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Judicial Review - SOR - Reasonableness Exception - Constitutional

. Sharp v. Autorité des marchés financiers

In Sharp v. Autorité des marchés financiers (SCC, 2023) the Supreme Court of Canada considered an administrative extra-provincial jurisdiction issue, here being the application of a Quebec securities tribunal (FMAT) to four BC residents "who are alleged to have contravened the Quebec Securities Act".

In these quotes the court considers the JR standard of review 'exception' (for 'correctness') for constititional issues, here inter-provincial application of provincial law:
A. The Standard of Review

[36] The parties agree that under the framework established by this Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the standard of review of the FMAT’s decision is correctness.

[37] Although presumptively the standard of review when a court reviews the merits of an administrative decision is reasonableness, this presumption is rebutted when the legislature explicitly prescribes the applicable standard of review or when the rule of law requires that the standard of correctness be applied (Vavilov, at paras. 16‑17; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para. 27). The rule of law is implicated in cases involving constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies (Vavilov, at para. 17). The standard of correctness also applies “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute” (Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at para. 28).

[38] Here, the FMAT’s jurisdiction over the out-of-province appellants raises a constitutional issue regarding the territorial reach of provincial legislation. ...
. Canadian Broadcasting Corporation v. Canada (Parole Board)

In Canadian Broadcasting Corporation v. Canada (Parole Board) (Fed CA, 2023) the Federal Court of Appeal considers the Charter 'correctness exception' to the JR 'reasonableness' standard of review, and a further exception for administrative procedures:
[30] The standard of review for questions of law, fact, or mixed fact and law is to be decided in the light of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov] according to which the presumptive standard of review of an administrative decision is reasonableness: Vavilov at para. 10. The presumption may be rebutted in certain circumstances, one of which is when the rule of law requires that the correctness standard be applied, such as when dealing with constitutional questions: Vavilov at para. 17.

[31] The correctness standard in relation to constitutional questions is limited to “[q]uestions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and other constitutional matters [that] require a final and determinate answer from the courts”: Vavilov at para. 55. In other words, not every question involving the Constitution, including the Charter, is to be reviewed on the correctness standard. Charter questions that arise in the course of administrative decisions stand on a different footing:
When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts. Dunsmuir tells us this should attract deference (para. 53; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39).

Doré at para. 36
[32] The first issue before the Board was whether the open court principle, fortified by section 2(b) of the Charter, applied to it. This brings the case within the principle set out in Ferrier, reproduced below:
The issue before the decision maker was whether the Dagenais/Mentuck test had a bearing on the discretionary decision he had to make. That is not the same as the issue presented in Doré and Episcopal of how the s. 2(b) Charter right impacted or affected the discretionary decision he had to make. The decision maker did not reach the point of factoring the Dagenais/Mentuck test into his discretionary decision because he decided that it did not apply. A reasonableness standard assumes a range of possible outcomes all of which are defensible in law: see Vavilov, at para. 83. That standard is inappropriate here. The Dagenais/Mentuck test either applied or it did not.

Ferrier at para. 37 (emphasis in original)
[33] In the present case, the Board resolved the question of the CBC’s access to copies of the audio recordings by deciding that the open court principle did not apply to the Board. As in Ferrier, either the open court principle applied or it did not. As a result, the correctness standard applies to that question.
. Poyton v. OIPRD

In Poyton v. OIPRD (Div Court, 2023) the Divisional Court considered a JR of an OIPRD decision to screen out ("not to deal with") a complaint. In these quotes the court considers an argument by the applicant that the standard of review should be the raised JR standard of 'correctness', rather than the normal standard of 'reasonableness' - as the issue involved both Charter (constitutional) and 'general question of law critical to the legal system'. The court counters this with the high deference accorded to prosecutorial discretionary decisions:
Jurisdiction and standard of review

[13] This court has jurisdiction to review the OIPRD decision pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, RSO 1990, c. J.1.

[14] Decisions to screen out complaints are subject to review on a reasonableness standard: Wendt v. OIPRD, 2022 ONSC 166 (Div. Ct.); Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303 (Div Ct.); Korchinski v. Office of the Independent Police Review Director, 2022 ONSC 6074 (Div. Ct.).

[15] The Applicant submits, however, that a standard of correctness should apply, for two reasons. First, the Applicant argues that the OIPRD exceeded its jurisdiction by considering the deference owed to police investigation decisions and by concluding there was a lack of evidence to support an allegation of misconduct. This, the Applicant says, collapses the role of screener, investigator and adjudicator. Second, the Applicant has raised a constitutional issue, or general question of law, regarding the meaning of “public interest” under s. 60(4) of the PSA, arguing that this engages a complainant’s rights under s. 7 of the Canadian Charter of Rights and Freedoms, which ought to be considered when determining whether to screen out complaints.

[16] Neither argument has merit.

[17] In its decision, the OIPRD stated:
While you may disagree with the decision by the officer, please be informed that courts and tribunals have recognized the broad discretion inherent in police investigation and are extremely reluctant to second-guess investigative decisions made by officers as long as they stay within the bounds of reasonableness. This discretion extends to the decision of whether to interview a witness or to charge an individual with a criminal offence.
[18] The reference to the deference shown police decisions does not mean that the OIPRD exceeded its jurisdiction. Deference to an officer’s investigative decisions is well-established. In 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at paras. 51-52, the Court of Appeal stated very clearly that an officer’s function is to “make a conscientious and informed decision as to whether charges should be laid”, and that an officer is not “required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.”

[19] The OIPRD’s consideration of the legal framework surrounding its decisions and of the evidence necessary to support an allegation of misconduct was neither investigative nor adjudicative. Rather, it was simply a recognition of its task when screening complaints to determine whether the complaint is not in the public interest. In making this determination, the OIPRD must bear in mind Rule 6.5. Accordingly, courts’ and tribunals’ “reluctance to second-guess investigative decisions…within the bounds of reasonableness” is relevant when deciding whether an allegation of misconduct or neglect of duty does not, on its face, amount to a breach of the PSA or Code of Conduct.

[20] Turning to the Charter issue, the OIPRD is mandated to consider the “public interest” and is provided with a broad discretion to do so, which may include consideration of the rights of complainants and, perhaps more directly, the rights of officers. This includes Charter rights, but it does not change the standard of review. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 110, the Supreme Court observed that “where the legislature chooses to use broad, open-ended or highly qualitative language — for example, ‘in the public interest’ — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language.” Thus, whether or not Charter rights are considered, the interpretation of the “public interest” in the PSA is for the OIPRD to determine, and so long as it does so reasonably and “in light of the surrounding context”, its decision is entitled to deference by the courts.


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