Issue #91: June 4, 2023
Standard of review on regulations, general questions, the Boloh case, and more.
Welcome back after the two week hiatus. I am delighted to announce a new partnership for the newsletter with LexisNexis. In a few months, all past and future issues of SEAR will be searchable on Lexis+ as a netletter. The newsletter will always remain free & available on Substack; but it will soon come up in keyword searches on Lexis+, as well. I hope this will assist your research—it will certainly make it easier to search for past issues of the newsletter based on your keyword search.
I will notify you all when the content is fully available on Lexis+.
I want to thank each of you for subscribing to the newsletter. When I started this two years ago, I would have never thought close to 900 of you would ever be interested in this service, nor that it would be widely available. Thank you for reading.
This week will cover cases missed during the two-week break.
British Columbia (Attorney General) v Le, 2023 BCCA 200 (May 17, 2023)
Category: Standard of review of regulations.
Context: From the Court’s summary:
The issues in this appeal concern whether a section of a regulation limiting recovery of disbursements in motor vehicle litigation to a fixed percentage of the amount recovered is valid on administrative law grounds and unconstitutional as an impermissible infringement of the core jurisdiction of superior courts. The judge had concluded that the regulation was both invalid and unconstitutional.
Issues: (1) What is the standard of review—this issue invokes the ongoing debate over the standard of review on regulations? (2) Is the regulation a reasonable exercise of statutory authority?; (3) Is the regulation unconstitutional because it interferes with the core jurisdiction of superior courts protected under s.96 of the Constitution Act, 1867?
Holding: (1) The two-judge majority appears to adopt a modified version of the reasonableness standard: “The question before us is whether the impugned Regulation can be justified on any reasonable interpretation of the statute pursuant to which it is authorized” [133]. Justice Newbury would have more straightwordly adopted the reasonableness standard, on the theory that Vavilov was a “sea-change” [84], expressing “its clear preference for applying the reasonableness standard even where the target of judicial review is a regulation enacted without reasons by a body such as a provincial cabinet” [95]. (2) The Court unanimously agreed that the regulation failed the reasonableness standard. (3) The two-judge majority rejected the argument that the regulation was unconstitutional; Justice Newbury, in partial dissent, would have found the regulation unconstitutional [116].
Analysis: I analyzed the lower court decision in this matter here. I suppose one can view the two-judge majority view on the standard of review in two ways. The first is that, in substance, the majority has joined the bulk of courts across the country and concluded that the reasonableness standard applies to delegated legislation. Its formulation of the standard as “any reasonable interpretation” is an operationalizing of “the general framework that governs the administrative law analysis” under Vavilov [130].
There is another way to view the argument. The two-judge majority frames the “any reasonable interpretation” inquiry as rooted in the enabling statute’s purpose: in fact, sometimes there is slippage in the way the majority articulates the test; at one point (at least) it poses the relevant question as whether the regulation accords “with any reasonable interpretation of the purpose if its enabling statute…” [134]. This slippage is small but important. It is a signal pointing to Katz, which asks whether a regulatory instrument is “completely unrelated” to a statutory purpose. So, the majority suggests—relying on federalism jurisprudence—that there can be an actual operational conflict between the regulation and the enabling statute, or a frustration of purpose [136]. On this account, we are not really asking whether a regulation is consistent with a cohesive understanding of the text, context, and purpose of the enabling statute; instead, much turns on a somewhat-disembodied determination of a purpose of an enabling statute, and an abstract assessment of whether the regulation achieves this purpose.
For my part, I prefer to read the opinions holistically as an endorsement of Vavilov, though I prefer Justice Newbury’s clean and wholesale adoption of Vavilov, rather than the majority’s purposive tweak: and Justice Newbury’s opinion shows how the Vavilov reasonableness standard can apply to exercises of delegated legislation (see the discussion of Vavilov’s constraints at para 104). For one, as I alluded to above, the real question is whether a regulation is consistent with the enabling statute, not just the enabling statute’s purpose. A focus on purpose to the exclusion of the text and context of the statute could conceivably provide a broader basis to justify a regulation, especially if courts—as they sometimes do—frame a statutory purpose at a high level of abstraction. It is true that the two-judge majority provides some important guidance about determining purpose [138]. Nonetheless, better in my view to simply ask—as we do with administrative decisions—whether the regulation respects the legal constraints expressed in the statutory language.
On the constitutional issue: as I wrote in my post on the lower court decision, I thought the conclusion that the regulation was unconstitutional was a stretch. It seems there are good arguments both ways, but the two-judge majority at the Court of Appeal is not convinced the regulation has any constitutional infirmity. Again, as I mentioned in the analysis of the lower court opinion, I question whether the constitutional issue needed to be addressed at all.
Martin (Estate) v Health Professions Appeal and Review Board, 2023 ONSC 2993 (May 18, 2023)
Category: Selection of standard of review (general questions of central importance).
Context: This is a judicial review of a decision of the Health Professions Appeal and Review Board [HPARB] which confirmed the dismissal of a professional conduct complaint by the College of Physicians and Surgeons. Martin’s complaint concerned the conduct of one Dr. Shah; Martin discovered that, in the course of an action for medical malpractice brought by Martin against Shah, Shah had accessed Martin’s records on several occasions, “despite the fact that he was no longer involved in Mr. Martin’s care and despite the fact that Dr. Shah had transferred Mr. Martin to another hospital” [2]. The College concluded that Shah accessed Martin’s records for the purpose of defending the malpractice suit, which is permitted under the Personal Health Information and Protection Act [3]. The HPARB found this decision was reasonable.
Issue: Is the HPARB’s decision reasonable? What is the standard of review?
Holding: The standard of review is reasonableness; the decision is unreasonable.
Analysis: The Applicant argued that the standard was correctness because (1) HPARB was not interpreting its actual enabling statute; and (2) the issue of when a doctor can breach patient confidentiality is a central question of general importance, with wide implications for other statutes [23, 29].
I think the Court is right to reject both of these bases for the application of the correctness standard. On the “home statute” issue, we have seen other cases where this argument was made: see The Corporation of the City of Mississauga v Information and Privacy Commissioner of Ontario, 2022 ONSC 6227, Issue #66). In that case, the Court was convinced that the presumption of reasonableness still applied even though the decision-maker was not interpreting its home statute; the statute at issue was still related to the decision-maker’s mandate. This is basically the situation here. The Court, though, offered a somewhat more emphatic endorsement of the application of the presumption of reasonableness, even in cases where the home statute is not at issue. It notes that the determination of the standard of review based on the conclusion that the HPARB was not interpreting its home statute would invite the contextual review that Vavilov rejected; it would, presumably, be based on an argument that the HPARB’s expertise does not extend to statutes outside its direct remit [24]. As a matter of preserving Vavilov’s simplicity and rule-like operation, I am sympathetic to the Court’s conclusion. For comparative interest, I note that the US Supreme Court has also struggled with the issue, but it (in my view, wrongly) concluded that certain exercises of administrative power that do not “carry the force of law”—rules, for example, that are not promulgated under statutory authority — are not owed deference (see US v Mead Corporation).
The Court also offers a useful clarification of the “central questions of general importance” exception. We know that such questions are rare and are generally only recognized where the questions transcends the immediate statute and raises quasi-constitutional or constitutional stakes (see Issue #7, Portnov v Canada (Attorney General), 2021 FCA 171). The Court here emphasizes that the test is conjunctive—the question must both transcend the statute and be of such a magnitude that it engages the special duty of the courts to answer the question consistently across the administrative justice system. Here, the Court admits that the issue of patient confidentialty has implications for other statutes and laws; but it does not rise to the level of magnitude requiring special resolution on a de novo basis [30]. I agree with the Court’s conclusion and find its clarification of the test useful.
Chera v Canada (Citizenship and Immigration), 2023 FC 733 (May 24, 2023)
Category: Application of the reasonableness standard (visa decisions)
Context: This is a judicial review of a decision of a visa officer rejecting Chera’s application for a temporary resident visa under the “super visa” category to visit his son and two grandchildren in Canada—this “super visa” permits “eligible parents and grandparents to visit family in Canada for longer periods of time than with a normal visitor visa [6]. The officer concluded that Chera would not leave Canada at the end of the visa period because he had only a daughter in India [32]; and because the wedding which in part motivated Chera’s request for a visa had already passed [34].
Issue: Is the decision reasonable?
Holding: No.
Analysis: While the Court finds that the decision also breached Chera’s procedural fairness rights, the Court also finds the decision unreasonable. The case provides a good example of the sorts of mistakes that a visa officer can make that will almost certainly lead to a successful judicial review. First, as the Court rightly points out, the officer failed to explain why Chera’s son in Canada is a factor which should receive more weight than the presence of his wife and daughter in Canada” [32]. This sort of thing must be explained. In such a case, it is no defense to a failure to explain to simply say that visa applicants are not owed much; even though the duty to provide reasons is “minimal” in this context, explaining why a piece of evidence should be preferred over others [36]. Another error by the officer: a mischaracterization of the purpose of the visit. That the wedding that the applicant was slated to attend already occurred should have been fatal to the application, considering that the primary purpose of the application related to the super visa and the visit of a parent or grandparent to their children or grandchildren in Canada [34-35]. This was not addressed by the officer.
Canadian Union of Public Employees, Local 2745 v New Brunswick (Treasury Board), 2023 NBCA 33 (May 25, 2023)
Category: Application of reasonableness standard.
Context: This is an application for judicial review of a decision of a labour adjudicator. The grievance at issue alleged that the Employer, the Treasury Board, “violated both the collective agreement and the [Pay Equity Act] by failing to make pay equity adjustment payments to all entitled Union members” [2]. The adjudicator upheld the union’s grievance and ordered the Employer to make retroactive pay equity adjustments [4]. A judge of the Court of King’s Bench allowed the employer’s application for judicial review.
Issue: Is the decision reasonable?
Holding: Yes.
Analysis: I’ve highlighted this case because the Court of Appeal found fault with the judicial review judge’s application of the reasonableness standard. The judge applied “disguised correctness review” by providing “her own interpretation…of the statutory scheme,” substituting it for the adjudicator’s [73]. This is a problem that can be easily avoided with a bit of effort. After Vavilov, courts should not interpret a statute anew and then determine whether that interpretation matches the adjudicator’s. Instead, it should be the opposite—courts should first start with the reasons of a decision-maker, and determine whether those reasons adequately grapple with the relevant legal and factual constraints bearing on a decision: see Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at paras 19-20; Canada Post Corp v CUPW, 2019 SCC 67 at para 26. The difference is important: we need to start with the reasons themselves.
Canada v Boloh 1(a), 2023 FCA 120 (May 31, 2023)
Category: Remedies
Context: The respondents were alleged to be ISIS fighters by the Autonomous Administration of North and East Syria and have been held on that basis. They are Canadian citizens. The respondents argued that, because of s.6 of the Charter which guarantees the right of Canadian citizens to freely enter Canada, the government “must take positive steps to cause them to be returned to Canada” [11]. The Federal Court agreed with the respondents, granting declarations that the Government must make formal requests to repatriate the citizens [59].
Issue: This case is significant for the commentary it offers on Charter interpretation: starting at para 16. This commentary is important, and I think it raises sound criticisms about the inconsistencies in the Supreme Court’s interpretive method over the years. But the question of interest for us is whether the Federal Court made a legal error when it granted the declarations at issue.
Holding: “…in reality, what the Federal Court awarded were not declarations. They were disguised mandatory orders or disguised mandamus remedies against the Government of Canada” [60]. This “imposition of mandatory obligations upon the Government of Canada…” “cannot be imposed without determining whether their exacting legal prerequisites are met” [63].
Analysis: I sense that it might be popular to seek declarations, especially in cases like these, as all-purpose remedies. But this case tells us that there are real limits to declarations—and I agree with the Court that, here, the Federal Court went way too far. A declaration is designed to state a legal position: declarations of rights of the parties. But here, the remedies were prospective in nature, putting an ongoing obligation on the Government of Canada that would far intrude into “matters quintessentially and uniquely within its ken,” like foreign affairs [66]. The standard for such a remedy is high.
The Court also provides a good roadmap for determining a remedy that, in my view, is duly respectful of the separation of powers. First a court must determine the “essential character and real essence of the remedy” sought [61]. This, evidently, may not always be obvious from the pleadings, and so this requires careful judicial work. Then, the court must identify the legal prerequisites for the remedy. The consequences of a remedial mishap—granting a declaration, say, where mandamus is the real essence of what is sought—are grave. It permits the grant of a mandatory order in absence of a clear statutory duty, in a situation where the executive has more constitutional room in which to maneuver. This is a situation where a remedial mistake can corrode the separation of powers, protected by the high standard for the grant of mandamus.
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.