A View From the Bench Administrative Law Justice David Farrar Nova Scotia Court of Appeal With the Assistance of James Charlton, Law Clerk Nova Scotia Court of Appeal
Court of Appeal for Ontario: Mavi v Canada (Attorney General), 2009 ONCA 794 (Decided 12 November 2009, to be heard by the SCC on 9 December 2010) The appellants in Mavi are eight individuals who sponsored a relative s entry into Canada under the family class immigration regime established by the Immigration and Refugee Protection Act and its predecessor, the Immigration Act. As required under the legislative scheme, the appellants all signed undertakings in which they promised to provide for their sponsored relative s essential needs and to ensure that their relative would not require social assistance during the sponsorship period. Notwithstanding the undertakings, all of the sponsored relatives received social assistance in Ontario during the period of their sponsorships. Under the terms of their undertakings, the appellants each owed a debt to Ontario for the amount of social assistance paid to their respective relatives. However, because of circumstances beyond their control, the sponsors were unable to honour their undertakings and defaulted on their debt. The appellant sponsors applied for a declaration that they be discharged from their sponsorship obligations. They submitted that the language of the Acts stating that sponsorship debt may be recovered indicates that the governments have discretion to forgive sponsorship debt. The application judge found that the words may be recovered are merely enabling in the sense that they permit the government to enforce the debt. She further concluded that they do not impose either an obligation on the government to consider the appellants circumstance on a case by case basis, or a duty of procedural fairness. The sponsors appealed. The Court of Appeal, per the reasons of Simmons and Lang JJ.A., took a contextual approach to the interpretation of the phrase may be recovered. Focusing on the wording of the regulations and the forms of the undertakings, the Court held that the provisions at issue require the exercise of a case by case discretion concerning the enforcement of sponsorship debt. The legislative scheme contemplates that an agreement may be reached with a sponsor in satisfaction of the default or that the government might elect to take no recovery action against a defaulting sponsor in the face of other appropriate circumstances. By adopting a policy inconsistent with the overall legislative scheme, the Ontario Government Page 2 of 11
fettered its discretion, precluding itself from achieving what is contemplated by the scheme. The Court held that given the nature of the decision of whether to enforce sponsorship debt, its public component, its finality and specificity, and its importance to the individual sponsors, the Canadian and Ontario governments owe sponsors a duty of procedural fairness. With regard to the factors and principles considered by courts in determining the scope and content of the common law duty of procedural fairness (discussed by the SCC in the case Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817), the Court determined that the duty of procedural fairness includes: (1) an obligation to provide a process for individual sponsors to explain their relevant personal and financial circumstances; (2) an obligation on government to consider those circumstances; and (3) an obligation to inform any sponsor who makes submissions that their submissions have been considered and of the decision that was made. The Court further held the wording of the undertakings creates a legitimate expectation on the part of appellants that the government will consider more than just the appellants financial circumstances when determining whether and how to negotiate a settlement of sponsorship debt. In order to meet this legitimate expectation, it is necessary for Ontario to hear and consider the submissions of each appellant. British Columbia Court of Appeal: Taiga Works Wilderness Equipment Ltd. v. British Columbia (Director of Employment Standards), 2010 BCCA 97 (Decided 25 February 2010). In 2006, employees of the appellant employer sought relief under the British Columbia Employment Standards Act for constructive dismissal. The Act is administered by the Director of Employment Standards, whose delegates investigate complaints received under the Act and then issue determinations in respect of them. In 2007, the Director s delegate issued a determination in favour of the complainants. The employer appealed the matter to the Employment Standards Tribunal on the grounds that the Director s delegate failed to observe Page 3 of 11
the principles of natural justice. In early 2008, a member of the Tribunal found that the Director s delegate had breached the principles of natural justice in two respects. First, the delegate did not provide the employer with disclosure of the documents that the employees submitted to the delegate in relation to their claims for employment insurance. Second, the delegate did not consider the employer s final written submission before issuing the determination on the day after the submission was made. The Tribunal member did not, however, remit the matter back to the delegate for reconsideration, as she held that any breaches of natural justice may be cured on appeal, and having reviewed the submissions, any procedural defects have been addressed. The appellant applied for reconsideration of this decision by a different member of the Tribunal. The second Tribunal member disagreed with the appellant s position that the breach of procedural fairness could only be cured by a full oral hearing into the merits of the complaint. Instead, he held that procedural fairness could be ensured by referring the matter back to the first Tribunal member and providing the employer an opportunity to make a complete submission in respect of the previously undisclosed documents. The first Tribunal member re affirmed her original ruling, upon which the appellant applied unsuccessfully for judicial review. On appeal to the British Columbia Court of Appeal, the appellant argued that an appellate tribunal has no power to cure breaches of the rules of natural justice and procedural fairness. In doing so, it relied on the Supreme Court of Canada s decision in Cardinal v. Director of Kent Institution, [1985] 2 SCR 643. The appellant requested that the reconsideration decision be set aside and that the matter be referred back to the Director for determination before a different delegate. The Court of Appeal, in reasons authored by Tysoe J.A., did not accept the appellant s argument in its entirety, instead holding that Cardinal stands for the proposition that a breach of the rules of natural justice or procedural fairness cannot be overlooked on the basis that the reviewing court or appellate tribunal is of the view the result would have been the same had no breach occurred. Appellate tribunals can, in appropriate circumstances, cure breaches of natural justice or procedural fairness by the tribunal being reviewed. In determining whether such breaches have been properly cured, the Court held that one must review the proceedings before the initial tribunal and the appellate tribunal, and determine whether the procedure as a whole satisfies the requirements of Page 4 of 11
fairness. This involves considering all the circumstances, including the following factors identified in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed. (London: Sweet & Maxwell, 1995) at pages 489 90: (i) (ii) (iii) (iv) (v) the gravity of the error committed at first instance; the likelihood that the prejudicial effects of the error may also have permeated the rehearing; the seriousness of the consequences for the individual; the breadth of the powers of the appellate body; and whether the appellate decision is reached only on the basis of the material before the original tribunal or by way of rehearing de novo. In the instant case, the Court held that the direction given by the second Tribunal member did not ensure that the proceedings as a whole reached an acceptable minimum level of fairness. It therefore granted the appellant s request and referred the case back to the Director for a rehearing. Supreme Court of Canada: R. v. Conway, 2010 SCC 22 (Decided 11 June 2010) In 1984, the appellant (Conway) was found not guilty by reason of insanity on a charge of sexual assault with a weapon. He was subsequently institutionalized and diagnosed with several mental disorders. Prior to his annual review hearing before the Ontario Review Board in 2006, Conway alleged that the mental health institution where he was being detained had breached his rights under the Canadian Charter of Rights and Freedoms. He sought an absolute discharge as a remedy under subsection 24(1) of the Charter. The Board unanimously concluded that Conway would, if released, quickly return to police and hospital custody. This made him an unsuitable candidate for an absolute discharge under paragraph 672.54(a) of the Criminal Code, which provides that an absolute discharge is unavailable to any patient who is a significant threat to the safety of the public. The Board therefore ordered that Conway remain in the mental health institution. The Board further concluded that it was not a court of competent jurisdiction for the purpose of granting an absolute discharge under subsection 24(1) of the Page 5 of 11
Charter, and therefore had no jurisdiction to consider Conway s Charter claims. A majority in the Court of Appeal for Ontario upheld the Board s conclusion. However, the Court of Appeal unanimously concluded that it was unreasonable for the Board not to address the treatment impasse that necessitated Conway s continued detention, and thus remitted the issue back to the Board. The Supreme Court dismissed the appeal in a unanimous decision written by Abella J. The Court held that when a remedy is sought from an administrative tribunal under subsection 24(1) of the Charter, the proper initial inquiry is whether the tribunal can grant Charter remedies generally. To determine this, one must ask whether the tribunal has jurisdiction explicit or implied to decide questions of law. If so, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal s jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter and Charter remedies when resolving the matters properly before it. Once the initial inquiry has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. This depends on whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include the tribunal s statutory mandate, structure and function. The Court determined that the Ontario Review Board is a quasi-judicial body with significant authority over a vulnerable population. Established by and operating under Part XX.1 of the Criminal Code, the Board has ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of those accused persons who have been found not criminally responsible by reason of mental disorder (NCR Patients). It is a specialized statutory tribunal with unquestionable authority to decide questions of law. There is nothing in the Board s statutory scheme which indicates that Parliament intended to withdraw Charter jurisdiction from the scope of the Board s mandate. As such, the Board is a court of competent jurisdiction for the purposes of subsection 24(1) of the Charter. However, the Court concluded that the remedy sought (an absolute discharge) is not the kind of remedy which would fit within the Board s statutory scheme. The review board regime is intended to reconcile the objectives of protecting the Page 6 of 11
public from dangerous offenders and treating NCR Patients fairly and appropriately. It was held that Parliament intended that dangerous NCR Patients should have no access to absolute discharges based on the following factors: (1) the Board s duty to protect public safety; (2) its statutory authority to grant absolute discharges only to non-dangerous NCR Patients; and (3) its mandate to assess and treat NCR Patients with a view to reintegration. Conway could not, therefore, obtain an absolute discharge from the Board. The same was true of Conway s request for a treatment order, which was a remedy expressly prohibited by section 672.55 of the Criminal Code. Finally, the Court held that if substance of Conway s complaint can be fully addressed within the Board s statutory mandate and the exercise of its discretion in accordance with Charter values, resort to subsection 24(1) of the Charter may not add to the Board s capacity to either address the substance of the complaints or provide appropriate redress. Court of Appeal for Ontario: Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (Decided 16 September 2010) The claimants alleged that a section of the Ontario Disability Support Program Act, 1997 (ODSPA) that denied them disability benefits despite their alcohol dependence violated their right to equal treatment without discrimination under section 1 of the Ontario Human Rights Code. Although both claimants satisfied the criteria in section 4 of the ODSPA for being disabled, the claimants were denied benefits based on subsection 5(2) of the Act, which disqualified individuals who are disabled solely because of substance dependence. In 2006, the Social Benefits Tribunal concluded that the test set out in Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, for section 15 constitutional challenges should apply to infringements of the equal treatment guarantee set out in section 1 of the Code. However, the Tribunal also concluded that it would not always be necessary to apply the elaborate human dignity analysis set out in the third part of the section 15 test. The Tribunal found in the claimants favour. On appeal, in the light of the Supreme Court of Canada s intervening decision R v Kapp, 2008 SCC 41, the Divisional Court proposed the following revised test for Page 7 of 11
determining whether a claimant has established a violation of section 1 of the Code: (1) Has the complainant established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground under the Human Rights Code? (2) Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code? Like the Tribunal, the Divisional Court found in the claimants favour. At the Court of Appeal, the Director of the ODSP argued that the lower court erred by developing a new test that is inconsistent with the subsection 15(1) Charter test for discrimination. The Court, in a judgment written by Simmons J.A., dismissed the appeal. In doing so, however, the Court rejected the post Kapp test as formulated by the Divisional Court on the basis of the following three reasons: (1) In formulating the first stage of the post Kapp test, the Divisional Court overlooked the requirement of proving a distinction based on a prohibited ground that creates a disadvantage [emphasis added]. (2) In formulating the test in the way that it did, the Divisional Court erroneously implied that to establish a prima facie case of discrimination, it is unnecessary for the claimant to demonstrate a distinction based on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping [emphasis added]. (3) Step two of the Divisional Court s test improperly reversed the burden of proof by requiring a respondent to effectively disprove discrimination on a balance of probabilities. Under a correct formulation of the test, the onus of proving discrimination on a balance of probabilities remains on the claimant throughout. If a claimant proves discrimination on a balance of probabilities and the responding party fails to prove a statutory defence or exemption, then the claimant will have proved a violation of the Code. Page 8 of 11
Ultimately, the Court concluded that, although the [Tribunal] did not have the benefit of Kapp, in my view, its reasons fall squarely within Kapp, and I see no basis for interfering with its decision based on the precise test it used to analyze the issues before it (paragraph 127). Supreme Court of Canada: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (Decided 28 October 2010) In the 1950s, the British Columbia Government authorized the building of a dam and reservoir which altered the amount and timing of water flows in the Nechako River. The dam generated electricity to power Alcan s aluminum facility in Kitimat. The Carrier Sekani Tribal Council First Nations claim the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River, but were not consulted about the dam project. Since 1961, excess power generated by the dam has been sold by Alcan to the British Columbia Hydro and Power Authority (BC Hydro) under Energy Purchase Agreements (EPAs). The British Columbia Government sought the approval of the British Columbia Utilities Commission in respect of the 2007 EPA. The First Nations asserted that the 2007 EPA should be subject to consultation under section 35 of the Constitution Act, 1982. The Commission accepted that it had the power to consider the adequacy of consultation with Aboriginal groups, but found that the consultation issue could not arise because the 2007 EPA would not adversely affect any Aboriginal interest. The British Columbia Court of Appeal reversed the Commission s orders and remitted the case to the Commission for evidence and argument on whether a duty to consult the First Nations exists and, if so, whether it had been met. Alcan and BC Hydro appealed to the Supreme Court of Canada. The Supreme Court, in unanimous reasons written by Chief Justice McLachlin, allowed the appeal and confirmed the decision of the Commission approving the 2007 EPA. The Court held that the duty to consult arises when the Crown has knowledge of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. This test can be broken down into three elements: (1) the Crown s knowledge, actual or constructive, of a potential Aboriginal claim or right; Page 9 of 11
(2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. The Court held that the duty to consult operates prospectively and seeks to prevent damage. Past wrongs, speculative impacts, and adverse effects on a First Nation s future negotiating position will not suffice to trigger the duty to consult. The duty on a tribunal to consider consultation depends on the mandate conferred by the legislation that creates the tribunal. Thus, it was held that the role of a particular tribunal in relation to consultation depends on the duties and powers the legislature has conferred on it. The legislature may delegate the duty to consult to a tribunal, and it may empower the tribunal to determine whether adequate consultation has taken place. Before a tribunal may engage in consultation, it must be expressly or impliedly empowered to do so and its enabling statute must give it the necessary remedial powers. In the instant case, the Court held that the Commission had the power to consider whether adequate consultation had taken place The Utilities Commission Act empowers it to decide questions of law in the course of determining whether an EPA is in the public interest, which implied a power to decide constitutional issues properly before it. At the time, the Act also required the Commission to consider any other factor that the Commission considers relevant to the public interest, including the adequacy of consultation. However, the Legislature did not delegate the Crown s duty to consult to the Commission. The Commission s power to consider questions of law and matters relevant to the public interest does not empower it to engage in consultation because consultation is a distinct constitutional process, not a question of law. The Court determined that the Commission correctly accepted that it had the power to consider the adequacy of consultation with Aboriginal groups, and reasonably concluded that the consultation issue could not arise because the 2007 EPA would not adversely affect any Aboriginal interest; the 2007 EPA would have neither physical impacts on the Nechako River or the fishery nor organizational, policy or managerial impacts that might adversely affect the Page 10 of 11
claims or rights of the First Nations. The failure to consult on the initial project was an underlying infringement, insufficient to trigger a duty to consult. Page 11 of 11