Administrative - Charter. Canada (Attorney General) v. Robinson
In Canada (Attorney General) v. Robinson (Fed CA, 2022) the Federal Court of Appeal, while dismissing a Crown appeal, upheld the Federal Court judge's finding of a s.15 Charter violation:
The Federal Court’s decision. Landau v. Canada (Attorney General)
 The Federal Court (2020 FC 942 per Southcott J. [Reasons]) began with an explanation of the Doré/Loyola/TWU framework (Doré v. Barreau du Québec, 2012 SCC 12,  1 S.C.R. 395 [Doré]; Loyola High School v. Quebec (Attorney General), 2015 SCC 12,  1 S.C.R. 613 [Loyola]; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32,  2 S.C.R. 293 [TWU]). This trilogy of cases addresses both when and how Charter rights and "“Charter values”" are to be considered in administrative decision-making.
 The Supreme Court has developed a two-step approach, asking, first, whether the decision affected or engaged a Charter protection, and then, if so, whether that decision reflected a proportionate balance between the Charter protection and the statutory objectives (TWU at para. 28). I note, parenthetically, that the majority decision of the Supreme Court of Canada in TWU refers to Charter protections, and, in paragraph 41 of TWU the majority writes, that "“any exercise of statutory discretion must comply with the Charter and its values”", citing R. v. Conway, 2010 SCC 22,  1 S.C.R. 765 at paragraph 41.
 The judge then turned to the standard of review. Following Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, 441 D.L.R. (4th) 632 [Ferrier], the judge determined that the appropriate standard of review for the first question of the Doré/Loyola/TWU test (determining whether a Charter protection was engaged) was correctness, and that the standard of review for the second question (the balancing of the Charter protection against the policy objectives) was reasonableness. However, he also held that regardless of which standard he applied to the question of whether a Charter protection was engaged, the Deputy Minister’s decision would be unreasonable as it was silent on the question. Given the failure to address the central question, the Deputy Minister’s decision was neither correct nor reasonable.
 The judge then applied the Doré/Loyola/TWU framework to the question whether the decision not to extend the MSO beyond five years engaged subsection 15(1) of the Charter. Relying on Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17,  1 S.C.R. 464, the judge asked whether the decision, on its face or in its impact, created a distinction based on an enumerated or analogous ground, and if so, whether the decision imposed burdens or denied a benefit in a manner that constitutes substantive discrimination (Reasons at para. 46).
 The judge concluded that the decision not to grant an exception to allow the continued use of an MSO was differential treatment, creating a distinction on the ground of physical disability. He noted that while Mr. Robinson has no more right to have his licence renewed each year than any other licence holder, if the Minister does re-issue his licence, then the decision to not grant an MSO denies Mr. Robinson a benefit. Mr. Robinson’s ability to avail himself of the benefits afforded by the licence differs from the ability of other licence holders who are not disabled.
 The judge concluded that "“neither the recommendation documents nor the Decision demonstrates any consideration of the impact of those policy considerations upon Mr. Robinson’s equality rights”" (Reasons at para. 70). Citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 [Vavilov], the judge observed that while the inadequacy of reasons is not a standalone ground for judicial review, the reasons were silent on the critical questions that required answering and were not reasonable:
The conclusion that five years was a reasonable time to make alternate arrangements … misses the thrust of Mr. Robinson’s Charter argument, i.e. that, as a person with a disability, he should not be required to give up his chosen livelihood. There is no balancing of the severity of that result against the policy objectives or consideration of whether those objectives could reasonably be achieved in a manner that reduced the impact on Mr. Robinson’s equality rights. I therefore disagree with the Respondent’s contention that the Decision represents an implicit effort to conduct a balancing of Charter rights against statutory objectives. The Decision does not demonstrate that the DM was alive to the requirement to strike such a balance. The Federal Court allowed the application on the basis that the Deputy Minister’s decision engaged Mr. Robinson’s Charter rights and remitted the decision to the Deputy Minister to conduct the balancing exercise. After reviewing the jurisprudence, the judge also concluded that as the five-year limit in subsection 11(11) of the 1996 Policy was not legislative in nature, it was not subject to challenge under section 52 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11. Section 52 states that "“[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”"
(Reasons at para. 70)
 Mr. Robinson cross-appeals the refusal of the Federal Court to grant a declaration under section 52 of the Constitution on the basis that the 1996 Policy was not a law.
 The Attorney General submits that the judge erred in relying on Ferrier and assessing whether the decision engaged subsection 15(1) protections against a correctness standard. He submits the presumptive standard of reasonableness should be applied to both the first and the second question under the Doré/Loyola/TWU framework.
 Turning to the substantive question, the Attorney General argues that the judge erred in finding that the decision engaged subsection 15(1) of the Charter for the purposes of a Doré/Loyola/TWU analysis. He contends that that the Deputy Minister’s decision not to extend the MSO exemption beyond five years did not create a distinction on a prohibited or analogous ground, nor did it have the effect of reinforcing, perpetuating and exacerbating disadvantage. He also contends, in the alternative, that if Mr. Robinson’s subsection 15(1) rights were engaged, there was no need to expressly balance the degree of interference with a Charter right or value with the policy objective. This was because the use of an MSO for up to five-years was, in and of itself, a responsive accommodation to any Charter right or value that Mr. Robinson might have.
 It is sufficient for the purposes of this appeal to say that I agree with the judge that the Deputy Minister’s decision ought to be set aside for failing to address the key question before him. During the appeal process, Mr. Robinson contended that the decision not to grant an exception under the policy violated his subsection 15(1) rights under the Charter.
 An administrative decision-maker does not have to address the Charter in every decision he or she makes (Loyola at para. 4). However, where, as in this case, a Charter protection is squarely raised by a party, the unexplained failure to address whether the Charter was engaged cannot survive reasonableness review. The reasons were not responsive to the question as framed in circumstances where it was called on to be answered (Vavilov at paras. 81 and 86) and the decision fails on both the transparency and justification metrics. As the Supreme Court said in Vavilov, reasons are the primary mechanism by which administrative decision-makers show that their decisions are reasonable (para. 81). For a decision to be justifiable where, as here, reasons are required, the decision must be justified by the reasons (paras. 86-87).
In Landau v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered whether a judicial review applicant could raise Charter arguments and remedies that had not been raised in lower appeal tribunals:
 In the General Division and the Appeal Division, the applicant could have asserted her constitutional arguments against these provisions she now wishes to challenge. She could have offered evidence in support. She could have asked the General Division and the Appeal Division to disregard any unconstitutional provisions. See Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54,  2 S.C.R. 504; s. 64(1) of the Act (both Divisions have the power to decide questions of law and, thus, on the authority of Martin, the power to decide constitutional questions). In the case of sections 2(1), 42(1), 58, 72 and 73 of the Plan, the applicant did not do so. Accordingly, on the clear authority of the Supreme Court in Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16,  1 S.C.R. 257, she cannot now seek a declaration of invalidity in this Court against them.. United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc.
In United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc. (Div Ct, 2021) the Divisional Court reviewed the Charter remedial jurisdiction of an administrative tribunal:
 In reviewing the Tribunal’s decision, it is important to remember the limited jurisdiction of the Tribunal. It did not have the authority to give a declaration about the constitutional validity of the AEPA; rather, its role was to determine whether the right to freedom of association enjoyed by Aurora’s employees had been violated. As the Supreme Court of Canada stated in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC),  2 S.C.R. 5,. Speck v. OLRB
Furthermore, a formal declaration of invalidity is not a remedy which is available to the Board. Instead, the Board simply treats any impugned provision as invalid for the purposes of the matter before it. Given that this is not tantamount to a formal declaration of invalidity, a remedy exercisable only by the superior courts, the ruling of the Board on a Charter issue does not constitute a binding legal precedent, but is limited in its applicability to the matter in which it arises.
In Speck v. OLRB (Div Ct, 2021) the Divisional Court considered the administrative approach to a Charter claim (here s.15 equality):
 Section 15(1) of the Charter provides: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”. Ontario Nurses’ Association v. Participating
 In the administrative law framework, Charter issues such as these are analyzed in two steps. The first step requires a determination of whether a particular administrative decision engages the Charter by limiting a Charter protection. If so, the question for determination then moves onto the second step: “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play”: Doré, at para. 57; Loyola High School v. Québec (Attorney General), 2015 SCC 12,  1 S.C.R. 613, at para. 39. In our view, a realistic inquiry in this case does not extend to the second step.
 At the first step of the analysis, s. 15 is engaged only if an impugned government action makes a distinction on an enumerated or analogous ground that imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30,  2 S.C.R. 548, at paras. 19-20. An “analogous ground” identifies suspect decision-making which often leads to discrimination and denial of substantial equality. Analogous grounds involve characteristics that are either actually immutable, or are constructively immutable, or involve decisions adversely affecting discrete and insular minority groups, or groups that have been historically discriminated against: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC),  2 S.C.R. 203, at paras. 8, 13.
 None of the characteristics focused on by the applicant are immutable or constructively immutable or otherwise constitute analogous grounds:
a. The characteristic of being a “worker” is not an enumerated or analogous ground: Reference Re Workers’ Compensation Act, 1983 (Nfld.), 1989 CanLII 86 (SCC),  1 S.C.R. 922, at p. 924;
b. The characteristic of being a “unionized worker” and therefore being limited to a specific forum to make a grievance is not an enumerated or analogous ground: Pieters v. Canada, 2004 FC 26, at para. 26;
c. Being economically disadvantaged or poor, and unable to afford counsel, is not, in and of itself, an analogous ground: R. v. Banks, 2007 ONCA 19, 84 O.R. (3d) 1, at para. 104. As the Board correctly observed, at para. 23, many unrepresented persons who do not possess the applicant’s legal training “routinely navigate” the s. 74 application process.
In Ontario Nurses’ Association v. Participating (Ont CA, 2021) the Court of Appeal explains the role of Charter law in the administrative context [though it was not necessary to apply the Taylor-Baptiste v. Ontario Public Service Employees Union (Ont CA, 2015) case in the appeal]:
Charter values and s. 15 Charter rights
 The Unions have asserted throughout that the Tribunal and the courts must consider Charter values as an aid to interpret the Act – an argument that was accepted by the Divisional Court. They rely, in part, on this court’s decision in Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, 126 O.R. (3d) 481, leave to appeal refused,  S.C.C.A. No. 412. In Taylor-Baptiste, the court had the following to say about Charter values in the administrative law context, at paras. 54-57:
Their first submission is that an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its home or enabling statute at issue in a case…. The Unions further submit on their cross-appeal that, if the Act does not require maintenance using the proxy method, the Act contravenes s. 15 of the Charter.
Binding authority prevents the acceptance of the appellants’ submission. Slightly more than a decade after deciding Bell ExpressVu, the Supreme Court rejected an argument similar to the appellants’ when, in R. v. Clarke, it stated, at para. 16:
Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.The appellants’ second submission is that the Charter values interpretive principle articulated in Doré only applies to instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy. They say it does not apply to the kind of adjudicative decision made by the Tribunal in this case – i.e. whether the respondents’ conduct violated s. 5(1) of the Code.
While I take the appellants’ point that in both Doré and Loyola High School the Supreme Court frequently referred to the exercise of a discretionary power under a home statute, in my view the decision in Doré, when read as a whole, prevents the acceptance of the appellants’ submission. First, in Doré the Court stated that “administrative decisions are always required to consider fundamental values” (emphasis in original). Second, the context which framed the court’s discussion in Doré was analogous to the present case – i.e. the determination by an administrative tribunal about whether a person’s conduct had violated the strictures of a statutory or regulatory rule. [Footnotes omitted.]
 The PNH and the AGO submit that the Tribunal was not required to consider Charter values because, unlike in Taylor-Baptiste, there was no ambiguity in the statute. They further submit that if Taylor-Baptiste stands for the proposition that administrative actors must always consider Charter values when interpreting statutes, even in the absence of ambiguity, then Taylor-Baptiste was wrongly decided because it is inconsistent with Supreme Court authorities.
 My conclusion that the Tribunal’s decision is unreasonable rests on the application of the modern principle of statutory interpretation. It is unnecessary to determine whether the Tribunal also erred in failing to take into account Charter values in interpreting the Act. While I leave the Charter values issue for another day, I would question the need to resort to a Charter values analysis in a situation like this one where the Charter value in question – equality – is consistent with the purpose of the legislation, which is to redress discrimination in compensation. Accordingly, there is no need to determine whether Taylor-Baptiste was wrongly decided on the question of Charter values.