Imperatore v Fetesko, 2023 ONSC 1340 (February 27, 2023)
Category: Selection of standard of review
Context: This is a judicial review of a decision by a Small Claims Court Deputy Judge. The Deputy Judge granted a motion setting aside a previous default judgment. This was after a previous motion was denied by the Small Claims Court (and upheld on appeal to the Divisional Court). In addition to the standard of review in this case, the issue on the merits concerned res judicata: in setting aside the default judgment, did the Deputy Judge exceed her “statutory authority” because the principle of res judicata prevented her from doing so? [21-22].
Issue: What is the standard of review? Was the case res judicata?
Holding: The standard of review is correctness, as this case involves “the issue of the Small Claims Court’s jurisdiction once a motion has been finally disposed of by that court and the Divisional Court” [20]. Since the rule of law “cannot tolerate conflicting orders and proceedings,” the standard is correctness [20]. The issues in this case were res judicata and therefore the Deputy Judge wrongly allowed the motion to set aside default judgment.
Analysis: I agree wholeheartedly with the Court that the case was clearly res judicata. But I wonder about the application of the correctness standard here on this ground.
The “jurisdictional lines” category of correctness review is narrow and rare. It typically arises in cases like NRHA v Horrocks, 2021 SCC 42, which involved the classic case of the boundaries between a labour arbitrator and a statutory human rights tribunal. The category dovetails with the other correctness categories, like the category of concurrent jurisdiction in SOCAN v ESA, 2022 SCC 30, or the general questions category: in all of these cases, the question transcends the application of the law in a particular dispute, and speaks broadly to what institution will be able to hear and decide a particular case or question.
But here, as the Court notes, the Small Claims Court is not an administrative tribunal. To my mind, there is no question here of the jurisdictional lines between “two or more administrative tribunals.” In a broad sense, I suppose one could say that this case raises an issue about the finality of Divisional Court orders; but this isn’t really a matter of administrative law, and it concerns the relationship between “courts.” I’m not sure this was the intention of this correctness category.
Matters are more complicated than this, though, because perhaps the Court could have rested its conclusion on the “general questions” category. Indeed, pre-Vavilov—and mentioned in Vavilov—the question of "when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process” will attract a correctness standard (Vavilov, at para 60). This is a matter of precedent, but conceptually it is awkward. Indeed, Vavilov contemplates administrators applying common law doctrines under the reasonableness standard, and at least some courts post-Vavilov has seen it this way when it comes to res judicata: see e.g. Del Grande v Toronto Catholic District School Board, 2023 ONSC 349; Immigration Consultants of Canada Regulatory Council v Rahman, 2020 FC 832. As Justice Fuhrer notes in Rahman, the pre-Vavilov position was based on the fact that res judicata was presumptively outside the scope of an administrator’s expertise. But because the new presumption of reasonableness “cannot be rebutted by arguments rooted in expertise…” (Rahman, at para 12), the reasonableness standard applies.
I think is the right conceptual position. But it was not explored in this case by the Div Ct, and it instead rested its conclusion on the jurisdictional lines category. This, to my mind, is awkward at best.
Democracy Watch v Canada (Attorney General), 2023 FCA 39 (February 21, 2023)
Category: Partial restrictions on review
Context: This is a motion brought by Democracy Watch for disclosure of documents from the Conflict of Interest and Ethics Commissioner. The underlying application is for judicial review of a decision of the Commissioner in relation to the Prime Minister’s involvement with decisions relating to WE Charity. Democracy Watch’s underlying judicial review raises two alleged errors of law and an error of fact. The AG moved to strike the application because it argued that a provision of the Conflict of Interest Act bars the grounds of review raised in the application. But the question remains in the underlying application: does the provision bar applications for judicial review on grounds that may not be permitted by the statutory bar? Judicial review could follow on these grounds based on the theory that the grounds are encompassed in the constitutional core of judicial review that cannot be ousted by statute.
Analysis: This is another reinforcement of the point that the status of partial restrictions of review in Canadian law is deeply unsettled, in the Federal Court of Appeal and beyond. Here, Stratas JA outlines a useful and novel procedural mechanism (dealing with the application in stages) for dealing with the disclosure motion, given this legal uncertainty: see para 16. And this uncertainty matters, not only for legal principle, but for evidentiary issues as well:
[14] If the Court decides that section 66 bars the grounds, the Court must dismiss the application. If the Court decides that section 66 does not bar the grounds, in particular the ground of error of fact raised by Democracy Watch, the Court will have to consider the merits of the application. In that case, the first item of business will be whether the Commissioner has to disclose confidential material and, if so, under what conditions.
Actually, Stratas JA, at para 20, cites a number of issues of this newsletter as proof-positive of the split in the courts on this issue [20, see Issues 4, 45, 57, and 71]. This is just reinforcement of the fact that this issue will require definitive resolution by the Supreme Court, which Stratas JA contemplates in this case [21].
Edit: I've been informed the SCC will release a leave to appeal decision on Yatar, the ONCA case on this issue, this week.
Canadian Society for the Advancement of Science in Public Policy v British Columbia, 2023 BCSC 284
Category: Record
Context: The petitioners sought orders requiring the Provincial Health Officer [PHO] to “augment the documentary record” [1]. in the underlying judicial review petitions. The underlying petititons challenge the PHO’s order “extending the requirement that health care workers in hospitals and designated community settings be vaccinated” against COVID [3].
Issue: Should the record be augmented?
Holding: No.
Analysis: With the renewed focus on justification in administrative law in Canada, it is no surprise to see pitched battles over the record, especially in a case with these stakes. This is especially so when “non-adjudicative” decisions are challenged—like regulations—and the record must be artifically “constructed” [40]. This means, in practice, that “it would be impractical, and likely impossible, to identify every relevant document available to the PHO at the material time” [40].
I understand the thinking behind this statement, and in practice, it is likely true—judicial review is summary, and it is not a full trial. But as the petitioners stated here—and this, to me, is unobjectionable—the record of decision takes on great importance in judicial review [41-42]. If the record is designed by an administrator to “buttress” a decision after the fact, we could worry about selectivity and ultimately an artificial recreation of the actual record.
Here, the Court notes that the goal is to identify a record that “contains a balanced representation of the important information available to the PHO on the issues in dispute” [62]. The Court concludes that, in this case, the record is sound, having regard to (among other things) (1) “the extensive documentation” from key sources, summarizing or referencing “an enormous number of additional reports and information…” [65]; (2) the petitioners’ requests for further documents are “vast and vague” [70]; (3) the lack of evidence that there is anything “cherry-picked” in the existing record [72].
This case is a good example of the increasingly difficult balance courts have to strike in dealing with records. Here, I think the Court’s decision is right. But the language of “construction” when it comes to records in non-adjudicative settings causes me some worry. It is not the job of courts in the abstract to determine what is a “balanced” record. The record has to be disclosed by the decision-maker, warts and all. In many cases it will be difficult to determine what was actually in the record; courts will need to be creative in these circumstances. In other cases, though, it could very well be that a decision-maker erroneously creates a record that is more favourable to its prospects. The Federal Court was alive to this idea in Château d’Ivoire Stores Inc. v. Canada (Attorney General), 2022 FC 405 at para 23 (Issue #35):
[23] I must confess to being somewhat intrigued by Château d’Ivoire’s argument. It would be rather Kafkaesque for an administrative decision-maker to be able to shield the material relevant to an application for judicial review or a statutory appeal by delegating decision-making authority to staff who would then simply place limited material before the decision-maker with a draft decision, ready to be signed without question. But there is no evidence to suggest that that is what happened in this case, and suggesting it does not make it so.
In that case, like here, there was no evidence this occured. But it could—and this is what courts should be alive to in dealing with records.
Conrad v Nova Scotia Federation of Anglers and Hunters, 2023 NSSC 79 (March 3, 2023)
Category: Preliminary objections (jurisdiction-voluntary association)
Context: The Nova Scotia Federation of Anglers and Hunters [NSFAH] was established by a private Act in 1930. The applicant here seeks an order “to invalidate a resolution passed at a Board meeting approving the credentials of certain clubs and renewing their membership….” on the argument that the clubs “did not comply” with the membership requirements of the NSFAH [4]. The respondent filed a notice of motion to dismiss on the basis that the Court does not have jurisdiction over the affairs of a voluntary association in absence of a legal right [5].
Issue: Does the Court have jurisdiction?
Holding: No.
Analysis: This case appears to be a straightforward application of the Supreme Court’s recent cases on the issue, which set the bar quite high for courts to intervene in voluntary associations: see Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (holding that judicial intervention requires the presence of a legal right); Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 (holding that membership and a Constitution and bylaws themselves do not constitute a legal right that justifies judicial intervention). There are some interesting facts here, though. Here, while the association was constituted by a private Act containing statutory requirements for membership, these requirements exist at the discretion of the association itself [20]. And so the Court concludes:
[41] Based on my review of the caselaw, it is not clear that the governing statute of the NSFAH creates a legal right, nor it is clear that the constitution and by-laws can be deemed to be terms of a contract. Further, the Applicant has failed to establish that there is an intention to create legal relations based on the factual matrix.
Indeed, in this case, the issue of voting/membership rights is not a legal interest that a court can enforce.
The Court notes, however, that Aga “left open” whether the terms of a constitution may constitute a legal contract—where there is knowledge of their obligation to abide by the rules, and membership fees exist [19, 22, 34]. Here, the Court finds that the facts do not disclose the conditions for contract formation.
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.