Robinson v. Canada (Attorney General)

Robinson v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-12-23
Neutral citation
2024 FC 2092
File numbers
T-263-23
Decision Content
Date: 20241223
Docket: T-263-23
Citation: 2024 FC 2092
Ottawa, Ontario, December 23, 2024
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
dana robinson
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
Overview
[1] In this application, the Applicant seeks judicial review of a decision made by the Deputy Minister [DM] of Fisheries and Oceans Canada [DFO], dated February 2, 2023 [the Decision]. In the Decision, the DM denied the Applicant’s request for ongoing authorization to use a medical substitute operator in connection with an inshore lobster fishing licence. The Decision is a redetermination of an earlier decision by DFO, which was the subject of a successful application for judicial review in Robinson v Canada (Attorney General), 2020 FC 942 [Robinson FC], affirmed in Canada (Attorney General) v Robinson, 2022 FCA 59 [Robinson FCA].
[2] As explained in further detail below, this application will be allowed, because the DM erred by incorrectly concluding that the Applicant’s equality rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], as a person with a disability, were not engaged by the Decision. This error also lead to the DM conducting an unreasonable balancing of the Applicant’s rights against relevant regulatory and policy objectives. The Decision will therefore be set aside and the matter remitted to the DM for redetermination. As it is therefore unnecessary for the Court to consider the Applicant’s argument that a relevant regulatory provision underlying the Decision is constitutionally invalid, and as the Applicant did not raise that argument before the DM, the Court declines to address that argument.
II. Background [3] The Applicant, Mr. Dana Robinson, is 63 years old and has been a fisherman almost all of his working life. Since 2007, the Applicant has been issued an inshore fishing licence (#111730) to fish lobster in Lobster Fishing Area 35 in Nova Scotia [the Licence].
[4] Subsection 19(2) of the Atlantic Fishery Regulations, 1985 SOR/86-21 [Atlantic Regulations], made under the Fisheries Act, RSC 1985, c F-14 [Fisheries Act], requires that the activities authorized under certain categories of inshore fishing licences be carried out either by the Applicant personally or by a person authorized in accordance with subsection 23(2) of the Fishery (General) Regulations, SOR/93-53 [General Regulations]. This requirement applies to the Licence. While subsection 19(2) of the Atlantic Regulations came into force only on April 1, 2021, the general requirement that inshore fishing licences be personally fished by the licence holders has for a longer period been captured in subsection 11(7) of DFO’s Commercial Fisheries Licencing Policy for Eastern Canada [the Policy].
[5] Subsection 23(2) of the General Regulations provides a possible exception to this requirement for licence holders who, due to circumstances beyond their control, are unable to fish their licence personally. Under subsection 23(2), DFO may authorize another person to carry out the activity under the licence, in which case the licence holder may designate a substitute operator to fish their licence on their behalf.
[6] Where the circumstance preventing the licence holder from fishing their licence personally is an illness that prevents the licence holder from operating a fishing vessel, the permission that DFO may provide under subsection 23(2) of the General Regulations is commonly referred to as an authorization for designation of a medical substitute operator [MSO]. Subsection 11(11) of the Policy states that the designation of an MSO may not exceed a total period of five years. However, this limit being a matter of policy rather than regulation, DFO has the discretion to depart from the limit and will do so in what it considers to represent extenuating circumstances.
[7] In Robinson FC, at paragraphs 17 to 19, this Court summarized the policy and history underlying these regulatory and policy provisions, which background I do not understand to be the subject of any controversy between the parties. Due to increased participation in the Canadian fishery in the late 1970s, concern developed about control by fish processing companies of the inshore harvesting sector, which could lead to fewer independent licence holders and decreased benefit from the fisheries resource for local communities. To address this concern, DFO introduced what is termed the “fleet separation policy”, which separated the interests of the harvesting sector from those of the processing sector. DFO stopped issuing new licences for fisheries in the inshore fleet to processing corporations in order to promote the control of fishing licences in the inshore fleet by those residing in and operating out of local coastal communities. These policy elements are incorporated in the Policy.
[8] Similar objectives are pursued through what is termed the “owner-operator policy”. The owner-operator policy was formally adopted in 1989 across the entire Eastern Canada inshore fleet, and its key elements were ultimately incorporated into the Policy. Its goal is to maintain an economically viable inshore fleet by keeping the control of licences in the hands of independent owner-operators in small coastal communities, and to allow them to make decisions about the licences issued to them. To achieve this, the owner-operator policy requires licence holders to personally fish licences issued in their name. This means that the licence holder is required to be on board the vessel authorized to fish the licence.
[9] The Applicant fished the Licence personally, until a medical condition prevented him from doing so. The details of his medical condition and its effect upon his ability to fish the Licence personally are not at issue in this application.
[10] In 2009, the Applicant requested and received authorization to designate an MSO in relation to the Licence. In 2015, DFO informed the Applicant that he had reached the five-year limit on MSO use. He appealed to the Maritimes Region Licensing Appeal Committee, and on March 13, 2017, the Regional Director General, Maritimes Region [the Regional Director] granted him an exemption to the five-year limit on MSO use, but only until July 31, 2017.
[11] The Applicant appealed the decision of the Regional Director to the Atlantic Fisheries Licence Appeal Board [AFLAB], and on March 6, 2019, the Deputy Minister at the time rejected the Applicant’s appeal. On April 5, 2019, the Applicant filed an application for judicial review of the Deputy Minister’s decision in the Federal Court. On September 30, 2020, this Court issued its decision in Robinson FC, quashed the decision, and sent the matter back for redetermination taking into account the Court’s reasons.
[12] In Robinson FC, this Court found, applying the correctness standard of review, that the impugned decision engaged the Applicant’s subsection 15(1) equality rights in relation to physical disability under the Charter and that the decision-maker did not consider these rights. Alternatively, applying the reasonableness standard of review, the Court found that the failure to consider the Applicant’s Charter rights also made the decision unreasonable (Robinson FC at paras 43, 71).
[13] On April 7, 2022, the Federal Court of Appeal [FCA] upheld Robinson FC in Robinson FCA, finding that, where a Charter protection is squarely raised by a party, the unexplained failure to address whether the Charter was engaged cannot survive reasonableness review (Robinson FCA at para 28).
[14] In the meantime, DFO has continued to permit the Applicant to use an MSO. In the context of his previous application for judicial review, the Federal Court granted the Applicant an interim injunction until December 31, 2019. DFO also adopted an interim policy during the COVID-19 pandemic, pursuant to which DFO authorized MSOs for additional years, notwithstanding the five-year limit. I understand from the Respondent’s counsel’s submissions at the hearing of this application that an MSO for the Applicant remains in place pending the outcome of this litigation.
[15] On May 27, 2022, the Applicant’s counsel provided to DFO further submissions to be taken into account in the redetermination that had been ordered by the Court. Those submissions referenced the owner-operator policy and related regulations that are the subject of this litigation and their underlying goal of ensuring that economic benefits of fishing accrue to local communities and are not siphoned away by non-resident corporations or others. The Applicant expressed approval of that goal but argued that a decision that compromised or prevented local disabled fishers from enjoying economic benefits was inconsistent with the goal. He submitted that if a licence holder can demonstrate that they are actively engaged in the fishery, have care and control of the licence, are directing the fishing enterprise, and are physically unable to board the vessel, then a substitute operator should be authorized without an arbitrary five-year limit. The Applicant argued that, in that scenario, neither the substance of the owner-operator policy nor the Charter rights of the disabled licence holder would be infringed.
[16] While not expressly set out in the Applicant’s counsel’s letter, other documentation generated in the course of the various administrative processes leading to the Decision provides further detail related to the Applicant’s reference to his active engagement in the fishery. In his affidavit sworn in support of this application for judicial review [the Affidavit], the Applicant summarizes his role. The Applicant employs crew members to operate his vessel and states that he maintains full care and control of the Licence and his vessel, including managing the crewmembers and the MSO. He asserts that he makes the operational decisions regarding the vessel, including decisions relating to negotiating the wharf price of the catch, arranging bait and fuel purchase, and finances. The Applicant also asserts that a large portion of his total income is derived from the Licence and that he will lose his livelihood if unable to fish the Licence through an MSO. While the Affidavit was not itself before the DM when making the Decision, I do not understand the Respondent to dispute that such assertions were advanced before the decision-maker (and, indeed, before previous decision-makers in the administrative processes that preceded the Decision).
[17] On February 2, 2023, the DM made the Decision (summarized below) that is the subject of this application for judicial review. The Court heard this application on October 1, 2024, together with an application in Court File No. T-2356-22. In T-2356-22, the applicant, Mr. John Mombourquette, also challenges a decision to deny him an MSO authorization beyond the five-year limit set out in the Policy. The same counsel represents the applicants in both matters and advances largely identical arguments in the two proceedings.
III. Decision under Review [18] In the February 2, 2023 letter conveying the Decision [the Decision Letter], the DM denied the Applicant’s request for a further exception to the five-year limit on MSOs. The DM referred to having arrived at this conclusion upon review of background material including the recommendation of the AFLAB, the judgments in Robinson FC and Robinson FCA, and the Applicant’s allegations of discrimination under subsection 15(1) of the Charter.
[19] The DM agreed with the AFLAB’s finding that the Applicant was treated fairly and in accordance with departmental licensing policies, practices, and procedures. The DM also found that the exit strategy presented by the Applicant to the AFLAB was not substantial enough to justify an exception to the Policy. That exit strategy was that either the Applicant’s young grandchildren would potentially be issued an inshore licence in the future, or that the Applicant’s daughters would potentially marry a fisherman. The DM found that the additional information presented by the Applicant on May 27, 2022, in the Applicant’s counsel’s submissions did not indicate a more developed exit strategy.
[20] With respect to the Applicant’s Charter submissions, the DM found that subsection 15(1) of the Charter was not engaged by the Decision. The DM found no indication the Applicant would ever be able to carry out commercial fishing activities personally. As such, the DM found the Applicant was seeking to collect revenues from a licence to fish for an indefinite period of time without actively fishing, which the DM described as insurance or disability-like benefits that were not available at law to anyone under the Fisheries Act. Further, even if it could be considered that the Decision made a distinction based on the Applicant’s age or physical disability, the DM concluded that this would not be a discriminatory distinction, as it would not reinforce, perpetuate, or exacerbate a disadvantage. Rather, the distinction would merely reflect the reality that the Applicant’s permanent medical condition is inconsistent with ongoing demanding activity that is inherent in commercial fishing.
[21] The DM further found that, even if the Decision engaged the Applicant’s Charter rights, his request for further MSO authorization was inconsistent with DFO’s underlying policy objectives for fisheries management.
[22] The DM also stated that the current fisheries management regime accommodated the Applicant, in that he could continue to seek renewal of the licences issued to him on a yearly basis (subject to closures and all other eligibility requirements) and therefore could recommend to the Minister of Fisheries, Oceans and the Canadian Coast Guard [the Minister] an eligible fisher to which the Minister would issue a replacement licence. This would provide the Applicant with access to financial capital through a private commercial transaction.
[23] The parties disagree on whether an understanding of the reasons for the Decision may also be informed by a review of other documentation, generated by DFO in the course of the process leading to the Decision, as found in the Certified Tribunal Record [CTR] in this matter. These documents include a departmental “Memorandum for the Deputy Minister” dated January 27, 2023 [the Memorandum] and a supporting “Departmental Analysis and Rationale” [the Rationale]. I will reference these documents in more detail later in these Reasons when addressing the parties’ dispute as to their relevance.
IV. Issues [24] The parties’ submissions in this application raise the following issues for the Court’s determination:
What is the applicable standard of review? Is the Decision correct or reasonable (depending on the standard of review selected)? Is subsection 19(2) of the Atlantic Regulations constitutionally invalid because it violates subsection 15(1) of the Charter? If applicable, what remedies should the Court impose?
V. Analysis A. What is the applicable standard of review? (1) Introduction [25] The parties disagree on the standard of review that the Court should apply in its consideration of the Decision. Relying on evolving jurisprudence on the standard of review applicable to administrative decision-making in the context of asserted Charter rights, the Applicant takes the position that the Decision is reviewable on the correctness standard, while the Respondent (the Attorney General of Canada) argues that the standard of reasonableness applies.
(2) Federal Courts jurisprudence [26] Before turning to a broader review of applicable jurisprudence, I note that the standard of review was also the subject of disagreement between the parties in Robinson FC. The respondent in Robinson FC relied on Doré v Barreau du Québec, 2012 SCC 12 [Doré], in which the Supreme Court of Canada [SCC] drew a distinction between circumstances where a reviewing court is considering an administrative tribunal’s determination of the constitutionality of a law, in which case the standard of review is correctness (Doré at para 43), and circumstances where the court is considering whether a tribunal has taken sufficient account of Charter values in making a decision, in which case the standard of reasonableness applies (Doré at paras 43-58).
[27] In circumstances of the latter sort, the decision-maker must conduct a proportionality exercise by considering how the Charter value at issue will best be protected in view of the statutory objectives, balancing the severity of the interference with the Charter protection against the statutory objectives. A reviewing court must in turn consider the reasonableness of this balancing (Doré at paras 56-58). In Robinson FC, the respondent argued that the applicant’s challenge of the decision then under review fell into this category, requiring a reasonableness review (Robinson FC at para 38). The respondent also noted that, in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], which confirmed the presumption in favour of the reasonableness standard when reviewing administrative decisions (Vavilov at para 16), the SCC expressly stated that reconsideration of the approach to the standard of review set out in Doré was not germane to the issues before it (Vavilov at para 57).
[28] In contrast, the applicant argued in Robinson FC that there was a role for the correctness standard in the Court’s review of the administrative decision. He relied on Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025 [Ferrier], in which the Court of Appeal for Ontario [ONCA] considered Doré and Vavilov in concluding that, in circumstances involving refusal or failure by an administrative decision-maker to consider an applicable Charter right, correctness applies. The ONCA contrasted such circumstances with those in which an administrative decision-maker considered applicable Charter rights and how those rights affected the required discretionary decision (as was the case in Doré), where the standard of reasonableness would ordinarily apply (Ferrier at paras 34-38).
[29] The issue in Ferrier was whether the Thunder Bay Police Services Board [the Board] failed to respect the s 2(b) Charter right to freedom of expression by failing to require an open hearing in considering a complaint of police misconduct. The ONCA allowed the appeal and set aside the Board’s decision, on the basis that it had failed to consider recent jurisprudence confirming that s 2(b) of the Charter protects the right of members of the public to attend meetings of police service boards. Reviewing the issue on the correctness standard, the ONCA confirmed that this Charter right did apply (Ferrier at paras 53-59).
[30] In its elaboration upon Doré in Loyola High School v Québec (Attorney General), 2015 SCC 12 [Loyola] at paragraph 49, the SCC explained that, before turning to the proportionate balancing exercise required by Doré, a preliminary question arises as to whether the administrative decision under review engages the Charter by limiting its protections (Loyola at para 39). In Robinson FC at paragraph 42, this Court accepted that Ferrier supported the applicant’s position that the answer to that preliminary question of whether a Charter right has bearing on an administrative decision is governed by the correctness standard. However, Robinson FC further explained at paragraphs 42 to 43 that, consistent with the analysis in Ferrier at paragraph 60, an administrative decision that fails without explanation to consider an applicable Charter right would also be unable to withstand reasonableness review.
[31] In the result, Robinson FC found, applying the correctness standard, that the decision under review in that matter engaged the applicant’s subsection 15(1) rights of a person with a physical disability (at para 56). Robinson FC concluded, again applying the correctness standard, that the decision-maker did not consider those rights (at paras 70-71). Employing the alternative standard of review analysis articulated in Ferrier, this Court further concluded that, even if a reasonableness standard applied, the decision could not be considered reasonable because of its failure to consider applicable Charter rights (at paras 70-71).
[32] On appeal, the respondent argued that Robinson FC erred in relying on Ferrier in assessing against a correctness standard the question whether the administrative decision engaged subsection 15(1) protections. The respondent took the position that the presumptive standard of reasonableness should be applied to both the first question under the Doré/Loyola framework, determining whether a Charter protection was engaged, and the second question, the balancing of the Charter protection against the government’s policy objectives (see Robinson FCA at paras 18, 24).
[33] The FCA concluded at paragraphs 27 to 28 that it was sufficient for purposes of the appeal to explain that it agreed with this Court that the Deputy Minister’s decision ought to be set aside for failing to address the key question before him. Where, as in that case, a Charter protection was squarely raised by a party, the unexplained failure to address whether the Charter was engaged could not survive reasonableness review.
[34] As such, the FCA concluded that it was unnecessary to comment on this Court’s application of the test under Doré/Loyola. Similarly, the FCA concluded that whether it ought to adopt the approach of the ONCA in Ferrier, holding that the first question under the Doré/Loyola analysis was to be determined on a correctness standard and the second question on a standard of reasonableness, should be decided when it must and with the benefit of full argument (Robinson FCA at para 29).
[35] Following Robinson FCA, the standard of review issue was again raised in the Federal Court in Boudreau v Canada (Attorney General), 2023 FC 428 [Boudreau], in an application for judicial review of a DFO decision denying the applicant’s request for an MSO authorization beyond the five-year policy limit. As in Robinson FC and the case at hand, the applicant in Boudreau argued that the decision infringed his rights as a disabled person under section 15 of the Charter. In connection with his assertion that DFO failed to consider those rights, the applicant relied on Ferrier in support of his position that the standard of correctness applied (see Boudreau at para 30).
[36] In Boudreau, Justice Ann Marie McDonald noted that Ferrier had been applied in Robinson FC but also that Robinson FCA had held that reasonableness was the appropriate standard of review, as the decision under review failed to respond to the applicant’s argument that his Charter rights were violated (Boudreau at para 31). Referencing both Robinson FCA and Doré, Justice McDonald concluded that the applicable standard of review was reasonableness (Boudreau at para 33). Consistent with that conclusion, Boudreau commented that the role of the Court was not to conduct the section 15 analysis, including in relation to whether the Charter was engaged, but rather was to determine whether DFO had undertaken the necessary analysis (at paras 36-38).
[37] That said, Boudreau then considered the respondent’s assertions that the Charter was not engaged, because the applicant was seeking a lifetime right to fish that was not available under the law, and relied on the analysis in Robinson FC (at paras 53-57) in concluding that DFO’s policy created a prima facie distinction based on disability, such that the DFO decision under review did engage the Charter (Boudreau at para 36-41). The Court then moved to assessing whether the decision had considered the applicant’s Charter arguments and balanced his Charter protections against DFO’s policy objectives as required by Doré. The Court concluded that DFO had not done so and that the decision was therefore unreasonable (at paras 53-58). I note that Boudreau was appealed but that the appeal was subsequently discontinued.
[38] Robinson FC and Ferrier were also considered by my colleague Justice Christine Pallotta in Toth v Canada (Mental Health and Addictions), 2023 FC 1283 [Toth], which addressed an application for judicial review of ministerial decisions refusing requests for an exemption under the Controlled Drugs and Substances Act, SC 1996, c 19, to permit the applicants to possess and consume raw psilocybin mushrooms in the course of their own professional training for psilocybin-assisted psychotherapy. The applicants’ arguments included an assertion that the decision did not address arguments as to the impact that refusing an exemption would have upon their and patients’ rights under section 7 of the Charter.
[39] In relation to the standard of review applicable to the Charter arguments, the Court identified the two steps of the Doré framework, examining first whether an administrative decision engaged the Charter by limiting a Charter protection and, if it did, examining second whether the decision-maker properly balanced the relevant Charter protection with the statutory objectives (Toth at para 86). The applicants relied on Robinson FC and Ferrier in support of their position that correctness applied to the first step and reasonableness to the second step (at para 87). The respondent argued that the entire analysis should be performed under the reasonableness standard, noting that Robinson FCA declined to decide whether to adopt the Robinson FC and Ferrier approach for the first step under the Doré framework (at para 89).
[40] The Court agreed with the respondent’s position, noting (at paras 94) that Robinson FCA was able to dispose of the appeal before it by applying the reasonableness standard (Robinson FCA at para 28). Toth expressed concern that the adoption of a correctness standard for the first step of the Doré analysis would lead to courts retrying administrative decisions involving factual findings that are entitled to deference under the reasonableness review applicable to the second step of the analysis (at para 96). The Court then conducted the first stage of the analysis, ultimately concluding that the decision did not engage section 7 Charter rights (at paras 97-103).
[41] At the hearing of the present application, the Respondent’s counsel advised the Court that Toth is under appeal.
[42] Before leaving the recent jurisprudence of the Federal Courts, I note that, shortly following the release of Boudreau, the FCA considered the application of Ferrier in Canadian Broadcasting Corporation v Canada (Parole Board), 2023 FCA 166 [Parole Board]. That decision addressed protections for freedom of the press under section 2(b) of the Charter, in the context of a decision by the Parole Board refusing to provide the Canadian Broadcasting Corporation [CBC] with a complete copy of the audio recordings of certain parole hearings.
[43] On appeal from the Federal Court’s dismissal of CBC’s application for judicial review of the Parole Board’s decision, the FCA first considered the applicable standard of review. The FCA recognized at paragraph 30 the guidance in Vavilov that, while the presumptive standard of review of an administrative decision is reasonableness (Vavilov at para 10), the presumption may be rebutted in circumstances where the rule of law requires that the correctness standard be applied, such as when dealing with constitutional questions (Vavilov at para 17). The FCA further noted in paragraph 31 that not every constitutional question, including involving the Charter, required review on the correctness standard, and observed the direction in Doré (at para 36) that the application of Charter values to a particular set of facts in administrative decision-making should attract deference.
[44] However, the FCA identified (Parole Board at paras 32-33) that the first issue before the Parole Board was whether the open court principle, fortified by section 2(b) of the Charter, applied to it, and relied on the following reasoning in Ferrier (at para 37) in concluding that the correctness standard applied to that question:
The issue before the decision maker was whether the Dagenais/Mentuck test had a bearing on the discretionary decision he had to make. That is not the same as the issue presented in Doré and Episcopal of how the s. 2(b) Charter right impacted or affected the discretionary decision he had to make. The decision maker did not reach the point of factoring the Dagenais/Mentuck test into his discretionary decision because he decided that it did not apply. A reasonableness standard assumes a range of possible outcomes all of which are defensible in law: see Vavilov, at para. 83. That standard is inappropriate here. The Dagenais/Mentuck test either applied or it did not.
[Emphasis in original.]
[45] Following the resulting analysis, conducted on a correctness basis, as to whether the open court principle applied, the FCA agreed with the Parole Board and the Federal Court that it did not (Parole Board at para 56).
[46] The effect of Robinson FC, Boudreau, and Toth is that the jurisprudence of the Federal Court, on the standard of review applicable to the first step of the Doré analysis, remains unsettled. Arguably the FCA’s endorsement of Ferrier in Parole Board assists in resolving this situation. However, as both Ferrier and Parole Board involved the same Charter issue, the application of the open court principle as informed by section 2(b), caution is warranted in concluding that the analysis applied in those cases, involving adoption of the correctness standard in considering whether Charter rights are engaged, applies more broadly to judicial review of Charter-infused administrative decision-making.
(3) Supreme Court of Canada jurisprudence [47] I turn next to two recent decisions of the SCC that have addressed the standard of review in the administrative law context. In Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [Commission scolaire], the SCC considered the application of the minority language educational rights protected by section 23 of the Charter. A group of parents not holding the right guaranteed by section 23 to have their children receive instruction in one of the two official languages, where it is the minority language, applied to the relevant minister for their children’s admission to a French first language education program. The minister denied these applications, because they did not meet the conditions of an applicable ministerial directive that created categories of eligible non-rights holders.
[48] The parents applied for judicial review of these decisions, arguing that they did not reflect a proportionate balancing of section 23 protections. That argument succeeded before the Supreme Court of the Northwest Territories but was rejected by the Court of Appeal, the majority of which found that the Minister was not required to consider section 23 of the Charter because the parents were not rights holders under that provision.
[49] On appeal, the SCC confirmed (Commission scolaire at para 59) that it was through the lens of Doré that the ministerial decisions must be considered, involving first a determination whether the decisions engage the Charter by limiting Charter protections – both rights and values (at para 61). The Court further explained that, once the reviewing court has determined that the impugned administrative decision infringes Charter rights or limits the values underlying them, the court must determine whether the decision is reasonable through an analysis of its proportionate balancing of Charter rights and values with the relevant statutory objectives (at paras 67, 73). The SCC ultimately found that the impugned ministerial decisions were required to take into account section 23 values (at para 83), that those decisions had the effect of limiting those values (at para 91), and that the decisions were unreasonable because they did not take those values into account (at para 92).
[50] On June 21, 2024, the SCC released its decision in York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 [York Region], arising from a circumstance in which two teachers employed by an Ontario public school board were disciplined based on information obtained by the school principal through reviewing the teachers’ private electronic communications. The teachers’ union grieved the discipline, and a labour arbitrator dismissed the grievance.
[51] On judicial review, the Ontario Superior Court of Justice (Divisional Court) upheld the arbitrator’s decision, with the majority applying a reasonableness standard of review and finding that an employee does not have a right under section 8 of the Charter to be secure against unreasonable search or seizure in a workplace environment. The ONCA allowed the union’s appeal, conducting a correctness review of the arbitrator’s decision and holding that the search was unreasonable under section 8.
[52] Writing for the majority in York Region in its standard of review analysis, Justice Rowe first explained that the correctness standard applies to the determination of whether the Charter applied to school boards pursuant to subsection 32(1) of the Charter, as this was a constitutional question that required a final and determinate answer by the courts, one that will apply generally and is not dependent on the particular circumstances of the case (at para 62).
[53] Referencing Vavilov, Justice Rowe then explained that the correctness standard also applied to review of the arbitrator’s decision, as a result of which the decision would be quashed because the arbitrator erred in failing to appreciate that a Charter right arose from the facts before her. Justice Rowe held that the issue of constitutionality on judicial review – of whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis – is a constitutional question that requires a final and determinate answer from the courts (at para 63). In the course of explaining that conclusion, Justice Rowe referenced (at para 66) a post-Vavilov developing line of jurisprudence supporting the application of correctness review in the constitutional context, including Ferrier and Parole Board.
[54] Applying the correctness standard, the majority held that Ontario public school teachers are protected from unreasonable search and seizure in their place of employment under section 8 of the Charter and that the arbitrator erred because she ought to have applied the Charter but failed to do so (at para 68).
[55] In concurring reasons written by Justices Karakatsanis and Martin, they explained their agreement with the majority that the issue of whether the Charter applies to Ontario school boards is one that must be determined on a standard of correctness. However, they disagreed with how the majority reviewed the arbitrator’s decision and concluded instead that the arbitrator’s reasons clearly demonstrated that she appreciated that the section 8 privacy framework applied and constrained her decision. As such, the issue for the Court’s determination was whether the arbitrator used that framework reasonably in the circumstances of the case (at paras 108-09).
[56] Speaking to the applicable standard of review, the minority disagreed with the majority’s broad statement of the constitutional questions exception to the presumption of reasonableness review identified in Vavilov. Although agreeing that whether or not teachers had a privacy right in their workplace was an issue that required a correctness determination and that the arbitrator’s analysis had to be consistent with the Charter framework, the minority concluded that the arbitrator’s reasons demonstrated that she was reviewing the challenged conduct using the section 8 Charter framework as a touchstone. The minority held that focusing on whether the arbitrator asked the right question and therefore reviewing the arbitrator’s decision on the correctness standard overshot the Vavilov exception. Rather, the issue before the arbitrator was whether the teachers’ privacy rights had been breached, an assessment which depended heavily on the specific factual and statutory context to which the presumption of reasonableness review therefore applied (at paras 111-12).
[57] Following further explanation of their conclusion that the arbitrator had recognized that section 8 of the Charter constrained her decision (at paras 113-18), the minority elaborated upon their conclusion that there was no basis to depart from the presumption of reasonableness review where determining the engagement and scope of Charter rights entailed a highly context-specific exercise (at paras 121-23). The minority expressed their view that the cases cited by the majority at paragraph 66 (including Ferrier and Parole Board) were distinguishable from the circumstances of the present appeal and did not support correctness review for how administrators should assess a Charter right in a particular factual context (at para 124).
[58] In relation to Ferrier in particular, the minority noted that that case was not considered by the SCC on an appeal, expressed no comments on its conclusions, and expressed their view that the principle requiring correctness for constitutional matters did not govern review of whether the privacy right was infringed in the circumstances of the case before it (at para 126). Nor did the minority accept that the cases referenced by the majority qualified as a line of developing authority requiring correctness review for whether a Charter right arose on the facts or for questions about the scope of a Charter right (at para 127).
[59] Employing the reasonableness standard to assess the arbitrator’s decision, the minority nevertheless agreed with the majority that the arbitrator had erred. The minority concluded that the decision was unreasonable and that the arbitrator’s reasons were inconsistent with the approach required by the applicable section 8 framework (at para 129).
(4) Analysis [60] Relying on the recent jurisprudential backdrop provided by the SCC, the Applicant in the case at hand argues that York Region supports his position that, in the first stage of the Doré analysis, which considers whether a Charter right or value is engaged, the standard of correctness applies. Indeed, he takes the position that, depending upon the particular administrative decision-maker’s level of expertise in analysing Charter considerations, York Region also potentially supports application of the correctness standard to the second stage Doré review of the decision’s proportionate balancing.
[61] In contrast, the Respondent relies on Commission scolaire in support of the position that the entire Doré analysis is to be conducted under the standard of reasonableness. The Respondent argues that the correctness review required by York Region applies only in circumstances where a decision-maker has failed to turn its mind to whether a Charter right is engaged. In that respect, the Respondent draws a distinction between the decision that was under review in Robinson FC, in which DFO had failed to consider the applicant’s Charter arguments, and the decision now under review in which those arguments were considered but rejected.
[62] I disagree with the Respondent’s position that York Region can be interpreted and distinguished in that manner. In concluding that the arbitrator erred in law by failing to apply the section 8 Charter right as she was required to do, the majority observed not only th