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Judicial Review - SOR - The 'Reasonableness' Test (5). Rockcliffe Park Residents Association v. The City of Ottawa
In Rockcliffe Park Residents Association v. The City of Ottawa (Div Court, 2024) the Divisional Court dismissed a JR by a resident's group, here where the issue was the issuance of a heritage permit under the Ontario Heritage Act.
Here the court considers the JR SOR of 'reasonableness':[40] In Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866 (CanLII), Favreau JA gave clear directions concerning the application of the reasonableness standard when this court conducts a judicial review:[91] In Vavilov [Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65], at para. 83, the court emphasized that the reasonableness review must focus on the reasons of the administrative decision maker. The reviewing court’s role is not to decide the issue afresh: “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem.” The court further emphasized, at para. 84, that the “reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion”. [92] The hallmarks of a reasonable decision are justification, transparency and intelligibility: Vavilov, at para. 99.
[93] There are two types of “fundamental flaws” that may make a decision unreasonable: Vavilov, at para. 101. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. As explained in Turkiewicz, at para. 59, the “reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic”: see also Vavilov, at para. 102.
[94] Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101. Again, as described in Turkiewicz, at para. 60, the relevant factual and legal constraints include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact on the individual to whom it applies”: see also Vavilov, at para. 106. . London (City) v. Canadian Union of Public Employees, Local 101
In London (City) v. Canadian Union of Public Employees, Local 101 (Div Court, 2024) the Divisional Court considers a labour JR where the applicant City challenges an arbitrator's finding regarding paid holiday.
Here the court finds that the arbitrator's decision was JR 'unreasonable' (but not that it was procedurally unfair) insofar as the arbitrator 'overlooked' admitted evidence:[28] A decision is also unreasonable if it fails to consider some aspect of the evidentiary record or is unreasonable in light of the evidence. As stated in Vavilov, at para. 126, the reasonableness of a decision “may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it” or where the decision maker has “relied on irrelevant stereotypes and failed to consider relevant evidence”.
[29] Finally, a decision may be untenable if it fails to reasonably address the parties’ positions and submissions: Vavilov, at para. 127.
[30] Given the Supreme Court of Canada’s dicta, above, I do not accept the City’s position that the Arbitrator’s alleged failure to accept and consider historical Collective Agreements is an issue of procedural fairness which attracts the standard of review of correctness.
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[36] On the whole of the Arbitrator’s decision, and considering the evidence on this Application, it is clear to this Court that the Arbitrator merely overlooked or forgot that the historical Collective Agreements and Proclamations were before him. ....
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Analysis
[39] Looking at the decision and the record before this Court, insofar as the Arbitrator’s decision addressed the City’s estoppel argument, the decision is unreasonable since the Arbitrator did not consider the historical Collective Agreements and Proclamations placed before him.
[40] As stated in Vavilov, at paras. 103-04, a decision is not reasonable if, read in its context and with a mind to the evidence before the decision maker, it fails to reveal a rational chain of analysis, if it fails to take into account the evidentiary record, or is unreasonable in light of the evidence. As stated in Vavilov, at para. 126, the reasonableness of a decision “may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”. . 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, abstracting upwards, considers the role of standards of review (SOR) between the trial and the appeal courts - and the fundamental policy (rather than legal) basis of an SOR:(2) Discussion
[88] The law on the standard of appellate review seeks “to achieve an appropriate division of labour between trial and appellate courts in accordance with their respective roles” (Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 35). Trial courts primarily resolve factual and legal disputes raised before them, while appellate courts primarily ensure that legal rules are applied consistently, as required by the rule of law, and delineate and refine legal rules when necessary (para. 35; Housen, at para. 9).
[89] The division of labour between trial and appellate courts is reflected in the rules governing the standard of appellate review for questions of law, questions of fact, and questions of mixed fact and law. Questions of law, which involve identifying “what the correct legal test is” (Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35; Sattva, at para. 49), attract no appellate deference and are reviewable for correctness (Housen, at paras. 10, 19, 23, 28, 33 and 36; Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 36). Correctness review for questions of law recognizes the law-making function of appellate courts and ensures that legal rules are applied consistently in similar situations (Housen, at para. 9).
[90] Findings of fact, inferences of fact, and questions of mixed fact and law (which involve applying a legal standard to the facts) are, absent an extricable error of law, all reviewable for palpable and overriding error (Housen, at para. 26; Southam, at para. 26). The policy reasons for appellate deference to such questions include limiting the number, length and cost of appeals, promoting the autonomy and integrity of trial proceedings, and recognizing the expertise of the trial judge and their advantageous position given their first-hand exposure to the evidence (Housen, at paras. 16-18).
[91] As noted by former Justice Robert J. Sharpe, “[a]t the core of the debate over the appropriate standard of review are the competing principles of deference and legality” (Good Judgment: Making Judicial Decisions (2018), at p. 204). Deference entails an appellate court showing respect for a trial judge’s institutional advantages on factual issues and refraining from retrying the case on appeal (p. 204). Legality involves the appellate court’s duty to “ensure the overall legal integrity of the decision-making process” and intervening “when first-instance decisions do not respect the law’s general standards” (p. 204).
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(b) Legal Policy Considerations Supporting Correctness Review
[100] As has been recognized by this Court and the scholarly literature, the choice of a particular standard of review reflects a legal policy determination about the nature and purpose of the appellate process in a given context — what this Court described as the “appropriate division of labour between trial and appellate courts in accordance with their respective roles” (Ledcor, at para. 35; see also Sattva, at para. 51; Housen, at paras. 8-36; Sharpe, at pp. 204-5 and 208-16; D. Jutras, “The Narrowing Scope of Appellate Review: Has the Pendulum Swung Too Far?” (2006), 32:1 Man. L.J. 61, at p. 66; Y.-M. Morissette, “Appellate Standards of Review Then and Now” (2017), 18 J. App. Prac. & Process 55, at p. 76; R. D. Gibbens, “Appellate Review of Findings of Fact” (1991-92), 13 Adv. Q. 445, at p. 445; J. Sopinka, M. A. Gelowitz and W. D. Rankin, Sopinka, Gelowitz and Rankin on the Conduct of an Appeal (5th ed. 2022), at ⁋⁋2.6-2.35).
[101] This Court’s decision in Sattva is instructive as to how the applicable standard of review is shaped by legal policy considerations. There, this Court explained that the interpretation of a written contract was generally considered a question of law. This rule originated in England at a time when there were “frequent civil jury trials and widespread illiteracy” (para. 43). The interpretation of written documents such as contracts was characterized as a question of law, not because the core questions were inherently “legal”, but because “only the judge could be assured to be literate and therefore capable of reading the contract” (para. 43). Today, that reasoning no longer applies. This led this Court to decide, as a matter of legal policy, that absent an extricable error of law, contractual interpretation should now be treated as a question of mixed fact and law reviewable for palpable and overriding error (para. 50). The principal factors for this change in legal policy were to limit appellate intervention to cases where the results could affect parties beyond the particular dispute and to reflect the role of appeal courts “in ensuring the consistency of the law, rather than in providing a new forum for parties to continue . . . private litigation” (para. 51). Deference to trial courts also promotes “the goals of limiting the number, length, and cost of appeals, and of promoting the autonomy and integrity of trial proceedings” (para. 52).
[102] Professor Daniel Jutras has helpfully explained that the standard of appellate review “is not a matter of principle”, in the sense that it “does not turn on some essential nature of appeals, or on some fundamental right to error correction for disappointed litigants” (p. 66). Rather, the standard of appellate review reflects an attempt to make the “best and most effective compromise between competing policy considerations”, at least some of which may extend beyond the immediate interests of the parties (p. 66; see also p. 71). In treaty interpretation, various aspirations and concerns must be managed, including the potential for delay, cost considerations, and the private interests of parties to the litigation, but also the wider public interest, the constitutional nature of the rights at stake, and the important role of the honour of the Crown in the interpretive task.
[103] Against this backdrop, there are at least two significant reasons why the interpretation of historic Crown-Indigenous treaties should be, as a matter of sound legal policy, subject to correctness review. First, treaty rights are constitutionally protected by s. 35(1) of the Constitution Act, 1982, and relatedly, treaties are nation-to-nation agreements that engage the constitutional principle of the honour of the Crown. And second, treaty interpretation has significant precedential value because it concerns enduring, multi-generational compacts. I will address each point in turn.
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(c) Factual Findings Remain Reviewable for Palpable and Overriding Error
[114] Although the interpretation of an historic treaty right is reviewable for correctness, the factual findings underpinning that interpretation, including findings of historical fact, attract deference and are reviewable only for palpable and overriding error (Housen, at para. 10; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 53). The same deferential standard applies to inferences of fact (Housen, at para. 25; H.L., at para. 53).
[115] The policy rationales supporting deference to such factual determinations include the need to limit the number, length, and cost of appeals, to promote the autonomy and integrity of trial proceedings, and to recognize the expertise and advantageous position of the trial judge who has reviewed the evidence (Housen, at paras. 11-18; Gibbens, at pp. 445-48). The last of these is particularly significant in historic treaty interpretation where, as here, the trial judge’s factual determinations are the product of a robust and highly involved trial process. As the minority (per Hourigan J.A., Pardu J.A. concurring) said of the trial judge (at para. 576):... the trial judge took extensive efforts to involve and hear from the Indigenous Treaty partners. She conducted the proceedings in various Indigenous communities, immersed herself in the teachings of these communities’ many knowledge keepers, and permitted Anishinaabe ceremony to come into the courtroom and the court process, through witnesses, counsel, and members of the First Nations. The minority said that appellate intervention in such circumstances would “undervalu[e]” the trial judge’s process and would suggest that “the involvement of the Treaty partners, particularly the Indigenous signatories, did not make the trial judge better situated to decide the case” (para. 576).
[116] The trial judge’s sensitive trial process and deep engagement with Indigenous treaty partners undoubtedly made her better situated than an appellate court to decide factual matters, including the historical context in which the Robinson Treaties were signed and the credibility and reliability of witnesses (Van der Peet, at para. 81; Housen, at para. 20).
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(3) Conclusion
[119] I conclude that while the trial judge’s factual findings, including her findings of historical fact, attract deference, her interpretations of the treaty rights do not. Having regard to these standards of review, I now turn to the interpretation of the Augmentation Clause of the Robinson Treaties. . Trumble v. Pay Equity Hearings Tribunal
In Trumble v. Pay Equity Hearings Tribunal (Div Court, 2024) the Divisional Court dismisses a JR by the applicant former employer of a Pay Equity Hearings Tribunal that found a municipality's pay equity plan achieved pay equity.
Here the spells out some judicial review (JR) and JR standard of review basics, likely for it's self-presenter applicant audience:What is Judicial Review?
[7] The Pay Equity Act does not allow appeals to the court from decisions of the tribunal. Ms. Trumble is here seeking “judicial review” under s. 1 of the Judicial Review Procedure Act, RSO 1990, c J.1.
[8] An application for judicial review is not a “do-over” of a tribunal hearing. Neither is it an appeal searching for errors of law and palpable and overriding errors of fact (or mixed fact and laws) in the tribunal’s decision.
[9] The court is not the body charged with primary responsibility for determining pay equity issues in Ontario. The Legislature has assigned responsibility for pay equity issues to the tribunal and not to the court. The tribunal is composed of members with expertise and experience in the complex issues surrounding pay equity.
[10] On an application for judicial review, the court’s role is supervisory in nature. Rather than looking to correct substantive pay equity errors on an appeal, the court’s role on judicial review is to ensure that the tribunal performed its statutory assignment properly – both reasonably and fairly.
[11] The Supreme Court of Canada described the purpose of judicial review in its key precedent case called Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 as follows:[12] ... Reasonableness review is methodologically distinct from correctness review. It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. In order to fulfill Dunsmuir’s promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions...
[13] Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. [12] Judicial review starts with a presumption that the reasonableness standard of review applies. Ms. Trumble submitted that an issue that she raises relating to the Township’s claim of lawyer client privilege over some documents requires review on a correctness standard because privilege is a question of central importance to the legal system. See Vavilov, at para. 87. I will deal with the document production issue below. It does not bear on the reasonableness standard of review that applies to the tribunal’s decision generally.
[13] In the case of Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866 (CanLII), under the heading “Standard of review to be applied by the Divisional Court to the Decision” the Court of Appeal gave directions to this court as to how to conduct a reasonableness review under the Vavilov framework. Favreau JA wrote:[91] In Vavilov, at para. 83, the court emphasized that the reasonableness review must focus on the reasons of the administrative decision maker. The reviewing court’s role is not to decide the issue afresh: “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem.” The court further emphasized, at para. 84, that the “reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion”.
[92] The hallmarks of a reasonable decision are justification, transparency and intelligibility: Vavilov, at para. 99.
[93] There are two types of “fundamental flaws” that may make a decision unreasonable: Vavilov, at para. 101. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. As explained in Turkiewicz, at para. 59, the “reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic”: see also Vavilov, at para. 102.
[94] Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101. Again, as described in Turkiewicz, at para. 60, the relevant factual and legal constraints include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact on the individual to whom it applies”: see also Vavilov, at para. 106. [14] The court starts with the tribunal’s reasons to see if it can make sense of the logic of the decision. Then the court can look to see if the tribunal ran afoul of factual or legal constraints on its decision-making process.
[15] It is important to note however, that when looking at factual matters, the court is not to reweigh the evidence before the tribunal. The Supreme Court of Canada wrote the following at para. 125 of Vavilov:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”:... Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: [case references omitted.]
[16] Reasonableness can certainly be jeopardized where a decision maker fundamentally misapprehends or fails to take into account relevant evidence before it. See Vavilov at para. 126. But, that is very different thing than scouring a decision to test every finding of fact against the contested evidence that was presented by the parties. . Yatar v. TD Insurance Meloche Monnex
In Yatar v. TD Insurance Meloche Monnex (SCC, 2024) the Supreme Court of Canada resolved issues regarding joint JR/appeal procedure, which arose where appeals were limited to 'questions of law' but the appellant still sought to challenge issues of fact or mixed fact and law [which a judicial review (JR) could conceivably have jurisdiction over]. In such cases the issue arose as to the role of the court's JR discretion, and - if applied to hear the JR - what standard of review applied.
Here the SCC revisits Vavilov JR 'reasonableness':[71] Per Vavilov, two types of flaws can render a decision unreasonable: first, a “failure of rationality internal to the reasoning process”, and second, “when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it” (para. 101). The LAT adjudicator’s reconsideration decision should be “approached as an organic whole, without a line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 54).
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