Simon's Megalomaniacal Legal Resources

Judicial Review - SOR - Tolerated Uncertainty

. London Civic Employees Union Local 107 v. Corporation of the City of London et al

In London Civic Employees Union Local 107 v. Corporation of the City of London et al (Div Court, 2024) the Ontario Divisional Court dismissed a JR, this regarding whether "the City of London’s outdoor employees were entitled to a paid holiday on September 19, 2022 ... (t)his was the day set aside to honour the memory of Queen Elizabeth II."

This case illustrates [esp. para 21] the 'tolerated uncertainty' that is allowed under the Vavilov approach to JRs. Here an earlier case [London (City) v. Canadian Union of Public Employees, Local 101, 2024 ONSC 4074] held that an almost identical legal question "interpreting similar wording in a different collective agreement" resulted in an opposite conclusion:

[2] The applicant union represents the city’s outside workers. The parties’ collective agreement contains an article listing paid statutory holidays and includes an additional clause for a holiday on “any other day declared by a competent authority to be a holiday within the meaning of the Bills of Exchange Act as amended from time to time.”

[3] On September 13, 2022, the Governor in Council (GIC) issued a proclamation regarding a day to honour the Queen’s memory on September 19, 2022. In the city’s view, the proclamation did not fall within the wording of the Bills of Exchange Act, R.S.C. 1985, c. B-4 (BEA). It therefore did not offer the union’s members a paid holiday. The union filed a grievance.

....

[10] The BEA defines “legal holidays or non-juridical days” in relevant part by referring to those “appointed by proclamation.” Paragraph 42(a)(iii) of the BEA provides:

42. In all matters relating to bills of exchange, the following and no other days shall be observed as legal holidays or non-juridical days:

(a) in all the provinces,

...

(iii) any day appointed by proclamation to be observed as a public holiday, or as a day of general prayer or mourning or day of public rejoicing or thanksgiving, throughout Canada. (emphasis added)

[11] The September 13, 2022 proclamation at issue here does not expressly “appoint” a day to be observed as a day of general mourning. It reads in part:

Now Know You that We, by and with the advice of Our Privy Council for Canada, do by this Our Proclamation request that the people of Canada set aside September 19, 2022 as the day on which they honour the memory of Her late Majesty Queen Elizabeth the Second, who passed away on September 8, 2022. (emphasis added)

[12] The arbitrator examined the French and English versions of the BEA and reasoned that for a day referenced in a proclamation to be a legal holiday for the purposes of the BEA, the GIC must fix or appoint the day. It was not sufficient, in his view, for the proclamation to request or, as he interpreted the French version, “call upon” the people of Canada to set aside a day of mourning. The wording of the proclamation allowed individuals to make their own decisions, which did not provide enough certainty for the computation of time related to payments of bills of exchange.

[13] I find this interpretation to be reasonable. The words used in the BEA and the proclamation are different. The city has provided examples of similar proclamations that “requested” the people of Canada set aside a day to mourn or honour a memory. These included a day to mourn the victims of September 11, 2001, a day to honour the memory of the Queen Mother, and a day to honour the memory of Prince Philip. Other proclamations dating back to the first half of the 20th century used different wording, such as to “appoint “a public holiday to be observed as a general day of mourning” in respect of the death of King George V in 1936. The GIC should be taken to be aware of the BEA. It could have “appointed” the day – and has done so in the past -- but chose to use the more flexible term “request” in this instance.

....

Departure from Other Arbitral Award

[20] Finally, the union submits the arbitrator failed to justify his departure from a decision by a different arbitrator interpreting similar wording in a different collective agreement. I disagree. The union relied on a decision by arbitrator Michael Bendel interpreting the collective agreement for the city’s inside workers. Arbitrator Bendel concluded that under that collective agreement, the proclamation fell within the wording of s. 42(a)(iii) of the BEA. This court upheld that conclusion as reasonable on judicial review but remitted the matter to the arbitrator for failure to consider evidence put before him regarding historical collective agreements and proclamations: London (City) v. Canadian Union of Public Employees, Local 101, 2024 ONSC 4074.

[21] The critical difference in that case is that the parties did not raise the key argument about the difference between “request” and “appoint.” Vavilov reminds us that arbitrators and other administrative decision-makers are not bound by internal precedent in the same manner as courts. Some conflicts between administrative decisions are the “price to pay” for independence of decision-making:

As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision-making freedom and independence” given to administrative decision-makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law; p. 800 [of Domtar Inc. v. Quebec (commission d’appel en matière de lésions professoinnelles), 1993 CanLII 106 (SCC), [1993] 2 S.C.R. 756].

[22] Reviewing courts should still be concerned with the general consistency of administrative decisions. If an arbitrator departs from longstanding practice or established internal decisions, the departure must be justified: Vavilov, at para. 131 In this case, there was only one other recent decision, not an established precedent. In any event, Arbitrator Anderson explained his departure from Arbitrator Bendel’s decision. Arbitrator Bendel found the proclamation fell within s. 42(a)(iii) in the sense that it referenced a “day of mourning” as required by the BEA. This was in response to the city’s argument that the proclamation referenced a day to “honour the memory” of the Queen and not a “day of mourning” as set out in the BEA. The argument that the GIC “requested” the day be set aside rather than “appointing” a day of mourning was not put to him.

[23] Arbitrator Anderson implicitly accepted Arbitrator Bendel’s conclusion that a “day to honour the memory” was the same as a “day of mourning.” He did not raise any disagreement with this point but reached his decision on an entirely different basis. Similarly, this court only found Arbitrator Bendel’s interpretation of s. 42(a)(iii) to be reasonable on the “day of mourning” issue. In any event, it has remitted the matter to the arbitrator.

[24] The departure from Arbitrator Bendel’s decision was clearly explained. Arbitrator Anderson reached his decision on an argument not put to Arbitrator Bendel. The nature of reasonableness review is that, in most cases, there can be more than one reasonable outcome. Arbitrator Anderson’s conclusion was within a range of possible, acceptable outcomes that was justified in respect of the facts and the law: Vavilov at para. 86. I do not find this case to be of the type referenced in para. 124 of Vavilov where there is only one reasonable interpretation of the collective agreement. As a result, it is not appropriate for the court to intervene.

. Pourkhodayar v. The Personal Insurance Company

In Pourkhodayar v. The Personal Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal/JR, here where the applicant "was denied on the basis that she had not been involved in an “accident” as defined in s. 3(1)".

Here the court noted the range of outcomes that were acceptable in a JR 'reasonableness' context:

[4] On questions of fact or mixed law and fact in an application for judicial review, the standard of review of an administrative tribunal’s decision is reasonableness. Reasonableness is concerned with the existence of justification, transparency, and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

. Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food)

In Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from an earlier dismissed JR, here against "an [SS: Ministerial] Order issued by the Minister of Agriculture and Agri-Food [Minister] under section 15(3) of the Plant Protection Act, SC 1990, c 22, declaring the entire province of Prince Edward Island [PEI] as "“a place infested with potato wart”" and prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order]".

Here the court [Stratas JA concurring], in considering it's application of the JR SOR of 'reasonableness' wrt legal issues, states a stark - but consistent - conclusion:

[62] This Court must decide whether the Ministerial Order was reasonable by examining it in light of the relevant constellation of law and facts which act as constraints on the Minister: 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101, 445 D.L.R. (4th) 448 at paras. 51, 84 [Whistler], citing Vavilov at paras 105, 138. However, in doing so, this Court must refrain from embarking on its own interpretation of the relevant statutory or regulatory provisions, a task reserved for the Minister. [SS: my italics]

. 2813127 Ontario Inc. v. His Majesty the King

In 2813127 Ontario Inc. v. His Majesty the King (Div Court, 2023) the Divisional Court directly addressed an issue that I have found elusive of attention, that of the standard of review of a purely legal (here, statutory) issue under the JR 'reasonableness' standard from Vavilov:

[15] The court charged with a reasonableness review must defer to any reasonable interpretation of the legislation, even if other reasonable interpretations may exist. Judicial deference in such instances is itself a principle of modern statutory interpretation. (McLean v. British Columbia, 2013 SCC 67 at para 40; Vavilov, at para. 235.)

The result is apparently that 'reasonableness' is one over-riding standard for all of: legal issues, issues of mixed fact and law, and issues of fact.