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Judicial Review - SOR - Expertise
MORE CASES
Part 2
. Mason v. Canada (Citizenship and Immigration)
In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considers the role of tribunal 'expertise' in determining the deference to be accorded in JR 'reasonableness', here in a statutory interpretation context:[70] In interpreting a statute, an administrative decision maker may draw on its institutional expertise and experience and rely on considerations that a court would not have thought to employ, but which “enrich and elevate the interpretive exercise” (paras. 93 and 119; Canada Post, at para. 43). As Professor Audrey Macklin explains, courts should be “genuinely receptive to input beyond the usual techniques that courts use to discern text, context and purpose. These may include operational implications, alignment with broader statutory mandate, and so on” (“Seven Out of Nine Legal Experts Agree: Expertise No Longer Matters (in the Same Way) After Vavilov!” (2021), 100 S.C.L.R. (2d) 249, at p. 261). By being receptive to such factors, courts acknowledge that administrative decision makers have a role to play in elaborating the content of the schemes that they administer (Vavilov, at para. 108). Reasonableness review demands both that administrative decision makers demonstrate their expertise through their reasons and that judges pay “[r]espectful attention” to the ways in which their reasons reflect that expertise (para. 93; P. Daly, “Vavilov and the Culture of Justification in Contemporary Administrative Law” (2021), 100 S.C.L.R. (2d) 279, at pp. 285‑86). . Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Div Court, 2023) the Divisional Court considers an Ontario (!) labour JR, where the issue was the jurisdiction of an arbitrator. In this quote the court re-emphasizes the role of a tribunal's expertise in court reviews:[11] Given this, it is worth highlighting the recent reminder from the Ontario Court of Appeal about the role that expertise plays when a decision is being reviewed for reasonableness. In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780 the Court stated:[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, a decision maker’s 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. . 2517906 Ontario Inc. v. Ontario Labour Relations Board
In 2517906 Ontario Inc. v. Ontario Labour Relations Board (Div Court, 2023) the Divisional Court considered a JR of an ESA OLRB order where the primary issue was that of 'true employer' involving a 'temporary help agency'. In these quotes the court discusses the role of tribunal expertise and deference:[27] Turkiewicz (Tomasz Turkiewicz Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, is a recent Ontario Court of Appeal decision where the Court considered the Divisional Court’s decision to quash three decisions of the Board made under the Labour Relations Act, 1995. The Court highlighted that Vavilov[20] requires that the expertise of the decision maker be borne in mind when conducting a reasonableness review: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.[21] [28] The ONCA went on to explain that the “OLRB is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute.”[22] The same applies with respect to the Act. . Canadian Hardwood Plywood and Veneer Association v. Canada (Attorney General)
In Canadian Hardwood Plywood and Veneer Association v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR [under s.96.1 of the Special Imports Measures Act] of a CITT dumping ruling. The CITT found dumping but that it "did not cause injury and (was) not threatening to cause injury to the domestic industry, pursuant to subsection 43(1) of the SIMA".
In this quote the court approves JR deference to the tribunal's expertise:[16] With respect to the standard of review, this Court has recognized that the Tribunal is highly specialized and its decisions should be reviewed with deference (Fluor Canada Ltd. v. Supreme Group LP, 2020 FCA 58, 319 A.C.W.S. (3d) 229 at para. 4; Essar Steel Algoma Inc. v. Jindal Steel and Power Ltd., 2017 FCA 166, 281 A.C.W.S. (3d) 762 at para. 15). . Mihindukulasuriya v WSIAT and Aramark Food Services [can you say deference?]
In Mihindukulasuriya v WSIAT and Aramark Food Services (Div Court, 2023) the Divisional Court (enthusiastically) applies deference in a judicial review of the 'specialized and expert' WSIAT (this of an administrative appeal dismissal), this apparently in addition to the Vavilov 'reasonableness' standard of review (SOR):Standard of Review
[14] It is well settled that the reasonableness standard applies to judicial reviews of Tribunal decisions.
[15] Courts have acknowledged that the Tribunal is a specialized and expert tribunal, which hears evidence, finds facts, decides questions of law, and deals with caselaw and policy in workplace safety and the statutory insurance scheme.
[16] The Tribunal has exclusive jurisdiction to hear appeals from decisions of the Board, which, in turn, has exclusive jurisdiction to adjudicate all matters and questions arising under its home statute, WSIA.
[17] The Tribunal's decisions are subject to what the Ontario Court of Appeal has described as “the toughest privative clause known to Ontario law.” As a result, the Tribunal is to be accorded the “highest level of deference” with respect to its decisions.
Analysis
[18] The issues decided by the Tribunal in this case fall squarely within its area of experience and expertise. The Tribunal considered the WSIA and relevant Board Policies. The Tribunal considered subsections 13(4), (4.1) and (5) of the WSIA, which govern the applicant’s claim for benefits. The Tribunal correctly applied both its jurisprudence and Board policy. The Tribunal’s lengthy reasons were justified, intelligible, and transparent in respect of the facts and the law. As such, this is not a case where the court should intervene on judicial review.
[19] The applicant’s attempt to re-litigate the issue of alleged discrimination and the re-classification of his position is an inappropriate use of judicial resources and not a function of this court on judicial review. A reviewing court is not to interfere with findings of fact and the weighing of evidence by an administrative tribunal. While the applicant may have preferred that the Tribunal weigh evidence differently, the Tribunal’s determinations were reasonable and are entitled to deference.
[20] The Tribunal, in interpreting provisions of its home statute, as well as Board policies, is entitled to deference. ...
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[25] The Tribunal considered the relevant legislative provisions relating to the applicant’s claim as well as the relevant policies. Its interpretation of its home statute and relevant policies is owed deference. There is no flaw or gap in the reasoning. The Tribunal considered the evidence and testimony and came to a reasonable conclusion. The Tribunal’s decision that the applicant’s claim related to his demotion and reduction of pay was reasonable. There is no basis upon which to find the decision unreasonable. . Canada (Attorney General) v. Rushwan
In Canada (Attorney General) v. Rushwan (Fed CA, 2023) the Federal Court of Appeal considers the high deference accorded to a labour board on JR, here the Federal Public Sector Labour Relations and Employment Board:[2] The interpretation of collective agreements is “the heartland of [the Board’s] expertise”, and its decisions on such matters are owed deference on an application for judicial review (Canada (Attorney General) v. Fehr, 2018 FCA 159, 296 A.C.W.S. (3d) 170 at para. 4). The Board’s decision accordingly attracts reasonableness review, in which this Court will only intervene where it encounters a fatal flaw that is central to the merits of the decision (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 100 [Vavilov]). . Strasser & Lang v. Carpenters’ District Council of Ontario et al. [for numbered case cites see the link]
In Strasser & Lang v. Carpenters’ District Council of Ontario et al. (Div Court, 2023) the Divisional Court considers the 'expertise' deference owed to the OLRB:[25] The test for evaluating procedural fairness was set out in Baker v. Canada (Minister of Citizenship and Immigration)[7]. Baker identified and described five factors to be considered: the nature of the decision being made, and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency.
[26] Contrary to the submission of the seven employees, the Baker factors are to be considered with deference to the Board, a highly specialized tribunal protected by strong privative clauses.[8] This court held in International Brotherhood of Electrical Workers Local 1739 v. International Brotherhood of Electrical Workers[9]: “The privative clauses that the Legislature saw fit to include in the Act protecting decisions of the Board from judicial review make it clear that the Legislature intended that decisions of the Board would be afforded substantial deference, including choices of procedure. More importantly, the control of procedure and express power granted to the Board not to hold a hearing are key.” [27] In making the decisions that are under review by this court, as was the case before this court in International Brotherhood of Electrical Workers Local 1739, the Board was acting not only in its area of general expertise, but also “in a doubly specialized capacity relating to the construction sector, an area of responsibility it was entrusted to regulate in accordance with industry specific legislative rules.” (International Brotherhood of Electrical Workers Local 1739, at para. 47.)
[28] The legislated combination of exclusive jurisdiction and the broad ability to self-regulate process has resulted in long-standing judicial recognition of the Board as “master of its own house”.[10] Courts will not generally interfere with a tribunal’s procedural decisions, provided they are made fairly and within the tribunal’s jurisdiction.[11]
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[43] The Board is a highly specialized tribunal with considerable expertise and its own procedures, including procedures that apply specifically to the construction industry. The Board’s procedural decisions are entitled to significant deference. In my view, the Vice-Chair was entitled to decide the application on the basis of the material that was before him in this case, without a hearing. . Liverpool v. (Ontario) Workplace Safety and Insurance Appeals Tribunal
In Liverpool v. (Ontario) Workplace Safety and Insurance Appeals Tribunal (Div Court, 2023) the Divisional Court considered the deference to be accorded to the expertise of a tribunal (here, the WSIAT) on judicial review:[28] Previous case law has consistently confirmed that on judicial review, a court owes significant deference to the Tribunal’s decisions within its area of expertise. A relevant consideration is the Tribunal’s exclusive jurisdiction to hear appeals from decisions of the WSIB which, in turn, has exclusive jurisdiction to adjudicate all matters and questions arising under the WSIA, its home statute: WSIA, ss. 118(1), 123(1). The Tribunal’s decisions are subject to what the Court of Appeal has described as "the toughest privative clause known to Ontario law”: Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, 92 O.R. (3d) 757, at para. 22, leave to appeal refused, [2008] S.C.C.A No. 541.
[29] In Morningstar v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2021 ONSC 5576, 158 O.R. (3d) 739 (Div. Ct.), at para. 37, the court stated as follows:As a specialized and expert tribunal which hears evidence, finds facts, decides questions of law, and deals with caselaw and policy in the area of workplace safety and the statutory insurance scheme under the Act, the WSIAT has been accorded the "highest level of deference" with respect to its decisions…. As a consequence, this Court has assumed a highly deferential attitude towards WSIAT decisions and has indicated that a Court will only interfere where there are no lines of reasoning that would support the decision under review…. [Citations omitted.] . UFCWC, Local 175 v. CVH Birchwood Terrace Nursing Home
In UFCWC, Local 175 v. CVH Birchwood Terrace Nursing Home (Div Court, 2023) the Divisional Court considered the role of a tribunal's expertise in a judicial review of their decision:[36] Turkiewicz involved the judicial review of decisions by the Ontario Labour Relations Tribunal. The Court of Appeal held that the expertise of that Tribunal informed the reasonableness analysis, again citing to Vavilov:[T]he 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. . CTS (ASDE) Inc. v. Labourers’ International Union of North America et al
In CTS (ASDE) Inc. v. Labourers’ International Union of North America et al (Div Court, 2023) the Divisional Court considered the role of expertise in deferring to a tribunal's decision in a JR:[11] The Court of Appeal recently applied reasonableness principles in the context of reviewing a Board decision. In doing so, the Court emphasized the importance of deference. Judicial review starts from the principle of judicial restraint and respect for the distinct role of the decision maker: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, at para. 55; see also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 13. The reviewing court should respect the specialized expertise of the administrative decision maker and should refrain from asking how they themselves would have resolved an issue. The focus is instead on whether the applicant has demonstrated that the decision is unreasonable: Turkiewicz, at para. 55; Vavilov, at para. 75. . International Union of Operating Engineers, Local 793 v. Aecon Group Inc. [for case cites see the link]
In International Union of Operating Engineers, Local 793 v. Aecon Group Inc. (Div Court, 2023) the Divisional Court considers the role of a tribunal's expertise in assessing the deference to be accorded to it in a JR:[21] In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1,[10] Gillese J.A., writing for the Court, states:[77] In terms of the governing statutory scheme, s. 114 of the LRA[11] gives the OLRB exclusive jurisdiction to exercise the powers conferred on it and s. 116 contains a strong privative clause. The OLRB is a highly specialized tribunal with considerable expertise…. [22] At paragraph 61 of Turkiewicz, Justice Gillese states: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,[12] 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. . BCE Inc. v. Québecor Média Inc.
In BCE Inc. v. Québecor Média Inc. (Fed CA, 2022) the Federal Court of Appeal considered the role of a tribunal's expertise in assessing reasonableness in a JR, and how that expertise may alleviate the detail required by reasons for decision:[61] The Supreme Court emphasized the use of specialized knowledge by decision makers, as demonstrated in their reasons. Sensitivity to a tribunal’s demonstrated expertise may reveal to a reviewing court that conclusions (or reasoning) that are puzzling or counterintuitive on their face may nevertheless accord with the purposes and practical realities of the relevant administrative regime. This demonstrated experience and expertise may also explain why a given issue is treated in less detail than it would perhaps be in a judicial decision.
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[63] All of this to say that the Commission’s decisions are not to be read without reference to the Commission’s practices and procedural guidelines. It is also worth noting that the Commission often deals with sophisticated litigants, like Bell and Québecor, who are very knowledgeable with respect to its policies and procedures. In this case, the Commission has a Broadcasting and Telecom Information Bulletin CRTC 2013-637 which deals with "“Practices and procedures for staff-assisted mediation, final offer arbitration and expedited hearings”". Similarly, the Wholesale Code deals with the factors which assist in the determination of the fair market value of a service. These documents shed light on the Commission’s analysis. The conclusion to be drawn from the Supreme Court’s comments about tribunal reasons is that they cannot be read as though all relevant considerations must be addressed within the four corners of the decision itself.
[64] In particular, the Commission does not have to explain to the parties what they already know. For that reason, the Commission’s decisions in these cases were brief. The Commission’s reasons reflect the fact that it is writing for sophisticated parties who have access to its procedural and substantive documentation. . Nagy v. University of Ottawa
In Nagy v. University of Ottawa (Div Court, 2022) the Divisional Court considered the issue of judicial review standard of review deference and expertise:[9] As the court said in Vavilov, in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, the court held that correctness was the standard of review of an arbitrator's decision regarding whether the union was entitled to relitigate an issue that had been decided against the griever in a criminal proceeding. It said that the body of law dealing with the relitigation of issues finally decided in previous judicial proceedings is complex and lies at the heart of the administration of justice; and that the application of the governing principles of res judicata and abuse of process is clearly outside the sphere of expertise of a labour arbitrator.[1]
[10] I do not think that what the court said about the standard of review in Toronto (City) v. C.U.P.E survives Vavilov. In Vavilov, the Supreme Court made it clear that it was revising the framework of judicial review of administrative bodies. It also made clear that the starting point was the legislature’s intent, not the expertise of the tribunal. . Dr. Rajiv Maini v. HPARB et al.
In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered expertise in an medical investigative body as it determines standard of review:(ii) The Clinical Issues were Beyond the Expertise of the ICRC Panel
[46] The Applicant also complains that the ICRC did not have expertise in the clinical issues before it and did not obtain an independent opinion from an ophthalmologist as past HPARB decisions encourage. He submits that the ICRC did not understand the information on the record.
[47] The reasonableness of the Board’s affirmation of the remedial action taken by the ICRC is not, as submitted by Dr. Maini, affected by the surgical specialties of the individual members of the ICRC panel deciding this matter.
[48] The Board has recognized that the composition of the ICRC is within the discretion of the College (KW, para. 21), and that the ICRC itself is in the best position to determine whether its members have sufficient expertise to assess the complaints that come before it (DSH v. RP, 2021 CanLII 75026 (ON HPARB), para. 56; KW, para. 21).
[49] There is no requirement that all members be from different specialties or from specialties similar to that of the member subject to the complaint (KW, para. 21). That a physician disagrees with the ICRC’s assessment or has researched the issues himself and provided academic studies to support his opinion, is not a sufficient reason to conclude that the ICRC lacked the knowledge required to consider the complaint where, as here, the record supports the conclusions it reached (DSH, paras. 58, 68).
[50] As the Board noted in its reasons, the ICRC’s knowledge and expertise had to be assessed considering the complaint screening function it performed. At paragraphs 30 and 32, the Board concluded that the ICRC possessed the requisite medical knowledge to assess the sufficiency of Dr. Maini’s process for obtaining informed consent for surgery - a matter applicable to all surgeons regardless of specialty. We agree with that finding.
[51] Surgical Panels of the ICRC, regardless of the qualifications of their individual members, are well-placed to consider issues that are of general application across surgical specialties, such as obtaining informed consent (SVK v. CPC, 2020 CanLII 36281 (ON HPARB), para. 34); professional communication with patients and their families (MF v. KS, 2015 CanLII 106293 (ON HPARB), paras. 28-30); reviewing medical imaging, assessing progress notes, considering opinions from consulting specialists (DCW et al. v. SC, 2014 CanLII 39861 (ON HPARB), paras. 27, 30, 46-47, 65); and post-surgical follow-up care (AA v. CG, 2017 CanLII 15519 (ON HPARB), para. 40).
[52] The ICRC’s may also obtain an independent medical report if it is necessary and appropriate to do so in a particular case (KW, para. 21; KW, paras 21, 56; MF, para. 26).
[53] The ICRC is similarly free to reject the opinions of independent experts whose reports it obtains, even those that are favorable to the member, so long as it explains its reasons for doing so (DCW, para. 48).
[54] Deference is owed to the College’s expertise in determining what is relevant to the subject matter of its investigation and its determination of the scope of its investigation, including its requests for information (Beitel v. The College of Physicians and Surgeons, 2013 ONSC 4658 (Div. Ct.), para. 40). Exercising its discretion not to obtain an expert opinion does not render an ICRC’s decision unreasonable. The ICRC made no error in exercising its discretion in this case not to obtain an expert opinion. . Mammoet Canada Eastern Ltd. v. International Union of Operating Engineers
In Mammoet Canada Eastern Ltd. v. International Union of Operating Engineers (Div Court, 2022) the Divisional Court considered the role of the expertise of a tribunal (here a labour relations arbitrator) with respect to the deference (SOR) it should be accorded on judicial review:[28] In particular, Vavilov, at para. 93, cautions judges conducting a reasonableness review to be attentive to the application by decision makers of specialised knowledge. In the context of labour relations cases, in Electrical Power Systems Construction Association v. Labourers' International Union of North America, 2022 ONSC 2313 (Div. Ct.), at paras. 14 and 15, this court recently observed:[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: see Ottawa Hospital v. OPSEU, 2017 ONSC 5501, at para. 2.
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