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Judicial Review - SOR - Reasonableness Exception - Constitutional. Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court considers the less-deferential standard of review accorded to constitutional (here 'indigenous treaty') matters:(i) Treaty Rights Are Constitutional Rights and Engage the Honour of the Crown
[104] As already noted, historic Crown-Indigenous treaties are sui generis agreements protected under s. 35(1) of the Constitution Act, 1982. The constitutional nature of treaty rights demands that appellate courts be given wide latitude to correct errors in their interpretation. Historic treaties “establish or reaffirm a fundamental and enduring relationship between the Crown and an [A]boriginal people” (B. Slattery, “Making Sense of Aboriginal and Treaty Rights” (2000), 79:2 Can. Bar Rev. 196, at p. 209). They are “an exchange of solemn promises between the Crown and the various Indian nations” (Badger, at para. 41). Since 1982, s. 35(1) of the Constitution Act, 1982 has recognized and affirmed that existing treaty rights have constitutional status and attract related constitutional protections.
[105] The special significance of constitutional rights for selecting the appropriate standard of review has been highlighted in various legal contexts. For example, despite lowering the presumptive standard of review for contractual interpretation, this Court in Sattva ruled that, in the commercial arbitration context, correctness would continue to apply where a “constitutional questio[n]” is at issue (paras. 50 and 106). Similarly, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, this Court clarified that, in reviewing administrative decisions, the correctness standard applies to certain “constitutional questions”, including the “scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982” (paras. 17 and 55).
[106] All the courts below recognized the constitutional character of treaty interpretation. The trial judge stated that s. 35(1) of the Constitution Act, 1982 “informs the exercise of treaty interpretation”, and noted that “[b]ecause treaty promises are analogous to constitutional provisions, they must be interpreted in a generous and liberal manner” (Stage One reasons, at para. 336). She acknowledged that the Robinson Treaties enumerate rights “protected by s. 35 of the Constitution Act, 1982” (para. 463). She also recognized that “[t]reaties are part of the constitutional fabric of this country” (Stage Two reasons, at para. 151), a description later echoed by Hourigan J.A. in the Court of Appeal (C.A. reasons, at para. 634). Likewise, Strathy C.J.O. and Brown J.A. highlighted that, unlike ordinary contracts, treaties have a “broader public, political role as foundational documents that establish the bases of relations between Aboriginal peoples and the larger Canadian community” (para. 407, citing Newman, at p. 486).
[107] Relatedly, as noted above, treaties are nation-to-nation agreements that must be interpreted in accordance with the constitutional principle of the honour of the Crown. This transforms the interpretive exercise from a simple determination of the rights and obligations between private parties into an exercise of constitutional interpretation. The goal of this exercise of constitutional interpretation is ultimately to advance a matter of utmost public interest and concern — the process of reconciliation itself.
[108] In this case, for example, this Court has to interpret the scope and content of constitutionally protected rights and obligations that embody the very conditions on which pre-existing Indigenous peoples agreed to share their most precious gift — the land itself — with newcomers. An appellate court must be able to correct errors in the interpretation of those rights when necessary, for Indigenous and non-Indigenous Canadians alike.
[109] I would add that the applicable standard of review cannot turn on whether the Indigenous parties succeeded at trial. In the next case, the situation may be different. An Indigenous appellant will have a pressing interest in ensuring that an appellate court can review whether a trial judge correctly interpreted the relevant treaty rights when ruling against them. A correctness standard thus promotes justice for all parties when interpreting such foundational constitutional rights. . Muslim Association of Canada v. Canada (Attorney General)
In Muslim Association of Canada v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal holds the JR SOR for Charter matters as one of correctness:(1) Standard of Review
[17] We agree with the parties that the issue of whether the prematurity principle applies to a Charter application is an extricable question of law that is reviewable on a correctness standard. . York Region District School Board v. Elementary Teachers’ Federation of Ontario
In York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) the Supreme Court of Canada considers application of the Charter [s.32] to "Ontario public school boards", here in a employer (labour) privacy context.
Here the court finds that the JR SOR for charter issues was 'correctness':A. Standard of Review
[62] The correctness standard applies to the determination of whether the Charter applies to school boards pursuant to s. 32(1) of the Charter as this is a constitutional question that requires a final and determinate answer by the courts (Vavilov, at para. 55), one that will apply generally and is not dependent on the particular circumstances of the case.
[63] The correctness standard also applies to review the arbitrator’s decision. I would quash the award because the arbitrator erred in failing to appreciate that a Charter right arose from the facts before her. The issue of constitutionality on judicial review — of whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis — is a “constitutional questio[n]” that requires “a final and determinate answer from the courts” (Vavilov, at paras. 53 and 55).
[64] The determination of constitutionality calls on the court to exercise its unique role as the interpreter and guardian of the Constitution. Courts must provide the last word on the issue because the delimitation of the scope of constitutional guarantees that Canadians enjoy cannot vary “depending on how the state has chosen to delegate and wield its power” (Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 116, per McLachlin C.J.). The presumptive standard of reasonableness is, thus, rebutted and correctness applies.
[65] Vavilov does not restrict the scope of “constitutional questions” to only issues of federalism and the constitutional delegation of state power to administrative decision-makers (A.F., at para. 57; see also I.F., Attorney General of Canada, at para. 17). Notably, Vavilov used non-exhaustive language in articulating the constitutional questions category, including within it “other constitutional matters” (para. 55 (emphasis added)). This category should not be unduly narrowed.
[66] Post-Vavilov, there is a developing line of jurisprudence to support the application of correctness review in this context (Canadian Broadcasting Corp. v. Ferrier, 2019 ONCA 1025, 148 O.R. (3d) 705, at para. 35; Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, at para. 92; and Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166, 429 C.C.C. (3d) 69, at paras. 32-33). Academics have similarly interpreted that the scope of constitutional rights “demand[s] a uniform answer” and is therefore reviewable on the correctness standard (P. Daly, “Big Bang Theory: Vavilov’s New Framework for Substantive Review”, in C. M. Flood and P. Daly, eds., Administrative Law in Context (4th ed. 2022), 327, at p. 347; P. Daly, A Culture of Justification: Vavilov and the Future of Administrative Law (2023), at pp. 141 and 161-62; M. Mancini, “The Conceptual Gap Between Doré and Vavilov” (2020), 43 Dal. L.J. 793, at pp. 824-26.
[67] I would also like to clarify that while the Court of Appeal for Ontario applied a correctness standard to examine whether the teachers had a reasonable expectation of privacy (C.A. reasons, at para. 37), the court, respectfully, erred in deriving the standard of review from this Court’s decision in Shepherd, at para. 20, dealing with an appellate standard of review. As this Court held in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 38, where a court reviews a decision of an administrative tribunal, “the standard of review must be determined on the basis of administrative law principles”. Vavilov governs this appeal. Correctness applies because the question of constitutionality on this appeal falls within the rule of law exception.
[68] Ontario public school teachers are protected from unreasonable search and seizure in their place of employment under s. 8 of the Charter. Despite their apparent functional resemblance, a right to a reasonable expectation of privacy that is entrenched in the Constitution is distinct in source and nature from an arbitral right to privacy. For one, state actors cannot disavow their constitutional obligations no matter the terms of the collective agreement. At its core, the arbitrator’s reasons disclosed a fundamental error because she had the wrong right in mind. The arbitrator ought to have applied the Charter, but failed to do so. Once she failed to appreciate the constitutional dimension of the searches conducted by the principal, there was no intelligible way for her to continue the analysis while fully engaging with the gravity of the alleged violations of the Charter right at issue. Courts cannot dilute the sacrosanct nature of Charter rights by accepting a different substitute. Nor can courts supplant the reasons proffered by the decision-maker and read the reasons as if it applied a Charter right when in fact it applied a different right (Vavilov, at para. 96).
[69] The arbitrator failed to recognize that the teachers’ s. 8 Charter right applied. I disagree with my colleagues that the standard of reasonableness applies to review the arbitrator’s reasons (Karakatsanis and Martin JJ.’s reasons, at para. 112). This appeal can and should be disposed of because of this fatal error.
[70] In Vavilov, this Court held that:In our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The application of the correctness standard for such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary: Dunsmuir [v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190], at para. 58. [Emphasis added; para. 53.] [71] In light of the above, the appropriate standard of review in this case is correctness. . Amalgamated Transit Union, Local 113 v. Ontario
In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].
Here the court affirms that the JR SOR for constitutional issues is 'correctness', not reasonableness:[31] As Favreau J.A. recently observed in her majority reasons in Ontario English Catholic Teachers Association v. Ontario (Attorney General), 2024 ONCA 101 (“OECTA”), at para. 47, questions of constitutional validity are subject to a correctness standard:The constitutional validity of [legislation] is a question of law to be decided on a standard of correctness. However, this court owes deference to the application judge’s findings of fact, including findings based on social and legislative evidence. [32] She explained further, at para. 51, that findings of fact relevant to the legal question at issue are to be reviewed on a standard of palpable and overriding error:Accordingly, the questions of whether the Act violates s. 2(d) of the Charter and, if so, whether it is saved by s. 1 of the Charter are to be reviewed on a standard of correctness. This inquiry includes consideration of what factors are relevant to deciding these issues. However, the trial judge’s findings of fact relevant to this assessment are to be reviewed on the palpable and overriding error standard of review. [33] Accordingly, I review the application judge's determination regarding the constitutionality of the TTC Act on a correctness standard, but defer to his findings of fact, absent a palpable and overriding error. . LifeLabs LP v. Information and Privacy Commr. (Ontario)
In LifeLabs LP v. Information and Privacy Commr. (Ontario) (Div Court, 2024) the Divisional Court dismisses a JR from an Ontario Privacy Commissioner's interlocutory order during an investigation which ruled against the applicant's privilege claims.
Here the court cites authority for the JR SOR for constitutional questions, which it finds to be correctness:[53] This approach to the standard of review involving constitutional questions was recently confirmed by the Supreme Court of Canada in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, at paras. 45 and 92-97.[2] . Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment
In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment (SCC, 2023) the Supreme Court of Canada considered 'minority language educational rights' under Charter s.23.
Where judicial reviews (as here), have an SOR of 'reasonableness', it is normally excepted for Charter issues and the SOR of 'correctness' applies. But in this case the court cites a further exception for discretionary Charter decisions, thus reverting the SOR back to 'reasonableness':[60] In Doré, this Court, per Abella J., established an approach for reviewing discretionary administrative decisions that limit Charter protections. Abella J. found that reviewing courts must show deference to decisions of this nature (para. 54). In this regard, the parties agree that the standard of review applicable in reviewing the Minister’s decisions is reasonableness. I see no reason to depart from this standard of review in this case (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 16‑17).
....
[70] In the context of discretionary decisions that engage Charter protections, the standard of reasonableness must allow for a “robust . . . analysis” (Loyola, at para. 3 (emphasis in original)) that works the same “justificatory muscles” as the test set out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 (Doré, at para. 5; Loyola, at para. 40; Trinity Western University, at paras. 79‑82). The approach must take into account the role of the courts as guardians of the Constitution and must reflect the particular importance of justification in decisions that engage Charter protections (Vavilov, at para. 133). When a decision engages Charter values, “reasonableness and proportionality become synonymous” (Trinity Western University, at para. 80). . 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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