Simon's Megalomaniacal Legal Resources

Judicial Review - SOR - Expertise (2)

. Mann-Bentley v. North Kent Mutual Insurance Co.

In Mann-Bentley v. North Kent Mutual Insurance Co. (Div Court, 2024) the Divisional Court noted a limited JR jurisdiction for Insurance Act s.128 umpire appraisal cases.

Here the court reviews the JR SOR and the JR jurisdiction bearing on such cases, where there is higher deference due to the decider's (or tribunal's) expertise:

JURISDICTION

[11] The court has jurisdiction to hear this application for judicial review pursuant to ss. 2(1) and 6(1) of the JRPA. This Court has ruled, however, that its jurisdiction to review an appraisal award is narrow, limiting intervention only to when there has been misconduct, or where the appraiser or umpire has exceeded his or her jurisdiction: Sellors v. State Farm Fire and Casualty Co., 2023 ONSC 645 (Div. Ct.), at para. 21; Seed v. ING Halifax Insurance (2005), 2005 CanLII 41991 (ON SCDC), 78 O.R. (3d) 481 (Div. Ct.), at para. 23. Although an umpire is not required to give reasons, the failure to do so may also be grounds for intervention: Intact Insurance Co. v. Laporte (c.o.b. Warrior Gear), 2023 ONSC 1828 (Div. Ct.), at paras. 78-79, Leiper J. dissenting, at paras. 133-135, rev’d on other grounds 2024 ONCA 454.

STANDARD OF REVIEW

[12] The applicant and the respondent agree that the appropriate standard of review on this application is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. Under Vavilov, the court must only determine whether the decision bears the “hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in the relevant factual and legal constraints that bear on the decision.” Unreasonable decisions are those that contain at least one of two fundamental flaws: 1) a failure of rationality internal to the reasoning process; and/or 2) is in some respect untenable in light of relevant factual and legal constraints: Vavilov, at paras. 99-101.

[13] The standard of review for Insurance Act appraisal awards must be viewed in the context of the appraisal mechanism under that Act. An appraisal is not adjudicative or quasi judicial process. It is a process based on discussion between those with knowledge and expertise. It is intended to be collaborative, not adversarial. Where the appraisers cannot agree on the value of the property lost, the umpire decides using a process of his or her design: Northbridge General Insurance Corp. v. Ashcroft Homes-Capital Hall Inc., 2021 ONSC 1684 (Div. Ct.), at para. 29. Since an appraisal under s. 128 is not an arbitration, it does not require a hearing, evidence, or reasons: Campbell v. Desjardins General Insurance Group, 2022 ONCA 128, 467 D.L.R. (4th) 480, at para. 47.

[14] In Laporte (Div. Ct.), at para. 28, D. Edwards J. cited the Supreme Court’s guidance on how to approach on appeal where no reasons are required or given:

There will nonetheless be situations in which no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision. In such a case, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape: Vavilov, at para. 138.

[15] Accordingly, appraisal awards should generally be afforded significant deference.

. Danso v. The Human Rights Tribunal of Ontario et al.

In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court considered Vavilov 'reasonableness' in the following terms, with a common emphasis on the tribunal's 'expertise':

[42] In order for the court to overturn the decision, the applicant must establish that the decision of the Adjudicator was unreasonable.

[43] The nature of a reasonableness inquiry requires the reviewing court to respect the institutional expertise and experience of the decision-maker. As stated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 15, the reviewing court must do the following:

In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.

[44] In Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, the task of this court is delineated, at para. 132:

The only issue on judicial review was whether the vice-chair’s decision fell within the range of reasonable outcomes. On judicial review, it is not enough that the reviewing court be persuaded that one could arrive at a different decision based on the same evidentiary record. To succeed on judicial review in this case, it was necessary to show the tribunal could not reasonably arrive at the decision it did.

....

[48] With respect to other allegations and evidence, the Adjudicator reached a decision that is rationally supported and conducted in accordance with the analytical framework set out in Shaw v. Phipps, 2012 ONCA 155, 289 O.A.C. 163. The Court of Appeal for Ontario described the this analysis at para. 12, as follows

The onus rests on a complainant to establish the prohibited discrimination in accordance with the “prima facie” test. This description of the approach to establish discrimination comes from the decision of the Supreme Court of Canada in Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102], which was decided in the context of employment-related discrimination. In that case, the Supreme Court of Canada explained that “[a] prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer” from the person alleged to have discriminated (at 558 [C.H.R.R. § 24782]). This means that the onus lies on the complainant to establish discrimination on the balance of probabilities and that, if the complainant does so, the evidentiary burden shifts to the respondent. See also Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 269 O.A.C. 137 [71 C.H.R.R. D/1].

. Ontario Secondary School Teachers' Federation v. Ontario

In Ontario Secondary School Teachers' Federation v. Ontario (Div Court, 2023) the Divisional Court considered OLRB labour JRs by the two teachers' unions (the EFTO and the OSSTF), here regarding the "duty to bargain in good faith pursuant to s. 17 of the Labour Relations Act". The OLRB dismissed the OSSTF application entirely - but allowed the EFTO application, though without any remedy.

In this quote the court notes the 'expertise' of the OLRB, and consequent deference to be accorded it:

[101] In reviewing a decision of the OLRB, this Court must be cognizant of its expertise in all matters of labour relations, including those involved in collective bargaining. Deference must be afforded to this expertise which will include the multiplicity of considerations that will have a bearing on the conduct of the parties to collective bargaining, both present and future. It is trite to observe that collective bargaining in a situation like this occurs against a backdrop of a continuing relationship between the parties, a fact that will have a bearing on the objectives of the parties that may bend and shift during the course of such negotiations (see: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th), at para. 92. See also Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779, 476 D.L.R. (4th) 342).

. Yan v. 30 Forensic Engineering Inc.

In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court considered the SOR for a JR of an HRTO dismissal:

[27] The parties agree that the standard of review for decisions of the HRTO is reasonableness. The review of a decision from the HRTO should be afforded the highest degree of deference with respect to the HRTO’s interpretation and the application of human rights law. Deference is owed because of the HRTO’s specialized expertise (Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561 and Shaw v. Phipps, 2012 ONCA 155, 289 O.A.C. 163).

. RT HVAC Holdings Inc. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada

In RT HVAC Holdings Inc. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Div Court, 2023) the Divisional Court considers a JR application to set aside a labour certification "to represent certain employees within one division of the Company".

In these quotes, the court considers the standard of review (SOR) applicable to the OLRB - here on the issue of 'expertise':

[23] While expertise is no longer a factor in determining the applicable standard of review, it is a factor in applying it. Both before and since Vavilov courts at all levels have recognized the Board’s specialized expertise in determining grievances filed under s. 133 of the Act and have held that the Board should be afforded the highest degree of deference in its interpretation of collective agreements.

[24] In Electrical Power Systems Construction Association v. Labourer’s International Union of America, 2022 ONSC 2313, [2022] O.L.R.B. Rep. 497 (Div. Ct.), the Divisional Court held, at paras. 14 and 15:

[14] In reviewing a Board, judges should remain mindful of its expertise. Labour relations is a complex and sensitive field of law. The Ontario Court of Appeal has observed that “the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction.” (Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, [2008] O.J. No. 1353, at para. 42).

[15] The interpretation of collective agreements is at the very heart of the Board’s jurisdiction. In line with Vavilov, labour arbitrators and boards should be afforded the highest degree of deference in their interpretation of these agreements. [Citation omitted.]

[25] In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, the Court of Appeal for Ontario dealt with an appeal from a Divisional Court decision that quashed three decisions of the Board. In allowing the appeal, the Court of Appeal made the following comments about the role of expertise, at para. 61:

[61] I would add that the reviewing court must bear in mind the expertise of the administrative decision maker with respect to the questions before it. At para. 31 of Vavilov, the Supreme Court states that “expertise remains a relevant consideration in conducting a reasonableness review”. Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on “considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise” (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it.

[26] In this case, the Board was dealing with a certification application within the construction industry. The Divisional Court has observed that “[t]he Board’s work within the construction industry is essentially a specialty within a specialty”: I.B.E.W. Local 894 v. I.B.E.W. First-District Canada, 2014 ONSC 1997, [2014] O.L.R.B. Rep. 423 (Div. Ct.), at para. 34. The court has repeatedly taken note of this in dismissing applications for judicial review (see, most recently, Strasser & Lang v. Carpenter’s District Council of Ontario et al., 2023 ONSC 2247 (Div. Ct.)).

[27] With respect to the certification provisions of the Labour Relations Act and the determination of the appropriate bargaining unit, the Divisional Court has noted that the “Board was created over 70 years ago. From the outset of its creation, the Board has had the obligation to certify trade unions to represent employees in appropriate bargaining units. If there can be said to be a prime example of the Board’s core functions, this is it”: Audio Visual Services (Canada) Corp. v. Ontario Labour Relations Board, 2019 ONSC 5717, [2019] O.L.R.B. Rep. 677 (Div. Ct.), at para. 58.

. All Canada Crane Rental Corp. v. International Union of Operating Engineers

In All Canada Crane Rental Corp. v. International Union of Operating Engineers (Div Court, 2023) the Divisional Court considers the post-Vavilov standard of review for JRs, here particularly the role of a tribunal's 'expertise':

Standard of Review

[21] All parties agree that the Decision must be reviewed on a standard of reasonableness.

[22] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Supreme Court of Canada instructed reviewing courts that “[r]easonableness review is an approach meant to ensure that courts intervene in administrative matters only when it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process”: at para. 13. The decision must be examined to determine if it “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov, at para. 99. The burden to demonstrate unreasonableness is on the party challenging the decision and the alleged flaws in the decision “must be more than merely superficial or peripheral to the merits of the decision”: Vavilov, at para. 100.

[23] A reviewing court cannot interfere with a decision because it would have decided the matter differently or because an alternative interpretation would have been open to the tribunal. Thus, in conducting a reasonableness review, a court must develop what has been described as a “reasons first” approach. The court starts with the reasons of the tribunal and examines them with a view to considering whether the rationale for the decision and the outcome of the decision were reasonable. It does not “conduct a de novo analysis or seek to determine the “correct” solution to the problem”: Vavilov, at para. 83.

[24] The Supreme Court also found that “minor missteps” are not a proper basis to find that a decision is unreasonable. A tribunal’s decision is unreasonable “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Vavilov, at para. 102.

[25] Vavilov holds that decisions must be read in light of the “history and context of the proceedings” including the evidence before the tribunal, the submissions of the parties, policies and past decisions of the tribunal. The Supreme Court held, at para. 94, that attention to the history and context of the proceeding:

may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.

[26] While expertise is no longer a factor in determining the applicable standard of review, it is a factor in applying it. Both before and since Vavilov courts at all levels have recognized the Board’s specialized expertise in determining grievances filed under s. 133 of the Act and have held that the Board should be afforded the highest degree of deference in its interpretation of collective agreements.

[27] In Electrical Power Systems Construction Association v. Labourer’s International Union of America, 2022 ONSC 2313, [2022] O.L.R.B. Rep. 497 (Div. Ct.), the Divisional Court held, at paras. 14 and 15:

[14] In reviewing a Board, judges should remain mindful of its expertise. Labour relations is a complex and sensitive field of law. The Ontario Court of Appeal has observed that “the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction.” (Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, [2008] O.J. No. 1353, at para. 42).

[15] The interpretation of collective agreements is at the very heart of the Board’s jurisdiction. In line with Vavilov, labour arbitrators and boards should be afforded the highest degree of deference in their interpretation of these agreements. (cite omitted).

[28] In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, the Court of Appeal for Ontario dealt with an appeal from a Divisional Court decision that quashed three decisions of the Board. In allowing the appeal, the Court of Appeal made the following comments about the role of expertise, at para. 61:

[61] I would add that the reviewing court must bear in mind the expertise of the administrative decision maker with respect to the questions before it. At para. 31 of Vavilov, the Supreme Court states that “expertise remains a relevant consideration in conducting a reasonableness review”. Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on “considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise” (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it.

[29] In this case, the Board was interpreting a Provincial Collective Agreement within the construction industry. The Divisional Court has observed that “the Board’s work within the construction industry is essentially a specialty within a specialty”: I.B.E.W. Local 894 v. I.B.E.W. First-District Canada, 2014 ONSC 1997, [2014] O.L.R.B. Rep. 423 (Div. Ct.), at para. 34. The court has repeatedly taken note of this in dismissing applications for judicial review (see most recently Strasser & Lang v. Carpenter’s District Council of Ontario et al., 2023 ONSC 2247).