’s counsel inadvertently failed to forward the applicant’s written submissions to [the First Nation]” [37]. Nonetheless, during that meeting, the applicant was also informed of the allegations against her and presented with the opportunity for submissions. After this special meeting, in a regularly scheduled meeting (which the applicant was not invited to or given notice), the Band Council removed the applicant from office. This process is generally governed by the She challenges this decision primarily on the basis of procedural fairness, as well as fettering of discretion.
Issue: (1) Does the Federal Court have jurisdiction to review removal decisions of the Band Council? (2) Was the applicant denied procedural fairness?; (3) Did the Band Council fetter its discretion?
Holding: (1) The Federal Court has jurisdiction; (2) The applicant was denied procedural fairness because her submissions were not considered and reasons were not provided; (3) the First Nation fettered its discretion.
Analysis:
(1) The Court finds that, although the First Nation’s power to adopt Indigenous laws are not granted by an act of Parliament (and therefore, it could be argued that the Band is not a “federal board, commission, or other tribunal” under the Federal Courts Act), the Federal Court has previously found that it has jurisdiction over decisions made under customary law [28]. Since the respondent did not say why this precedent was inapplicable, the Court here has jurisdiction. The Court rejected the respondent’s argument that “the law now recognizes the inherent nature of Indigenous customary law and that such recognition is required for reconciliation” [29].
(2) The Court concludes that the basic procedural fairness error here was the failure to consider the applicant’s submissions and to provide reasons. The First Nation tried to escape the application of the rules of procedural fairness, suggesting that the “Western ideals of procedural fairness” may lead to “oppression” [32]. But as a matter of law, procedural fairness rules apply in this context, and at any rate, the rules of procedural fairness are basic, all-purpose rules that are useful to accommodate the procedural choices of the decision-maker; especially when it comes to First Nations customs [36, see also Bruno v Samson Cree Nation, 2006 FCA 249 at para 20). So here: the First Nation argued that its own customs prioritized “deliberation and discussion” [50]. But the Court finds that the relevant rules of procedural fairness only support this custom. For example, the Indigenous customary law in this case did not expressly derogate from the principles of procedural fairness [69], and the relevant Indigenous custom—discussion and deliberation—is fostered by the application of the rules of procedural fairness [50]. The case is a good example of how the rules of procedural fairness can and should complement Indigenous custom, as long as these sorts of decisions are reviewed under normal principles of administrative law.
Ontario English Catholic Teachers’ Association v Ontario Catholic Schools Trustees’ Association, 2022 ONSC 5887 (October 26, 2022)
Category: Reasonableness standard (statutory interpretation)
Context: The Teachers’ Association [OECTA] sought judicial review of an arbitral decision that found that the arbitrator lacked jurisdiction over aspects of the OECTA’s labour grievance. The grievance concerned “violations of the preparation, planning, and supervision terms of the collective agreement" [1]. The arbitrator declined jurisdiction because the alleged violations concerned “local terms” rather than “central terms” [24]. This distinction is relevant because, under the relevant legislation and “Memorandum of Settlement,” the arbitrator only has jurisdiction over terms that were the product of “central bargaining”—terms that were bargained between the Boards and Ontario [7].
Issue: Is the arbitrator’s interpretation of the legislation reasonable?
Holding: Yes.
Analysis: The Court (per Nishikawa J) chose not to accept the OECTA’s argument that, because the language of “central terms” is “unequivocal,” the arbitrator was not required to consider the purpose of the statute (relying on Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at para 10). The Court was right to reject this argument—even where the text is unequivocal, the accepted method of statutory interpretation in Canada requires the court to consider purpose (see e.g. ATCO Gas & Pipelines Ltd v Alberta (Energy Utilities Board), 2006 SCC 4 at para 48). The Court also rejects OECTA’s argument that the arbitrator’s consideration of purpose “frustrate[d] legislative intent” because “resort to context and purpose cannot lead to a result that differs from that which would apply based on the words of the statute alone” [40]. On a reasonableness standard, there is obviously space for a decision-maker to justify an interpretation of a statute so long as it is largely consistent with the statutory text, context, and purpose. But I should note that, in most cases, there should be little to no conflict between the purpose of a statutory provision and its text. This is because, if a court follows the Supreme Court’s statutory interpretation jurisprudence, purpose should be scoped with primary reference to statutory text (see my paper here). Reading paras 41-50 of the decision, the Court seems to apply this jurisprudence without saying so. But to the extent the Court’s opinion leaves open the possibility that the purpose of a provision can drive the meaning of statutory text to a higher level of abstraction, that possibility should be rejected (see TELUS Communications Inc v Wellman, 2019 SCC 19 at para 79).
Kawa Arab v Unica Insurance, 2022 ONSC 5761 (October 24, 2022)
Category: Statutory appeals (statutory interpretation)
Context: This is a decision of the Licence Appeal Tribunal, concluding that the appellant is not eligible to claim income replacement benefits under the statute.
Issue: Is the decision reasonable?
Holding: Yes.
Analysis: This is a relatively straightforward case, but I highlight it for two oddities (from my perspective):
(1) This is a statutory appeal [18]. As a result, the sole question of law in this case is evaluated on a correctness standard. Yet at certain points the Court cites Vavilov’s guidance on applying the reasonableness standard to questions of law, specifically regarding adequacy of reasons [25, 35-36]. Of course, this may not be a problem—even on a correctness standard, an administrator’s reasoning may be relevant and helpful. But this guidance will mostly be irrelevant on a correctness standard, where the adequacy of reasons is somewhat besides the point: the question is whether the administrator correctly answered the question of law, and if not, the Court can substitute its own view. Ideally, if courts mix in Vavilov’s reasonableness guidance in appeal situations, they should state why doing so is helpful and consistent with the correctness standard—that did not happen in this case. Otherwise, correctness should be correctness. It is worth noting that in Bell Canada v Canada (AG), 2019 SCC 66, the companion case to Vavilov which proceeded under a right of appeal, the Supreme Court majority did not mention Vavilov’s reasonableness guidance.
(2) The Court says that the modern approach to statutory interpretation requires the following [27]: “1. Examine the words of the provision in their ordinary and grammatical sense; 2. Consider the entire context of the provision; and 3. Whether the proposed interpretation produces a just and reasonable result.” I am candidly not sure what the last point is supposed to mean, and at least one reading of this paragraph might be inconsistent with general guidance on interpretation offered in Vavilov. Of course, results may be relevant on interpretation in order to discern which of two conflicting potential results is most consistent with legislative intent, understood as the product of the text, context, purpose analysis (Williams v Canada (Public Safety and Emergency Preparedness), 2017 FCA 252 at para 52). But this is not a carte blanche to adopt an all-things-considered “just” result. Such an understanding of a court’s role has the potential to diverge from Vavilov, at para 121, which cautions that a decision-maker should not “ ‘reverse-engineer’ a desired outcome.”
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.
