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Judicial Review - SoR - Exception - 'Central Importance to the Legal System'. Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a JR against school board decisions in which the appellant "was found to have breached the TCDSB’s code of conduct (the “Code of Conduct”) during a public meeting" and was sanctioned."
Here the court (on an appeal where for review purposes it 'steps into the shoes' of the lower JR court), considered the JR SOR of 'reasonableness', and exceptions to that where the SOR can be 'correctness' - such as issues of 'central importance to the legal system':(1) The Divisional Court correctly applied the reasonableness standard in reviewing the Decisions
[16] The Divisional Court correctly found that the appropriate standard of review of the Decisions is reasonableness. Reasonableness is the presumptive standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 7 and 30. It specifically applies where, as here, an applicant for judicial review challenges an administrative decision maker’s authority to act based on regulations it has adopted pursuant to broad authority delegated to it by an enabling statute. In such circumstances, “[a] proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority … without having to apply the correctness standard”: Vavilov, at para. 67.
[17] The correctness standard applies exceptionally where the rule of law requires it, such as where an issue gives rise to "general questions of law of central importance to the legal system as a whole” or questions relating to jurisdictional boundaries between administrative bodies: Vavilov, at para. 17. In Victoria University (Board of Regents) v. GE Canada Real, 2016 ONCA 646, 76 R.P.R. (5th) 104, at para. 89, leave to appeal refused, [2016] S.C.C.A. No. 462, this court held that an arbitration tribunal’s decision should not be reviewed on a correctness standard merely because the tribunal determined the doctrine of issue estoppel in specific circumstances. For the correctness standard to apply, the “narrowly construed issue, not the application of a broadly stated legal doctrine, has to be of general importance to the legal system”: Victoria University (Board of Regents), at para. 89. This approach is consistent with the Supreme Court of Canada’s subsequent decision in Vavilov and remains good law: Beach Place Ventures Ltd. v. Employment Standards Tribunal, 2022 BCCA 147, 61 B.C.L.R. (6th) 29, at paras. 25-29, leave to appeal refused, [2022] S.C.C.A. No. 211; Cerna v. Canada (Citizenship and Immigration), 2021 FC 973, at paras. 31-33.
[18] Although Mr. Del Grande relies on re-litigation doctrines, the issues that must be determined on this appeal are not of general importance to the legal system. Mr. Del Grande seeks to apply the doctrines in narrow and specific circumstances. As he acknowledges, there is no evidence that the Board’s reconsideration powers have ever been used in similar circumstances nor that other Ontario school boards have invoked similar provisions to trigger a reconsideration of whether a trustee has breached a code of conduct.[3]
[19] I accordingly agree with the Divisional Court that, in this case, Mr. Del Grande does not seek to “articulate a general doctrine or resolve a complex legal issue of broader application.” The court did not therefore err in reviewing the Board’s Decisions on a reasonableness standard. . Stratford (City) v. Stratford Professional Fire Fighters Ass’n Local 534
In Stratford (City) v. Stratford Professional Fire Fighters Ass’n Local 534 (Div Court, 2024) the Divisional Court considered the JR SOR exception for "general questions of law of central importance to the legal system as a whole":[47] It is well settled that the reasonableness standard presumptively applies to a judicial review in the context of interest arbitration. However, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 17, 58-62 (“Vavilov”), the Supreme Court of Canada directed that “general questions of law of central importance to the legal system as a whole” are to be reviewed on the standard of correctness. The Court explained that the application of the correctness standard in the latter context allows the court to have “the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary.” . London District Catholic School Board v. Weilgosh
In London District Catholic School Board v. Weilgosh (Div Court, 2024) the Divisional Court considered a JR by a school board against an HRTO interim decision that it had 'concurrent jurisdiction' to hear an HRC-labour matter which had been filed both before the HRTO and the OLRB. This is a furthering of recent convoluted Horrocks (SCC, 2021) doctrine addressing this same issue, setting out a test for exclusive versus concurrent jurisdiction.
Here, the court considered (and granted) a JR standard of review exception, holding that an SOR of 'correctness' applied (as opposed to the typical Vavilov 'reasonableness'). This was due to the 'jurisdictional' nature of the issue (the 'central importance to the legal system' exception was also argued, but not applied):Issue #2: What is the standard of review?
[18] The Applicant submits the presumptive standard of reasonableness is rebutted for two reasons. First, the application concerns a question of the jurisdictional boundaries between two administrative bodies. The Supreme Court applied a correctness standard in Horrocks for a virtually identical question. Second, the question raised is of central importance to a legal system as a whole, given its broad implications for any future applications to the HRTO brought by unionized employees.
[19] The Respondents Weilgosh and OHRC agree with the Applicant on the first point and submit that the presumption of reasonableness is rebutted. However, they disagree that the question raised is one of central importance to the legal system as a whole. They submit that while involving a dispute that is of “wider public concern, it does not rise to the level of having an impact on the administration of justice as a whole that requires safeguarding consistency in the fundamental legal order of Canada.[10]
[20] The HRTO submits that the standard of review is reasonableness. It argues that the presumption of reasonableness is not always rebutted for questions of jurisdiction between two or more administrative bodies unless there is an operational conflict. The HRTO argues that there is no conflict or incompatibility in this case since we are dealing with concurrent jurisdiction. It points out that in Horrocks, there was no legislated standard of review and therefore the Supreme Court’s finding on standard of review is not dispositive on the issue for this application. The HRTO agrees with Weilgosh and OHRC that the question raised is not one of central importance to the legal system as a whole either since it is statute- and province-specific. Finally, the HRTO argues that something more is required than just the three rule of law questions in order to rebut a legislated (as opposed to a presumptive) standard of review, like the one under s. 45.8 of the Ontario Code (“patently unreasonable” which has been interpreted by the courts post-Vavilov as “reasonable”). It argues that to rule otherwise conflicts with Vavilov’s strong endorsement of respect for legislative intent.
Correctness is the appropriate standard of review
[21] In Horrocks, at paragraph 7 of the Majority Decision, the Court stated:Decisions concerning the jurisdictional lines between two or more administrative bodies must be correct (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 53). This standard safeguards the rule of law, which “requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another” (para. 64). It also fosters predictability, finality and certainty in the law (ibid.). [22] The Court in Horrocks gave no consideration to and did not rely on there being no legislated standard of review in Manitoba’s Human Rights Code[11]. Instead, it determined that correctness was the appropriate standard of review based on the matter concerning the jurisdictional boundaries between two administrative bodies. In view of the Supreme Court’s application of the correctness standard in Horrocks for a virtually identical question[12], the correctness standard is the appropriate standard of review. . Martin (Estate) v Health Professions Appeal and Review Board
In Martin (Estate) v Health Professions Appeal and Review Board (Div Court, 2023) the Divisional Court considered a JR brought by a complainant after a "decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons (“CPSO”)" dismissed the complaint.
In this quote the court considers the standard of review to be applied to this JR, and whether the case invokes a "general question of law of central importance to the legal system as a whole" (it doesn't) such as to invite less deference:STANDARD OF REVIEW
[23] The Applicant essentially gave two reasons for asserting that the applicable standard of review is correctness. First, HPARB was not interpreting its “enabling” statute and, therefore, its decision should not attract deference from a reviewing court. Second, the issue is one that will have a profound effect on a number of areas of the law and a number of pieces of legislation, including the Rules of Civil Procedure. Given this, it is a question that impacts the rule of law and therefore, it must be answered correctly.
[24] In Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada revised the framework for judicial review. As a result, it is no longer necessary for courts to engage in a contextual inquiry to identify the appropriate standard of review. The contextual inquiry was driven by a perceived need to determine whether the administrative decision maker had greater expertise than the reviewing court. Thus, factors such as the qualifications of the administrative body’s members, their experience in a particular area, the nature of the question being looked at and whether it involved its “home” statute were assessed and weighed. In Vavilov the Supreme Court accepted that “this contextual analysis proved to be unwieldy and offered limited practical guidance for courts attempting to assess an administrative decision maker’s relative expertise”: at para. 28. Therefore, the court chose to move away from a model which decided the appropriate standard of review based on a weighing of the expertise of the administrative decision maker. The Applicant’s submission that we should determine the applicable standard of review based on the fact that the HPARB was not interpreting its enabling statute is an invitation for us to do what the Supreme Court has explicitly told us we should no longer be doing.
[25] The new framework for determining the applicable standard of review involves starting with the presumption that the applicable standard is reasonableness. Further, “while this presumption applies to the administrative decision maker’s interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision”: Vavilov, at para. 25.
[26] There are only five situations in which there may be a derogation from the presumption of reasonableness. Two of those situations arise out of legislative intent—legislated standards of review or statutory appeal mechanisms (which do not arise in this case). The other three arise because a correctness review is required by the rule of law: Vavilov, at para. 69. This is essentially the Applicant’s submission.
[27] In Vavilov, the Supreme Court went on to clarify when the rule of law requires a correctness review. In so doing it limited it to three situations: “ constitutional questions, general questions of law of central importance to the legal system as whole, questions regarding jurisdictional boundaries between administrative bodies”: Vavilov at para. 69.
[28] This application does not raise a constitutional question or a question regarding the jurisdictional boundaries between administrative bodies. Does it, as the Applicant argues, raise a general question of law of central importance to the legal system as a whole?
[29] In Vavilov the Supreme Court describes such questions as questions that are of “fundamental importance and broad applicability, with significant legal consequences for the justice system as a whole or for other institutions of government”: at para. 59. For example, a question involving solicitor client privilege attracted the correctness standard both because it had implications for a wide variety of statutes (the submission in this case) and because solicitor client privilege is necessary for the functioning of the administration of justice. “The mere fact that a dispute is of ‘wider public concern’ is not sufficient for a question to fall into this category- nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue”: Vavilov at para. 61.
[30] The issue of when a doctor can breach patient confidentiality is both important and an issue of wide public concern. It also has implications for other statutes and laws. However, it does not rise to the level of magnitude necessary to be considered a general question of law that is of central importance to the legal system as a whole. . 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. . Simcoe Muskoka District Health Unit v. ONA
In Simcoe Muskoka District Health Unit v. ONA (Div Court, 2023) the Divisional Court considered if a 'reasonableness'-exception applied to the standard of review for judicial reviews. The court considered three of the reasonableness exceptions: for concurrent jurisdiction, jurisdictional tribunal boundaries and 'matters of central importance to the legal system', and found on the first:[33] The Health Unit submits that the first issue turns on interpretation issues that fall within a recognized exception to the presumption of a reasonableness standard. The Health Unit submits that as set out in Canada (Ministry of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 53-54 and 69, this is a case that relates to jurisdictional boundaries between two or more tribunals and raises questions of central importance to the legal system that require consistency and final and determinate answers.
[34] The Health Unit submits that the Act is general legislation providing for emergency measures in many contexts, only one of which is labour relations. Further, the Order is not limited to issues within the ambit of labour arbitrators. It applies to both unionized and non-unionized employees, and this health unit has both, as set out in the ASF.
[35] The Health Unit submits that the interpretative approach to emergency orders under the Act is of central importance to the Ontario legal system as a whole. The Health Unit puts forward a non-exhaustive list of emergency orders made during the pandemic, by way of examples.
[36] The Health Unit further relies on the recent decision of the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 (“SOCAN”). In SOCAN, a majority of the Supreme Court recognized a new correctness category of the standard of review, when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.
[37] The Union submits that the interpretative issues are narrow questions of statutory interpretation and, while they are legal issues, they are not general questions of law. The Union points to the relatively short duration of the Order (about two years) and notes that it and the Act are applicable in Ontario only.
[38] The Union concedes that the issue is important but submits that it is not of central importance to the legal system as a whole because it is not a subject that arises in virtually every practice area.
[39] With respect to the SOCAN case, the Union relies on para. 17 in Vavilov, which provides that the reasons address all of the situations in which a reviewing court should derogate from the presumption of a reasonableness review. Yet, in Vavilov at para. 70, the court allowed for the possibility of more exceptions and in SOCAN, the Supreme Court has carved out a new exception. The Union further submits that the SOCAN exception arose in a different statutory context, which is distinguishable from this case.
[40] Beginning with the Emergency Management and Civil Protection Act, it is broad, general legislation that applies to many sorts of emergencies. It is of central importance. Consistency, and final and determinate answers, are necessary for questions of powers that may be exercised in an emergency. The correctness standard applies under Vavilov. . Nagy v. University of Ottawa
In Nagy v. University of Ottawa (Div Court, 2022) the Divisional Court considered exceptions to reasonableness standard of review for judicial review:[6] In Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, the Supreme Court held that reasonableness is the presumptive standard of review of an administrative tribunal. The presumption is rebutted in two circumstances. The first circumstance is where the legislature has indicated its intention that the decision be reviewed on the standard of correctness, such as when it provides for a statutory appeal.
[7] The second circumstance is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely 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.
[8] Regarding the second circumstance, the Court said:[60] This Court’s jurisprudence continues to provide important guidance regarding what constitutes a general question of law of central importance to the legal system as a whole. For example, the following general questions of law have been held to be of central importance to the legal system as a whole: when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process (Toronto (City), at para. 15); the scope of the state’s duty of religious neutrality (Saguenay, at para. 49); the appropriateness of limits on solicitor-client privilege (University of Calgary, at para. 20); and the scope of parliamentary privilege (Chagnon, at para. 17). We caution, however, that this jurisprudence must be read carefully, given that expertise is no longer a consideration in identifying such questions: see, e.g., CHRC, at para. 43.
[61] We would stress that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category — nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue: see, e.g., 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. 66; McLean, at para. 28; Barreau du Québec v. Québec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488, at para. 18. …
[62] In short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows. . YUDC v. Information and Privacy Commissioner
In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court considers whether the issues of their case are of 'central importance to the legal system' [Vavilov, para 16-17, 23, 58-62] to justify the higher standard of review of correctness in this judicial review application (SS: they weren't):[30] YUDC and York submit that the standard of review on the issue of the interpretation and application of s. 10(1) of FIPPA is correctness. They submit the issue raises a question of law of central importance to the legal system that requires a single correct answer, that of separate corporate personality.
[31] I disagree. The analysis of standard of review starts with a presumption that reasonableness is the applicable standard. In order for an exception to the presumptive reasonableness standard of review to apply to a question of law, the issue must be a general question of law of central importance to the legal system as a whole. The fact that a question touches on an important issue is not sufficient to fall into this category of correctness review. Rather, the question must have broad applicability to the legal system as a whole, beyond the particular context in the review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 at paras. 16-17, 23, 58-62.
[32] The issue of the interpretation and application of whether records are “in the custody or under the control of” an institution in s. 10(1) of FIPPA is a question of statutory interpretation and application of the IPC’s home statute. Although the nature of the relationship between YUDC and York was a factor that the Adjudicator considered in her decision, she considered the nature of the relationship as one factor in the assessment of all of the circumstances in the context of interpreting and applying s. 10(1) of FIPPA. Further, the Adjudicator’s consideration of the relationship between YUDC and York was limited to the context of the particular records at issue in the access request, not the relationship more broadly between YUDC and York. The Adjudicator’s decision does not make general pronouncements about the law in relation to separate corporate entities, nor does it have application outside of the access to information context: Brockville (City) v. Information and Privacy Commissioner, Ontario, 2020 ONSC 4413, 3 M.P.L.R. (6th) 222 (Div. Ct.) at paras. 24-25.
[33] Accordingly, the presumptive standard of review of reasonableness applies to the issues about the interpretation and application of s. 10(1) of FIPPA in these applications.
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