Greetings SEAR readers:
This week, I am happy to profile Justice David Stratas’ updated administrative law slides (“Some Doctrine and Cases”). This is an invaluable resource. Justice Stratas outlines the Canadian law of judicial review from top to bottom, with citations and links to current cases. The slideshow has been updated recently with new information and cases. Check it out!
Mark
Le v Nguyen, 2022 ONSC 6265 (November 4, 2022)
Category: Selection of the standard of review (arbitral appeals).
Context: This is a family arbitration under the Family Law Act and the Arbitration Act.
Issue: What is the standard of review on appeal of an arbitral award?
Holding: The appellate standards apply.
Analysis: Overruling from below? Here, the Court declines to follow the majority of the Supreme Court of Canada in Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7. In that case, the Supreme Court declined to opine on the impact of Vavilov on the standard of review for arbitral appeals, and concluded that the decision would not survive under either standard of review (Wastech, at para 46). The minority opinion (per Brown and Rowe JJ) felt that the reasoning in Vavilov displaced previous case law confirming the standard of review as reasonableness. This was because Vavilov simply enshrined a principle of statutory interpretation that should apply across the board—appeal means appeal, and the appellate standards of review apply (Wastech, at paras 119-121). The Court in Le adopts the reasons of the minority [14].
For what it is worth, on the substance, I agree with the Court. As always, we must start with Vavilov, and the simple rules it enshrines. For this reason, as James Plotkin and I wrote, the appellate standards should apply in this context. But this case merely proves the minority’s point in Wastech. The Wastech majority simply declined to engage with the issue despite the split on it across the country. It disregarded the minority’s comments on the matter (see particularly Wastech, at para 46). This was, quite clearly, a mistake. This issue will continue to percolate until there is definitive resolution at the SCC.
The Corporation of the City of Mississauga v Information and Privacy Commissioner of Ontario, 2022 ONSC 6227 (November 7, 2022)
Category: Selection of standard of review/Application of the reasonableness standard
Context: The City sought judicial review to quash an order of the Information and Privacy Commissioner (the IPC), which required the City to disclose “an electronic recording spreadsheet form containing information about all of the voters who received a ballot in Ward 7 in the…2018 municipal election.” [1]. The records contain personal information of over 11 000 residents in Ward 7. The IPC concluded that the disclosure was required under the Municipal Freedom of Information and Privacy Act: the information fell under an exception that requires disclosure where an “Act of Ontario or Canada…expressly authorizes the disclosure.” In this case, the IPC concluded that the Municipal Elections Act expressly authorized this disclosure.
Issue: What is the standard of review? Is the decision reasonable?
Holding: The standard of review is reasonableness; the decision is reasonable.
Analysis: On the standard of review, intervenors argued that the IPC decision should be subject to the correctness standard, because the Municipal Elections Act—which requires interpretation in this case—was not the IPC’s home statute [19]. Readers will recall that, prior to Vavilov, the presumption of reasonableness attached not only to home statute interpretation but also to “closely related statutes” (see Issue #22). The theory advanced by the intervenors would mean that if an administrator is required to delve into a law that is not “closely related” (whatever that means) to its home statute, the presumption does not apply. Vavilov does not mention the “closely related” issue.
In this case, the Court does not reject the intervenor’s argument outright—it does not say that an administrator interpreting a statute far removed from the home statute context is owed deference. Nevertheless, it concludes that the IPC must interpret the Municipal Elections Act en route to applying its home statute, the Municipal Freedom of Information and Privacy Act. Applying the presumption of reasonableness, then, makes sense here.
On the merits, the reasonableness of the IPC decision turned on its treatment of a judicial precedent. The Divisional Court had previously held that where documents are prepared under the Municipal Elections Act, they are public records that must be disclosed [38]. The IPC applied this decision here. The City and the intervenors argued that the IPC failed to address their arguments that this precedent was distinguishable. The Court (over the dissent of Aston J) concludes that this argument was not squarely raised before the IPC [34-35].
Nonetheless, on other grounds, the City and intervenors failed to show that the IPC erred in its consideration of the precedent. As readers will know, these are the two bases on which an administrator can “get out” of a precedent: (1) the issues are not analogous; (2) even if the issues are analogous, departures from the precedent can be justified (see Issue #44, Hussey v Bell Mobility Inc, 2022 FCA 95). The City and intervenors tried to say that the judicial precedent dealt with a different issue—the issues in the present case, on this argument, were not analogous. But the Court disagrees [37].
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.