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Administrative - Stare Decisis. Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court considers labour arbitration jurisprudence (for safety measures) - here in the course of a Charter s.8 analysis, finding it not useful as precedent as being restricted to the collective agreement context:(a) Arbitral jurisprudence
[108] Contrary to the appellants’ submissions, I believe the Application Judge was correct in considering arbitral jurisprudence with caution, as not being conclusive in a section 8 analysis context.
[109] Arbitral jurisprudence arises in an entirely different statutory context and applies a different analysis. The arbitral decisions relied upon by the appellants in the present matter are concerned with management rights clauses found in collective agreements and their use by employers to unilaterally impose safety measures, including drug and alcohol random testing, in a dangerous workplace.
[110] The validity of such unilateral measures must be assessed using a specific test developed in the labour law context, requiring case-by-case balancing to preserve public safety concerns while protecting privacy (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd., 2013 SCC 458 at paras. 4, 22−23 (Irving). One important consideration in assessing the validity of this type of unilateral measures is the employees’ right not to be discharged or disciplined by an employer, save for "“just cause”" or "“reasonable cause”" where the impugned measure is enacted as a vehicle for discipline (Irving at para. 23).
[111] According to that test – known as the "“KVP”" test –, "“any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union, must be consistent with the collective agreement and be reasonable”" (Irving at para. 24).
[112] As we have seen, the section 8 reasonableness test does not bring into play the exact same set of considerations. It requires a flexible approach that takes its colour from the totality of circumstances. What is in issue here is clearly outside the confines of the unilateral exercise of a management rights clause in a collective agreement. What is in issue is the validity of requirements imposed on employers, by a federal regulator as a legally binding condition, to the statutory license the employers must hold to carry on with any of the regulated activities. This calls for a different, more nuanced, reasonableness analysis.
[113] But even arbitral jurisprudence is not a complete bar to the imposition of random testing in a dangerous workplace. On the contrary, if random testing "“represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified”" (Irving at para. 52). I note from Irving that absent a reasonable cause, such as a general problem of substance abuse in the workplace, it is the unilateral imposition of random testing for "“all employees in a dangerous workplace”" that has been generally rejected by arbitrators (Irving at para. 6) (italicized in original). This is not the case here, random testing being imposed to safety-critical workers only, who represent less than 10% of the nuclear industry’s entire workforce.
[114] In my view, the Application Judge was right to distance himself from arbitral jurisprudence on the ground that it lacks authoritative value for the purposes of the section 8 analysis that he was called upon to perform in the present matter. . International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association
In International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association (Fed CA, 2024) the Federal Court of Appeal dismissed (as moot) a federal labour JR, here against a ruling of the Canada Industrial Relations Board (CIRB) that held that "ILWU Canada [had] engaged in an unlawful strike".
Here the court considers stare decisis in an administrative context:[82] In terms of the impact of previous case law, as noted by the majority in Vavilov at paragraphs 131–32 and by this Court in Canada (Attorney General) v. National Police Federation, 2022 FCA 80, 107 C.L.R.B.R. (3d) 1 [National Police] at para. 48, administrative decision-makers are not bound by their own precedents and may depart from them if adequate reasons are provided. Nor are they bound by precedents from other similar administrative decision-makers. The principle of stare decisis, which applies to courts and requires them to follow binding judicial authority, is inapplicable to administrative decision-makers like the CIRB: see Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, 1993 CanLII 106 at 800–01. Thus, the CIRB was not bound to follow its own case law or cases from other labour relations boards.
[83] Likewise, administrative decision-makers need not follow judicial precedents, provided adequate reasons for departing from them are given. Nor are they required to apply common law principles in the same way a court would: Vavilov at paras. 112–13; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616 at para. 5; National Police at para. 49. . 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 the court considers stare decisis in an administrative context:[71] As well, taking matters at their highest, even if the Commission said something supportive of the appellant’s case — and from a reading of the evidence filed on the motion, I am not satisfied it did — it is well-established that different adjudicators can reach different results on substantially similar facts and they can all be reasonable: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770 at para. 17. . Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke
In Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke (Div Court, 2024) the Divisional Court dismissed a Crown JR respecting a claimant-successful (and unusual) ODSP 'guide dog benefit' (GDB) HRTO 'disability' decision.
Here the court considers the important issue of stare decisis in the administrative context:[85] It has long been accepted that divergent and conflicting administrative tribunal decisions will be condoned as part of curial deference by reviewing Courts, and that this cannot be a substantive basis for judicial review. This was a recognition on the part of reviewing courts of the legislative choice to have disputes or policies settled by tribunals or boards. The Supreme Court of Canada in Domtar Inc. v. Québec (Commission d’appel en matière de lésions professionnelles) (“Domtar”), 1993 CanLII 106 (SCC), [1993] 2 S.C.R. 756, at p. 795, delineated the issue as one of “context” and coming to a considered understanding of who was in the best position to rule on the impugned decision, as follows:The issue is between the expertise and effectiveness of administrative tribunals and curial deference, on the one hand, and consistency and predictability in the application of the law, on the other. The advisability of judicial intervention in the event of conflicting decisions among administrative tribunals, even when serious and unquestionable, cannot, in these circumstances, be determined solely by the “triumph” of the rule of law. Where decisions made within jurisdiction are not patently unreasonable, the issue instead turns on whether the principles underlying curial deference should give way to other imperatives. In my opinion, the answer is no. [86] Domtar similarly noted that without respecting deference and in the absence of a reviewable error, reviewing courts could be transformed into a genuine appellate jurisdiction in which a reviewing court substituting its own opinion for that of an administrative tribunal, would eliminate and undermine the tribunal’s autonomy and special expertise, and the intention of the legislature. The Court also noted that the search for consistency is not an absolute one, and that “[t]he value represented by the decision-making, independence and autonomy of the members of administrative tribunals goes hand in hand here with the principle that decisions should be effective. In light of these considerations, we must conclude that, for the purposes of judicial review, the principle of the rule of law must be qualified”: Domtar, at pp. 799-800.
[87] Vavilov did not change this approach. While recognizing the importance of consistency, the Supreme Court of Canada has held that “a lack of unanimity [within a tribunal] is the price to pay for the decision-making freedom and independence given to the members of these tribunals” and the result of reasonableness review is that there may be inconsistent approaches. While acknowledging in Vavilov that consistency with prior decisions may be a constraint in a more robust reasonableness review, “[w]here a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining the departure in its reasons.”[8] . 2198806 Ontario Inc. v. The Corporation of the City of Windsor
In 2198806 Ontario Inc. v. The Corporation of the City of Windsor (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against an appeal decision of the Assessment Review Board (ARB) which denied a challenge to a municipality's decision to not grant a property tax refund of the applicant's hotel property when it was shut down for construction to convert to residential rental use.
In these quotes the court considers 'stare decisis' in an administrative context:[21] In Vavilov, the Supreme Court of Canada stated at para. 131 that administrative decision makers are not bound by internal precedent in the same manner as courts. But it cautioned that where a decision maker departs “from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons.” The cases cited by the applicant do not directly address the issue in dispute. There is no longstanding practice or established internal authority in this case that would render the Board’s analysis unreasonable. This ground of review therefore fails. . Mason v. Canada (Citizenship and Immigration)
In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considers stare decisis in administrative law, here making a point about 'justificatory burden':3. Relevant Statutory Law, Common Law, and International Law
[72] Statutory law, common law, and international law may operate as legal constraints on an administrative decision maker (paras. 111 and 114). An administrative decision will be unreasonable if it fails to justify a departure from binding precedents (para. 112). ...
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6. The Past Practices and Decisions of the Administrative Body
[75] Administrative decision makers should be concerned with the general consistency of their decisions, even if they are not bound by their prior decisions in the same way that courts are bound by stare decisis (para. 129). A decision will be unreasonable if the reasons fail to meet the “justificatory burden” for departing from “longstanding practices or established internal authority” (para. 131). . City of Toronto v WSIAT and Beebeejaun
In City of Toronto v WSIAT and Beebeejaun (Div Court, 2023) the Divisional Court considered a JR of a WSIAT tribunal decision where the main substantive issue was the tribunal's treatment of stare decisis (and on a 'reasonableness' standard of review), as there were two conflicting 'lines of cases' advanced by the parties [paras 14-33].
. Perrin v. Canadian Union of Public Employees
In Perrin v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal considered a JR of a CIRB [Canada Industrial Relations Board] 'duty of fair representation' (s.37 of the Canada Labour Code) decision, here regarding COVID vaccination policy which the union did not grieve:[2] The applicants alleged in their complaint that the Union breached its duty by refusing to file a policy grievance challenging Air Canada’s mandatory vaccination policy. The applicants are a group of flight attendants, pursers and service directors employed with Air Canada. Ms. Perrin was mandated to bring the complaint on their behalf.
[3] In its decision, the Board found that since the factual considerations and legal arguments raised in the complaint were substantially similar to those reviewed and addressed in its recently issued decision Ingrid Watson v. Canadian Union of Public Employees, 2022 CIRB 1002 [Watson], it could rely on its analysis and rationale. In Watson, it had concluded that the Union had not breached its duty of fair representation when it refused to file a policy grievance with respect to Air Canada’s mandatory vaccination policy. The Board’s decision has since been upheld by this Court in Watson v. Canadian Union of Public Employees, 2023 FCA 48 [Watson FCA].
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[10] ... Moreover, contrary to the applicants’ assertion, the Board did examine the Union’s conduct. It found that the Union had communicated regularly with its membership regarding the implementation of the policy, and that it had turned its mind to the issues raised by the members, including those who disapproved of the policy for various reasons. The Board was not required to refer to every document in the record, to respond to every argument or to make an explicit finding on each element leading to its conclusion (Vavilov at paras. 91, 128; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16). There is no basis for concluding that the Board ignored evidence or that it failed to grapple with any of the issues raised by the applicants. . Ottawa Airport Professional Aviation Fire Fighters Association v. Ottawa Macdonald-Cartier International Airport Authority
In Ottawa Airport Professional Aviation Fire Fighters Association v. Ottawa Macdonald-Cartier International Airport Authority (Div Court, 2022) the Divisional Court clarifies to limited scope of the doctrine that administrative law is exempt from stare decisis:[14] An arbitrator is not bound by stare decisis. However, the Supreme Court of Canada stated in Vavilov that a decision may be unreasonable if it is inconsistent with prior decisions of the administrative tribunal, and that inconsistency is not explained and justified by the decision-maker. As the Court stated (at para. 131):
... a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole. . National Grocers Co. Ltd. V. United Food and Commercial Workers Union, Local 1000A
In National Grocers Co. Ltd. V. United Food and Commercial Workers Union, Local 1000A (Div Court, 2022) the Divisional Court considers the implications of the administrative exemption from the doctrine of stare decisis:[52] The reviewing court does not conduct a de novo analysis to determine the “correct” interpretation of the disputed provision: Vavilov, at para. 116. The Supreme Court has acknowledged the legitimacy of multiple reasonable interpretations of statutory language, especially in cases where “the statutory language is less than crystal clear”: British Columbia (Securities Commission) v. McLean, 2013 SCC 67, [2013] 3 S.C.R. 895 at para. 37. In the course of reviewing a decision, however, it may become clear that the interplay of text, context and purpose leaves room only for a single reasonable interpretation which is at odds with the interpretation given by the decision maker, or that the decision maker’s interpretation falls outside a range of reasonable outcomes, based on the facts and the law: Vavilov, at para. 124. . Peters First Nation v. Engstrom
In Peters First Nation v. Engstrom (Fed CA, 2021) the Federal Court of Appeal cited how the SCC had undertaken to make it clear when there was only one possible statutory interpretation - given the Vavilov JR 'reasonableness' standard's potential for multiple such interpretations:[29] The Supreme Court has consistently held there will be circumstances where the ordinary tools of statutory interpretation will make it clear that there is only one reasonable interpretation (see, e.g., Vavilov at para. 124; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770 at para. 35; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 at para. 64; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at para. 38). This Court, and other appellate courts across Canada have also recognized that reasonableness encompasses situations where there is only one possible interpretation (see, e.g., Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52, 2019 CarswellNat 14755 at para. 61; English v. Richmond (City), 2021 BCCA 442, 2021 CarswellBC 3665 at para. 120; Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148, 154 O.R. (3d) 225 at para. 84).
[30] For the reasons outlined above, the term "“natural child”" can only have one reasonable meaning. This is not a term for which there is a range of reasonable outcomes. . Canada (Attorney General) v. Burke
In Canada (Attorney General) v. Burke (Fed CA, 2022) the Federal Court of Appeal considered an administrative stare decisis (which in this case is also a standard of review (SOR) for judicial review issue), with what I suspect is frustration with the Vavilov doctrine of (seemingly) allowing varying legal interpretations as legitimate (SS: see italics, which are mine). The case reflected a sharp difference in statutory interpretation in the Old Age Security system (an issue which Vavilov requires to be assessed on a 'reasonableness' SOR):V. Standard of Review
[25] The standard of review applicable to decisions of the Appeal Division is that of reasonableness: Canada (Attorney General) v. Redman, 2020 FCA 209 at para. 12; Cameron v. Canada (Attorney General), 2018 FCA 100 at para. 3. This includes decisions involving questions of statutory interpretation: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 115.
[26] This is the case even where there has been persistent discord on questions of law in an administrative body’s decisions: Vavilov, above at paras. 72, 129. Where, however, a decision maker departs from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable: Vavilov, above at para. 131.
[27] That said, it would be antithetical to the rule of law and would lead to legal incoherence if the meaning of a law was to depend on the identity of the individual decision maker. Rather than considering this to be a situation where the correctness standard of review ought to be applied, however, the Supreme Court stated that the more robust form of reasonableness review described in Vavilov is capable of guarding against threats to the rule of law: Vavilov, above at para. 72.
[28] In reviewing the interpretation of statutory provisions by administrative tribunals, the reviewing court does not undertake its own, de novo analysis of the question. Nor does it ask itself what the correct interpretation of the legislation should be. Instead, as is the case where a reviewing court is applying the reasonableness standard to questions of fact, discretion or policy, the Court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached, in order to determine whether the decision was reasonable: Vavilov, above at paras. 75, 83 and 116.
[29] In so doing, the reviewing court must focus on the decision maker’s interpretation, keeping in mind that there may be more than one reasonable interpretation of legislation available to an administrative decision maker, based on the text, context and purpose of the legislation: Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at paras. 16, 18.
[30] That said, the decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision in question. A decision maker cannot adopt an interpretation it knows to be inferior, even if it is plausible, because the interpretation in question appears to be both available and expedient. The decision maker’s responsibility is to discern meaning and legislative intent, and not to "“reverse-engineer”" its analysis in order to achieve a desired outcome: Vavilov, above at paras. 120, 121. . Tang v. Human Rights Tribunal of Ontario
In Tang v. Human Rights Tribunal of Ontario (Div Ct, 2021) the Divisional Court noted that different legal tests in administrative proceedings was the price we paid for the judicial review 'reasonableness' standard of review:[10] As noted by the Supreme Court of Canada in Domtar Inc. v. Quebec (Commission d’appel en matière de lesions preofessionnelles), 1993 CanLII 106 (SCC), [1993] 2 SCR 756, a lack of unanimity is the price to pay for the decision-making freedom and independence given to members of these tribunals and that recognizing the existence of a conflict in decisions as an independent basis for judicial review would constitute a serious undermining of that freedom and independence. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the court affirmed Domtar but added that when a decision maker departs from longstanding practices or established internal authority, it must explain that departure in its reasons and that a failure to do so may render the decision unreasonable. . 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 applies the administrative 'stare decisis' doctrine from Vavilov, here reviewing a labour arbitrator decision:[29] The application of a reasonableness standard of review implicitly recognises that there may be more than one reasonable interpretation of an agreement.
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[46] To adapt what was said by the Court of Appeal in RBC Dominion Securities, at para. 36, in rejecting its proposed interpretation, the Vice-Chair did not, as the applicant alleges, fail to apply proper contract interpretation principles; rather, he applied the principles, just not in the manner proposed by the applicant. . Municipal Property Assessment Corporation v. Claireville Holdings Limited
In Municipal Property Assessment Corporation v. Claireville Holdings Limited (Div Court, 2022) the Divisional Court stated the odd implications of the Vavilov doctrine allowing different tribunal reasoning to apply in different administrative cases:The Issue of Conflicting Decisions
[30] MPAC argues that the Board made a third legal error when it determined that the member in Loblaw Properties erred by not following Toronto Airways.
[31] In my view, this is not a question of law. As noted in Vavilov, administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. The Board’s comments on the merits of the decision in Loblaw Properties were to explain why it preferred the methodology of arriving at a property’s current value as explained in Toronto Airways. It is not a legal error to have done so.
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