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Justiciability

. Yatar v. TD Insurance Meloche Monnex

In Yatar v. TD Insurance Meloche Monnex (Div Ct, 2021) the Divisional Court considered an unusual auto insurance case where both a statutory appeal and a judicial review were advanced (out of prudence) essentially on the same administrative (LAT) case below, because the appeal was on 'questions of law' only. Both were perfected and put before the Divisional Court. The court dismissed the appeal for lacking a 'question of law', and the JR was also dismissed on discretionary grounds as there was an 'adequate alternative remedy' in the appeal stream (Strickland factors). The case highlights the issue of justiciability, so central after the Vavilov case:
[23] The appeal and application for judicial review raise these issues:

(1) On the statutory appeal, did the LAT err in law in finding that the appellant’s claims are barred because of a limitation period?

(2) If there is no error in law, and the appeal is dismissed, should this court exercise its discretion to hear the judicial review application?

Jurisdiction

[24] The Divisional Court has jurisdiction to hear the statutory appeal on a question of law only under section 11(6) of the LAT Act. Section 280(3) of the Insurance Act and section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 preserve the right of judicial review despite any right of appeal.

THE STATUTORY APPEAL

Standard of Review

[25] The LAT Act, section 11(6) provides that an appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only. Since this is a statutory appeal on a question of law, the standard of review of that question of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. There is no appeal on questions of fact, or questions of mixed fact and law without an extricable question of law: Oliver v. Brant Mutual Insurance Company, 2018 ONSC 3716 (Div. Ct.) at para. 17.

....

[33] Ms. Yatar has also pursued an application for judicial review. If the errors involve questions of fact or mixed fact and law, then she argues that the remedy lies with an application for judicial review. I first consider the issue of prematurity, then turn to the question of adequate alternative remedy in considering whether to exercise my discretion to hear the judicial review application.

....

[36] The LAT statutory appeal on questions of law does not deprive this court of jurisdiction to consider other aspects of a decision in judicial review proceedings: Vavilov at paras. 45, 52. The right to seek judicial review from the decision of the LAT is preserved in two ways. First, section 280(3) of the Insurance Act prevents recourse to the courts about disputes over an insured person’s entitlement to statutory accident benefits, except for appeals from LAT decisions or applications for judicial review. Second, section 2(1) of the Judicial Review Procedure Act provides that despite any right of appeal, the court may grant certain remedies on an application for judicial review. This framework reflects the constitutional guarantee of judicial review, as legislatures cannot entirely shield administrative decision-making from scrutiny by the courts: Vavilov at para. 24.

[37] Even though judicial review has not been altogether precluded, this court must consider the intention of the Legislature in limiting the statutory appeal to questions of law. In Vavilov, the Supreme Court stated that the “polar star” of judicial review is legislative intent, reaffirming the importance of giving effect to the Legislature’s institutional design choices about the scope of judicial oversight: Vavilov at paras. 33-34 and 36. Judicial review is a discretionary remedy. I set out below factors that I consider in deciding whether to exercise my discretion to hear a judicial review application from a LAT SABS decision where there is no error of law.

[38] The respondent argues that judicial review should be denied on the grounds that the statutory appeal is an adequate alternative remedy. The courts have identified several factors relevant to determining whether an alternative remedy is adequate and so would justify a decision to decline judicial review, often called the Harelkin/Matsqui factors. The Supreme Court of Canada in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 at para. 42 has summarized these factors to include “the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost.”

[39] The Supreme Court in Strickland has further held that “neither the process nor the remedy need be identical to those available on judicial review”; the issue is whether the remedy is adequate in all the circumstances. Courts are to apply a “type of balance of convenience analysis” assessing both the adequacy of the alternative remedy and the suitability and appropriateness of judicial review. The “question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate”: see paras. 42-44. A key question is whether the judicial review is appropriately respectful of the statutory framework and the purposes and policies underlying the statutory scheme: Strickland at para. 44.

[40] In determining whether to exercise my discretion, I consider several factors.

[41] First, I must give weight to the legislative intent to limit this court’s review of LAT decisions on statutory accident benefits to questions of law only, and to allow LAT to “function with a minimum of judicial interference” on questions of fact and mixed fact and law: Vavilov at para. 24. I also consider the purposes and policies underlying the statutory scheme. This includes the extensive 2016 revisions to the SABS dispute system which were designed to provide a streamlined response, prioritizing access to justice in a quicker and more efficient manner. This is reflected in the elimination of mandatory mediation at FSCO, the tighter timelines for completion of all steps, the elimination of recourse to the courts, the exclusive jurisdiction of LAT, and the 2016 enactment of the appeal clause restricting appeals to questions of law. While judicial review is preserved by virtue of section 280(3) of the Insurance Act and section 2(1) of the Judicial Review Procedure Act, the specific legislative intent for LAT SABS decisions is that they may be appealed as of right, making the statutory appeal an expeditious and convenient route which conserves the parties’ and judicial resources.

[42] Second, I also consider the breadth of LAT’s reconsideration power, which includes errors of fact or law likely to affect the result. The “other forum” to be considered includes both the statutory appeal and the first level reconsideration. That reconsideration is undertaken by a decision-maker with exclusive jurisdiction over SABS decisions. Rule 18.2 of the LAT’s Common Rules provides that:
The Tribunal shall not make an order …unless satisfied that one or more of the following criteria are met: (a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; (b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; (c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or (d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
[43] Rule 18.4 provides that after reconsideration, the LAT may confirm, vary, or cancel the decision or order, or it may order a rehearing. As set out by Marrocco A.C.J.S.C. in Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.), although the LAT Rules do not authorize a “wholesale reweighing of evidence”, the internal standard of review on reconsideration is akin to correctness: paras. 67 and 70. So there has already been one level of review of the LAT decision by a decision-maker with broad remedial powers.

[44] Third, I consider the nature of the alleged errors in the present application. The errors complained of are questions of fact or mixed fact and law involving the assessment of evidence. Whether on a statutory appeal or on a judicial review, the reviewing court will be highly deferential to the administrative decision maker on these issues. Findings of fact are not immune from judicial oversight – but the court will intervene in a statutory appeal limited to questions of law only if the treatment of the evidence is so seriously in error as to constitute an error of law, as discussed above. On an unrestricted statutory appeal, the court will apply a deferential standard of “palpable and overriding error” to factual findings. On judicial review, the standard of reasonableness on issues of fact-finding and assessment of evidence requires a similarly high standard of deference as set out in Vavilov at para. 125:
It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
Whether on a statutory appeal limited to questions of law, or on judicial review, the court will be similarly deferential in respect of the type of errors alleged here.

[45] Fourth, I consider the systemic difficulties associated with duplicative judicial reviews and appeals. The concurrent pursuit of two remedies has triggered two sets of procedures and the filing of voluminous materials. Ms. Yatar filed both a judicial review record and a separate appeal record, due to different requirements under the Rules of Civil Procedure R.R.O. 1990, Reg. 194. The parties each filed two factums, addressing different issues and different standards of review. The LAT has a right to participate on the judicial review, but not on the appeal unless leave is granted. The time periods set out in the Rules of Civil Procedure for filing materials vary between appeals and applications for judicial review. The duplication of materials is a heavy burden on the parties and the court in terms of time, cost and efficiency. These concerns only increase when an application for judicial review is scheduled after an unsuccessful statutory appeal in order to avoid allegations of prematurity.

[46] Taking all the above factors into consideration, I conclude that judicial review of a LAT SABS decision is only available, if at all, in exceptional circumstances. There are no exceptional circumstances here that would lead me to exercise my discretion to judicially review the questions of fact and mixed fact and law raised by the applicant in her judicial review application.
. 30 Bay ORC Holdings Inc. et al. v. City of Toronto

In 30 Bay ORC Holdings Inc. et al. v. City of Toronto (Div Ct, 2021) the Divisional Court considered (without naming it as such) justiciability where the issue was a municipality's control over public funds [the balance of the case is an interesting exploration of the City of Toronto's grant-making authority]:
Analysis

[43] What are the “limits and contours of the space in which the decision-maker may act and the types of solutions it may adopt” in this case?

[44] As a general proposition, where an approval power to dispense public funds is exercised by elected officials, the presumed legislative intent is that the administrative power to be exercised is to be broadly construed:
The identity of the person or body exercising the power may also be a significant indicator of the breadth of the statutory grant of discretion…. [P]owers exercisable by Ministers are likely to be construed more generously than, say, those conferred on bodies that are not politically accountable through the legislature. And on the basis that their members are democratically elected and politically accountable to the electorate, a broad and purposive approach is taken with regard to the construction of municipalities' powers: Donald J.M. Brown et al., Judicial Review of Administrative Action (Thomson Reuters, Toronto, 2019), at para. 15:1212.
[45] The Applicants rely on several cases concerning the issuance of business licences and land-use development permits. Neither business licences nor development permits are analogous to grants of public funds. As Westfair Foods Ltd. v. Saanich (District of) (1997), 1997 CanLII 3686 (BC CA), 49 B.C.L.R. (3d) 299 (C.A.), a case upon which the Applicants rely, makes clear, business licensing and land use regulation seek to restrain and regulate private persons from doing what they would otherwise be free at law to do - operate a business or develop and build on their own land - and therefore these provisions are strictly construed. By contrast, grants are the gratuitous provision of public funds to private persons who would otherwise have no claim to such funds.

[46] The government has the power to make executive decisions regarding the expenditure of public funds to which members of the public have no enforceable entitlement: R. v. Criminal Injuries Compensation Board, [1967] 2 Q.B. 864 (Div. Ct.), at pp. 885-886.

[47] In general, the court exercises significant deference when called upon to review determinations, by elected officials, about the expenditure of public funds. Governments can order their priorities and direct their funds toward the initiatives or programs that are most compatible with their public policy decisions; such decisions about the disbursement of public funds are within the authority of the legislature: Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation) (1991), 1991 CanLII 7099 (ON SC), 2 O.R. (3d) 716 (Div. Ct.), leave to appeal refused, [1991] O.J. No. 3201 (C.A.). In addition, multi-member bodies, like the elected Council, embody legitimate scope for differing reasons among members for supporting or opposing the decision or measure in question: David J. Mullan, Administrative Law, (Irwin Law, Toronto, 2001) at pp. 141-142.

[48] Courts should be very reluctant to interfere in policy and financial decisions made by any level of government. This is especially so when called upon to deal with isolated applications when the court has no knowledge or real understanding of the overall financial problems faced by a municipality in making such decisions: Simon v. Metropolitan Toronto (Municipality) (1993), 1993 CanLII 9361 (ON SCDC), 99 D.L.R. (4th) 11 (Ont. Div. Ct.).

....

[102] This was not a civil trial. The Applicants’ were seeking hundreds of millions of dollars of public money under a permissive grant scheme from the duly elected council of the largest city in Canada. In Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, a municipal council was, as here, exercising an administrative, not a legislative, power. The Supreme Court held, nevertheless, that decisions of elected municipal councils are to be reviewed with deference because their decisions are the result of a balancing of complex and divergent interests: at para. 35. Council is accountable to its constituents. A democratically accountable delegated decision-maker such as a municipal council is not a court-like quasi-judicial decision maker such as a human rights tribunal, labour relations board, or workers compensation tribunal, and is not to be reviewed as though it was.
. Xia v. Board of Governors of Lakehead University

In Xia v. Board of Governors of Lakehead University (Div Ct, 2020) the Divisional Court considered a near-privative clause in the Ontario Human Rights Code (a privative clause is a statutory provision that attempts to prohibit judicial review of a government decision). This provision prohibited judicial review unless "the decision is patently unreasonable”, which by all principles of statutory interpretation is more extreme than plain "reasonableness", the standard of review affirmed in Vavilov in 2019. However the court read the two standards to be the same, obviously to avoid the justiciability crisis that would result if the provision were read literally. This is an ongoing justiciability issue, the courts trying to preserve their supervisory role over government and the government (here Ontario) trying to avoid judicial scrutiny [you need to review the Intercounty Tennis and the Midwives cases cited there]:
[14] Section 45.8 of the Code provides that a decision of the Tribunal “is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable”.

[15] Dr. Xia and Lakehead submit that the standard of review to be applied is reasonableness, relying in part on Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 (Div. Ct.) at paras. 37, 45; see also Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 (CanLII) at paras. 77-88.

[16] On the other hand, the HRTO submits that the Divisional Court is bound to apply the legislated standard of review of patent unreasonableness, by which it means the specific and distinct rules associated with the patent unreasonableness standard as set out in the pre-Dunsmuir case law. The HRTO submits that the legislated standard requires deference unless a decision is “clearly irrational” and “evidently not in accordance with reason.” I do not agree, for the reasons set out in the Intercounty Tennis Association and Association of Ontario Midwives cases discussed above. The standard of review is reasonableness as explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) (SCC).
The balance of the case is worth reading for it's treatment of procedural fairness and HR rules issues which, in my opinion, reflect an overly harsh treatment of the human rights applicant [paras 18-40].

. Canadian Snowbirds Association Inc. v. Attorney General of Ontario

In Canadian Snowbirds Association Inc. v. Attorney General of Ontario (Div Ct, 2020) the Divisional Court considered an interesting justiciability issue. The Health Insurance Act contained a unique provision [s.45(3.3)] that prohibited the passage of regulations that would violate the Canada Health Act (CHA) as it would jeopardize federal funding. The case held that the challenged regulation was ultra vires, but cited two prior cases [Collett and Soth] that refused to considered the issue without a prior political decision that the regulations (in that case) offended the CHA. The cases together are an interesting and rare consideration of 'justiciability', the hesitancy of the courts to adjudicate on political issues:
[26] Collett was a judicial review application brought by individuals who were Ontario residents but who resided for some period of time outside of Canada. The Applicants asked the Divisional Court to declare that the regulation that was passed in July of 1994, which reduced the maximum in-patient service reimbursement from $400.00 per day to $100.00 per day, was ultra vires on the basis that it violated s. 45(1)(h) of the HIA. The wording of s. 45(1)(h) was essentially the same as the wording of s. 45(3.3) that is at issue on this application.

[27] The Applicants in Collett argued that the July 1994 regulation clearly violated the portability criterion in s. 11 of the CHA as the maximum reimbursement amount of $100.00 provided for in that regulation was not on the “basis of the amount that would have been paid by the province for similar services rendered in the province” (Collett, para. 4).

[28] The majority of the Divisional Court (McMurtry C.J.O.C. and Hartt J.) refused to decide the issue of whether the impugned regulation satisfied the portability criterion under the CHA because “the consequences of any failure to satisfy the criteria is a matter for consultation and ultimately within the discretion of the Governor in Council to decide whether to disqualify the Province of Ontario for contribution. In the event of such disqualification the issue could become justiciable but we must find that the application is premature at this time and must therefore be dismissed” (para. 10).

[29] In support of their decision, the majority found that the Governor in Council had a great deal of discretion in relation to its options if a provincial health insurance plan ceased to satisfy the five pillars. As put by the majority: “It is only at the final stage of decision-making by the federal government that it can be determined whether or not the prescription in s. 45(1)(h) of the [HIA] applies as to the disqualification of the province from federal funding. The federal and provincial legislation must therefore be considered an interlocking legislative scheme that requires intergovernmental consultation” (para. 7).

[30] The majority also focused on the words “would disqualify” and stated that these words denoted “an element of certainty which cannot be determined until the government consultation has run its course” (para. 8).

....

[35] In Soth v. HMQ (Lieutenant Governor of Ontario), 2012 ONSC 5172, an oral endorsement from the Divisional Court that was released on September 13, 2012, this Court heard another challenge to Regulation 552, also brought on the basis that it was ultra vires because it violated the portability criterion in the CHA. By that time s. 45(1)(h) had become s. 45(3.3).

[36] The Attorney General relied on Collett to argue that the dispute was not justiciable. The Court agreed and dismissed the application. The relevant portion of their decision reads as follows:
[3] There is no significant difference between the wording of s. 45(3.3) of the Health Insurance Act and the limiting words in s. 45(1)(h) of the former Ontario Health Insurance Act which was the subject of judicial review by this court in [Collett].
[4] We agree with the analysis and conclusion of the majority in that case. Because the consequence of any failure to satisfy the criteria under the Canada Health Act becomes a matter of intergovernmental consultation and ultimately is a decision within the discretion of the Governor in Council, the issue is not now justiciable, and the Applicant’s challenge to the vires of the regulation is premature.

[37] We were also referred to several other decisions from courts (including appellate courts) in other jurisdictions dealing with challenges to provincial health legislation on the basis that their legislation violated one of the five pillars or criteria set out in the CHA (see for example Lexogest Inc. v. Manitoba (Attorney-General) (1993), 1993 CanLII 3365 (MB CA) and Cameron v. Nova Scotia (Attorney General), 1999 NSCA 14). All of these challenges were dismissed as non-justiciable on the basis that under the scheme of the federal Act the first step is a consultative one. It is only if these consultations break down that the federal Cabinet may, but does not have to, reduce the cash contribution. The consequences of non-compliance are political and policy-oriented. However, counsel for the Attorney General conceded in oral argument that in none of these cases was the court faced with a section in the relevant provincial legislation that was similar to the one at issue in this case, namely s. 45(3.3).

....

[39] There are two features that distinguish this case from Collett and Soth. First, by totally eliminating the out-of-country reimbursement feature (unless pre-approval has been obtained) the impugned regulation clearly violates the portability criterion. This is unlike in Collett where the majority noted at para. 9 that “[t]he Attorney General further submits that in any event the criteria laid down in the Canada Health Act are not being breached in that that legislation provides a great deal of flexibility with respect to the basis on which payments may be made to in-or-out-of-province insured services.” In this case the Attorney General is not and could not advance that argument.

[40] The second distinguishing feature concerns the steps that the federal Government has taken in relation to the impugned regulation.

[that reflect a clear federal disagreement on the matter, set out at paras 41-46]
. Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall

In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall (SCC, 2018) the Supreme Court of Canada reviewed the concept of justiciability:
[32] This appeal may be allowed for the reasons given above. However, I also offer some supplementary comments on justiciability, given that it was an issue raised by the parties and dealt with at the Court of Appeal. In addition to questions of jurisdiction, justiciability limits the extent to which courts may engage with decisions by voluntary associations even when the intervention is sought only on the basis of procedural fairness. Justiciability relates to the subject matter of a dispute. The general question is this: Is the issue one that is appropriate for a court to decide?

[33] Lorne M. Sossin defines justiciability as
a set of judge-made rules, norms and principles delineating the scope of judicial intervention in social, political and economic life. In short, if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if a subject-matter is held not to be suitable for judicial determination, it is said to be non-justiciable.
(Boundaries of Judicial Review: The Law of Justiciability in Canada (2nd ed. 2012), at p. 7)

Put more simply, “[j]usticiability is about deciding whether to decide a matter in the courts”: ibid., at p. 1.

[34] There is no single set of rules delineating the scope of justiciability. Indeed, justiciability depends to some degree on context, and the proper approach to determining justiciability must be flexible. The court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter: see Sossin, at p. 294. In determining this, courts should consider “that the matter before the court would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties’ positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute” (ibid.).

[35] By way of example, the courts may not have the legitimacy to assist in resolving a dispute about the greatest hockey player of all time, about a bridge player who is left out of his regular weekly game night, or about a cousin who thinks she should have been invited to a wedding: Court of Appeal reasons, at paras. 82-84, per Wakeling J.A.

[36] This Court has considered the relevance of religion to the question of justiciability. In Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607, at para. 41, Justice Abella stated: “The fact that a dispute has a religious aspect does not by itself make it non-justiciable.” That being said, courts should not decide matters of religious dogma. As this Court noted in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 50: “Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.” The courts have neither legitimacy nor institutional capacity to deal with such issues, and have repeatedly declined to consider them: see Demiris v. Hellenic Community of Vancouver, 2000 BCSC 733, at para. 33 (CanLII); Amselem, at paras. 49-51.

[37] In Lakeside Colony, this Court held (at p. 175 (emphasis added)):
In deciding the membership or residence status of the defendants, the court must determine whether they have been validly expelled from the colony. It is not incumbent on the court to review the merits of the decision to expel. It is, however, called upon to determine whether the purported expulsion was carried out according to the applicable rules, with regard to the principles of natural justice, and without mala fides. This standard goes back at least to this statement by Stirling J. in Baird v. Wells (1890), 44 Ch. D. 661, at p. 670:
The only questions which this Court can entertain are: first, whether the rules of the club have been observed; secondly, whether anything has been done contrary to natural justice; and, thirdly, whether the decision complained of has been come to bona fide.
The foregoing passage makes clear that the courts will not consider the merits of a religious tenet; such matters are not justiciable.

[38] In addition, sometimes even the procedural rules of a particular religious group may involve the interpretation of religious doctrine. For instance, the Organized to Do Jehovah’s Will handbook (2005) outlines the procedure to be followed in cases of serious wrongdoing: “After taking the steps outlined at Matthew 18:15, 16, some individual brothers or sisters may report to the elders cases of unresolved serious wrongdoing” (p. 151). The courts lack the legitimacy and institutional capacity to determine whether the steps outlined in Matthew have been followed. These types of procedural issues are also not justiciable. That being said, courts may still review procedural rules where they are based on a contract between two parties, even where the contract is meant to give effect to doctrinal religious principles: Marcovitz, at para. 47. But here, Mr. Wall has not shown that his legal rights were at stake.

[39] Justiciability was raised in another way. Both the Congregation and Mr. Wall argued that their freedom of religion and freedom of association should inform this Court’s decision. The dissenting justice in the Court of Appeal made comments on this basis and suggested that religious matters were not justiciable due in part to the protection of freedom of religion in s. 2(a) of the Canadian Charter of Rights and Freedoms. As this Court held in RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at p. 603, the Charter does not apply to private litigation. Section 32 specifies that the Charter applies to the legislative, executive and administrative branches of government: ibid., at pp. 603-4. The Charter does not directly apply to this dispute as no state action is being challenged, although the Charter may inform the development of the common law: ibid., at p. 603. In the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.



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