The Supreme Court of Canada’s recent decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (“Saguenay”) is undoubtedly of interest to all Canadians with respect to the Court’s conclusion ordering a municipality and its mayor to cease the recitation of a prayer at city council meetings, on the basis that it breached the state’s duty of neutrality and was thus a discriminatory interference with an individual’s freedom of conscience and religion.
However, Canadian lawyers and legal observers will likely find the decision to be of particular interest in light of the way this conclusion was reached. In particular, the Court’s analysis provides helpful guidance on the appropriate standard(s) of review for a statutory appeal and the appropriate considerations in determining that an expert witness is sufficiently independent and impartial for his or her evidence to be admissible.
Three key principles, discussed in greater depth below, emerge from the Court’s analysis:
- The appropriate standards of review where a statute provides for an appeal from a decision of a specialized administrative tribunal are those that apply on judicial review (emerging from Dunsmuir), not those applying to appeals from a court’s decision (set out in Housen v Nikolaisen).
- Different standards of review can sometimes apply to separate aspects of one decision, depending on the questions being analyzed. Notably, Justice Abella delivered concurring reasons disagreeing with the majority on this point.
- Although an expert’s opinion must be independent and impartial, a lack of independence does not necessarily disqualify an expert; more than a simple appearance of bias is required to render expert testimony inadmissible. Rather, it must be determined “whether the expert’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case”.
Saguenay involves a complaint made by Alain Simoneau and the Mouvement laïque québécois (collectively, the “Appellants”) to the Quebec Human Rights Tribunal (the “Tribunal”), against the City of Saguenay and its mayor, Jean Tremblay (collectively, the “City”) in connection with the recitation of a prayer at the start of the municipal council’s public meetings.
Mr. Simoneau was a resident of Saguenay who considered himself an atheist, and who regularly attended city council meetings. Each meeting started with the mayor leading a prayer that referred to God and making the sign of the cross while saying “in the name of the Father, the Son, and the Holy Spirit” before and after the prayer.
Mr. Simoneau asked the mayor to stop the practice and, when he refused, the Appellants filed a formal complaint to the Commission des droits de la personne et des droits de la jeunesse (the “Commission”) on the basis that the practice infringed Mr. Simoneau’s freedom of conscience and religion protected by the Quebec Charter of human rights and freedoms (the “Quebec Charter”). The Commission determined the evidence was sufficient to submit the dispute to the Tribunal.
After reviewing the evidence, including the testimony of three expert witnesses, the Tribunal concluded that the prayer was religious in nature and that the City was showing a preference for one religion to the detriment of others by having it recited. The Tribunal determined that this was a breach of the state’s duty of neutrality, that the prayer interfered with Mr. Simoneau’s freedom of conscience and religion in a manner that was more than trivial or insubstantial, and that the interference was discriminatory.
The City appealed the Tribunal’s decision to the Quebec Court of Appeal (pursuant to the Quebec Charter). The Court of Appeal’s main reasons, written by Gagnon JA, began by considering the appropriate standard of review. The Court held that the appeal was ultimately about the religious neutrality of the state, a matter of importance to the legal system over which the Tribunal did not have exclusive jurisdiction. As a result, the Court applied a correctness standard of review and proceeded to disagree with the Tribunal’s findings, holding that the duty of neutrality did not require the state to abstain from religious matters, and that the City’s recitation of the prayer did not constitute discrimination.
In respect of the Tribunal’s consideration of expert evidence, the Court of Appeal held the Tribunal had made “a palpable and overriding error” in qualifying one of the Appellants’ experts, who the Court of Appeal viewed as lacking objectivity and impartiality.
Appropriate standard of review on statutory appeal of a tribunal decision
The Supreme Court began its analysis by considering the applicable standard of review on an appeal from a final decision of the Tribunal. The Court disagreed with the analysis of the Court of Appeal, which, in the majority’s view, provided for “a confusing conceptual hybrid”; the Court of Appeal had applied the judicial review standard of correctness for most of the decision, but the appellate standard of palpable and overriding error on the question of the qualification of an expert.
The majority noted that there was conflicting authority as to whether appellate standards of review or administrative law principles of judicial review apply to statutory appeals from a tribunal decision, and acknowledged that clarification was needed to provide consistency and predictability. Ultimately, the Court concluded:
Where a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles. This is true regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal…
The Court explained that although the Tribunal is similar to a court in light of the questions it is asked to decide, its adversarial nature, and the existence of a statutory right to appeal with leave, it is still at its heart a specialized administrative tribunal: it was created by the Quebec Charter, it is not subject to the Courts of Justice Act, and it has specialized expertise relating to cases involving discrimination. The Tribunal’s administrative nature could not be disregarded; while certain characteristics may affect the deference shown to the Tribunal, they could not justify replacing the standards of review applicable to judicial review with appellate standards.
Separate standards of review can be applied to different questions
In considering the appropriate standard of review, the Court relied on a long line of cases for the proposition that “on judicial review of a decision of a specialized administrative tribunal interpreting and applying its enabling statute, it should be presumed that the standard of review is reasonableness”, and deference should normally be shown as a result. However, it noted that this presumption can be rebutted in certain circumstances, including where the legislature clearly intended not to protect the tribunal’s jurisdiction (such as where its enabling statute provides that its jurisdiction is non-exclusive), or where a general question of law is raised that is of importance to the legal system as a whole and falls outside the administrative tribunal’s area of expertise.
The majority held that the latter circumstance was present in this case: the question of “the scope of the state’s duty of religious neutrality that flows from the freedom of conscience and religion protected by the Quebec Charter” was of general importance to the legal system and required a uniform and consistent answer. This, in conjunction with the courts’ concurrent jurisdiction over such matters, was sufficient to rebut the presumption and warrant a correctness standard on this question.
However, the majority held the reasonableness standard was the appropriate standard for the Tribunal’s remaining determinations, such as the question of whether the prayer was religious in nature, the qualification of experts and the assessment of their testimony, and the determination of whether the prayer was discriminatory. The majority held the Court of Appeal erred in applying the correctness standard to the entire appeal, as these determinations of the Tribunal fell squarely within its expertise and were entitled to deference.
The majority’s separate application of the correctness standard to the question of the scope of the duty of neutrality was the only point of disagreement amongst the Court. For its view, the majority relied on the Court’s recent decision in Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, which upheld the application of a correctness review to a Tribunal’s determinations of questions of law, and reasonableness standard for mixed questions of fact and law and questions of fact.
In a concurring opinion, Justice Abella discussed her diverging view that a reasonableness standard applied to the Tribunal’s entire decision. Justice Abella’s concern with the majority’s conclusion is twofold: in her view, reasonableness is the appropriate standard of review for the Tribunal’s decision on the scope of the state’s duty of neutrality, and it is inappropriate to apply different standards of review to different aspects of one decision.
On the first point, Justice Abella expressed her concern that the majority’s application of the correctness standard contradicts the Court’s directive in Dunsmuir to apply the reasonableness standard when a specialized tribunal is determining a matter within its expertise. She acknowledged that where “the issue is one of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, correctness applies” [emphasis in original]. However, she highlighted that this is a binary exception, and that the question at issue – the scope of the duty of neutrality flowing from freedom of conscience and religion – while certainly of central importance to the legal system as a whole, is part of the Tribunal’s “daily fare” of determining whether discrimination has occurred, not outside its area of expertise. In any event, Justice Abella held that all issues of discrimination are of central importance to the legal system, and that this is precisely why specialized tribunals with expertise in human rights have been assigned by the legislature to consider these issues. (Notably, Justice Abella wrote a concurring opinion in Tervita – the majority opinion of which was relied upon for the majority’s conclusion on this point – discussing a similar concern about the need for deference to specialized administrative tribunals.)
Perhaps more importantly, Justice Abella held that extricating an aspect of the Tribunal’s decision from the rest of its analysis “creates another confusing caveat to [the Supreme] Court’s attempt in Dunsmuir… to set out a coherent and simplified template for determining which standard of review to apply”. She noted that using different standards of review for each different aspect of a decision is a departure from the Court’s jurisprudence, which has previously rejected a suggestion to review a tribunal decision’s component parts under multiple standards of review and has confirmed that a tribunal’s reasons must be read as a whole.
Justice Abella concluded her reasons by raising a compelling concern with the majority’s approach: the possibility of the application of different standards of review yielding incompatible results. Although not arising in the present case, this conceivable outcome raises interesting practical questions. As stated by Justice Abella:
How many components found to be reasonable or correct will it take to trump those found to be unreasonable or incorrect? Can an overall finding of reasonableness or correctness ever be justified if one of the components has been found to be unreasonable or incorrect? If we keep pulling on the various strands, we may eventually find that a principled and sustainable foundation for reviewing tribunal decisions has disappeared. And then we will have thrown out Dunsmuir’s baby with the bathwater.
Admissibility of an expert opinion that lacks independence
While a small part of its decision, the Court’s reasons regarding the admissibility of expert opinion contain very interesting comments about the requirements for an expert’s independence and impartiality.
Before the Tribunal, both parties proffered expert witnesses on the issue of the religious significance and nature of the prayer. The Tribunal preferred the evidence of the Appellants’ expert, Daniel Baril.
The Court of Appeal held the Tribunal had erred in its reliance on Mr. Baril’s opinion. Gagnon JA questioned Mr. Baril’s independence and impartiality, noting that he was an advocate for the secularization of the state, and that he was a co-founder and executive member of the Mouvement laïque québécois (“MLQ”), one of the Appellants in the case at bar. Finding that he did not meet the requirements of objectivity and impartiality, the Court of Appeal held Mr. Baril was not qualified to testify.
The Supreme Court rejected the Court of Appeal’s conclusion on this point, holding that the qualification of an expert and the assessment of the probative value of his or her opinion are evidentiary issues that require deference, and that it is thus not open to a reviewing court to carry out its own assessment simply because it disagrees with that of the Tribunal.
In explaining its conclusion that it was “not unreasonable” for the Tribunal to qualify Mr. Baril as an expert and accept the probative value of his opinion, the Court commented on the requirements of independence and impartiality for expert witnesses:
It is well established that an expert’s opinion must be independent, impartial and objective, and given with a view to providing assistance to the decision maker. However, these factors generally have an impact on the probative value of the expert’s opinion and are not always insurmountable barriers to the admissibility of his or her testimony. Nor do they necessarily “disqualify” the expert. For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case.
Noting that the Tribunal acknowledged Mr. Baril’s relationship with the MLQ and his views with respect to secularism, the Court added that “a relationship between an expert and a party does not automatically disqualify the expert in every case.”
The Court’s comments set a fairly high bar for the inadmissibility of expert evidence on the basis of a lack of independence. Although it stated that “an expert’s opinion must be independent”, the Court continued to state that a relationship between an expert and a party does not necessarily disqualify an expert or serve as an insurmountable barrier to the admissibility of his or her testimony. Interestingly, Mr. Baril was no mere member of the MLQ, but was its co-founder, was once its president, and was its vice-president at the time of the Tribunal hearing. Nonetheless, the Supreme Court held it was not open to the Court of Appeal to reverse the Tribunal on the admissibility of his opinion – although one wonders if the Court sought to express its concern about Mr. Baril’s independence by describing the Tribunal’s conclusions as “not unreasonable”, rather than reasonable.
In spite of this high bar, however, it is important to note that the Court’s comments are limited to the qualification of experts and the admissibility of expert testimony. The Court expressly acknowledged the importance of independence and impartiality to the probative value of an expert’s opinion, suggesting that any concerns about an expert’s relationship with a party could have a marked impact on the weight of his or her evidence.
It will be interesting to see how the Court’s comments on expert evidence in Saguenay will be interpreted by lower court judges in the exercise of their gatekeeper function concerning expert witnesses, and whether they will have an impact in the analysis of when to order the production of an expert’s file further to the Ontario Court of Appeal’s recent decision in Moore v. Getahun.
Prayer at Saguenay city council meetings a discriminatory breach of freedom of religion
In addition to the aforementioned findings about administrative law and the admissibility of expert evidence, the Supreme Court’s decision in Saguenay is, of course, interesting for its conclusion on the key issue before it.
The Supreme Court ultimately held:
- The Tribunal was correct to find that the state’s duty of neutrality prohibits a state authority from making use of its powers to promote or impose a religious belief.
- The Tribunal was reasonable in concluding that the prayer in question was in fact a practice of a religious nature.
- The Tribunal was reasonable in finding that the prayer was a breach of the state’s duty of neutrality and had a discriminatory effect on Mr. Simoneau’s freedom of conscience and religion.
- The Tribunal was reasonable to award the Appellants $30,000 in compensatory and punitive damages for the City’s discriminatory breach.
Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16
Date of Decision: April 15, 2015