Issue #93: June 18, 2023
A big issue: Safe 3rd Country, Dore, Chinook and boilerplate, Ontario adjudicative appointments, procedural fairness.
Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17 (June 16, 2023)
Category: Standard of review on regulations/constitutional challenges
Context: This is the constitutional challenge to the Safe Third Country Agreement, which provides that “refugee claimants must…seek protection in whichever of the two countries [Canada or the US] they first enter after leaving their country of origin” [1]. The appellants challenged this agreement, implemented in domestic law, on the bases that it violates ss.7 and 15 of the Charter: “[t]hey claim that the legislation results in Canadian immigration officers summarily returning claimants to the United States without considering whether the United States will respect their rights under international law, including those relating to non‑refoulement and detention” [3]. The appellants also challenged the vires of the implementing regulations because the designation of the United States as a safe country arguably did not abide by the enabling statute [49]. At the Federal Court of Appeal, the Court concluded that the Charter claim was not properly constituted because, in part, the object of the constitutional challenge was actually not the legislative provisions, but associated administrative conduct—specifically the Government of Canada’s reviews of the United States’ designation as a safe 3rd country, under the legislation [27].
Issues: There are several issues in this case, including the rules associated with challenging a legislative provision in an interrelated scheme and the role of s.15(1) of the Charter. But two issues, specifically, are relevant for our purposes:
Is the regulation intra vires [49-55]?
Is the s.7 challenge properly constituted? What is the relevance of judicial review in a Charter challenge [62-82]?
Holding:
Yes.
Yes—the appellants are not obliged to attack administrative conduct, and the presence of judicial review cannot save a law that is otherwise unconstitutional.
Analysis:
The appellants argument on the regulation raises the debate over the standard of review on regulations (see Issue #68). On one hand, Kasirer J for the Court appears to equivocate. He cites the current authority on the matter, Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 for the proposition that “[r]egulations benefit from a presumption of validity” [54, Katz, at para 25]. But that is the only appearance Katz makes. Notably, Kasirer J does not cite the part of Katz that is currently roiling in the lower courts: its adoption of a highly deferential standard of review that only warrants intervention when a regulation is completely unrelated to an enabling statute’s purpose. As we know, courts across the country have doubted whether this standard survives Vavilov, while the Alberta Court of Appeal has steadfastly stood by Katz in Auer v Auer, 2022 ABCA 375.
For my part though, and reading the tea leaves of this case, I believe the Court is setting itself up to hear Auer; leave materials have been filed. I think the comments in this case are at least interesting as we prepare for leave to potentially be granted. For one, while Kasirer J does not mention the controversial aspect of Katz, he does cite the Chemicals Reference, [1943] SCR 1 at 13, for the proposition that regulations “derive their validity from the statute which creates the power, and not from the executive body by which they are made” [51]. Does this not shed doubt on the theory underlying Auer? Recall there that the ABCA was of the view that the identity of the promulgator as the Governor in Council was constitutionally significant, counselling a light-touch standard of review. But in this case, Kasirer J’s citation of this Chemicals Reference passage, and his remark that “[t]he limits imposed by the enabling statute are therefore fundamental to determining whether a regulation is intra vires” points instead to the perspective adopted by the Federal Court of Appeal in Portnov v Canada (Attorney General), 2021 FCA 171—it is the relevant stringency of legislative language that matters and that dictates the intensity of review. The reasonableness standard can accomodate this focus on legislative language, as it does under Vavilov. And Kasirer J, if we apply Vavilov, is completely right; the primordial constraint would be the legislative language. But I am biased—so take with a grain of salt!
The Supreme Court holds that, in this case, the appellants were not obliged to challenge the administrative conduct and could directly attack the legislative provisions. This is because of the clarification drawn in the case between preventative and curative measures that can condition the application of a law that, in general, could impinge on constitutional rights. Preventative legislative measures “narrow a general rule by precluding its application in anticipation of a breach…”; curative legislative measures “repair a breach…by providing a targeted exemption after the fact” [68]. Even in face of these measures, however, the appellants did need to challenge them in framing their constitutional challenge—courts can consider them in the face of a challenge directed, as here, to a broader legislative rule [78]. And here, the problem was the designation of the United States as a safe third country, the administrative reviews of which do not “play a curative role” [81]. All I can say about this: I think the distinction between preventative and curative measures is helpful, but I think it is becoming increasingly difficult to identify the source of unconstitutionality, especially in a complex scheme like this.
Finally, one other point on judicial review. The FCA, in extensive reasons, explained how and why judicial review in the Federal Courts could serve as a “safety valve” that prevents the unconstitutional application of certain laws (see the FCA opinion, at paras 96-122). The Supreme Court disagreed. It concluded that judicial review is fundamentally different from the preventative and curative measures embedded in a law; it can never be shielded from review completely, and so it—presumably—always exists and cannot be marshalled to save an otherwise unconstitutional law [77]. I would have liked to see more written on this. For one, while it is true that judicial review cannot be ousted completely, it can be partially restricted in any number of ways, meaning that it may have more bite in certain statutory regimes than others. Surely this means that judicial review will have more to do—potentially alleviating unconstitutional effects—in some regimes. Also, while it is true that statutory mechanisms directed at a general rule and judicial review will not necessarily lead to the same outcomes or have the same functions, there may be overlap in some cases, rendering judicial review a useful mechanism. This is especially so since the statutory safety valves may depend on the generosity of a government actor, like a Minister (as it was in PHS, 2011 SCC 44). Judicial review, on the other hand, depends on an independent umpire that measures government action against legal standards. In certain cases, it may well be that the availability of such review can provide enough confidence that constitutional issues can be resolved, in addition to being a practically useful mechanism for marshalling evidence that could feed into a larger constitutional challenge. This is not to say that the Court is completely wrong—there are differences between the statutory mechanisms it highlights and judicial review. But I do not think judicial review is entirely irrelevant.
Lauzon v Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (June 15, 2023)
Category: Doré
Context: The Justice of the Peace Review Council’s Hearing Panel found that JP Lauzon committed judicial misconduct when she wrote an article in the National Post that was “sharply critical of the operation of bail courts and the conduct of some Crown prosecutors in her court…” [3]. Two members of the panel recommended Lauzon’s removal from office [7], because of “ongoing personal bias against Crown prosecutors” [9, see also 81]. Lauzon sought judicial review of both the decision to find her to have committed misconduct (merits decision) and the penalty decision; the Divisional Court dismissed the judicial review, holding that the decisions were reasonable [8]. I analyzed the Divisional Court decision in Issue #12.
Issue: Are the Hearing Panel’s merits and penalty decisions reasonable “in the sense demanded by Vavilov” [9]?
Holding: “[14] I would allow the appeal in part, quash the majority’s disposition and substitute the disposition recommended by the Hearing Panel’s dissenting member: a reprimand and a 30-day suspension without pay.”
Analysis: This is an excellent decision that repays careful reading, especially on the relevant principles of judicial independence and their relevance in this professional disciplinary context. At the heart of the underlying decisions was, in one sense, a basic Vavilovian error, where the decision-maker took unwarranted leaps in a “1+1=3” sense. These unwarranted leaps took place because the decision-maker simply did not address the relevant Vavilovian constraints:
[73] The Panel effectively reduced the case against JP Lauzon to her being irremediably biased against Crown counsel appearing before her. At the end of its long merits decision, the Panel stated, at para. 300, “[t]he overall tenor of the Article, we find, gave the appearance of a retributive personal attack on prosecutors rather than a serious, considered, and civil critique of the bail system and the importance of judicial independence.” In para. 59 of the disposition decision, the majority torqued the misconduct into “a reasonable apprehension of bias, if not actual bias,” and then added, at para. 84 of the disposition decision: “[t]his Panel found that Justice of the Peace Lauzon inappropriately used the power and prestige of her judicial office to exact retribution on Crown Attorneys who she thought were disrespectful to her.”
[74] There is a dramatic escalation in how the misconduct is described from para. 145 to para. 300 of the merits decision, and then again at para. 84 of the majority’s disposition reasons, emphasized by repetition, as if it were not possible to censure JP Lauzon sufficiently.
What I find particularly interesting about this case, from a doctrinal perspective: Vavilov, as applied here, significantly strengthens Doré—if not sidelining it in service of stronger constitutional standards. As noted above, the Court frames the question as whether the decision survives Vavilov’s standards [9]. One senses that, in several ways, the Court has made the constitutional review of administrative decisions stronger by more closely integrating Doré’s plain language with orthodox tools of constitutional review:
“In my view, the analysis must advert to the proportionality analysis developed by the Supreme Court in Oakes for cases in which a government actor is seeking to limit a Charter right” [148]. By more closely integrating the loose analysis in Doré with the Oakes test, the Court has invited more rigour in the Dore framework—much needed rigour. It isn’t just about an abstract balance between a “value” and an “objective.” The Hearing Panel, instead, needed to deeply probe the effect of its proposed disposition on the right asserted by JP Lauzon, and then turn to a structured proportionality analysis, outlined at para 151. On this account, judges are happily closer to lawyers than moral philosophers, abstractly balancing goods.
One criticism of Doré is that, in its plain language, it does not demand much of decision-makers in explaining how a purportedly proportionate balance that it reaches in a decision is actually so. The Court battles this reality in Lauzon. Here, the Hearing Panel only said that “it would be ‘guided by Charter principles’ in making its findings about the article and otherwise going about its work, and did not revisit the matter in the disposition reasons” [149]. This is just not enough: “The Doré approach should not tempt tribunals to elide key steps in the analysis” [149]. As noted above, the Hearing Panel needed to actually identify the constitutional interests at stake—here judicial independence—and assess the impact of the disposition on those interests.
It could be tempting for judicial review courts not to expect much in the way of constitutional balancing from certain decision-makers, and accordingly, to be more willing to dive into the record and find dots to connect. Vavilov, in non-constitutional contexts, now tells us that this should not be done. This case translates this requirement to the constitutional context. Here, “[t]he Panel did not do that work, and it is not up to this court, in an effort to salvage the disposition, to reconstruct what the Panel’s approach would have been”—it cannot mine the record to do [151]. Decision-makers tasked with dealing with constitutional issues, with an incredible impact on a particular individual, should actually deal with those issues, and it should not be an option for courts to pick up the pen for them (Bonnybrook Park Industrial Development Co Ltd v Canada (National Revenue), 2018 FCA 136 at para 93, per Stratas JA dissenting). Otherwise, what is deference really worth?
The closer clustering of Doré with Vavilov and Oakes is a welcome achievement of this case, but in one sense, it only makes me ask: how close can it get? I continue to maintain that the best option is to simply do away with Doré explicitly and in large part. As I have written before, starting with Vavilov provides all of the conceptual tools necessary to implement s.1 in the law of judicial review. Even if, practically, Doré could be finagled to fit with existing materials in the law of judicial review, there are still important reasons of principle to reject it.
Safarian v Canada (Citizenship and Immigration), 2023 FC 775; Khosravi v Canada (Citizenship and Immigration), 2023 FC 805.
Category: Application of the reasonableness standard (boilerplate).
Context: These are two decisions by Justice Grammond. Both cases deal with denials of a study permit.
Issue: Are the decisions reasonable?
Holding: No.
Analysis: Both decisions can be seen as fresh entries in the growing list of post-Vavilov cases that take a stand against rote administrative boilerplate, particularly boilerplate that might result from the use of assisted decision-making tools (see my discussion of these tools in Issue#85). I wholeheartedly agree with Justice Grammond’s comments and can only quote them:
Safarian:
[3]In the present case, the officer’s notes consist largely of boilerplate statements that we see repeatedly in study permit decisions and that appear to be generated by the Chinook software. As I explained in Boukhanfra v Canada (Citizenship and Immigration), 2019 FC 4 at paragraph 9, the use of boilerplate is not in itself objectionable, but the reviewing court must be satisfied that the decision-maker turned their minds to the facts of the case. The fact that the use of a particular sentence was held to be reasonable in a previous case does not immunize it from review in subsequent cases. Conversely, a sentence found to be unreasonable in a particular context will not necessarily be so in a different context. In the end, the court must be able to understand why the decision-maker reached a particular conclusion.
Khosravi:
[7] The decision in this case does not show that the officer gave adequate consideration to Ms. Khosravi’s submissions, in particular her study plan. The officer’s reasons in this regard consist of three boilerplate sentences that frequently recur in similar decisions…
[12] I note that Ms. Khosravi’s application was “processed with the assistance of Chinook 3+.” I do not know if the shortcomings outlined above result from the use of this tool. I will simply say that the use of assisted decision-making tools does not relieve officers from the duty to fully consider an application, most importantly the study plan. If the use of such a tool gives the officer a truncated vision of the application, the resulting decision may well be unreasonable.
McAnsh v Ontario, 2023 ONSC 3537 (June 12, 2023)*
Category: Independence and impartiality
Context: This is a motion to strike brought by the defendant against the Plaintiff’s breach of contract claim, a proposed class proceeding. The Plaintiff and other members of the putative class are former members of adjudicative tribunals in Ontario. They served fixed-term appointments and served out their terms, but were not reappointed. The Plaintiff argues that “embedded as part of the employment contract formed by the appointment was tha the term would be subsequently renewed” [4]. Specifically, the Statement of Claim states that no termination provision was contemplated by the contract or law governing the appointments, and that the transparently political reasons—for the Plaintiff, “the failure of the current Ontario government to reappoint members that were appointed by the former Ontario government violates ‘the principle of independence of adjudicative tribunals’” [13]. The Plaintiff, notably, said that he was promised—at some stage—a reappointment [45, 47].
Issue: Should the claim be struck?
Holding: Yes.
Analysis: This is the right result, in my view. The Plaintiff plead this case as if he were a contract employee. But “…adjudicative tribunal members have the terms of their appointment fixed by legislation and they are not able to bargain over their salaries, duration of tenure, or other employment terms” [32]. The Plaintiff stretched an argument based on the rule of law—that the failure to reappoint him based on a “promise” undermines the rule of law [44]. This, of course, runs into all sorts of problems: (1) a secret, unrecorded promise cannot provide a term of appointment outside the normal, legal process; (2) the executive, in following the legislative process, has the constitutional right to choose not to reappoint a term appointee.
The Plaintiff took the argument from judicial independence too far, as well. The contention was that the decision not to reappoint was “driven by politics” [63]. But as the Court tells us, this “is to say very little” [64]. Whether we like it or not, “[t]here is nothing illegitimate in a new government making appointments to administrative agencies, boards, and tribunals which take into account its own policy choices and political inclinations” [65]. This is one way in which the principle of judicial independence cannot be transposed so easily to the administrative sector. As the Court says, security of tenure can be satisifed in this context by fixed term appointments [57]; and the government has a right to leave its imprint on tribunals through appointments that reflect its own policy mandate. We can’t remove politics from the administrative independence equation.
*EDITED TYPO ON CAUSE OF ACTION: JUNE 18, 2023
Canada v Bowker, 2023 FCA 133 (June 8, 2023)
Category: Standard of review for procedural fairness.
Context: This is an appeal from a decision of the Tax Court. The Tax Court allowed Bowker’s appeal from the Minister of National Revenue’s assessment of a penalty under the Income Tax Act “for, colloquially, gross negligence in making a false statement in an income tax return” [1]. It awarded costs to Bowker [2]. Canada appealed, making a procedural fairness argument: it argued that the Tax Court erred in considering a legislative factor in the costs award that the parties had not raised in their submissions without giving it the chance to make submissions on that point [3]. The factor is contained in Rule 147(3)(g) of the Tax Court of Canada Rules: “the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding” [5].
Issue: What is the standard of review?
Holding: Questions of procedural fairness are legal questions to be reviewed on a correctness standard, on the authority of Law Society of Saskatchewan v Abrametz, 2022 SCC 29. The Court says: “As a result, any debate as to whether questions of procedural fairness are questions of law reviewable on the standard of correctness…has been put to rest [16, citations omitted].”
Analysis: I think the Court’s conclusion on the procedural fairness issue is premature. For one, Abrametz concerned the standard of review on procedural fairness issues in a right of appeal. The question whether the standard of review for procedural fairness in a judicial review matter is a different question, one that is still live: see Innovative Medicines Canada v Canada, 2022 FCA 210 at para 33, which signals the application of Vavilov’s standard of review framework to issues of procedural fairness. And even on the appellate standards, I’m not entirely sure the Court’s categorical statement that the “debate”—such as it is—has been put to rest. It is of course true that the appellate standards invite correctness review on questions of law and that legal principles are clearly at stake in procedural fairness disputes: in Abrametz, for example, “[w]hether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness” [30]. But surely this, and the statement in Bowker, are too simplistic. In procedural fairness disputes, there will be many factual “inputs” into the relevant legal analysis that are not to be re-tried de novo by a judicial review court. In Abrametz itself, the lower court erroneously interfered with the fact and mixed fact and law findings of the decision-maker, and inappropriately parsed the evidence in order to pluck out a palpable and overriding error (see my analysis in Issue #48, and Abrametz, at paras 112-114). I cannot say whether this would have made a difference in Bowker—here, the claim was made that a breach of a right to procedural fairness was a palpable and overriding error [70]. This is, as the Court says, not quite right either [70-71].
Nonetheless, it is at least awkward to say the standard of review is always-and-everywhere correctness, and it’s surely too quick to say that any “debate” has been conclusively settled.
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.