Issue #69: December 4, 2022
Common law constraints, municipal bylaws, application of reasonableness standard.
Hello readers:
The last newsletter for 2022 will be December 18, 2022: there will be no newsletter on Christmas Day or New Year’s Day. As last year, the December 18 newsletter will mostly be a wrap-up of the most important cases in administrative law in 2022.
The regular newsletter will resume on January 8, 2023.
I wish you and yours the best of the season. For many, 2022 has been a tough year. With hope for the future and with the comfort of those close to you, I hope you have a wonderful Christmas season.
Mark
Briggs v Durham (Police Services Board), 2022 ONCA 823 (November 28, 2022)
Category: Application of the reasonableness standard (common law constraints).
Context: From para 1 of the Court’s decision:
[1] The respondent, Joseph Briggs, brought two separate applications to the Human Rights Tribunal of Ontario (the “Tribunal” or the “HRTO”) against the Durham Regional Police Services Board (the “Board”) and individual police officers. The parties participated in a mediation in the context of the second application and reached a settlement. A dispute then arose between Mr. Briggs and the Board over whether the release signed as part of the settlement was also meant to cover the first application, which had been heard but not decided by the Tribunal at the time of the mediation.
The HRTO decided that the settlement also settled the first application. On judicial review, the Divisional Court found the decision unreasonable.
Issues: Is the decision unreasonable? Should the decision be remitted to the HRTO?
Holding: Yes; No.
Analysis: The reasonableness of HRTO’s decision on the scope of the settlement agreement turned on its application of the legal framework for contractual interpretation, and particularly, the role and weight given to the subsequent conduct of the parties [40-41]. According to the Court, the HRTO failed to even determine the appropriate date of the settlement, which meant that it failed to determine what could plausibly constitute post-settlement conduct [44]. This meant that the HRTO, further, ignored other factual issues and evidence that demonstrated that the settlement was limited to the second application [45].
The failure here related to the application of the common law principles of contract interpretation, which required the HRTO to “examine the full factual matrix at the time the parties entered into the agreement…” [49]. This failure arose despite the “significant deference” owed to the HRTO [49]. Post-Vavilov, we have seen some cases where courts insist on the rather stringent application of common law rules (see e.g. Resource Development Trades Counciul of Newfoundland and Labrador v Long Harbour Employers Association Inc, 2021 NLSC 134, Issue #16; International Relations Brotherhood of Boilermakers v Alberta Labour Relations Board, 2022 ABCA 139, Issue #39). It’s obviously hard to say whether this is a “trend” of any kind. Nonetheless these cases specifically concerned adequacy of reasons: the reasons failed to demonstrate that the decision-makers adopted the proper common law tests. Similarly, here, there were omissions in the reasons that demonstrated the misapplication of the proper test.
The Court agrees that the Divisional Court was right not to remit. The Divisional Court held that this was appropriate because of extensive delay and because “the Tribunal does not have any special expertise in interpreting settlement documents, that the matter could be resolved on the record before the court and that the issue could only be answered in one of two ways” [54]. While delay is a good reason not to remit, “expertise” is not, in my view—and the ONCA agrees. It concludes that “the Tribunal’s lack of expertise in interpreting releases does not justify the decision not to remit the matter back to the Tribunal” [55]. This is right. For one, expertise no longer factors into the determinaton of the standard of review; it would be incongruous to bring it into a consideration of remedy. Secondly, as the Court says, it would require courts to step into the shoes of a decision-maker where there is a plausible case of equal expertise [55]. Under Vavilov, the considerations that animate the selection of remedy are variable, but they are not endless.
Service de calèches et traîneaux Lucky Luc c. Ville de Montréal, 2022 QCCA 1610 (November 30, 2022)
Category: Selection of the standard of review (municipal bylaws).
Context: Among other issues in this appeal, the question was whether the bylaw adopted by the city prohibiting sleigh-rides (horse drawn carriages) on public property under its enabling legislation.
Issues: What is the standard of review? Is the bylaw reasonable?
Holding: The standard of review is reasonableness; the bylaw is reasonable.
Analysis: On the standard of review, the respondent advanced the position that the standard of review is correctness for the assessment of the vires of the municipality to adopt the bylaw [45]. The respondent’s position was based on comments in past Supreme Court cases that viewed questions of municipal powers under enabling legislation as going to jurisdiction [45-46, United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19; Nanaimo (City) v Rascal Trucking Ltd, 2000 SCC 13]. The judge below also appeared to adopt this standard [48]. But the Court here rejects correctness as the appropriate standard. It, instead, starts with Vavilov, concluding that the issue raised in this case did not fall into any of the catgories warranting correctness review [50]. Specifically, “jurisdictional” questions no longer attract the correctness standard under Vavilov, and the cases cited by the respondent pre-dated Vavilov and treated the issues raised as “jurisdictional.” These cases, for good reason, can no longer control. The Court concludes, after surveying other cases across the country, that the reasonableness standard applies [57-59].
I think the Court was right to proceed in this fashion, for the same reasons I pointed out last week in relation to the regulation cases from the Alberta Court of Appeal. Municipal bylaws are “legislative” in nature, but they raise the key (but perhaps not only) question raised by regulations or administrative decisions—is the delegated act in question consonant with the enabling statute? Like regulations, in my view, there should be no special carve out for municipal bylaws from the general analytical framework we apply in most other cases of delegated power. The QCCA adopts reasonableness in this case, and it follows BC and Nova Scotia in that regard [57-58]. The position is also consonant, as we saw in last week’s newsletter, with the Federal Court of Appeal’s.
Practically, the Court’s analysis focuses on the legal constraints bearing on the municipality—the rules of interpretation and the enabling legislative framework [76 et seq]. The main question was whether, under these constraints, the bylaw permitted the prohibition—rather than just existing regulation—of transportation by horse-drawn carriage. This is a question of statutory interpretation. In cases where the questions raised are purely legal—as in most regulatory cases or bylaw cases—the focus of the analysis will be on the legal constraints offered in Vavilov. This case demonstrates how this analysis can unfold under the broad-church reasonableness standard defined in Vavilov.
Badsha v Canada (Citizenship and Immigration), 2022 FC 1634 (November 28, 2022)
Category: Application of the reasonableness standard.
Context: This is a decision of the Immigration Appeal Division [IAD], in which the applicant was found inadmissible to Canada “for having been a member of an organization that there are reasonable grounds to believe engages, has engaged, or will engage in terrorism” [1]. The applicant argued that he was targeted by the current party in power in Bangladesh for his involvement with a student wing of the Bangladeshi opposition party [2].
Issue: Is the decision reasonable?
Holding: No.
Analysis: This case demonstrates how closely courts will look to the reasons in determining the reasonableness of a decision. Here, the IAD was not required to “reproduce the entirety of the length evidentiary record” to support its conclusions [43]. However, there is a difference between generalized “omissions” and specific omissions that impact the application of the relevant legal test. Here, the IAD failed to show in its reasons that it applied the appropriate test related to intention, required under the statutory provision at issue. An omission like this is a good example of the sort of thing that might cause a court to lose confidence in an administrative decision.
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.