Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 – Administrative law — Judicial review — Standard of review
On appeal from a judgment of the Federal Court of Appeal (2016 FCA 200) affirming a decision of McVeigh J. (2015 FC 398). This appeal concerns several complaints alleging that Indian and Northern Affairs Canada engaged in a discriminatory practice in the provision of services contrary to s. 5 of the Canadian Human Rights Act (“CHRA”) when it denied a form of registration under the Indian Act that the complainants would have been entitled to if past discriminatory policies, now repealed, had not been enacted. In two separate decisions, the Canadian Human Rights Tribunal determined that the complaints were a direct attack on the Indian Act. As legislation was not a service under the CHRA, it dismissed the complaints. On judicial review, both the Federal Court and the Federal Court of Appeal found that the Tribunal decisions were reasonable and should be upheld.
Held (9-0): The appeal should be dismissed.
Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: Where an administrative body interprets its home statute, there is a well‑established presumption that the reasonableness standard applies. The presumption may be rebutted and the correctness standard applied where one of the categories identified in Dunsmuir can be established or, exceptionally, where a contextual inquiry shows a clear legislative intent that the correctness standard be applied. In applying the standard of review analysis, there is no principled difference between a human rights tribunal and any other decision maker interpreting its home statute. In both of its decisions, the Tribunal was called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA. This falls squarely within the presumption of deference. The Tribunal clearly had the authority to hear a complaint about a discriminatory practice, and the question of what falls within the meaning of “services” is no more exceptional than questions previously found by the Court not to be true questions of jurisdiction. To find that the Tribunal was faced with a true question of vires here would only risk disinterring the jurisdiction/preliminary question doctrine that was clearly put to rest in Dunsmuir. Plainly, the definition of a service under the CHRA is not a true question of vires. The category of true questions of vires is confined to instances where the decision maker must determine whether it has the authority to enter into the inquiry before it. Since its inclusion as a category of correctness review in Dunsmuir,the concept of true questions of vires has been as elusive as it has been controversial. In applying Dunsmuir, the Court has been unable to identify a single instance where this category was found to be applicable. Since Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61,  3 S.C.R. 654, the Court has reasserted the narrow and exceptional nature of this category. The difficult distinction between simple questions of jurisdiction (i.e., questions that determine the scope of one’s authority) and true questions of vires (i.e., questions that determine whether one has authority to enter into the inquiry) has, however, tempted litigants and judges alike to return to a broad understanding of jurisdiction as justification for correctness review. The elusive search for true questions of vires may thus both threaten certainty for litigants and undermine legislative supremacy. While some have advocated for the conceptual necessity of correctness review for jurisdiction, reasonableness review is often more than sufficient to fulfil the courts’ supervisory role with regard to the jurisdiction of the executive. Absent full submissions by the parties on this issue it will be for future litigants to establish whether or not this category remains necessary. The category of questions of law that are both of central importance to the legal system as a whole and outside the decision maker’s specialized area of expertise does not apply here. The Court has rejected a liberal application of this category. Regardless of the importance of the questions before the Tribunal, they were clearly within the Tribunal’s expertise. The ability of other federal tribunals to apply the CHRA does not rob the Tribunal of its expertise in its home statute. Finally, a contextual analysis would not rebut the presumption in this case either. Where the presumption of reasonableness applies, the contextual approach should be applied sparingly in order to avoid uncertainty and endless litigation concerning the standard of review analysis. Indeed, the presumption of reasonableness was intended to prevent litigants from undertaking a full standard of review analysis in every case. As such, the presumption of reasonableness review and the identified categories will generally be sufficient to determine the applicable standard. Where a contextual analysis may be justified to rebut the presumption it need not be a long and detailed one. Changes to “foundational legal tests” are not clear indicators of legislative intent, and do not warrant the application of the contextual approach or, by extension, correctness review. Nor do the absence of a privative clause, the fact that other administrative tribunals may consider the CHRA, the potential for conflicting lines of authority, or the nature of the question at issue and the purpose of the Tribunal. The presumption of deference is not rebutted and the reasonableness standard applies to the review of the Tribunal’s decisions. In its application, reasonableness review recognizes the legitimacy of multiple possible outcomes, even where they are not the court’s preferred solution. In reasonableness review, the reviewing court is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process and with determining whether the outcome falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. When applied to a statutory interpretation exercise, reasonableness review recognizes that the delegated decision maker is better situated to understand the policy concerns and context needed to resolve any ambiguities in the statute. Reviewing courts must also refrain from reweighing and reassessing the evidence considered by the decision maker. Both of the Tribunal’s decisions were reasonable and should be upheld. The Tribunal provided careful and well‑considered reasons explaining why the complaints had not established a discriminatory practice under the CHRA. In coming to their conclusion, the adjudicators considered the complainants’ evidence and submissions, the governing jurisprudence, the purpose, nature and scheme of the CHRA, and relevant policy considerations. The decisions meet the Dunsmuir standard of intelligibility, transparency and justifiability, and fall within the range of reasonable outcomes. Specifically, the adjudicators reasonably concluded that the complaints before them were properly characterized as direct attacks on legislation, and that legislation in general did not fall within the meaning of “services”. Although human rights tribunals have taken various approaches to making a distinction between administrative services and legislation, this is a question of mixed fact and law squarely within their expertise, and they are best situated to develop an approach to making such distinctions.
Per Côté and Rowe JJ.: Reasonableness is the presumptive standard for the review of questions that involve the tribunal’s interpretation and application of its home statute. There are, however, two situations where the presumption will not apply. First, the jurisprudence recognizes four categories of questions that will necessarily attract review on a standard of correctness: constitutional questions, questions of law that are both of central importance to the legal system and that are outside of the tribunal’s specialized area of expertise, questions that involve the drawing of jurisdictional lines between two or more competing specialized tribunals and true questions of jurisdiction. Second, the presumption of reasonableness will be rebutted if the contextual factors listed in Dunsmuir point towards correctness as the appropriate standard. This contextual approach does not play merely a subordinate role in the standard of review analysis. Resort to this approach is not exceptional and the framework set out in Dunsmuir is manifestly contextual in nature. While any uncertainty surrounding the jurisdictional question category ought to be resolved another day, the Court has recognized that the concept of jurisdiction continues to play a crucial role in administrative law and has made clear that administrative decision makers must be correct in their determinations as to the scope of their delegated authority. This is because jurisdictional questions are fundamentally tied to both the maintenance of legislative supremacy, which requires that a given statutory body operate within the sphere in which the legislature intended that it operate, as well as the rule of law, which requires that all exercises of delegated authority find their source in law. Since the interpretation of s. 5 of the Canadian Human Rights Act is at issue in this case, it is agreed that reasonableness presumptively applies. However, and without deciding on whether the nature of the question at issue falls within a category of correctness, the relevant contextual factors listed in Dunsmuir lead to the conclusion that the presumption of reasonableness has been rebutted in this case, such that the appropriate standard of review is correctness. Firstly, Parliament opted not to shield the Tribunal’s decisions from exacting review behind a privative clause. Secondly, provisions within a given human rights statute must be interpreted consistently across courts and tribunals tasked with its application. Applying a non‑deferential correctness standard allows the courts to provide meaningful guidance as to the scope of these fundamentally important human rights protections, and ensure respect for the rule of law in such cases. Finally, the Tribunal’s decision responds to a question of law with a constitutional dimension: Who gets to decide what types of challenges can be brought against legislative action? Because this question necessarily implicates the rule of law and the constitutional duty of superior courts to uphold this fundamental principle, no deference is owed to the Tribunal’s decision in these circumstances. There is no dispute that the presumption of deference is not rebutted, solely by either the omission of a privative clause or by the potential for conflicting lines of authority. But while neither factor may independently call for correctness, they are each indicia that point toward correctness as the appropriate standard. The wording of s. 5 of the Canadian Human Rights Act focuses on the provision of services and the language suggests that it is geared towards discrimination perpetrated by service providers. The complainants sought to challenge the registration provisions of the Indian Act as making discriminatory distinctions on the basis of race, national or ethnic origin, sex and family status. They did not challenge the actions of the Registrar in processing their applications. Therefore, at their core, these complaints are about Parliament’s decision not to extend “Indian” status to persons in similar circumstances. This was properly characterized by the Tribunal as a bare challenge to legislation. Parliament is not a service provider and was not providing a service when it enacted the registration provisions of the Indian Act. Parliament can be distinguished from the administrative decision makers that operate under legislative authority. These individuals and statutory bodies, which include the Registrar, may be service providers, and if they use their statutory discretion in a manner that effectively denies access to a service or makes an adverse differentiation on the basis of a prohibited ground, s. 5 will be engaged. But, when they are engaged simply in applying valid legislation, the challenge is not to the provision of services, but to the legislation itself. The Tribunal was correct in dismissing the complaints for want of an underlying discriminatory practice.
Per Brown J.: It is agreed that the Tribunal’s answers to the questions before it were both reasonable and correct. However, the majority’s discussion regarding true questions of jurisdiction omits a central point that, while not determinative, is an important consideration which militates against its suggestion that this category of correctness review might be euthanized. In Dunsmuir, this Court wrote that “the rule of law is affirmed by assuring that the courts have the final say on jurisdictional limits of a tribunal’s authority”. This presupposes not only that the treatment of such questions is a matter of first importance, but that such questions continue to exist. Deciding whether and how any “euthanizing” the category of true questions of jurisdiction is to proceed will require a measure of circumspection. Abolition of that category will necessitate a concomitant shift towards a more flexible, rather than a strictly binary standard of review framework. There is also concern with the extremely narrow scope for contextual analysis that the majority states, and which would significantly impede that necessary flexibility. Statements suggesting that contextual review should be applied sparingly or that it plays a subordinate role are not easily reconciled with the majority’s acknowledgement that reviewing courts ought to examine factors that show a clear legislative intent justifying the rebuttal of the presumption. If one is considering factors which show legislative intent, one is undertaking a contextual analysis.
Reasons for judgment: Gascon J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis and Wagner JJ. concurring) Joint Concurring Reasons: Côté and Rowe JJ. Concurring Reasons: Brown J.
Neutral Citation: 2018 SCC 31
Docket Number: 37208
APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Nevsun Resources LTD v. Gize Yebeyo Araya, Kesete Tekle Fshazion, Mihretab Yemane Tekle (B.C.)
Public International Law – State Immunity
The respondents are Eritrean refugees who sought to bring a representative claim against the applicant, a publicly-held B.C. corporation. They allege that through a chain of subsidiaries, the applicant entered into a commercial venture with Eritrea for the development of a gold, copper and zinc mine in Eritrea. The applicant allegedly engaged the Eritrean military and military controlled corporations and was complicit in the use of forced labour at the mine, conscripted under Eritrea’s National Service Program. The respondents claim to have fallen victim to forced labour, slavery, torture, cruel, inhumane or degrading treatment and crimes against humanity. They brings claims of private law torts as well as breaches of peremptory principles of international law for which they seek damages at customary international law. The applicant denied that the respondents were subjected to forced labour or mistreatment and argued that the military and its personnel were not subject to the control, direction or supervision of the applicant or of the mining company in which the applicant has a 60% indirect interest.
The Supreme Court of British Columbia granted the applicant’s motion to deny the proceeding status as a common law representative action but dismissed the applicant’s motions to stay, dismiss or strike aspects of the respondents’ claims on the basis that either Eritrea is the forum conveniens, or that the claims are precluded by or have no reasonable chance of success due to the act of state doctrine or the inapplicability of customary international law. The court also held that certain secondary evidence filed by the respondents was admissible for the limited purpose of providing social and historical facts for context. The Court of Appeal for British Columbia dismissed the applicant’s appeal.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Brenda Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, Attorney General of Ontario (Ont.)
Charter of Rights – Freedom of expression
Ms. Berge is an audiologist who has a doctorate degree in audiology and who practices in Ontario, operating as the Berge Hearing Clinic in Guelph. Audiologists and other health professionals in Ontario are governed by umbrella legislation, the Regulated Health Professions Act, 1991 (the RHPA). In Ontario, s. 33 of the RHPA restricts the use of the title “Doctor.” Audiologists are not permitted to use this title in the course of providing health care to individuals. Ms. Berge admitted she had used the title in the course of providing health care to individuals since 2009. She also admitted she was aware of the prohibition against the use of this title. However, in her defence, she challenged the Discipline Committee’s jurisdiction and raised her Charter right to freedom of expression. The Discipline Committee dismissed Ms. Berge’s motion for an order dismissing the notices of hearing on multiple grounds including the constitutional validity of s. 33 of the RHPA. On appeal, the Divisional Court held that s. 33 of the RHPA does not breach s. 2(b) of the Charter but that if it did breach s. 2(b), then the breach was justified by s. 1. The Court of Appeal for Ontario dismissed the application for leave to appeal.
Ciba Specialty Chemicals Water Treatments Limited v. SNF Inc. (F.C.)
Intellectual property – Patents – Validity
Ciba Specialty Chemicals Water Treatments Limited (“Ciba”) is the owner of the 581 Canadian Patent for a process used in dealing with waste products created by the operations of the mining industry. The waste product is a water-borne stream of particulate matter, referred to as “slurry”. Mine operators have economic and environmental incentives to recycle this water and to minimize the land area required to dispose of the particulate matter. SNF Inc. (“SNF”) is an American company that manufactures and distributes water soluble polymers and polymer feed equipment used in the processing of slurry. Water can be separated from the particulate matter in a slurry using a paste thickener, a vessel into which slurry is pumped and allowed to stand. The particulate matter settles out leaving a liquid which can be removed and reused. This process can be improved by the use of flocculants. The flocculants used in this case were water-soluble polymers that can accelerate the separation of water from the particulate matter and improve the quality of the recovered water. The 581 patent describes a process that was said to be an improvement on the prior art. It recites that it has been unexpectedly found that the addition of an aqueous solution of polymer to the slurry mixture allows the treated slurry to retain its fluidity while being transferred but to rigidify effectively when it reaches the deposition area. SNF brought an action to challenge the validity of the 581 patent on several grounds, and the patent was declared invalid for obviousness. The Court of Appeal dismissed the appeal.
Holli Anne Kuski v. Travis John Wetsch (Sask.)
Family law – Support – Child support – Shared custody
The father and mother were married in August, 1995 and separated in March, 2004. The father is the vice-president of a privately owned investment company. The mother became a lawyer after the parties separated. They have three children who are presently 25, 20 and 18 years of age. Their eldest child was adopted by the father and suffered permanent disabilities as a result of a childhood illness. Following the separation, the children resided primarily with the mother. The parties reached a settlement on their family-related issues in August 2005 and were divorced. After the mother completed her law degree in 2008, the father sought shared parenting of the two youngest children, which the mother opposed. In January 2009, the father unilaterally reduced his child support payments. A trial over the issues of parenting and child support commenced in September, 2009. The trial judge held that the children should remain in the primary care of the mother and fixed the amount of child support. After the eldest child turned eighteen in 2010, the father ceased paying child support for her. She lived with her mother until 2014. Whether or not she was entitled to child support between 2010 and 2014 was disputed. In April, 2012, the parties agreed to a shared custody arrangement for the two youngest children. Child support and related issues between the parties remained outstanding, however, and a special hearing before a chambers judge took place. The Court of Appeal allowed the father’s appeal in part.
Unifor Local 707A v. Suncor Energy Inc. (Alta.)
Labour relations – Arbitration – Policy grievance
In 2012, the employer, Suncor, announced it would institute random drug and alcohol testing for workers in safety-sensitive positions at oil sands operations in Regional Municipality of Wood Buffalo in the Fort McMurray area. The workforce at the operations consists of approximately 10,000 workers, and includes employees represented by Unifor, non-represented employees and contractors. The parties agree the workplace is dangerous.
The union filed a policy grievance alleging infringement of unionized workers’ privacy rights, human dignity and human rights based on searches of employees’ persons which the union claimed were unreasonable and unjustifiable.
The majority of the arbitration board applied this Court’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.,  2 S.C.R. 458, 2013 SCC 34, (Irving) and allowed the union’s grievance, holding that the employer’s policy on random drug and alcohol testing was an unreasonable exercise of the employer’s management rights. On judicial review, the reviewing judge held that the arbitration board’s majority decision had not met the reasonableness threshold. He granted the application for judicial review and remitted the matter for arbitration by a fresh panel. The Court of Appeal dismissed the union’s appeal, holding that the reviewing judge had selected the appropriate standard of review and had applied it properly.