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Charter - Administrative (4). Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").
In these quotes the court contrasts the fuller Charter Oakes s.1 test with the administrative Dore-Loyola doctrine:[53] There is no issue that the framework for the Charter analysis is as set out in Doré and Loyola, above, rather than under R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. For a discretionary administrative decision that “engages the protections enumerated in the Charter”, “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that [the decision-maker] is obliged to pursue.”: Loyola, at para. 4, citing Doré. . Kaplan-Myrth v. Ottawa Carlton District School Board [important]
In Kaplan-Myrth v. Ottawa Carlton District School Board (Div Court, 2024) the Divisional Court dismissed a school board trustee's JR against a school board.
Here the court considers it's JR discretion to hear a Charter s.2(b) ['freedom of expression'] administrative issue - and usefully reviews the school board's (here, a tribunal) consideration of the same as "the Board was clearly alive to the Applicant’s right to free expression". Without endorsing the result, this may be an example of how a Charter admin matter 'should be done':[41] Judicial review of administrative decisions that engage the Charter are governed by the two-part approach set out by the Supreme Court of Canada in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and recently restated as follows:a. A reviewing court must first determine whether the decision limits Charter protections.
b. If so, the court must then examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them and the government’s interests in a given case. If not, the decision is unreasonable: see Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at para. 73. [42] There is no dispute between the parties with respect to the first part of the test. The parties agree that the decision of the Board, and the sanctions for the Applicant’s statements that the Board determined were contrary to the Code, limited the Applicant’s freedom of expression under s. 2(b) of the Charter.
[43] The Act limits freedom of expression, in that it requires all school board members to maintain focus on its objective and comply with the board’s code of conduct.
[44] The question before this court is whether the decision reflects a proportionate balancing of the various interests and rights as required under Doré. If not, the decision is unreasonable.
[45] The IC report deals with the Applicant’s Doré arguments directly and in considerable detail, including the following:a) At page 32 of the report, the IC specifically states, “I have set out the relevant Charter values and weighed them against the objectives of the Education Act and Code in deciding whether to recommend that the Board find a Code violation.”
b) At page 179 of the report it states,”[The Applicant], as each Trustee, has a right to share her opinion and participate on social media, she has a right to call out and denounce racism, antisemitism and all forms of discrimination, oppression and hate. However, disparaging the Code and the Code process is not appropriate criticism. The Code rules prohibiting actions that denigrate, intimidate and undermine approved policies of the Board are important in a free and democratic society to justify some limitation on Charter rights …. While elected municipal officials are free to vigorously debate and discuss matters of public interest, they must act reasonably and satisfy themselves as to the truth of any allegations.”
c) Finally, there are four pages of the report specifically dedicated to the issue of freedom of expression as a Charter-protected right and the limits imposed by the Code of Conduct. [46] The Applicant made the same Charter arguments in her extensive written submissions to the IC, which submissions were also before the Board for consideration, as well as in her submissions for the appeal before the Board.
[47] The Board held the required public meeting, at which the findings and recommendations of the IC were debated. After about one hour of deliberation, the Board voted. As set out above, the Board decided that the Applicant breached certain sections of the Code of Conduct. The Board concluded that the Applicant should be barred from attending one Board meeting and from sitting on certain committees for three months. The Board held a second public meeting to debate and vote on the Applicant’s appeal and confirmed its prior decision.
[48] The Code of Conduct’s stated purpose is to “establish a standard of conduct and a mechanism for managing inappropriate conduct” for trustees in discharging their duties. The Code of Conduct does not restrict trustees from expressing views but limits the manner in how they express those views. It requires civility and respect in expressing those opinions.
[49] The Applicant was sanctioned for how she spoke out; by targeting the Board and her fellow Trustees, including on social media, in a manner that “fueled continuing public confusion over the credibility of management of the Board and resulted in the discrediting and compromising of the integrity of the Board”.
[50] As in Ramsay v. Waterloo Region District School Board, 2023 ONSC 6508, the Board was clearly alive to the Applicant’s right to free expression, “which had been addressed at length by the Integrity Commissioner” as well as in the Applicant’s own comprehensive submissions: at para. 58.
[51] In Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685 (CanLII), deference was afforded to the College in interpreting and applying its own Code of Conduct:The ICRC’s concerns related to the public interest in members of the College avoiding the use of demeaning or degrading language. In Trinity Western, at para. 38, the Supreme Court observed that a regulator’s interpretation of the public interest, based on its expertise, is owed deference. Similarly, in Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769, at para. 147, this Court gave “significant deference” to the expertise of a disciplinary committee to assess whether a member's conduct was relevant to their suitability to practice, as the members of the committee, which included members of the profession, were “well-situated to assess the harm to the profession, the public, and to the reputation of the profession” by the member's conduct. The ICRC is made up of a majority of professional members. Deference should also be afforded its assessment of the risk of harm to the public and the profession in this case: para. 45 [52] The OCDSB reviewed its own Code and expressed concern that the Applicant’s statements and behaviour may be inconsistent with its professional standards and could undermine public trust. The decision of the Board is to be given deference in these circumstances.
[53] As this Court recognized in Del Grande, the Board has a statutory obligation to enforce a minimum standard of conduct expected of its Trustees and is presumed to have expertise in enforcing that standard. It was entirely consistent with the Education Act for the Board to enforce its Code of Conduct against the Applicant. In its report, the IC stated as follows:[The Applicant], as each Trustee, has a right to share her opinion and participate on social media, she has a right to call out and denounce racism, antisemitism and all forms of discrimination, oppression and hate. However, disparaging the Code [of Conduct] and the Code process is not appropriate criticism. The Code rules prohibiting actions that denigrate, intimidate and undermine approved policies of the board are important in a free and democratic society to justify some limitation on Charter Rights … While elected municipal officials are free to vigorously debate and discuss matters of public interest, they must act reasonably and satisfy themselves as to the truth of any allegations. [54] The decisions represent a reasonable and proportionate balancing of the Applicant’s expressive rights with the Act’s objectives. Applying Doré, the Applicant has not shown a basis for this court to intervene. . 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 cites authority for when a tribunal may hear constitutional issues:[31] .... As we shall see, whether it has jurisdiction to assess the constitutional issue turns on the test in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, discussed below. . York Region District School Board v. Elementary Teachers’ Federation of Ontario
In York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) the Supreme Court of Canada applies Charter administrative procedural doctrine, but here to the 'privacy' provisions of s.8 ['Search or seizure'] - an area that overwhelmingly otherwise attract criminal procedures:D. Public School Teachers Have a Section 8 Charter Right Against Unreasonable Search and Seizure in the Workplace
[97] As noted, Ontario public school boards are government for the purpose of s. 32 of the Charter; thus, school board employees, including teachers, enjoy rights under s. 8 of the Charter against unreasonable search and seizure in the workplace. This Court has recognized s. 8 Charter protection beyond the criminal and quasi-criminal context (see R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627 (s. 8 applies to production of documents under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)); Comité paritaire de l’industrie de la chemise v. Potash, 1994 CanLII 92 (SCC), [1994] 2 S.C.R. 406 (s. 8 applies to labour inspections under provincial legislation)).
[98] This Court’s criminal decisions, such as in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, and particularly in the school context, such as in Cole, can assist in determining the existence and scope of a reasonable expectation of privacy in the employment context. However, courts should be cautious in adapting the s. 8 framework from the criminal law context to the employment context. The criminal law context cannot readily be analogized to the context surrounding a principal performing their tasks in accordance with their statutorily mandated role of maintaining order in a school. Criminal law thresholds — and considerations related to exigency and law enforcement objectives — should not be the starting point for analysis in the employment context. Rather, in that context, the employer’s operational realities, policies and procedures can be relevant in determining the reasonableness of an employee’s expectation of privacy (Cole, at para. 54).
[99] Criminal law jurisprudence should not be indiscriminately imported into non-criminal matters. The analysis under s. 8, being contextual, needs to be adapted to occupational realities. For instance, this Court has eschewed the requirement of prior authorization by a warrant to conduct searches of students by a school authority. In M. (M.R.), Cory J., for the majority, reasoned that such a criminal law requirement was not feasible in this context because school administrators “must be able to respond quickly and effectively to problems that arise in their school” (para. 45).
[100] In adapting the analysis to the workplace, for example, I agree with the Attorney General of Ontario that workplaces vary in terms of the level of regulation and that the consequences for discipline in the employment context are less severe as compared to penal liability in the criminal context (see I.F., at paras. 19-23).
(1) Determining the Reasonable Expectation of Privacy
[101] Whether in criminal or other contexts, s. 8 analysis proceeds in two steps: courts must determine, first, whether there is a reasonable expectation of privacy, and, second, whether the search and seizure is reasonable (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18, citing R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293).
[102] Whether or not state action has interfered with a reasonable expectation of privacy is to be determined based on the “totality of the circumstances”. This is dispositive of both the existence and the extent of the reasonable expectation of privacy. Four lines of inquiry serve as a guide:(1) an examination of the subject matter of the search;
(2) a determination as to whether the claimant had a direct interest in the subject matter;
(3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
(4) an assessment as to whether this subjective expectation of privacy was objectively reasonable
(Tessling, at paras. 31-32; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 18 and 78; Cole, at para. 40; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27). [103] Inevitably, the reasonable expectation of privacy takes its colour from context. Thus, the employer’s operational realities, policies and procedures may affect the reasonableness of an employee’s expectation of privacy (Cole, at para. 54). For example, in Cole, this Court recognized that the storing of personal information on a computer owned by the employer and the existence of a policy stating that data so stored belongs to the employer would tend to diminish the reasonable expectation of privacy (para. 52). On the other hand, permitting employees to use work laptops for personal purposes would weigh in favour of the existence of a reasonable expectation of privacy (para. 54).
(2) Determining the Reasonableness of a Search
[104] In the criminal context, a search or seizure is reasonable if (1) it is authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search or seizure was carried out is reasonable (Collins, at p. 278). Similar to the first step of a s. 8 analysis, the Collins framework also calls for a contextual assessment. “[Searches that] may be reasonable in the regulatory or civil context may not be reasonable in a criminal or quasi-criminal context” (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at pp. 495-96 (per Wilson J., dissenting)). In M. (M.R.), this Court implicitly adapted the Collins test to determine “whether a search conducted by a teacher or principal in the school environment was reasonable” (para. 54).
[105] I hasten to add that what may be considered proportionate in a criminal context, where penal liability is at stake, may look different in a labour relations context where the consequence, albeit serious, does not threaten liberty. In evaluating the reasonableness of the impugned search at the second step of a s. 8 analysis, arbitrators should have regard to employment relations under the terms of the collective agreements. The existing arbitral jurisprudence on the “balancing of interests”, including the consideration of management rights under the terms of the collective agreement, may properly inform the balanced analysis. There exists a considerable body of arbitral decisions regarding privacy in the context of collective agreements that arbitrators may properly have regard to in conducting a s. 8 analysis (see, e.g., Doman Forest Products Ltd. and I.W.A., Loc. 1-357, Re (1990), 1990 CanLII 12718 (BC LA), 13 L.A.C. (4th) 275 (B.C.); Toronto Transit Commission and A.T.U., Loc. 113 (Belsito) (Re) (1999), 1999 CanLII 35815 (ON LA), 95 L.A.C. (4th) 402 (Ont.)).
[106] The effect of this decision is not to displace existing arbitral jurisprudence, but rather to ensure that it respects Charter rights. Arbitral jurisprudence now encompasses a considerable body of decisions that reflect a great breadth of experience; this will continue to play an important role in resolving grievances arising under collective agreements. However, such decisions should also be taken in accordance with the direction in Conway to analyze Charter rights when they apply. This must inform their decision as to the grievance under the collective agreement. . York Region District School Board v. Elementary Teachers’ Federation of Ontario
In York Region District School Board v. Elementary Teachers’ Federation of Ontario the Supreme Court of Canada considers the history of the application of the Charter to administrative law - walking back to it's start in R v Conway (SCC, 2010), here in the course of explaining how a labour arbitrator erred below:C. The Arbitrator Erred by Applying the Wrong Analytical Framework
[85] When the Charter was proclaimed in 1982, its relationship with administrative tribunals was, in Abella J.’s formulation, a “tabula rasa” (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 3). I rely on Conway for the proposition that administrative tribunals — and therefore, the arbitrator in this particular instance — are competent to and tasked with the work of adjudicating Charter questions where they arise.
[86] It was determined in Conway that there was no need to bifurcate proceedings where a Charter question arose (para. 22). Further, the principles governing remedial jurisdiction apply in both arenas: there was not a Charter for the courts and another for administrative tribunals (para. 20, citing Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 70, per McLachlin J., dissenting).
[87] In determining whether to attribute Charter jurisdiction to a tribunal, this Court must ask itself whether the tribunal has the power to decide questions of law (Conway, at para. 22). If so, it can determine Charter questions. The arbitrator in this case meets that criteria, as it is broadly empowered to answer questions regarding “all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable” (Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 48(1)).
[88] Further, administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn:(1) have the authority to resolve constitutional questions that are linked to matters properly before them; and
(2) must act consistently with the Charter and its values when exercising its statutory function (Conway, at para. 78). [89] The principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. Tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction (i.e., where the essential factual character of the matter falls within the tribunal’s specialized statutory jurisdiction). In exercising their statutory discretion, tribunals must comply with the Charter (Conway, at paras. 20-21 and 78-81).
[90] This is, in part, an access to justice issue. There are practical advantages and a constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available (Conway, at para. 79). Charter rights can be effectively vindicated through the exercise of statutory powers and processes, meaning that claimants do not need to have separate recourse to the courts for their Charter rights to be vindicated (Conway, at para. 103).
[91] Where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision. Administrative tribunals are empowered — and, for the effective administration of justice, called upon — to conduct an analysis consistent with the Charter where a claimant’s constitutional rights apply (Conway, at paras. 78-81; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 52). It was therefore incumbent on the arbitrator to proactively address the s. 8 issue that manifested itself on the facts of the grievance. It is insufficient to revert to a separate “well developed arbitral common law” privacy right framework, or to another framework, as the arbitrator did in this instance (A.F., at para. 13). As I have explained, the Charter and relevant s. 8 jurisprudence were legal constraints that applied to the arbitrator’s decision (Vavilov, at para. 101). In other words, the arbitrator was required to decide the grievance consistent with the requirements of s. 8. This would properly entail drawing on both the relevant body of arbitral decisions and the s. 8 jurisprudence.
[92] The arbitrator approached her task differently. She conducted an analysis by reference to management rights versus the privacy interests of employees. However, arbitrators cannot disregard the Charter’s requirements where it applies by applying another analytical framework, even by consent.
[93] That said, s. 8 engages a highly contextual analysis, in that it contains internal limits. To give effect to these internal limits, arbitrators can properly have regard to the employment context, including the collective agreement. But they still must conduct an analysis consistent with s. 8.
[94] The appellant and my colleagues suggest that while the arbitrator did not say that she was doing a s. 8 analysis, that is what, in effect, she did. This is not persuasive. First and foremost, under the Vavilov framework, I am required to have regard to the justification for the decision actually given by the decision-maker, and not the justification that the decision-maker might have, but did not, provide. When a Charter right applies, it is not sufficient that the arbitrator made some references to the Charter jurisprudence. Any administrative action must, as a matter of course, always comply with the Constitution (Vavilov, at para. 56). However, when a Charter right applies, there must be clear acknowledgment of and analysis of that right. While I recognize that administrative justice may not always take the form of judicial justice, nowhere in the arbitrator’s reasons, read functionally and holistically, did she indicate that she was considering the Grievors’ s. 8 Charter right. This is so because she failed to appreciate that s. 8 right was directly at stake and instead proceeded to conduct her analysis entirely within the arbitral framework and examined the Grievors’ privacy right solely through the common law lens. This error is fatal. In addition to applying the wrong framework, the arbitrator’s error was compounded by her misapprehension of the content neutral approach, the concept of the biographical core and the doctrine of “plain view” under s. 8 jurisprudence, as observed by the dissenting judge of the Divisional Court as well as the Court of Appeal. In sum, the arbitrator did not do what, as a matter of law, she was required to do, that is to apply the s. 8 Charter right. The court continues at paras 97-106 to apply this adminstrative Charter doctrine where some lower courts have improperly applied Charter criminal doctrine.
. Gill v. Health Professions Appeal and Review Board
In Gill v. Health Professions Appeal and Review Board (Div Court, 2024) the Divisional Court dismissed two JRs challenging CPSO cautionary decisions regarding a doctor's social media COVID comments.
Here the court considers the application of the Charter to administrative contexts, in this case discretionary decisions:[52] In Doré a lawyer was reprimanded by his regulator for the content of a letter he wrote to a judge after a court proceeding. The court examined whether the discipline committee’s decision to reprimand the lawyer was reasonable. In assessing the reasonableness of its decision, the Supreme Court confirmed that “administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values” (para. 24). The Court then went on to clarify how this should be done.[55] How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives…
[56] Then the decision-maker should ask how the Charter value at issue will best be protected in terms of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objective ...
... .
[58] If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objective, the decision will be found to be reasonable. [53] If a decision does limit the protections under the Charter, a reviewing court must ask itself “whether, in assessing the impact of the relevant Charter protection, and given the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré, at para. 39). This requires that “Charter protections are affected as little as reasonably possible in light of the state’s particular objectives” (Loyola, at para. 40).
[54] The analysis must be “robust” and contextual (Loyola, at paras. 40-41). However, Dorée recognizes that “there may be more than one proportionate outcome that protects Charter values as fully as possible in light of the applicable statutory objectives and mandate” (Loyola, para. 41). Thus, as long as the measure chosen “falls within a range of possible, acceptable outcomes”, deference is owed to the decision-maker (Doré, at para. 56).
....
[59] In assessing the “robustness” of the ICRC’s reasons on this issue, it is important to keep in mind two principles that emerge from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 about assessing the reasoning process of an administrative decision-maker. First, reasons “must not be assessed against a standard of perfection” and they should not “always be expected to deploy the same array of legal techniques that might be expected of a lawyer or a judge.” As put by the Court in Vavilov, “’Administrative justice’ will not always look like ‘judicial justice’ and reviewing courts must remain acutely aware of the fact” (Vavilov, at paras. 91-92).
[60] Second, the degree of justification found in the reasons must consider what is at stake in the decision. As put by the Court at para. 133 of Vavilov:Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.
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