Toutsaint v Investigation Committee of The Saskatchewan Registered Nurses’ Association, 2023 SKCA 11 (January 17, 2023)
Category: Procedural fairness
Context: The underlying decision emanates from the Saskatchewan Registered Nurses’ Association investigation committee, which dismissed a complaint filed by Joey Toutsaint, who is imprisoned at the Saskatchewan Federal Penitentiary. He had also been held in solitary confinement or “isolation” for 152 continuous days [3]. After an incident involving the administration of Toutsaint’s medication (described at paras 3-4), a nurse at the penitentiary filed a charge form commencing disciplinary proceedings against Toutsaint under the Corrections and Conditional Release Act. Afterwards, Toutsaint filed a complaint against the nurse in relation to the incident. In the complaint, Toutsaint’s counsel raised a number of issues: (1) the “dual loyalty” argument—the nurse cannot ethically complete her professional duties while having a duty under the employment of Correctional Services Canada; (2) she had participated in proceedings which could result in cruel treatment; (3) failure to act in Toutsaint’s best interests; and (4) she “unethically disclosed confidential information about a therapeutic interaction for the purpose of discipline” [6]. Toutsaint did not challenge the reasonableness of the investigation committee decision, but rather focused his arguments on a potential breach of procedural fairness.
Issue: Did the investigation committee breach a duty of procedural fairness owed to Toutsaint?
Holding: Tholl JA—while a limited duty of procedural fairness is owed to Toutsaint, the investigation committee met that duty by considering all the evidence before it: “It was not necessary for the investigation committee to repeat and explicitly list the four specific allegations and provide some type of substantive analysis at this screening stage” [54]. Jackson JA filed a dissent. She concluded that the investigation committee did not adequately deal with the issues raised by Toutsaint.
Analysis: I highlight this case because it speaks to the tension between the law of procedural fairness and substantive review post-Vavilov [58]. This is because the essence of the dispute between the majority and dissent concerned the sufficiency of the reasons—even though the case was argued as one of procedural fairness.
It was common ground that Toutsaint was not challenging the reasonableness of the investigation committee’s decision, and the cases are split as to whether a complainant (as opposed to a regulated party) can seek judicial review of the reasonableness of an administrative decision [23]. Accordingly, the majority says that the principles regarding sufficiency of reasons on substantive review do not apply [46].
So, the case was argued as one of procedural fairness, but we could be forgiven for thinking that sufficiency of reasons was lurking in the background. The majority and dissent differed over whether the investigative committee adequately dealt with the four issues raised by the complainant. This was a matter of reading the process and reasons to see if they comported with the typical Baker factors. But, when it comes to reasons, procedural fairness is engaged only if reasons are not provided when they should be. Here, it appears reasons were provided, but that the dispute centred around whether they were adequate.
It’s possible that the case could be conceived around a different question: whether reasons were actually provided on the issues that were raised by the complainant. Jackson JA seemed to view the case this way—by only engaging in conclusory analysis, the investigation committee did not meet the duty of fairness owed in these circumstances. Perhaps the dispute between the majority and dissent in this regard was characterized by a major difference in how they conceived the duty owed in this case—whether the complainant had a stake in the result of the disciplinary process against the nurse. Nonetheless, we can see here why the majority opines that “[i]t is an open question as to whether Vavilov and its progeny have moved the examination of the sufficiency of reasons further away from the concept of procedural fairness, and it is possible that all aspects of that analysis are now subsumed in a reasonableness review” [47].
For my part, if this case was argued on the merits, I’d agree with Jackson JA. The investigation committee decision is indeed a screening mechanism and sparse reasons can satisfy the requirements in the legislation. But the sparse reasons must actually engage with the core issues and the context in which they were raised—ie) here, the special resonance the dual loyalty issue has in the prison context. This was lacking from the reasons, by my lights. But if the case is argued as one of procedural fairness, it is quite possible to find support for the majority’s conclusion because something was offered.
Hammer Head Equities Inc v Rossland (City), 2023 BCSC 73 (January 16, 2023)
Category: Application of the reasonableness standard.
Context: These judicial review applications concern four development permit applications that included plans for tree removal from four separate parcels of land owned by the petitioners. The City Council denied all four applications [5-6]. Afterwards, the City conducted first, second and third readings of a new tree management bylaw [154], which “would have the practical effect of preventing the petitioners from carrying out the forest management proposals at the various subject lands…” [157-158]. The various petitioners argued: (1) that the Council’s decision denying the applications was unreasonable, based on an interpretation of Rossland’s Official Community Plan Bylaw (OCP); (2) that the Council’s decision to deny the applications and then adopt a new tree bylaw evidenced bad faith.
Issue: Is the decision unreasonable? Did the City proceed in bad faith with the subsequent adoption of the bylaw?
Holding: The decision is unreasonable, and the City acted in bad faith.
Analysis: Quite the case on a few fronts.
(1) The reasonableness of the decisions to deny the permits hinged on the interpretation of the OCP. The City’s interpretation was that the OCP “requires a person who wishes to remove vegetation, to apply for a development permit, and that that development permit must include a proposal to construct a building or engage in similar development activity…” [197]. The Court found this interpretation “absurd” because it would be “impossible for a person to removed diseased vegetation…unless they also intended to construct a building or engage in similar activity” [198]. More importantly than this absurdity, the OCP’s text did not support this interpretation—under the OCP, “removal, alteration disruption or destruction of vegetation” is defined as a form of development [200]. So, the City—motivated by its own aims—imposed “an additional requirement on the petitioners that the planned tree removal be done in conjunction with some other form of development” [200]. The imposition of additional legislative requirements by administrative actors is probably a clear case of unreasonableness, as I have outlined in this newsletter before.
(2) The finding of bad faith here is remarkable. As the Court recognizes, bad faith “requires more than acting on an incorrect or unreasonable interpretation of the law” [229]. And yet here, the Court found more. The record disclosed that Council “knew the development permit applications ought, as a matter of law, to have been issued, but they refused to issue them” [230]. This conclusion was backed by the recommendations of City staff [230]. With this record in mind, it was then suspect for the City to adopt a new tree bylaw “in an attempt to ensure that the petitioners would never be able to pursue these applications, regardless of what a court might do on judicial review” [242]. This sort of thing is forbidden by Vavilov, which guards against reverse-engineering desired outcomes [212]. And yet, “[a] review of Council’s deliberations makes clear that Council fell into this very error” [212].
A note of caution arises from this case for municipalities. Courts post-Vavilov will look closely at a record to discern the justification for municipal action. This means that a councillor’s statements will be scrutinized. So when the municipal councillors here evidenced an intent to prohibit any clear-cutting whatsoever absent development, against the OCP, their statements can be fatal to defending municipal action on judicial review.
Wang v Canada (Citizenship and Immigration), 2023 FC 62 (January 16, 2023)
Category: Application of the reasonableness standard (sufficiency of reasons)
Context: Wang, a Chinese citizen, seeks judicial review of a decision of the officer rejecting her application for a temporary residence visa. The officer refused the application because “Ms. Wang failed to respond properly to a question and omitted to disclose a prior US visa revocation” [1].
Issue: Is the decision reasonable—specifically, are the reasons adequate?
Holding: The decision is reasonable.
Analysis: The Court leans heavily on the context in which this decision was made—the visa context, where extensive reasons are not required. The Court adopts the government’s reliance on Zeifmans LLP v Canada, 2022 FCA 160 at paras 9-10 (Issue #60), which generally held that reasons do not always need to be explicit. The Court, in this context, concludes that even template language is not necessarily problematic, where, as here, “[t]he reasons in this case are responsive to the submissions, summarizing Ms. Wang’s arguments, and explaining why they are unsatisfactory” [43]. It does so relying on previous FC jurisprudence.
On the facts of this particular case, this conclusion was open to the Court. But I would caution against taking this case—and Zeifmans—too far. While boilerplate and template reasons can be sufficient in certain circumstances, my reading of the cases (with which others may disagree) is that boilerplate is probably presumptively suspect because, by nature, it is too generalized to respond to individualized circumstances. Other Federal Court cases seem to support this conclusion. In Ceguerra v Canada (Citizenship and Immigration), 2022 FC 910 (Issue #46), the Court states that “[r]easons that simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion…will rarely assist a reviewing court to understand the rationale underlying a decision” [56]. In Torkestani v Canada (Immigration, Refugees and Citizenship), 2022 FC 1469, the Court throws doubt on the use of standard template language (Issue #65). I could go on.
I am reinforced in this conclusion, ironically, by Zeifmans. Explicit language was not required in Zeifmans because the record left the Court “in no doubt” as to the rationale behind the decision (Zeifmans, at para 11). But where the record does leave doubt, the absence of explicit reasons will be difficult to sustain.
I do not mean to say that template language is always and everywhere unreasonable. But I think it is presumptively so. As a result, Wang should not be taken as endorsing what the Federal Court has not endorsed in other cases.
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.