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Judicial Review - SOR - Exceptions - 'Jurisdictional Lines'. 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. . Sweda Farms Ltd. v. Egg Farmers of Ontario
In Sweda Farms Ltd. v. Egg Farmers of Ontario (Div Court, 2023) the Divisional Court considered whether the presumptive JR SOR of 'reasonableness' was excepted where jurisdictional matters were involved, and thus where correctness might apply (it didn't in this case):Standard of Review
[14] Sweda submits that the Tribunal’s determinations concerning its jurisdiction and its findings of vexatiousness and bad faith are reviewable on a correctness standard.
[15] Sweda submits that the Tribunal’s decision concerns the jurisdictional lines between two or more administrative bodies. Sweda submits that per Canada v. Vavilov[4], the decision is reviewable on a correctness standard. Sweda submits that the Tribunal based its jurisdictional analysis on whether it could direct another administrative body, EFO, to exercise certain powers. Sweda also submits that the Tribunal’s decision regarding its jurisdiction informed its finding that Sweda’s appeal was vexatious and in bad faith. As such, both questions are reviewable on the correctness standard.
[16] EFO submits that the appropriate standard is reasonableness. It submits that there is no dispute in this case regarding jurisdictional boundaries between administrative bodies.
[17] The presumptive standard of review of administrative tribunals is that of reasonableness. Review on a correctness standard does not follow merely because the dispute is of a wide public concern, or the issue in general or in the abstract touches an important issue.[5] As the Supreme Court of Canada stated in Vavilov, at paragraph 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 courts to provide a greater degree of legal certainty than reasonableness review allows. [18] The Supreme Court of Canada further indicated at paragraph 63 that the correctness standard is applicable “in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies.”
[19] However, the Court also stated, at para. 68:Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker — perhaps limiting it to one. Conversely, where the legislature has afforded a decision maker broad power in general terms — and has provided no right of appeal to a court — the legislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect…[6] [20] In the circumstances here, I conclude that the standard of review is that of reasonableness. The issue does not strictly concern the jurisdiction of two bodies. The issue concerns the interpretation of the statute to ascertain the limits of the Tribunal’s authority. This is not a general question of law where it is “of central importance to the legal system as a whole.” In addition, the legislature has afforded the Tribunal with broad powers including broad powers to “stand in the shoes”[7] and substitute the decisions of the EFO and direct the EFO to take such action as the EFO is authorized to take. There is no right of appeal to the judiciary in the FPMA but there is an appeal process within MAFRAA to the Tribunal and for ministerial review.
[21] The issues for the Court to determine are of some importance to the relationship and authority of the Tribunal over that of the EFO.[8] But does not extend, in my view, to that of central importance to qualify as a question of law that requires a standard of review of correctness.
[22] Considering the FPMA along with the lack of “central importance” of the issues, I accept EFO’s submission that the standard of review is reasonableness for both issues, that of jurisdiction and of the determination of vexatiousness and bad faith. . Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court considered the Vavilov 'jurisdictional lines' exception to the reasonableness SOR for judicial reviews:[34] The Applicant submits that the standard of correctness applies to the Decisions because the application raises issues of the Board’s jurisdiction to reconsider the First Decision, as well as the application of the principles of res judicata, issue estoppel, abuse of process and functus officio. He submits that those issues are of central importance to the legal system as a whole.
[35] I disagree. Pursuant to Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 16-17, the presumptive standard of review is reasonableness. The issues raised in this application do not displace that presumption. First, the issue of whether the Board had authority to reconsider the First Decision did not require that the Board resolve an issue of conflicting jurisdiction between two administrative decision-makers. The issue was simply whether the Board had authority under the Education Act and its By-law, to reconsider its decision. To the extent that this issue can be characterized as a jurisdictional question, it is one that the Supreme Court of Canada clarified in Vavilov would attract a reasonableness review: Vavilov, at paras. 65-68. . Northern Regional Health Authority v. Horrocks
In Northern Regional Health Authority v. Horrocks (SCC, 2021) the Supreme Court of Canada held that an appeal of a judicial review decision on the issue of competing tribunal jurisdiction is considered on a standard of review of correctness, an exception to the 'normal' judicial review reasonableness:[9] I am not persuaded that such reconsideration is necessary or desirable. As I will explain below, correctly determining the jurisdictional lines between two administrative bodies requires that a decision‑maker correctly identify the essential character of the dispute. Applying a reasonableness standard to this component of the analysis would undermine the objective of ensuring that one adjudicative body does not trespass on the jurisdiction of the other. I note as well that appellate authority concerning the jurisdictional lines between courts and tribunals has generally held that the essential character determination is reviewed for correctness (Stene v. Telus Communications Company, 2019 BCCA 215, 24 B.C.L.R. (6th) 74, at para. 38; Bruce v. Cohon, 2017 BCCA 186, 97 B.C.L.R. (5th) 296, at para. 80; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38, 253 N.S.R. (2d) 144, at para. 12). These authorities explain that this is so notwithstanding the fact‑specific nature of the essential character inquiry, because it grounds a determination of jurisdiction.
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