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Judicial Review - SOR - Exceptions - Human Rights Issues. Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here, where the appellant argues that a JR SOR comes under the 'central importance to the legal system' exception (and thus under a 'correctness' SOR, not a 'reasonableness' one), Stratas JA instead interprets it as a matter of statutory interpretation:[35] The appellant submits that the Commission’s decision should be reviewed on the basis of correctness because there is a fundamental issue whether the Commission has the jurisdiction to consider questions of law. But whether an administrative decision-maker has such jurisdiction is not a recognized ground for correctness review. Rather, jurisdiction — whether an administrative decision-maker has the power under its legislation to do something — is really a question of legislative interpretation, a matter for which the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 115.
[36] The appellant also submits that the interpretation and application of the Carriage by Air Act is a general question of law of central importance to the legal system. Such questions are reviewable for correctness. But here we are not dealing with such a question.
[37] The interpretation and application of a statute, here the Carriage by Air Act, has significance to those who fly internationally who later wish to assert a claim for damages, but it has no broader ramifications beyond that. It is not the sort of question, such as a quasi-constitutional question that arises in multiple contexts or a question with constitutional ramifications, that requires, for rule of law reasons, a single correct response: Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, (the state’s duty of religious neutrality); Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, (the limits to legal professional privilege, an interest under section 8 of the Charter); Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687 (the scope of Parliamentary privilege, a constitutional principle). . 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 JR SOR authority for a 'correctness' standard for human rights prima facie discrimination:[47] In the Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General), 2024 ONSC 1555 (“AMAPCEO”), the Divisional Court found that the test for prima facie discrimination is a question of central importance to the legal system to be reviewed on a standard of correctness and is required to be applied consistently. In that decision, Ryan Bell, J. wrote that “the protection of human rights and the rule of law would be undermined if the test for prima facie discrimination were interpreted and applied a certain way by one adjudicator and in an entirely different manner by another”: AMAPCEO, at para. 36 (emphasis added).
[48] The ON IPC submitted that AMAPCEO, at para. 37, supports a reasonableness standard of review because of the observation in the decision that “[w]here the debate is about the facts and the inferences to be drawn from the facts, a reasonableness standard of review will apply. Where however, the debate is about the applicable legal test and the analytical framework, a correctness standard of review applies because the question is of central importance to the legal system”.
[49] I disagree with the ON IPC’s proposed interpretation of AMAPCEO in support of its submission on standard of review.
[50] It is evident that the court in AMAPCEO applied the standard of correctness not only to the arbitrator’s test for prima facie discrimination, but also in considering whether the arbitrator’s reasoning and application represented a misapprehension of the test itself. This is in keeping with the intention of ensuring consistency of answers to such important questions from Vavilov.
[51] In its analysis, the court in AMAPCEO, at paras. 39-40 and 45-50, found that the arbitrator erred in the application of the test in three ways:1. by applying the incorrect legal standard to the evidence of how the grievor was treated;
2. by incorrectly attending to the shifting evidentiary burden, once a prima facie case of discrimination was made out; and,
3. by requiring direct evidence and rejecting uncontradicted, relevant expert evidence. [52] As the Supreme Court in Vavilov said: “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” (at para. 62). The Supreme Court speaks of the consistency of the answers to important legal questions. AMAPCEO and British Columbia v. CCF follow that reasoning – the principle must be identified and applied correctly because of the importance of the principle. . Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General)
In Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General) (Div Court, 2024) the Divisional Court allows a employee's association JR of a arbitrator's decision relating to an alleged racially-motivated 'shove' in the workplace.
Here the court holds that a JR SOR of 'correctness' applies to questions of law, since human rights issues are "general questions of law of central importance to the legal system as a whole" - but that a 'reasonableness' standard applies to questions or fact and mixed fact and law:Standard of Review
[29] AMAPCEO asserts that the standard of review to be applied to this application is correctness. The basis for AMAPCEO’s submission is the holding in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, that the presumption of reasonableness can be rebutted with regard to “general questions of law of central importance to the legal system as a whole.” AMAPCEO submits that the proper articulation and application of the test for prima facie discrimination is a general question of law of central importance to the legal system as a whole.
[30] The respondent maintains that the standard of review is reasonableness. The respondent argues that, as in Stewart v. Elk Valley Coal Corp.,[4] “the debates here are not about the law, but about the facts and the inferences to be drawn from the facts” which requires a reasonableness standard of review. The respondent submits that if AMAPCEO’s argument is accepted, all discrimination cases would be subject to a correctness standard of review.
[31] As the Supreme Court explained in Vavilov, at para. 59, the key underlying rationale for general questions of law of central importance to the legal system as a whole being reviewed on a correctness standard is:... the reality that certain general questions of law “require uniform and consistent answers” as a result of “their impact on the administration of justice as a whole”: Dunsmuir, at para. 60. In these cases, correctness review is necessary to resolve general questions of law 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 […] For example, the question in University of Calgary could not be resolved by applying the reasonableness standard, because the decision would have had legal implications for a wide variety of other statutes and because the uniform protection of solicitor-client privilege – at issue in that case – is necessary for the proper functioning of the justice system […] As this shows, the resolution of general questions of law “of central importance to the legal system as a whole” has implications beyond the decision at hand, hence the need for “uniform and consistent answers.” [citations omitted] [32] In support of its position that the standard of review is reasonableness, the respondent relies on this court’s decision in Toronto District School Board v. Canadian Union of Public Employees, 2023 ONSC 1619 (Div. Ct.). In my view, TDSB does not assist the respondent as to the applicable standard of review here. The decision under review in that case involved the interpretation of a collective agreement and the arbitrator’s disposition of two grievances involving the allocation of sick leave credits and the grievor’s return to work schedule. The Board argued the arbitration award was unreasonable because it lacked internal coherency, irrationally interpreted the collective agreement, and failed to properly apply the law. Unlike the case at bar, the decision under review in TDSB did not deal with an alleged breach of the Human Rights Code, nor was there any allegation that the arbitrator had misapprehended the legal test in relation to human rights protections and legislation.
[33] I also do not agree with the respondent that the debate here is about the facts and the inferences to be drawn from the facts. At the centre of this application is the correct test for prima facie discrimination, including the shifting evidential burdens, and whether the arbitrator misapprehended that test.
[34] In United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194, 24 Alta. L.R., at para. 55, the Alberta Court of Appeal recognized that the proper articulation and application of the test for prima facie discrimination is “essential to give effect to the recognized, fundamental human right to be free from discrimination, including on the basis of family status.” The Court emphasized the quasi-constitutional status of human rights legislation in Canada, and the need for consistency in the interpretation of human rights protections in collective agreements and in human rights legislation because these provisions “provide some of the most important protections in our society”: United Nurses, at para. 55.
[35] At issue in United Nurses was whether the test for discrimination included a requirement that the claimant prove “self-accommodation” in the context of a family status claim. The Court concluded, at para. 108:Under Vavilov, the test for prima facie discrimination is a question of central importance to the legal system, to be reviewed on a standard of correctness. The three-part test established by the Supreme Court of Canada in Moore, sets a low threshold and is to be applied consistently in all claims of discrimination. This includes family status cases. [36] I agree with the reasoning of the Alberta Court of Appeal. The protection of human rights and the rule of law would be undermined if the test for prima facie discrimination were interpreted and applied a certain way by one adjudicator and in an entirely different manner by another. As the Court put it in United Nurses, “[d]ifferent tests or evidentiary gradations of the same test beget inequality”: at para. 99.
[37] Contrary to the respondent’s submission, reviewing the arbitrator’s decision on a standard of correctness would not have the effect of making all discrimination cases subject to a correctness standard of review. Where the debate is about the facts and the inferences to be drawn from the facts, a reasonableness standard of review will apply. Where, however, the debate is about the applicable legal test and the analytical framework, a correctness standard of review applies because the question is of central importance to the legal system.[5]
[38] That is the case here. A correctness standard of review applies.
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