Issue #8-September 5, 2021
Ontario First Nations (2008) Limited Partnership v Ontario Lottery and Gaming Corporation, 2021 ONCA 592 (September 1, 2021)
Context: This case was an arbitration involving a revenue sharing agreement between the First Nations and OLG. Since this was an arbitral appeal under Ontario’s Arbitration Act, there was a question about the standard of review: if Vavilov applies, the appellate standards of review apply to arbitral awards (questions of law=correctness, questions of mixed fact and law/fact=palpable and overriding error); if not, the Supreme Court’s holding in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 applies, which means a reasonableness standard generally applies to all issues.
Analysis: The Court (per Jamal JA) followed the Supreme Court’s lead in Wastech Services v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 and refused to address the standard of review question. Rightly so, the Court concluded that it iwas not necessary to decide this question to resolve the appeal, especially since the issues at play were clearly issues of contractual interpretation rather than law (and some sort of deference applies anyways) [38-40].
This issue is not going anywhere, especially since the ONCA has granted leave to a case that will hopefully provide it an opportunity to weigh in more conclusively: Tall Ships Landing Devt Inc v City of Brockville, 2019 ONSC 6597; Tall Ships Devt Inc v City of Brockville, 2020 ONSC 5527. In Wastech, some judges of the Supreme Court were more than willing to apply Vavilov to arbitral appeals. And James Plotkin and I have prepared an entire paper arguing that this is the right approach. I admire the ONCA’s judicial minimalism, but on principle I agree with Brown and Rowe JJ in Wastech: “To this extent, Vavilov has displaced the reasoning in Sattva and Teal Cedar. Concluding otherwise would undermine the coherence of Vavilov and the principles expressed therein” (Wastech, at para 120). Other courts have split on this point: for cases concluding that Sattva no longer applies and has been overtaken by Vavilov see Allstate Insurance Company v Her Majesty the Queen 2020 ONSC 830; Buffalo Point First Nation et al v Cottage Owners Association, 2020 MBQB 20; and Northland Utilities (NWT) Limited v Hay River (Town of), 2021 NWTCA 1 For a case concluding that Sattva does apply, see Cove Contracting Ltd v Condominium Corporation No 012 5598 (Ravine Park), 2020 ABQB 106.
A.B. v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8 (September 1, 2021)
Context: A group of families applied to the Minister to allow their children to attend minority language schools offering instruction in French in the Northwest Territories. The Minister denied the application because on the terms of s.23 of the Charter, which guarantees minority language education to certain qualified rights-holders, the families did not have a constitutional right to that education [8].
Issues: (1) What is the standard of review? (2) Did the Minister adequately account for Charter values?
Holding: (1) The standard of review is reasonableness; (2) There were no Charter rights to be balanced here, since “the respondent families do not fall within section 23 of the Charter” [23]. Rowbotham JA filed a concurring opinion, suggesting that the Minister was required to take s.23 into account [136].
Analysis:
(1) The Court applies the reasonableness standard to the discretionary decisions of the Minister to deny the families’ application. But the Court says that “…in this particular context the range of available decisions that could be described as reasonable is very wide” [42], in part because the “…discretion is exercised directly by the Minister, an elected public official who should be assumed to have a wide-ranging discretion over sensitive and policy driven matters like admission to the section 23 schools” [43]. As far as it goes, this is right: in determining the standard of review, we should focus on the substance of a particular legal dispute—the sorts of legal questions it raises—rather than the form the particular decision takes (see Portnov v Canada (Attorney General), 2021 FCA 171 at para 23). It is for that reason that, while the Court gets this right, it goes a bit far in reaching the conclusion: it seems to suggest that because the Minister is an elected official that a wider margin of appreciation obviously follows. I think this puts form ahead of substance. The application of the reasonableness standard will depend on an application of Vavilov’s constraints. A categorical approach that favours Ministers and Cabinets simply because of their elected status is not counted in Vavilov’s constraints. Instead, the application of the reasonableness standard will depend on the statutory context and the question before the decision-maker, not the identity of the decision-maker itself. Many of the questions dealt with by politicians will indeed attract a wider margin of appreciation, but this is not because of the elected status of these officials.
2) Considering whether to consider constitutional rights is an interesting threshold issue that sometimes arises (see Issue #5 and Zaki v University of Manitoba, 2021 MBQB 178). Here it comes in interesting garb: a s.23 claim. The majority holds that the Minister has no duty to consider the Charter if the Charter does not apply. This might seem obvious, and I happen to agree with the conclusion. But there are nuances to consider. For one, Rowbotham JA notes that s.23 rights “are assessed not only in individual terms but also on a collective level…” [140] and here, the Commission scolaire was a respondent that advanced the rights at issue [141]. If this is so, query what happens in cases of freedom of religion claims that can have a collective character. Query also if the threshold for whether a state actor has to consider the Charter will or should be different where the right is advanced collectively or individually (I, for one, see no principled reason why this should be so).
The majority also cleverly gets around a line in Doré v. Barreau du Québec, 2012 SCC 12, at para 35, that decision-makers are always required to consider “fundamental values.” It concludes that Doré “is not engaged unless a Charter right is infringed” [65] and so “ ‘Charter values’ do not oblige the extension of Charter rights into those citizens who are not entitled to those rights” [70]. I take this to mean that the benefit of a right must be available to a claimant (the Charter must apply) in order for a concomitant duty to consider a right arises on the part of a government actor. This is true—and an important reminder that Doré should, ideally, not be read to impose Charter obligations where the Charter normally would not apply.
Chartrand v Healthcare of Ontario Pension Plan (HOOPP), 2021 ONSC 5840 (September 2, 2021)
Context: HOOPP moved to quash an application for judicial review on the basis that it is not a public body amenable to judicial review by the Divisional Court. The decision under review made by HOOPP denied certain survivor benefits available under the plan.
Holding: The Court agreed with HOOPP. It concluded that (1) Divisional Court could not grant certiorari under s.2(1)1 of the Judicial Review Procedure Act, because HOOPP is not a public body; and (2) HOOPP is not exercising a statutory power under s.2(1)2, and so declaratory relief is not available. The plan is private [18], and the fact that it is governed by the Pension Benefits Act and operates to the benefit of public servants is not sufficient to bring HOOPP’s operation of the plan within the purview of judicial review [19, 23].
Analysis: This is a good reminder that a mere public “hook” in a generic sense will not be sufficient to bring a decision or activity within the scope of judicial review and the grant of public law remedies. As affirmed in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, at para 20, a decision must be “public” in the sense that it “involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power.” This is different from a decision implicates a broad swath of the public. Here, while the Pension Benefits Act does provide “minimum entitlements for members,” the HOOPP itself “was not created by statute, nor is it subject to extensive regulation and government control, and it was not acting pursuant to statutory authority when it determined entitlement to benefits” [21]. In other words, this is a case directly envisioned by Wall as excluded from the reach of judicial review: wide public importance, but the decision is not one taken on delegated power, with which judicial review is concerned.
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. Please complement the SEAR with your own research and study. Any mistakes are my own.
Quote of the Week “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”
Dwight D. Eisenhower