Noteworthy administrative law judgments of Ontario and Atlantic Canada 1

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1 Noteworthy administrative law judgments of 2010 Ontario and Atlantic Canada 1 Brian K. Awad 2 Introduction The purpose of this paper is to contribute to the 2010 edition of an annual coastto-cast review of recent court decisions in the area of administrative law, in particular, the approach of the courts to judicial review. Since the author is a member of the bar in Ontario and Nova Scotia, and has practiced in Ontario and Atlantic Canada, this paper will address case law from the courts of Ontario and the Atlantic Provinces. This paper is not a comprehensive review of 2010 decisions. It has no thesis or theme. Rather, it presents by issue decisions from the subject jurisdictions in the field of administrative law. Being a hit-the-highpoints review of case law, readers will see that no case is reviewed in great detail, nor is there is much discussion of issues. The goal of the paper is simply to assist interested readers by allowing them to find additional 1 Prepared for the National Administrative Law, Labour & Employment Law and Privacy & Access Law Conference - Canadian Bar Association, November 26-27, 2010, in Ottawa, Ontario. 2 Brian K. Awad is a partner with Burchells LLP, in Halifax, Nova Scotia.

2 - 2 - support for (or against) positions being taken by parties in administrative law matters with which they are involved. Since the paper has been prepared for the 2010 edition of the conference, it will focus on decisions issued in the five jurisdictions since January 1, The courts The following table shows the courts with original jurisdiction to hear applications for judicial review, and the relevant legislation and rules, in the five provinces dealt with in this paper: Province Court Relevant statute(s) & rule Newfoundland Supreme Court, Judicature Act, s & Labrador Trial Division Rule 54 General Division Nova Scotia Supreme Court Judicature Act, ss. 3 and 8 Rule 7 Prince Edward Supreme Court Judicature Act, s. 8 Island Judicial Review Act Rule 68 New Brunswick Queen s Bench Judicature Act, ss. 9 and 36(2) - Trial Division Rule 69 Ontario Superior Court of Justice Courts of Justice Act, s Divisional Court Judicial Review Procedure Act Rule 68

3 - 3 - Decisions of the above-referenced courts are subject to a right of appeal to the court of appeal of the applicable province. The cases 1. Standard of review In each jurisdiction, in regard to determining the standard of review, one sees a continuation from 2009 of the courts applying the two-tiered analytical framework endorsed in the seminal case of Dunsmuir v. New Brunswick (Board of Management), 2008 SCC 9. It appears safe to say, with two years of experience, that Dunsmuir has generally improved this issue area. In particular, it has helped with understanding of what are the hallmarks of a reasonable decision. There appears to be two new administrative law catchphrases coined in Dunsmuir: justifiable, transparent and intelligible, and acceptable outcome. As intended, Dunsmuir is meshing well with pre-dunsmuir decisions. In Prince Edward Island (Workers' Compensation Board) v. Cormier, 2010 PECA 10, the court stated: 31 The decision in Dunsmuir, supra is significant in two respects. First, it collapsed the standards of review to be employed by a superior court in reviewing the decision of an administrative tribunal from three to two. The two are, reasonableness and correctness. Secondly, the decision revised

4 - 4 - the procedure whereby a superior court ascertains from the applicable legislation which standard of review is to be employed. 32 Beyond these two significant issues the various reasons for decision in Dunsmuir, supra are restatements of administrative law principles enunciated by the Supreme Court of Canada over the last 15 years. See also Whelan v. Ontario Racing Commission, 2010 ONSC 3118 (Div. Ct.). Thus, generally, pre-dunsmuir cases are good law : the correctness cases are undisturbed, and it appears that one can simply drop the patently and simpliciter tags from pre-dunsmuir reasonableness cases. See, for example, New Brunswick (Department of Social Development) v. New Brunswick (Human Rights Commission), 2010 NBCA 40. What is the place of Dunsmuir s two-standards-only format where legislation sets or suggests a different standard? This question split the Court in Khosa v. Canada (Minister of Citizenship & Immigration, 2009 SCC 12. In Toronto Police Services Board v. Phipps, 2010 ONSC 3884 (Div. Ct.), the statutory phrasing patently unreasonable was interpreted to mean the deferential Dunsmuir standard of plain-vanilla reasonableness. We appear to be seeing a continuation of the long-standing tradition of the courts showing deference to specialized and expert decision makers. This is particularly so in the labour area where the courts will not disturb an arbitrator s reasonable interpretation of a collective agreement, nor a reasonable application of that interpretation to the facts of the case before him or her (a.k.a. decisions

5 - 5 - on issues of mixed law and fact ). See, for example: Prince Edward Island (Department of Health) v. I.U.O.E., Local 942, 2010 PESC 44; Canada Post Corp. v. C.U.P.W., 2010 NSSC 336, Ontario (Ministry of Children & Youth Services) v. O.P.S.E.U., 2010 ONSC 4006 (Div. Ct.); Ontario Sheet Metal Workers' & Roofers' Conference v. Ellis-Don Ltd., 2010 ONSC 3783 (Div. Ct.); Air Canada v. C.U.P.E. (Air Canada Component), 2010 ONSC 456 (Div. Ct.); Zehrs Markets v. U.F.C.W., Local 1977, 2010 ONSC 110 (Div. Ct.); N.B.U.P.P.E., Local 362 v. Moosehead Breweries Ltd., 2010 NBCA 47; Molson 2005 v. F.F.A.W.-C.A.W., 2010 NLTD 14; and Bluebird Investments Ltd. v. I.A.B.S.O.I, Local 764, 2010 NLTD 16. Similarly, deference is shown to reasonable decisions of a commercial-arbitration panel on the very matter that the parties agreed to arbitrate: St. John's (City) v. Newfoundland Power Inc., 2010 NLTD(G) 171. Other subject areas where the courts continue to show deference to decisions made within the specialized subject area in question: - licensing (see Chang v. Ontario (Registrar, Real Estate & Business Brokers Act), 2010 ONSC 3162 (Div. Ct.); - professional discipline (see Matheson v. College of Physicians & Surgeons (Prince Edward Island), 2010 PECA 5; Walsh v. Council for

6 - 6 - Licensed Practical Nurses, 2010 NLCA 11; Liberman v. College of Physicians & Surgeons (Ontario), 2010 ONSC 337 (Div. Ct.); MacNeil v. College of Registered Nurses (Nova Scotia), 2010 NSSC 83; Bear v. Law Society of New Brunswick, 2010 NBCA 75; and Mix v. Law Society (New Brunswick), 2010 NBCA 59); - academic discipline (see Gauthier c. Université de Moncton, 2010 NBQB 256) - whether a duty to accommodate has been met (see P.E.I.U.P.S.E. v. Prince Edward Island (Department of Health), 2010 PEISC 29). The foundational importance of the wording of the statute is illustrated will in the are of land use and development, and comparing Nova Scotia and Newfoundland. In Nova Scotia, citizens opposing a development have no right to appeal the issuance of a permit. The effect is that decisions of city staff as to the merits of a proposed development are accorded deference (see Oakland / Indian Point Residents Assn. v. Seaview Properties Ltd., 2010 NSCA 66, affirming 2008 NSSC 367). In contrast, a developer who is denied a permit has a right of appeal, and the board s interpretations of by-laws etc. are accorded no deference on further appeal (see Halifax (Regional Municipality) v. Anglican Diocesan Centre Corp., 2010 NSCA 38).

7 - 7 - Meanwhile, in Newfoundland, the appeal board has limited appellate jurisdiction: since it can review only questions of law and issues going to jurisdiction, the court accords no deference to its decisions (see Oliver v. Newfoundland & Labrador (Eastern Regional Appeal Board), 2010 NLTD 30, and Paradise (Town) v. Newfoundland & Labrador (Eastern Regional Appeal Board), 2010 NLTD(G) 116). At this point, the standard of review in regard to many boards and many classes of decision has been decided. Sometimes, however, there is a case where the standard of review is determined for the first time. One example is Kawartha Pine Ridge District School Board v. Grant, 2010 ONSC 1205 (Div. Ct.), where the court determined the standard of review applicable to a decision of the Child and Family Services Review Board in the context of the board reviewing a decision by a school board to confirm the recommendation of a principal to expel a student. The courts remain supreme in matters of general law and true questions of jurisdiction. Reviewing courts are cautioned by the court in Toronto Hydro- Electric System Ltd. v. Ontario (Energy Board), 2010 ONCA 284 not to be tempted to re-adopt the expanded view of jurisdictional error. The following are examples of cases where a jurisdictional issue was found. All appear to be safely within the realm of true questions of jurisdiction:

8 In Nova Scotia (Department of Transportation & Infrastructure Renewal) v. N.S.G.E.U., 2010 NSSC 15, the initial issue was whether the province had breached a collective agreement by failing to negotiate a rate of pay for a newly-created position. The arbitrator ordered negotiations and, failing agreement, that the Union could refer the matter back to arbitration. When negotiations failed, and the Union sought to bring the matter before the arbitrator, the province objected to the arbitrator ruling on the arbitrator s own jurisdiction. On judicial review, the court held that the issue was a true question of jurisdiction, subject to review against the standard of correctness. - In Westhill Redevelopment Co. v. Aurora (Town), 2010 ONSC 81 (Div. Ct.), the court saw the issue of whether a board was able to order a particular type of hearing to be a jurisdictional question. The board s decision that it had no such jurisdiction was reviewed as against the standard of correctness. - In Halifax (Regional Municipality) v. C.U.P.E., Local 108, 2010 NSSC 234, the arbitrator dismissed a grievance but gave the grievor the right to advise the arbitrator within thirty days whether he wished to tender additional evidence. The City challenged whether the arbitrator had authority to subject his final decision to a "condition subsequent". The

9 - 9 - reviewing judge found the issue to be a true question of jurisdiction, on which the arbitrator was required to be correct. The courts appear generally very comfortable applying different standards of review to different issues raised on judicial review, as well as determining what is and what is not a core area of a specialized tribunal. The following decisions are good examples of this: Marino v. Ontario (Superintendent of Financial Services), 2010 ONCA 6; Saint John (City) v. I.A.F.F., Local 771, 2010 NBQB 159, C.E.P., Local 117 v. Bowater Maritimes Inc., 2010 NBQB 134; Ontario Ltd. v. I.B.E.W., Local 636, 2010 ONSC 1946 (Div. Ct.); Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2010 ONSC 304 (Div. Ct.); Legere v. Nova Scotia (Department of Community Services), 2010 NSSC 67; and Newfoundland & Labrador (Treasury Board) v. N.L.A.P.P.E., 2010 NLCA 37. Thus, while an interpretation of a statute may be seen as non-core (and reviewable as against a correctness standard), the application of the law to the facts may be seen as a core function (and attract deference): Marino, supra. 2. Procedural fairness (i) the standard of review It would appear that there continues to be some debate (or confusion) as to the place of standard-of-review analysis where the issue is procedural fairness.

10 The author subscribes to the view that a finding of a breach of procedural fairness should see the decision reversed or returned for proper treatment: there is no place for deference when a party has been treated unfairly. This view is supported by decisions such as Clifford v. Ontario (Attorney General), 2009 ONCA 670, Magiskan v. Nishnawbe-Aski Police Service, 2010 ONSC 163 (Div. Ct.); Homburg Canada Inc. v. Nova Scotia Utility & Review Board, 2010 NSCA 24; and Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd., 2010 NSCA 19. Other cases appear still to speak in terms of standard of review in the context of allegations of breach of procedural fairness: McLaughlin v. New Brunswick (Department of Environment), 2010 NBQB 321, and McAdam v. Law Society (Newfoundland & Labrador), 2010 NLTD 39. While the author respectfully submits that the taxonomy is incorrect in those cases, it does not appear that this impacted the results. (ii) reasons In regard to the duty to give sufficient reasons, the decision of note in 2010 is Law Society of Upper Canada v. Neinstein, 2010 ONCA 193.

11 In Neinstein, a lawyer was the subject of complaints of sexual harassment. The case was essentially a he-said-she-said, with the key evidence being that of the complainants and the lawyer. The LSUC discipline panel recognized this to be the case. In its lengthy written decision, the panel stated inter alia that it preferred the evidence of the complainant, and that it had carefully weighed the evidence and did not say much more. On initial appeal, the reasons were viewed as inadequate. On further appeal to the Divisional Court, the reasons were viewed as adequate. On yet further appeal to the Court of Appeal, the court applied R. v. M. (R.E.), 2008 SCC 51 to its assessment of the reasons. The court had cited R.E.M. a year previously in Clifford v. Ontario (Attorney General), 2009 ONCA 670. In Clifford, the court stated that reasons must be assessed functionally, with the concern being whether they (1) let the individual whose rights, privileges or interests are affected know why the decision was made and (2) permit effective judicial review. Sufficient reasons will show why the tribunal decided as it did and explain the basis of the decision. The explanation must be logically linked to the decision made. In explaining the above-referenced criteria in Clifford, the Court invokes a hiking metaphor: [T]he path taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way. In Neinstein, the court saw that the panel s reasons revealed only that it accepted the allegations of the complainants: there was no analysis of the relevant

12 evidence. The reasons were viewed as inadequate, being conclusory : they stated what had been decided, but did not reveal why it had been decided. (iii) Treatment of evidence: a fairness issue? or a merits issue? Two cases from 2010 show tribunals criticized for unfair (or unreasonable) treatment of the evidence before them, and show how breaches of fairness can impact merits review. In Burke v. N.L.A.P.P.E., 2010 NLCA 12, a self-represented employee s complaint against his union was rejected by the labour board. An appeal to the Trial Division was dismissed. On further appeal to the Court of Appeal, the employee prevailed on the basis that the board did not engage in any analysis of the specific allegations which Mr. Burke says demonstrate that the processing of his grievance was improperly handled. The intersection of fairness and merits is highlighted in the following portion of the decision of the court: 67 A decision that is unresponsive to the case presented cannot be said to meet the standard of "justification, transparency and intelligibility" within the Dunsmuir test of reasonableness. The essential submissions made should not be ignored. If they are regarded by the tribunal as frivolous or irrelevant to the issues in dispute, the tribunal should say so. If they are not, but rather, are simply unpersuasive, the tribunal should be expected to give at least a rational reason for why they are not persuasive. Such a requirement is inherent in the Dunsmuir focus on "the process of articulating reasons" to see if the result is supported by a chain of reasoning that is reasonable. 68 It might also be added that the absence of any reasoning responding to the essential allegations made by Mr. Burke raises the question as to whether the Board may not have met its duty, as a matter of procedural fairness, to provide written reasons for its decision (See Labour Relations Act, RSNL 1990, c. L-1, s. 12(1)). This case was not presented or argued - or dealt with

13 by the applications judge - specifically on the basis of the inadequacy of the Board's reasons as an aspect of procedural fairness. Nevertheless, it would be hard to say that reasons which do not respond to the essential allegations made would be adequate. The Court of Appeal ordered the matter to be remitted back to arbitration for proper consideration. To similar effect, in Campbell v. Nova Scotia (Minister of Community Services), 2010 NSSC 116, a board decision was overturned because the board rejected the application despite there being no contrary evidence. The Supreme Court characterized the board decision as unreasonable : 24 Short of a finding against Ms. Campbell's credibility, and there is no hint of such, it was unreasonable to conclude that her evidence fails to establish the necessity of the recommended medication. In the author s view, a decision such as that of the board in the above case might also be characterized a breach of procedural fairness in the sense that the board may have made a decision for reasons about which the applicant was not afforded an opportunity to make submissions. For example, in R. v. C. (G.), 2010 ONSC 115 (S.C.J.), the failure to provide disclosure of the rationale for a decision was seen to be a breach of procedural fairness. (iv) Procedural rulings: where deference ends

14 The following three cases highlight the intersection of fair / reasonable procedural rulings (which are accorded deference) and unfair rulings (which attract a remedy). In Kawartha Pine Ridge District School Board v. Grant, 2010 ONSC 1205 (Div. Ct.), the applicant board made the unusual submission that the tribunal accorded too much procedural fairness to the respondent student. The board submitted that the tribunal should have reviewed the board s decision, rather than conducting a hearing de novo. There is no discussion as to the standard of review applicable to a tribunal s choice of procedure. The court did not find any unfairness in the procedure chosen. In Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 2010 ONSC 1731 (Div. Ct.) the court confirms that deference is to be accorded to an evidentiary ruling so long as the ruling did not give rise to a procedural-fairness problem. The decision of Waxman v. Ontario Racing Commission, 2010 ONSC 3198 (Div. Ct.) is to similar effect, albeit in the context of pre-hearing disclosure. 3. Miscellaneous issues

15 In the final section of this paper, a series of topical cases are noted, in no particular order: (i) Limitation periods In Batstone v. Newfoundland & Labrador (Workplace Health, Safety & Compensation Commission), 2010 NLTD(G) 108, the court reiterated its position that the six-month limitation period in Rule 54 is ultra vires. The basis for the court s position is its view that the rules of court cannot take away common law rights (including the right to obtain prerogative writs) since the rules are described in the Judicature Act as subordinate legislation. The leading decision is this regard is Bowringer Engineering Ltd. v. I.A.B.S.O.I., Local 764 (1999), 181 Nfld. & P.E.I.R. 352 (Nfld. T.D.). From Bowringer, the Newfoundland court now takes the position in Batstone that a missed limitation period will not be dealt with as a preliminary issue except in extreme cases. Rather, any delay argument should be made at the hearing itself. The Newfoundland position contrasts with the position of the Nova Scotia courts regarding the limitation period on judicial review in the Nova Scotia rules. Most recently, in Central Halifax Community Assn. v. Halifax (Regional Municipality), 2007 NSCA 39, the court considered the Newfoundland position as inapplicable to Nova Scotia. The court takes the view that rules of court in Nova Scotia can and do override the common law.

16 (ii) pre-decision consultation In Port Perry Community Nursing Home v. Ontario Nurses' Association, 2010 ONSC 1296 (Div. Ct.), the employer refused to disclose to the union certain information prior to conducting a consultation required by the collective agreement. The board of arbitration found that this amounted to a breach of the collective agreement. The Divisional Court saw the matter as involving interpretation of the collective agreement, and thus applied a deferential standard on review. (iii) justiciability of corporate-board battles The decision in St-Coeur c. Conseil récréatif de Bois Blanc Inc., 2010 NBCA 61 confirms that judicial review is not available to mediate internal corporate-board battles. (Commercial litigators will be aware that derivative actions and the oppression remedy are available in the event that a corporation or its stakeholders are being abused by the majority of the board.) (iv) gatekeeping decisions There have been a number of decisions concerning case-management or other gatekeeping decisions.

17 In Ferns v. Ontario Civilian Commission on Police Services, 2010 ONSC 3144 (Div. Ct.), a decision not to proceed with a complaint was accorded deference. However, in Coady v. Newfoundland & Labrador (Human Rights Commission), 2010 NLTD 21, since the statute gave the court a broad right of review, such a screening decision was not accorded any deference. In some cases, a challenge to such a decision may be viewed as premature, such that Harelkin-type considerations suggest that the issue be dealt with by the hearing panel. Thus, in Ackerman v. Ontario Provincial Police Commission, 2010 ONSC 910 (Div. Ct.), the application for judicial review was dismissed without prejudice to the issue being raised at the tribunal hearing. In Fawcett v. Canadian Chiropractic Examining Board, 2010 ONSC 4903 a license candidate challenged a regulator s decision to refuse her (late) request to sit an exam. The court found that the denial was both fair (as a matter of procedure) and reasonable (as to the actual decision). In a similar vein, in Whelan v. Ontario Racing Commission, 2010 ONSC 3118 (Div. Ct.), the issue was whether a procedure or demand by a participant in a regulated field was fair and reasonable. The majority of the Divisional Court found that it was unreasonable for a race-track owner to require that participants

18 sign an agreement giving the owner absolute unfettered power to exclude licensed ORC horse racing participants who have committed no fault. In MacNeil v. College of Registered Nurses (Nova Scotia), 2010 NSSC 83, the applicant challenged a refusal by the college to refer her matter to rehabilitative procedure, an alternative to traditional discipline. The decision was reviewed as against a deferential standard, and found to have been reasonable. (v) Help for tribunals Decisions where reasons for decision are assessed are helpful to tribunals (see above). Beyond this, Chief Justice Green has provided a primer on the proper conduct of professional discipline proceedings in his concurring reasons in Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11. In Walsh, the judge at first instance (as well as the unanimous Court of Appeal) found that the professional-discipline tribunal was unreasonable in its conduct of the adjudication of the complaint. (vi) Who is the proper respondent if the court is not doing its job? In Canadian Broadcasting Corp. v. Nova Scotia (Attorney General), 2010 NSSC 295, the applicant sought to compel the Nova Scotia Provincial Court to rectify an alleged record-keeping / access-to information deficiency. In a ruling addressing

19 the issue as to who is the proper respondent, the Supreme Court ruled that the proper respondent was the Nova Scotia Provincial Court itself. (vii) Injunctions on review / appeal In Makani v. Kawartha Lakes (City), 2010 ONSC 4518, on a motion for an injunction, the applicant failed to address the question of what would be the standard of review of the impugned decision. For this reasons, the court found that the applicant had failed to show a strong prima facie case pursuant to the three-part test in R.J.R.-MacDonald. One can assume that, if the standard-of-review analysis indicated that deference would be accorded the decision, it would be difficult to obtain an injunction. (viii) The standard of review in regard to decisions as to the standard of review The decision in Creelman v. Truro Town Council, 2010 NSCA 27 is helpful for the proposition that correctness is the proper standard of review in regard to a lower-court s decision as to what is the proper standard of review for a particular issue. (ix) Issue estoppel, res judicata and abuse of process

20 In Halifax (Regional Municipality) v. C.U.P.E., Local 108, 2010 NSSC 234, the court re-iterated that decisions of tribunals and arbitrators on questions of issue estoppel, res judicata and abuse of process are reviewable against a correctness standard. (x) Debating reasonableness As noted above, the new post-dunsmuir administrative law catchphrases appear to be justifiable, transparent and intelligible, and acceptable outcome. While such standards focus the debate, N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2010 NLCA 13, reversing 2008 NLTD 200, shows that they do not eliminate the debate. In NLNU, both sides have chalked up two judges who see the case their way. Was the arbitrator reasonable? Leave to appeal to the S.C.C. was granted on October 28, Perhaps in the 2011 or 2012 version of this conference, we will see the final outcome