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Charter - Administrative (6). Priest v. Canada (Attorney General) [practical notice of constitutional question]
In Priest v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from an unsuccessful JR of an denied (second) CRA administrative decision. This second CRA decision resulted from an earlier successful JR which remitted the matter back down to the CRA a second time.
Here the court considered the appellant's argument that the CRA disregarded a Charter s.15 argument where there was "no explicit reference to the Charter" in the admin proceeding (which I call an issue of 'practical notice'):[19] Finally, Mr. Priest challenges the absence of any analysis by the Manager of his arguments under section 15 of the Charter. This contention must fail. As stated above, the fact that there is no explicit reference to the Charter in the Second IF Decision does not necessarily render the decision unreasonable. Here, the Manager clearly and meaningfully grappled with the essence of Mr. Priest’s adverse impact discrimination claim. Again, reasons for decision in the administrative law context are not irreversibly problematic simply because they do "“not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred”" (Vavilov at para. 91).
[20] Further, reviewing courts must read reasons for decision in the administrative law context "“in light of the history and context of the proceedings in which they were rendered”" (Vavilov at para. 94). In the present case, as noted in Priest 2022, Mr. Priest did not raise the Charter when he made his request for individual feedback (Priest 2022 at para. 35; Appeal Book at p. 1457).
[21] Be that as it may, it is implicit in the Second IF Decision that the Manager was alert and sensitive to Charter values, when he reconsidered Mr. Priest’s request for individual feedback. In order to establish a claim under section 15 of the Charter, a claimant must, inter alia, demonstrate that the impugned law or state action imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage (R. v. Sharma, 2022 SCC 39 at para. 28 (Sharma)). However, that impact must be "“disproportionate”" to engage section 15 (Sharma at para. 40; Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at para. 159, leave to appeal to SCC refused [2025] S.C.C.A. No. 41628).
[22] Again, the Manager inquired as to whether the Education Requirement had the adverse effect of excluding candidates to the CO-3 staffing process based on their age. In so doing, he implicitly inquired on whether that requirement had a disproportionate impact on Mr. Priest and the other members of his age group. The Manager concluded that the Education Requirement had no adverse effect or impact on Mr. Priest and people of his age group. As stated, this finding was within his reach based on the record before him. Therefore, any formalistic Charter analysis would have ended there. . Cardoso v. LECA [practice constitutional notice]
In Cardoso v. LECA (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR where the IPC adjudicator failed to adequately consider it's administrative Charter s.2(b) Dore/Loyola jurisdiction, here where - while no Notice of Constitutional Question was served - case law had held that the Charter played a role in the FIPPA s.23 'public interest' exemption, which was raised:[3] Although other issues were raised on this application for judicial review, the applicants’ main focus is the alleged failure of the IPC Adjudicator to engage with the Canadian Charter of Rights and Freedoms, specifically the s. 2(b) guarantee of freedom of expression, including freedom of the press. The failure to address the Charter is the basis upon which I would grant this application, for the reasons set out below.
....
[10] Within his [SS: IPC] submissions about s. 23 and the public interest, Mr. Cardoso cited and quoted from Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 37, as follows:[T]here is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. ... [11] The Criminal Lawyers’ Association case also arose from an access request under FIPPA that included an issue about s. 23.
[12] It is apparent from Mr. Cardoso’s submissions that he was not seeking any of the relief that would require the service of a notice of constitutional question either under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, or under the parallel rule at the IPC. He was submitting that the Charter was relevant to the public interest analysis in s. 23 of FIPPA.
[13] Mr. Cardoso, then unrepresented, did not mention what is sometimes referred to as a Doré/Loyola balancing analysis. The Doré/Loyola cases address the required approach to a Charter review of an administrative decision, by asking whether the decision reflects a proportionate balance of the decision-maker’s statutory mandate with the Charter right at issue: Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613.
[14] In summary, the IPC Decision concluded as follows:....
(vi) On the Charter, the [SS: IPC] reasons for decision said as follows, at para. 76:The appellant [Mr. Cardoso] also appears to raise a constitutional argument, albeit in passing (not having taken the steps required to raise constitutional questions), submitting that “the disclosure of documents that would serve the public interest is such an important concept that it was even recognized by the Supreme Court of Canada as a potential Charter right”.
Footnote to paragraph: “The appellant cites Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 SCR 815.”
[Emphasis added.] ....
Charter Issues
[19] The applicants submit that the Adjudicator erred in failing to consider Charter rights and values, focusing on the s. 2(b) guarantee of freedom of expression and freedom of the press. The applicants submit that the Adjudicator should have both considered the Charter under s. 23 of FIPPA and engaged in a Doré/Loyola balancing of the LECA decision. Neither was done.
[20] The applicants rely on York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, at para. 91. The Supreme Court held that where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision.
[21] The applicants further rely on the Criminal Lawyers’ Association case, which Mr. Cardoso quoted in his submissions to the IPC as set out above.
[22] LECA acknowledges that the Adjudicator did not expressly reference the Charter (other than to say it was not properly raised). However, LECA submits that the Adjudicator’s discussion of the public interest under s. 23 implicitly considered and balanced freedom of expression. The IPC similarly submits that a Doré/Loyola balancing is embedded into FIPPA because its structure requires considering the public’s right to access as well as privacy interests. In short, the respondents do not dispute the relevance of the Charter but submit that it was implicitly addressed in the IPC Decision.
[23] I am not prepared to imply that the Charter was properly considered in this case. In my view, the single paragraph in the reasons for decision that mentions the Charter is inconsistent with an implication that the Adjudicator considered the Charter at all. The applicants submit that the adjudicator wrongly focused on the lack of a notice of constitutional question. I agree. As a result of that error, the Charter was ignored.
[24] I therefore conclude that the Adjudicator erred in failing to properly consider the Charter. Some of the reasons for decision may well overlap with what may be said in the consideration of freedom of expression and the public interest under s. 23, or a Doré/Loyola analysis, but that is insufficient.
[25] Given the stark nature of this error, even if the standard of review was reasonableness, this error alone would render the IPC Decision unreasonable.
[26] In the circumstances, the appeal to the IPC should be done anew. Given that the issues have developed somewhat since the original submissions to the IPC, the parties should have the opportunity for new or supplementary written submissions to the new adjudicator. In that regard, the issues would benefit from submissions on the Charter under s. 23 in particular, and the role of the Doré/Loyola analysis in this case, as well as any other submissions the parties choose to advance about this or the other issues on the appeal. . Robinson v. Pickering (City)
In Robinson v. Pickering (City) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against "two decisions of council in which council unanimously voted, in the first instance, to suspend the applicant’s salary for 30 days and, in the second, to suspend her salary for 60 days", these "based on recommendations provided by the respondent integrity commissioner, who determined, following investigation of various complaints, that the applicant had violated council’s code of conduct".
The court considers Charter s.2(b) freedom of expression issues, here in an administrative context:[124] The Supreme Court of Canada has repeatedly held that administrative decisions may limit an individual’s rights under the Canadian Charter of Rights and Freedoms[67] where the limit is proportional to the statutory objective that the administrative agency is required to fulfill.[68] “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”[69]
[125] In the instant case, there is no doubt that the Second Decision engaged with the applicant’s argument about her right to freedom of expression. The Commissioner expressly acknowledged the importance of this right.[70]
[126] The Commissioner engaged in an appropriate balancing exercise. As reflected in the Second Report, the Commissioner expressly acknowledged that “[e]lected municipal officials are leading players in local democracy. They are democratically chosen to look after the community’s interests.”[71] The Commissioner recognized the importance of elected officials exercising free speech, noting that a councillor’s “freedom of expression is a crucial instrument for achieving effective participation and good municipal government.”[72] The Commissioner explained that elected municipal councillors function as “conduits for the voices of their constituents: they interpret and convey their grievances respecting municipal government.”[73]
[127] On the other hand, the Commissioner properly recognized that freedom of expression is not an absolute, unfettered right: “it is limited by reasonable restrictions, including by requirements to protect the rights and freedoms of other persons.”[74] Moreover, while acknowledging the important role that elected representatives play as “conduits for the voices of their constituents,” the Commissioner was sensitive to the need not to countenance unlimited and possibly harmful expression by allowing an elected official to justify their position as “merely reflecting the views of her constituents.”[75] The Commissioner reasoned that it would be “completely unacceptable for a Councillor to publicly make statements in support of spousal abuse, antisemitism or slavery, regardless of whether these were the ardently-held views of one’s constituents.”[76]
[128] Mindful of the need to balance the applicant’s rights with the rights of other individuals, the Commissioner also recognized that an elected official’s conduct that seeks to fuel “unfounded fears” and impair “the rights of minority and marginalized groups – in this case LGBTQ+”[77] has the potential to “have a corrosive effect on democracy, allowing the loudest voices to drown out the marginalized and vulnerable in the community.”[78]
[129] In my view, faced with what the Commissioner found to be conduct by the applicant “reflecting and promoting intolerance, homophobia and transphobia,”[79] the Commissioner’s finding of a breach of the Code of Conduct and the recommended sanction represents a reasonable, balanced, and proportionate limit on the applicant’s right to freedom of expression given the Commissioner’s statutory mandate to enforce the City’s Code of Conduct in the public interest. In this regard, the Commissioner provided a proportionate response, recommending the sanction of a 60-day suspension of pay that, while less than the maximum sanction available (90 days), also recognized that the applicant had already been found to have been in breach of s. 05.01 on a previous occasion.
[130] Thus, I agree with the submissions of respondents’ counsel that, given the circumstances of the case, the applicant has failed to demonstrate that Council’s acceptance of the Commissioner’s Second Report constitutes an unreasonable and disproportionate balance between the applicant’s Charter interests in freedom of expression and Council’s statutory mandate to enforce the Code of Conduct. . A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services)
In A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services) (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here against an order that dismissed an HRTO claim involving an autistic child alleging age and disability discrimination.
Here the court cites the case of York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) as approval for the to-me obvious validity of the Charter being heard by tribunals, if pled and relevant:[24] The Supreme Court of Canada wrote recently about the need for administrative tribunals to address Charter issues that arise for adjudication in cases before them. In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (CanLII) the Court held:[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. [Emphasis added.] [25] Unfortunately, the presiding member who heard A.H.’s claim declined to decide the issue of whether s. 10 of the Code violates s. 15 of the Charter. In my view, this path to a decision was not open to her. Accordingly, the decision must be remitted to the tribunal to consider the issue on the facts and applicable law.
[26] With A.H. failing in the claim for discrimination based on disability, A.H.’s claim for discrimination based on age remained for consideration. The claim was pleaded. It was joined by the respondent. Evidence was adduced by all parties on the issue. The parties made legal argument on the issue. The issue of whether s. 10 of the Code violates the Charter was justiciable, ripe for consideration, and necessary to justly decide A.H.’s lawful claims.
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