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Justiciability

. Xia v. Board of Governors of Lakehead University

In Xia v. Board of Governors of Lakehead University (Div Ct, 2020) the Divisional Court considered a near-privative clause in the Ontario Human Rights Code (a privative clause is a statutory provision that attempts to prohibit judicial review of a government decision). This provision prohibited judicial review unless "the decision is patently unreasonable”, which by all principles of statutory interpretation is more extreme than plain "reasonableness", the standard of review affirmed in Vavilov in 2019. However the court read the two standards to be the same, obviously to avoid the justiciability crisis that would result if the provision were read literally. This is an ongoing justiciability issue, the courts trying to preserve their supervisory role over government and the government (here Ontario) trying to avoid judicial scrutiny [you need to review the Intercounty Tennis and the Midwives cases cited there]:
[14] Section 45.8 of the Code provides that a decision of the Tribunal “is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable”.

[15] Dr. Xia and Lakehead submit that the standard of review to be applied is reasonableness, relying in part on Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 (Div. Ct.) at paras. 37, 45; see also Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 (CanLII) at paras. 77-88.

[16] On the other hand, the HRTO submits that the Divisional Court is bound to apply the legislated standard of review of patent unreasonableness, by which it means the specific and distinct rules associated with the patent unreasonableness standard as set out in the pre-Dunsmuir case law. The HRTO submits that the legislated standard requires deference unless a decision is “clearly irrational” and “evidently not in accordance with reason.” I do not agree, for the reasons set out in the Intercounty Tennis Association and Association of Ontario Midwives cases discussed above. The standard of review is reasonableness as explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) (SCC).
The balance of the case is worth reading for it's treatment of procedural fairness and HR rules issues which, in my opinion, reflect an overly harsh treatment of the human rights applicant [paras 18-40].

. Canadian Snowbirds Association Inc. v. Attorney General of Ontario

In Canadian Snowbirds Association Inc. v. Attorney General of Ontario (Div Ct, 2020) the Divisional Court considered an interesting justiciability issue. The Health Insurance Act contained a unique provision [s.45(3.3)] that prohibited the passage of regulations that would violate the Canada Health Act (CHA) as it would jeopardize federal funding. The case held that the challenged regulation was ultra vires, but cited two prior cases [Collett and Soth] that refused to considered the issue without a prior political decision that the regulations (in that case) offended the CHA. The cases together are an interesting and rare consideration of 'justiciability', the hesitancy of the courts to adjudicate on political issues:
[26] Collett was a judicial review application brought by individuals who were Ontario residents but who resided for some period of time outside of Canada. The Applicants asked the Divisional Court to declare that the regulation that was passed in July of 1994, which reduced the maximum in-patient service reimbursement from $400.00 per day to $100.00 per day, was ultra vires on the basis that it violated s. 45(1)(h) of the HIA. The wording of s. 45(1)(h) was essentially the same as the wording of s. 45(3.3) that is at issue on this application.

[27] The Applicants in Collett argued that the July 1994 regulation clearly violated the portability criterion in s. 11 of the CHA as the maximum reimbursement amount of $100.00 provided for in that regulation was not on the “basis of the amount that would have been paid by the province for similar services rendered in the province” (Collett, para. 4).

[28] The majority of the Divisional Court (McMurtry C.J.O.C. and Hartt J.) refused to decide the issue of whether the impugned regulation satisfied the portability criterion under the CHA because “the consequences of any failure to satisfy the criteria is a matter for consultation and ultimately within the discretion of the Governor in Council to decide whether to disqualify the Province of Ontario for contribution. In the event of such disqualification the issue could become justiciable but we must find that the application is premature at this time and must therefore be dismissed” (para. 10).

[29] In support of their decision, the majority found that the Governor in Council had a great deal of discretion in relation to its options if a provincial health insurance plan ceased to satisfy the five pillars. As put by the majority: “It is only at the final stage of decision-making by the federal government that it can be determined whether or not the prescription in s. 45(1)(h) of the [HIA] applies as to the disqualification of the province from federal funding. The federal and provincial legislation must therefore be considered an interlocking legislative scheme that requires intergovernmental consultation” (para. 7).

[30] The majority also focused on the words “would disqualify” and stated that these words denoted “an element of certainty which cannot be determined until the government consultation has run its course” (para. 8).

....

[35] In Soth v. HMQ (Lieutenant Governor of Ontario), 2012 ONSC 5172, an oral endorsement from the Divisional Court that was released on September 13, 2012, this Court heard another challenge to Regulation 552, also brought on the basis that it was ultra vires because it violated the portability criterion in the CHA. By that time s. 45(1)(h) had become s. 45(3.3).

[36] The Attorney General relied on Collett to argue that the dispute was not justiciable. The Court agreed and dismissed the application. The relevant portion of their decision reads as follows:
[3] There is no significant difference between the wording of s. 45(3.3) of the Health Insurance Act and the limiting words in s. 45(1)(h) of the former Ontario Health Insurance Act which was the subject of judicial review by this court in [Collett].
[4] We agree with the analysis and conclusion of the majority in that case. Because the consequence of any failure to satisfy the criteria under the Canada Health Act becomes a matter of intergovernmental consultation and ultimately is a decision within the discretion of the Governor in Council, the issue is not now justiciable, and the Applicant’s challenge to the vires of the regulation is premature.

[37] We were also referred to several other decisions from courts (including appellate courts) in other jurisdictions dealing with challenges to provincial health legislation on the basis that their legislation violated one of the five pillars or criteria set out in the CHA (see for example Lexogest Inc. v. Manitoba (Attorney-General) (1993), 1993 CanLII 3365 (MB CA) and Cameron v. Nova Scotia (Attorney General), 1999 NSCA 14). All of these challenges were dismissed as non-justiciable on the basis that under the scheme of the federal Act the first step is a consultative one. It is only if these consultations break down that the federal Cabinet may, but does not have to, reduce the cash contribution. The consequences of non-compliance are political and policy-oriented. However, counsel for the Attorney General conceded in oral argument that in none of these cases was the court faced with a section in the relevant provincial legislation that was similar to the one at issue in this case, namely s. 45(3.3).

....

[39] There are two features that distinguish this case from Collett and Soth. First, by totally eliminating the out-of-country reimbursement feature (unless pre-approval has been obtained) the impugned regulation clearly violates the portability criterion. This is unlike in Collett where the majority noted at para. 9 that “[t]he Attorney General further submits that in any event the criteria laid down in the Canada Health Act are not being breached in that that legislation provides a great deal of flexibility with respect to the basis on which payments may be made to in-or-out-of-province insured services.” In this case the Attorney General is not and could not advance that argument.

[40] The second distinguishing feature concerns the steps that the federal Government has taken in relation to the impugned regulation.

[that reflect a clear federal disagreement on the matter, set out at paras 41-46]
. Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall

In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall (SCC, 2018) the Supreme Court of Canada reviewed the concept of justiciability:
[32] This appeal may be allowed for the reasons given above. However, I also offer some supplementary comments on justiciability, given that it was an issue raised by the parties and dealt with at the Court of Appeal. In addition to questions of jurisdiction, justiciability limits the extent to which courts may engage with decisions by voluntary associations even when the intervention is sought only on the basis of procedural fairness. Justiciability relates to the subject matter of a dispute. The general question is this: Is the issue one that is appropriate for a court to decide?

[33] Lorne M. Sossin defines justiciability as
a set of judge-made rules, norms and principles delineating the scope of judicial intervention in social, political and economic life. In short, if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if a subject-matter is held not to be suitable for judicial determination, it is said to be non-justiciable.
(Boundaries of Judicial Review: The Law of Justiciability in Canada (2nd ed. 2012), at p. 7)

Put more simply, “[j]usticiability is about deciding whether to decide a matter in the courts”: ibid., at p. 1.

[34] There is no single set of rules delineating the scope of justiciability. Indeed, justiciability depends to some degree on context, and the proper approach to determining justiciability must be flexible. The court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter: see Sossin, at p. 294. In determining this, courts should consider “that the matter before the court would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties’ positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute” (ibid.).

[35] By way of example, the courts may not have the legitimacy to assist in resolving a dispute about the greatest hockey player of all time, about a bridge player who is left out of his regular weekly game night, or about a cousin who thinks she should have been invited to a wedding: Court of Appeal reasons, at paras. 82-84, per Wakeling J.A.

[36] This Court has considered the relevance of religion to the question of justiciability. In Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607, at para. 41, Justice Abella stated: “The fact that a dispute has a religious aspect does not by itself make it non-justiciable.” That being said, courts should not decide matters of religious dogma. As this Court noted in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 50: “Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.” The courts have neither legitimacy nor institutional capacity to deal with such issues, and have repeatedly declined to consider them: see Demiris v. Hellenic Community of Vancouver, 2000 BCSC 733, at para. 33 (CanLII); Amselem, at paras. 49-51.

[37] In Lakeside Colony, this Court held (at p. 175 (emphasis added)):
In deciding the membership or residence status of the defendants, the court must determine whether they have been validly expelled from the colony. It is not incumbent on the court to review the merits of the decision to expel. It is, however, called upon to determine whether the purported expulsion was carried out according to the applicable rules, with regard to the principles of natural justice, and without mala fides. This standard goes back at least to this statement by Stirling J. in Baird v. Wells (1890), 44 Ch. D. 661, at p. 670:
The only questions which this Court can entertain are: first, whether the rules of the club have been observed; secondly, whether anything has been done contrary to natural justice; and, thirdly, whether the decision complained of has been come to bona fide.
The foregoing passage makes clear that the courts will not consider the merits of a religious tenet; such matters are not justiciable.

[38] In addition, sometimes even the procedural rules of a particular religious group may involve the interpretation of religious doctrine. For instance, the Organized to Do Jehovah’s Will handbook (2005) outlines the procedure to be followed in cases of serious wrongdoing: “After taking the steps outlined at Matthew 18:15, 16, some individual brothers or sisters may report to the elders cases of unresolved serious wrongdoing” (p. 151). The courts lack the legitimacy and institutional capacity to determine whether the steps outlined in Matthew have been followed. These types of procedural issues are also not justiciable. That being said, courts may still review procedural rules where they are based on a contract between two parties, even where the contract is meant to give effect to doctrinal religious principles: Marcovitz, at para. 47. But here, Mr. Wall has not shown that his legal rights were at stake.

[39] Justiciability was raised in another way. Both the Congregation and Mr. Wall argued that their freedom of religion and freedom of association should inform this Court’s decision. The dissenting justice in the Court of Appeal made comments on this basis and suggested that religious matters were not justiciable due in part to the protection of freedom of religion in s. 2(a) of the Canadian Charter of Rights and Freedoms. As this Court held in RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at p. 603, the Charter does not apply to private litigation. Section 32 specifies that the Charter applies to the legislative, executive and administrative branches of government: ibid., at pp. 603-4. The Charter does not directly apply to this dispute as no state action is being challenged, although the Charter may inform the development of the common law: ibid., at p. 603. In the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.



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