|
Charter - Administrative (9). Rebel News Network Ltd. v. Canada (Attorney General)
In Rebel News Network Ltd. v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against an earlier dismissal of a JR against "the decision of the Minister of National Revenue (the Minister) that Rebel News is not a "“qualified Canadian journalism organization”" (QCJO) within the meaning of subsection 248(1) of the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.) (the Act) because it is not engaged in the production of original news content".
Here the court considered the appellant's s.2(b) ['freedom of expression'] argument that this Charter freedom plays a role in the interpretation of QCJO law:B. The Minister did not err in its treatment of Rebel News’ constitutional arguments
[106] Rebel News submits that the Minister denied it a QCJO designation because they disagreed with its style of reporting, perspectives or advocacy, and in doing so, disregarded the right to freedom of the press in paragraph 2(b) of the Charter. Rebel News claims that it raised this constitutional issue in its reconsideration request and, relying on Doré, argues that the Assistant Commissioner’s failure to address the issue in its Second Decision renders that decision unreasonable.
[107] Rebel News submitted in its reconsideration request that, in faulting Rebel News’ content for its activist point of view, the Independent Advisory Board had recommended against approving a QCJO designation because it "“generally disagree[d] with the perceived perspective presented by Rebel News.”" Refusing a QCJO designation based on the particular perspective of an organization, Rebel News claimed, was censorship.
[108] Rebel News also argued in its reconsideration request that it should not be rejected for QCJO designation because it was committed to a free press independent from government or because "“the government’s”" advisory board disagreed with its stories. Raising the spectre of government regulation of the press "“considered by some to be anti-journalism efforts, driven largely by governments”", Rebel News submitted that QCJO designation should not be used to suppress diversity of opinion in journalism.
[109] I agree with the Federal Court that Rebel News did not directly refer to paragraph 2(b) of the Charter in its request for reconsideration. However, for the purposes of the analysis that follows, I am prepared to assume that Rebel News raised the Charter right to freedom of the press in its submission that it had effectively been denied a QCJO designation because the Independent Advisory Board disagreed with the substance of the perceived perspective presented by Rebel News in its reporting. In my view, there is a clear connection between Rebel News’ claim – that interpreting and applying the QCJO regime in such a manner amounted to censorship and could suppress diversity of opinion in journalism – and the Charter right to freedom of the press.
[110] The duty of administrative decision makers to address Charter rights or values in their decisions was recently summarized by the Court in Toth:40 The [Doré] framework requires a court to examine whether the Charter is engaged by an administrative decision. If so, the second step requires an examination of whether the decision maker properly balanced the relevant Charter “values” with the statutory provision and its objectives. [York Region] teaches that the first question, that of engagement, is answered on a correctness basis; the second, whether the balancing was done appropriately, is on a reasonableness basis. Sometimes the second stage is not reached. If Charter rights arguments are not considered, it may be that the decision is neither correct nor reasonable:... 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.
[Canada (Attorney General) v. Robinson, 2022 FCA 59, at para. 28 [Robinson].] 41 As a corollary of this, a decision maker is not required to address the Charter in every decision ([Loyola High School v. Quebec (Attorney General), 2015 SCC 12] at para. 4). A decision maker’s obligation to address Charter interests can be no greater than the Charter interests themselves. As noted by this Court in Robinson, regard must be had to context and whether the circumstances call for an answer. [111] In Toth, several healthcare practitioners had challenged the decision of the Minister of Mental Health and Addictions (the Minister of Health) to refuse their requests for exemptions from the prohibition, under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, on the possession of psilocybin, a psychoactive compound found in certain mushrooms. They argued that this denial violated their rights and that of their patients under section 7 of the Charter.
[112] The Court held that the Minister of Health had founded her decision on certain facts and reasonably-held opinions that, in essence, disagreed with the factual premise on which the applicants’ Charter arguments were based: the Minister of Health had thus dealt with these arguments implicitly by "“addressing their very foundation”" (Toth at para. 49). . Noel v. The Corporation of the City of Dryden
In Noel v. The Corporation of the City of Dryden (Div Ct, 2026) the Divisional Court dismissed a municipal councillour's JR, this brought against council imposing "a number of corrective measures, including a requirement that the Applicant complete workplace civility training and attend Council meetings and City functions virtually until that training was completed" and this after an "investigator concluded that the Applicant had engaged in workplace harassment and bullying directed toward the City's Chief Administrative Officer and By-Law Enforcement Officer".
The court identifies and applies the Dore-Loyola case doctrine for the review of Charter matters in an municipal administrative context, here s.2(b) freedom of expression:[21] Finally, to the extent that the Applicant relies upon the Charter, the court reviews whether the impugned decision appropriately addressed the Charter protections relied upon. If it does, the court must then review whether the decision reflects a proportionate balancing of those protections and the relevant statutory objectives in accordance with the framework described in Doré v. Barreau du Québec, 2012 SCC 12, at paras. 55-58; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, at paras. 39-41; and, most recently, Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at paras. 60, 68-73.
....
Freedom of Expression
[84] With respect to our review of the decision, the City accepts that the attendance restriction engaged the Applicant's rights under s. 2(b) of the Charter. I agree. The impugned measure limited the Applicant's ability to engage in political expression in a manner that promotes the values underlying s. 2(b), including democratic discourse, truth-seeking, and individual self-fulfilment: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 976; and Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, at para. 83.
[85] Under the Doré/Loyola Framework, the court must determine whether, having regard to the relevant factual and legal constraints, the decision-maker arrived at a proportionate balancing of the Charter protections at stake and the relevant statutory objectives: Doré v. Barreau du Québec, at paras. 55-58; Loyola High School v. Quebec (Attorney General), at paras. 39-41. If so, the decision is reasonable.
[86] As discussed above, I have concluded that the impugned measures were authorized by law and arose from a sufficiently defined legal authority. It is therefore unnecessary to revisit that issue here.
[87] The statutory objectives are also clear. The City was seeking to address substantiated findings of workplace harassment, protect municipal employees, ensure compliance with its workplace-harassment obligations, and prevent recurrence of the conduct found by the investigator. These are plainly important objectives.
[88] I reject the Applicant's submission that the attendance restriction was imposed for a punitive purpose, to silence him, embarrass him, damage his reputation, or prevent him from carrying out his political functions. The training requirement and temporary restriction on in-person attendance were directed toward remediation. They were intended to encourage reflection on the conduct found to have occurred, reduce the risk of repetition, and limit direct workplace interaction while corrective measures were implemented.
Minimal Impairment and Proportionality
[89] The Applicant argues that Council failed to choose the least impairing option available to it. He points to the original Durant recommendations and submits that Council impermissibly increased the restriction on his participation by requiring virtual attendance pending completion of training.
[90] I accept that less restrictive alternatives were available. The original recommendations proposed by Ms. Durant would have imposed fewer restrictions on the Applicant's participation in Council affairs than those ultimately adopted by Council.
[91] The existence of less restrictive alternatives, however, does not conclude the analysis. As the Supreme Court explained in Trinity Western University, at para. 81, the question is whether the decision falls within a range of reasonable outcomes that proportionately balance Charter protections with the relevant statutory objectives. At the same time, where a reasonably available alternative would reduce the impact on the protected right while still sufficiently advancing the statutory objectives, a decision may fall outside that range. The inquiry is necessarily contextual.
[92] In my view, Council's decision remained within the range of reasonable outcomes. Council was entitled to conclude that temporary separation of the Applicant from in-person workplace interactions pending completion of civility training would better address the workplace concerns identified in the Durant report than the alternatives proposed by the Applicant. Unlike the circumstances in Gammie and Bracken, Council was not acting on speculation, generalized concerns, or subjective discomfort. It had before it an investigation report concluding that workplace harassment had occurred and documenting significant impacts upon the complainants. As discussed above, it was not unreasonable for Council to rely upon those findings. Council was therefore entitled to regard them as establishing a legitimate workplace concern requiring a remedial response.
[93] Moreover, the restriction imposed was limited in both scope and duration. The Applicant was not removed from office, suspended as a councillor, deprived of voting rights, prohibited from speaking at meetings, or prevented from participating in Council business. He remained able to attend meetings remotely, debate issues, vote on matters before Council, and continue to serve his constituents. What was restricted was the manner of participation, not participation itself.
[94] Nor was the restriction indefinite. It remained in force only until completion of a workplace civility training program consisting of approximately 7.5 hours of online instruction directed toward civility, self-awareness, respectful communication, and workplace interactions. Upon completion of that training, the Applicant would immediately regain the ability to attend Council meetings and City functions in person. Unlike a suspension imposed for a fixed term, the duration of the restriction rested largely within the Applicant's own control. The Applicant could continue to perform all substantive functions of elected office while the restriction remained in place and could bring it to an end at any time by completing what was, in essence, a single day of online training.
[95] As in Del Grande, at para. 45, the Applicant remained able to perform the essential functions of elected office. That consideration weighs significantly in favour of the conclusion that the limitation on the Applicant's expressive interests remained proportionate to the statutory objectives Council was seeking to advance.
[96] In these circumstances, I am unable to conclude that Council was required to adopt the less restrictive alternatives identified by the Applicant. While another decision-maker might reasonably have preferred the original Durant recommendations, the role of this court is not to determine which option best protected the Applicant's expressive interests. The question is whether the measure chosen by Council proportionately balanced those interests with the City's statutory responsibilities. In my view, it did.
[97] Accordingly, I am satisfied that the decision reflects a proportionate balancing of the Applicant's s. 2(b) interests and the City's statutory objectives. The resulting limitation on expression was reasonable. . Chalifour-Racine v. Canada (Attorney General) [charter jurisdiction on JR]
In Chalifour-Racine v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal allows a Charter s.15 ['discrimination'] JR, this brought against a ruling by the Appeal Division of the Social Security Tribunal supporting provisions of the EI Act which require that claimants "are not entitled to receive some or all of the regular employment insurance (EI) benefits that they otherwise would have been entitled to receive when they lose their employment shortly before, during, or shortly following their maternity and parental leaves".
Since tribunals have no Charter s.52(1) declaratory 'strike down' jurisdiction, when a Charter issue is raised successfully before a tribunal it can only order that the Charter violation be in the case before it. But what about when the case on review (appeal or JR, but here a JR) faces the same Charter issue in turn - does the reviewing court have strike-down jurisdiction? This is the issue that the court considers here:[170] Administrative decision-makers, like the General Division, that are empowered to decide questions of law, are required to apply the Constitution and may grant remedies personal to applicants under subsection 24(1) of the Charter, absent a clear legislative withdrawal of that authority: Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 [Martin] at paras. 28–31; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at paras. 77–82. However, they may not issue formal declarations of invalidity, including suspended declarations, under subsection 52(1) of the Charter: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5 [Cuddy Chicks] at p. 17; see also the concurring reasons of the Chief Justice and Justice Côté in Société des casinos at para. 157, citing Cuddy Chicks at p. 17; Martin at para. 33; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257 at paras. 44–45; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 at para. 153.
[171] In a case such as this, had it been commenced before a Court, the most appropriate remedy would be a suspended declaration of invalidity, given the intricate nature of the EI Act and the intertwined nature of the impugned provisions with other provisions in the legislation. The form and timing of a declaration of invalidity require a court to balance the protection of Charter rights with other constitutional principles, including the public interest in the continued operation of legislation and respect for the legislature’s institutional role: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 at para. 1. See also Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679 [Schachter] at pp. 695–97, 715–24; Ontario (Attorney General) v. G, 2020 SCC 38 [G] at paras. 84–116, 198–199.
[172] Those considerations have particular force where the impugned provisions form part of a comprehensive statutory benefits scheme. Parliament is entitled to consider how best to amend an intricate contributory insurance regime in a manner that is constitutionally compliant while remaining coherent with the broader legislative framework. That exercise will require consideration of complex and interwoven issues affecting the overall administration of the scheme, requiring time and careful consideration.
[173] This Court has held that it possesses the jurisdiction to grant declaratory relief in respect of the constitutionality of the legislation underlying a federal board’s decision in judicial review proceedings: Moktari v. Canada (Minister of Citizenship and Immigration) (C.A.), 1999 CanLII 9385 (FCA), [2000] 2 F.C. 341 [Moktari] at para. 4. It has also held that it has the jurisdiction to decide constitutional issues in judicial review proceedings from a tribunal, even when the tribunal itself cannot entertain such issues: see, for example, Gwala v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 9349 (FCA), [1999] 3 F.C. 404 at para. 4; Moktari at para. 4.
[174] Additionally, in Moretto v. Canada (Citizenship and Immigration), 2019 FCA 261 [Moretto], Justice de Montigny (as he then was) noted that the jurisdiction of the Court on judicial review extends beyond reviewing the legality of a federal board’s decision to include authority to determine the constitutionality of the statutory provisions underlying that decision. Indeed, the availability of declaratory relief in judicial review proceedings has been at least implicitly recognized in the jurisprudence of both the Federal Court and the Federal Court of Appeal, confirming that constitutional questions concerning the validity of legislation may be resolved by the reviewing court on judicial review notwithstanding the absence of a constitutional determination by the administrative tribunal: Moretto at para. 38, citing Ramnanan v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 404, 325 F.T.R. 248 at para. 55; Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153; Jodhan v. Canada (Attorney General), 2012 FCA 161, [2014] 1 F.C.R. 185; Bilodeau-Massé v. Canada (Attorney General), 2017 FC 604, [2018] 1 F.C.R. 386.
[175] In light of these authorities, I conclude that this Court may issue a declaration of invalidity as, indeed, both parties agree would be the appropriate remedy. ....
|
