Lalo c. Council of the Innu of Ekuanitshit, 2023 FC 212 (February 13, 2023)
Category: Application of the reasonableness standard.
Context: Lalo challenged the election of Basile to the Innu Council of Ekunaitshit, alleging that her criminal record rendered her ineligible for service. The Community Appeal Board dismissed the challenge, concluding that Basile was not found guilty of an indictable offence, and was therefore eligible for service.
Issue: Is the decision reasonable?
Holding: Yes.
Analysis: The reasonableness of the decision turned on the interpretation of s.5.1 of the Electoral Customs of the Ekuanitshinnuat, which provides that “not having a criminal record” is a condition of eligibility [4]. Lalo alleged that since Basile was convicted of a summary conviction offence, she was ineligible under the Customs. Lalo’s argument challenged (1) the substantive interpretation of the Customs as excluding summary conviction offences: and (2) the reasoning supporting that interpretation. As we know, these are the typical bases—sometimes mutually reinforcing—on which an administrator’s statutory interpretation can be challenged (see Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 at paras 28-29, Issue #3).
Here, the reasons were sparse, but certainly made it clear that the Appeal Board interpreted the Customs as only barring those with indictable (as opposed to summary conviction) offences [7, 23]. Given the submissions before the Appeal Board which rested on this distinction, and the past practice of the Appeal Board, this result was certainly open to it. But the case does pose an interesting problem: on questions of legislative interpretation, just how closely must the reasons track the “text, context, purpose” methodology endorsed by the SCC in Vavilov? Here, Grammond J seems to suggest that so long as the decision-maker is aware of the interpretive difficulty before it (as it certainly was here), that is all we can ask [24, citing Vavilov, at para 120). Vavilov also tells us that reasons need not be court-like. Nonetheless, not only must decisions be “consistent with the text, context, and purpose” (Vavilov, at para 121) but decision-makers must “demonstrate in its reasons that it was alive to these essential elements” (Vavilov, at para 120). I take this to mean that the reasons and/or record must run a path through the text, context, and purpose of the relevant instrument.
I am not sure the extent to which this occurred in this case. Like I said, I think the result was certainly open to the Court and in light of the record, submissions, and past practice, perhaps there was a line drawn by the sparse reasons to the text, context, and purpose of the Customs. But this does not appear to be explicit in the reasons or the record. Different judges will likely have different thresholds for how closely the “reasoning” must be tied to the text, context, and purpose. For my part, given these are the touchstones of legislative interpretation, and given the importance of reasoning in Vavilov, there should be some indication—somewhere—that a decision-maker touched on and turned their minds to these essential elements.
McCarthy v Whitefish Lake First Nation #128, 2023 FC 220 (February 15, 2023)
Category: Preliminary objections; selection of the standard of review (constitutional)
Context: The applicants, members of Whitefish Lake First Nation [WFLN], sought judicial review of two decisions of the WFLN Appeals Committee. The Appeals Committee decided (1) that McCarthy was ineligible to vote in the upcoming WFLN election because she regained her Indian status and membership under Bill C-31, meaning “pursuant to WFLN custom, members who regained status under Bill C-31 are ineligible to vote in WFLN elections; and (2) Jackson-Littlewolfe (a co-applicant) was ineligible to run in the elections because she she lives in a common law marriage, which precludes her candidacy under election regulations. Among other relief the Applicants seek declarations that the Bill C-31 policy and the prohibition on marriage are contrary to s.15(1) of the Charter.
Issues: Specifically, for our purposes:
Were the constitutional arguments properly before the judicial review court?
Are the impugned policies “customs” of the WFLN?
Did the Appeals Committee fail to consider the Applicants’ Charter rights? What is the standard of review for this issue?
Holding: (1) Yes; (2) No; (3) The standard of review is correctness, and the Appeals Committee failed to consider the applicants’ Charter rights.
Analysis: This is a long decision that sheds light on how courts will determine whether policies adopted by Indigenous bands are “laws” that reflect custom. In this case, the Court concludes that the common law marriage prohibition is not rooted in custom [83]; it also concludes that the Bill C-31 voting policy is not rooted in custom [74].
Nonetheless, the Court goes on to assess the constitutional issues with these policies. This was not a sure thing, considering that the record “does not indicate that Ms. McCarthy directly questioned the constitutional validity of the Bill C-31 Voting Policy before the Committee” [55]. Constitutional arguments should be raised at first instance before decision-makers (see Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245). Here, however, the Court allows these arguments to be made, relying on Fraser v Canada (Public Safety and Emergency Preparedness), 2021 FC 821, in which the Court allowed constitutional arguments to be made because they arose from the impugned decisions themselves. In that case, the constitutional challenge was not to a pre-existing policy, but to decisions not to disclose certain personal information under an access to information request. The constitutional issue arose because the decisions improperly applied the legislation in an unconstitutional manner. It is interesting to think about how far this exception could go. But if, here, McCarthy had an opportunity to question whether the policy should apply to her before the Appeals Committee rendered its eligibility decision, then presumably the Fraser exception (such as it is) should not apply here.
On the Charter issues, the Court interestingly bifurcates the standard of review, diluting the application of Doré. It holds, following CBC v Ferrier, 2019 ONCA 1025, that the question of whether the Committee failed to take account of Charter rights in this case is reviewable on a correctness standard. Ferrier held that when a decision-maker refuses to take the Charter into account, it raises a question of central importance or a broader constitutional question warranting correctness review. However, Ferrier retains Doré to the extent that once a decision-maker has correctly taken the Charter into account, its balancing of Charter values with statutory objectives will be owed deference.
It is worth exploring how Ferrier and Doré are working in the post-Vavilov landscape. To my mind, the logic of Ferrier most applies when there is some question—directly raised before the decision-maker—about whether the Charter is something that the decision-maker is required to consider on the facts. If the decision-maker refuses to apply the Charter, then that refusal can be seen to speak to the applicability of the Charter in a systemic sense, beyond how a Charter right is balanced in a given case. Here, there was some indication that this was the case. As the Court says, the silence of the WFLN on the Charter seems to be attributable to its argument that the Charter does not apply to its election process; specifically, that its election regulations oust the application of the Charter [88, 93]. For that reason, its refusal to consider the Charter appears to be a situation that attracts the Ferrier standard of correctness.
It is worth noting that other courts have dealt with this problem in a slightly different way. Ferrier notes that its bifurcated standard applies when decision-makers refuse or fail to consider the Charter. I’ve noted how Ferrier applies to cases where there is a refusal to consider the Charter. But when a claimant raises the Charter and the decision-maker simply does not address it (as opposed to expressly or implicitly concluding it is not required to consider the Charter because of an issue, say, of Charter applicability), the Federal Court of Appeal has simply said that such a decision cannot be reasonable (see Canada (Attorney General) v Robinson, 2022 FCA 59 at para 28, Issue #37).
So, it appears that no matter what a failure to consider the Charter when argued—either because of an express refusal or an omission—will not survive judicial review.
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.