ISSUE No. 28 • MARCH 2021
ISSUE No. 21 • MARCH 2019 ADMINISTRATIVE &ADMINISTRATIVE REGULATORY LAW CASE& REGULATORY REVIEW
COLAW-EDITORS: ANDREACASE GONSALVES REVIEW & JUSTIN SAFAYENI
IN THIS ISSUE The Vavilov approach to reasonableness and revisiting Charter values: Ontario • The Vavilov approach to Nurses’ Association v Participating Nursing reasonableness and revisiting Homes, 2021 ONCA 148 Charter values Facts: Participating Nursing Homes is a group • Uncertainty remains about of employers that operate for-profit nursing application of Vavilov to homes in Ontario. The Unions represent legislated standard of patent nursing and other staff who work in PHN unreasonableness homes. Employment in the nursing home • Test for examining vires of sector is almost exclusively female. Ontario’s regulations not impacted by Pay Equity Act1 requires every employer in the Vavilov province to establish and maintain • Oral cautions are not penalties compensation practices that provide for pay equity. Systemic discrimination in employment • Use of video testimony and prior is identified by undertaking a comparison transcripts under the SPPA between female job classes and male job • Decision set aside for lack of classes in terms of compensation and the notice value of work performed. The Act proscribes three methods for achieving pay equity. One CONTRIBUTORS of those methods, the “proxy methods”, is Ryann Atkins used for establishments—like PHN’s—without any male job classes. It involves comparing PHN’s female job class to a female job class at a proxy employer’s establishment. The proxy female job class is used because it has already Spencer Bass Gillian Moore achieved pay equity by way of comparison to a male job class at the proxy employer’s
1 RSO 1990, c P.7 Karen Bernofsky ISSUE 28 • MARCH 2021
establishment. To achieve pay equity for all Decision: Appeal dismissed. Matter remitted to female job classes within the seeking the Tribunal to specify what procedures should establishment, the female job class that was be used to ensure those employees who have compared to the proxy female job class established pay equity through the proxy becomes the “key female job class” and all method will continue to have access to male other female job classes at the seeking comparators to maintain pay equity. establishment are evaluated to ensure the value/compensation relationship for their jobs A bare majority of the panel (Benotto J.A., is equal to that of the key female job class. joined by Brown and Zarnett JJ.A.) agreed with the Divisional Court that the Tribunal’s decision In 1994, PHN took steps to establish was unreasonable. The majority started its compensation practices for female employees analysis by setting out the principles governing that complied with the Act using the proxy reasonableness review of the Tribunal’s method. PHN and the Unions engaged in decision. According to Vavilov,3 a tribunal’s extensive negotiations and reached an governing statute is important in considering agreement that established pay equity for all whether the tribunal’s decision is reasonable in PHN female job classes by 2005. The Unions light of the relevant factual and legal took the position that PHN failed to maintain constraints that bear on it. The administrative pay-equity-compliant compensation practise decision must be consistent with the principles since that time and brought applications to the of statutory interpretation and comply with the Pay Equity Hearings Tribunal. The Unions rationale and purview of the statutory scheme argued that because the PHN established pay under which the decision is made. A reviewing Fredrick Schumann Dragana Rakic equity through the proxy method, the Act court does not interpret the statute de novo. It requires that pay equity be maintained using must focus its analysis on why the Tribunal’s that same method. The Tribunal dismissed the decision is unreasonable, and not on what the applications, holding that the proxy method court would have decided in the Tribunal’s does not apply for the purposes of maintaining place. pay equity. The Tribunal’s decision set out an approach to The Unions applied for judicial review and pay equity maintenance that is limited to an were successful in the Divisional Court. PHN internal comparison between the key female then applied for and was granted leave to job class and the non-key female job classes. appeal. Because one of the grounds of appeal The Tribunal’s interpretation of the Act challenged the correctness of the Court of deprives women in establishments without Appeal’s earlier decision in Taylor-Baptiste v male job classes acces to an ongoing deemed Ontario Public Service Employees Union,2 a 5- male comparator. It is unreasonable as it judge panel heard the appeal. ignores the purpose, scheme and plain wording of the Act. 2 2015 ONCA 495, leave to appeal refused [2015] SCCA no. 412. 3 2019 SCC 65.
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The scheme of the Act is built on the Moreover, not using the proxy method to fundamental premise that redressing systemic maintain pay-equity-compliant compensation gender discrimination in employment practices would undermine the purpose of the compensation requires a comparison between Act. male and female job classes. Section 21.13 of the Act indicates that comparison to male job The Tribunal’s reasons are transparent and classes is the way to identify systemic intelligible, but there is nothing in the Act that discrimination. The Tribunal did not consider would justify eliminating a male comparator that section, leading to a loss of confidence in for maintaining pay equity in establishments the outcome reached. Had the Tribunal relied where the proxy method was used to establish on s. 21.13—which provides that comparison pay equity. The only reasonable interpretation with the proxy job class is the way to identify of the Act is that it requires the use of the systemic discrimination in establishments using proxy method to maintain pay-equity- the proxy method—it may have arrived at a compliant compensation practices in such different result. establishments.
The proxy method was added to the Act by Because the majority’s conclusion that the way of amendment specifically to provide for Tribunal’s decision is unreasonable rests on deemed male comparators for establishments statutory interpretation principles, it was where no male job classes exist. Female job unnecessary to determine whether the classes in the proxy establishment are treated Tribunal erred in failing to take into account as if they were male job classes because those Charter values in interpreting the Act. classes have already achieved pay equity by Accordingly there is no need to decide way of comparison to male job classes within whether Taylor-Baptiste was wrongly decided. the proxy employer’s establishment. Two dissenting judges (Huscroft J.A., joined by All three comparison methods in the Act Strathy C.J.O.) would have allowed the appeal. involve a direct or indirect comparison The Tribunal held hearings over several days between female and male job classes. It is and heard evidence from lay and expert unreasonable to interpret the Act as doing witnesses regarding the key issues. The away with an ongoing deemed male Tribunal wrote lengthy and detailed reasons comparator when it comes to an employer’s for decision, which reviewed the legislative duty to maintain pay equity in female- history, the study that gave rise to the dominated establishments that used the proxy amendments establishing the proxy method, method to establish pay equity. The Tribunal’s and the government’s various discussion distinction between applying the proxy papers and legislative statements. The Tribunal method to the obligation to establish pay analyzed the positions of the parties and equity, and applying it to the obligation to reviewed the case law. Ultimately the Tribunal maintain pay equity is not grounded in the decided not to adopt either of the parties’ plain language or scheme of the Act. positions and instead outlined its own formula
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ISSUE 28 • MARCH 2021 for compensation practices in the parties’ expertise that specialist administrative decision workplaces to maintain pay equity. The makers have. This is a reason for courts to Tribunal’s decision is thorough and cogent and exercise considerable caution before makes sense of an extremely complicated concluding that a particular decision is legislative scheme. The decision reflects the unreasonable, especially if in making the Tribunal’s considerable expertise and its decision the tribunal is acting within the sphere entitled to deference. There is no basis to of its specialised knowledge, carrying out its conclude that it is unreasonable. mandate to create solutions to problems.
The dissenting judges pointed out that The Tribunal’s decision is thorough, cogent reasonableness review usually assumes a and reflects its considerable expertise in pay range of reasonable decisions, and the court’s equity as well as in the diverse labour relations task is to ensure that a particular decision is contexts in which pay equity disputes arise. transparent, intelligible and justified. The Tribunal cannot be said to have ignored Reasonableness is an inherently deferentially the purpose, scheme and plain wording of the standard of review. Courts are required to Act. The Tribunal specifically considered and defer to and uphold decisions with which they rejected the interpretation that the majority may not agree, provided only that those concludes is the only reasonable one available. decisions are reasonable. Vavilov has provided The majority do not engage with the Tribunal’s considerable guidance on the question: how reasons. There is no basis to suggest that the does reasonableness review operate? But it Tribunal misunderstood its mandate or to lose does not change the essential nature of confidence in its decision. The Tribunal’s reasonableness review. Vavilov confirms that decision is reasonable. the reasonableness of a decision is to be assess having regard to the reasons given for Because the dissenting judges concluded that the decision. the Tribunal’s decision was not unreasonable, it was necessary to address the Charter The tension in Vavilov concerns the intensity of arguments. The dissent concluded that Charter the reasonableness review that the Court values are relevant to statutory interpretation endorses. Reasonableness remains a only where genuine ambiguity exists. To the deferential form of review and the Court in extent Taylor-Baptiste says otherwise, it should Vavilov emphasises concepts such as “respect” not be followed. and “restraint”. At the same time, the Court describes reasonableness as a “robust” form of In interpreting legislation, Charter values are review. There are statements in Vavilov that relevant only to the interpretation of legislation appear to be in tension with the concept of that is genuinely ambiguous: Bell ExpressVu deference. But in addition to the concept of Partnership v Rex.4 The same rule applies for deference, the Court also endorses the administrative decision makers as for courts: continued importance of an administrative decision maker’s expertise. Courts lack the 4 2002 SCC 42.
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Wilson v British Columbia (Superintendent of neither a list of Charter values nor a canonical Motor Vehicles).5 If legislation is inconsistent formulation for them. They are, in general, with the Charter, it is of no force or effect to reasons for Charter rights. The underlying the extent of that inconsistency, but before reasons for protecting rights are broader than that conclusion is reached, it may be defended the rights themselves. Care must be taken in on the basis that it is a reasonable limit on the identifying and applying Charter values, lest Charter right at stake. The interpreter should they supplant the rights from which they are not preclude a finding of inconsistency with inferred. the Charter (or the attendant consequences) by interpreting the legislation so as to avoid In this case, there is no ambiguity in the that inconsistency. The exception is for relevant provisions of the Act. It was wrong for legislation that is genuinely ambiguous. the Divisional Court to invoke Charter values in interpreting the Act so as to override the Genuine ambiguity is rare. It arises only where Tribunal’s decision. the legislature has failed to specify between two meanings that are semantically possible. Commentary: This case is of interest for those Ambiguity can ordinarily be resolved by using who deal with pay equity obligations due to the tools of statutory interpretation—read in the majority’s ruling on the applicability of context, the legislature’s intended meaning proxy method to maintain pay equity. willy usually be the only plausible meaning, However, the case is highly notable to the and the meaning that must be adopted. In wider administrative law audience for two those rare circumstances where the reasons: the divergent approaches to legislature’s intention cannot be inferred, it is reasonableness review demonstrated in the sensible to adopt the interpretation that reasons of the majority and dissenting judges, conforms to Charter values over the one that and the dissent’s conclusion that Taylor- does not. To the extent that Taylor-Baptiste Baptiste was wrongly decided. suggests that Charter values have a role in play in statutory interpretation in the absence The majority’s reasons in Vavilov greatly of ambiguity, it is inconsistent with Bell advanced the law on substantive judicial ExpressVu and should not be followed. review by offering detailed guidance on the application of the reasonableness standard. It The application of Charter values is often gives parties and courts various tools to assess problematic because of the failure to the reasonableness of a decision. Yet there has appreciate the difference between concepts been legitimate debate about whether Vavilov such as rights and values. Those two terms are did alter the reasonableness standard and not interchangeable. The Charter is an whether that standard is now more “robust” exhaustive statement of the rights and than it was before. While many have hailed freedoms it protects. In contrast, there is Vavilov as bringing much needed clarity to the law of substantive judicial review, the split on 5 2015 SCC 47. the Ontario Court of Appeal illustrates that
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Vavilov has not eliminated all uncertainty and The split on the Court in Ontario Nurses’ some challenges persist. Association shows that there will continue to be reasonable disagreement about the The reasons of the majority appear to be application of the reasonableness standard in consistent with the guidance offered in Vavilov: at least some cases. Given the length and they examine the Tribunal’s reasons on the key detail of the reasons in Vavilov, it is issue and assess whether it is compatible with unsurprising that lower courts may have the purpose, scheme and plain wording of the different views on what elements of those Act. Of course, Vavilov requires that an reasons should be given greater prominence administrative decision maker’s interpretation in a given case. A consensus has not yet of a statutory provision be consistent with the emerged from the lower courts about whether text, context and purpose of the provision.6 Vavilov mandates a different and more The majority turned its mind to that very “robust” form of reasonableness review than question and concluded that the Tribunal existed before, or whether it simply clarifies the failed to consider pertinent aspects of the Act application of the same pre-existing standard. text, context or purpose. This analysis seems to This question might not be fully resolved until reflect the very exercise that Vavilov calls for. the Supreme Court speaks again on the issue. In the meantime, one can expect to see Yet the dissent rightly points out that Vavilov applicants continue to emphasize the passages still calls for deference in reasonableness from Vavilov that speak to “robust” review, review and emphasizes the continued while respondents rely on the repeated importance of the decision maker’s expertise in statements about deference and respect. the application of the reasonableness standard. As the Supreme Court noted in It is understandable, though somewhat Vavilov: “In conducting reasonableness review, disappointing, that after striking a 5-judge judges should be attentive to the application panel to consider the correctness of Taylor- by decision makers of specialized knowledge, Baptiste, in the outcome only two judges of as demonstrated by their reasons. Respectful the panel weighed in on the question. The attention to a decision maker’s demonstrated dissent makes a very compelling case that expertise may reveal to a reviewing court that Taylor-Baptiste was wrongly decided based on an outcome that might be puzzling or the precedent of Bell ExpressVu as well as the counterintuitive on its face nevertheless logic that Charter values should not be used to accords with the purposes and practical interpret legislation into conformity with the realities of the relevant administrative regime Charter when it might otherwise be found of and represents a reasonable approach given no force or effect because it is inconsistent the consequences and the operational impact with a Charter right. Further, the dissent points of the decision.”7 out some of the lingering conceptual problems in applying Charter values as opposed to 6 See paras 115-124. Charter rights. 7 At para 93.
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In Vavilov, the Supreme Court expressly left for L brought an application to the Human Rights another day a potential reconsideration of its Tribunal of Ontario (“HRTO”) alleging that the own jurisprudence on Charter values in review University discriminated against him on the of administrative decisions. That jurisprudence basis of his disabilities in refusing him has been subject to much criticism. The admission. The HRTO dismissed L’s application. dissenting reasons in Ontario Nurses’ The Vice Chair found that while the University’s Association are not quite the death-knell for grades-based admission standard was prima Taylor-Baptiste or the application of Charter facie discriminatory, the University had values in administrative law, but they suggest ultimately met both its procedural and that it may be close to ringing. substantive duty to accommodate L’s disability by convening the Admissions Committee. The HRTO concluded that there was no Uncertainty remains about application of information before that Committee that L had Vavilov to legislated standard of patent the ability to succeed at university (the basis of unreasonableness: Longueépée v. University an admission decision) and that past grades of Waterloo, 2020 ONCA 830 were the best and only measure to evaluate a candidate’s prospect of success. There was FACTS: L applied to the University of Waterloo little evidence that the University considered for admission to the Faculty of Arts for the whether L’s supplementary materials 2013 fall semester. L’s grades at his previous demonstrated his ability to succeed at university, Dalhousie, did not meet the university. The HRTO accepted the University’s University of Waterloo’s minimum admission position that these materials were irrelevant to standards for transfer students. However, the analysis of L’s chances of success. The following his departure from Dalhousie, L was HRTO dismissed a motion for reconsideration. diagnosed with moderate traumatic brain injury and post-traumatic stress disorder — The Divisional Court allowed L’s judicial review conditions that were undiagnosed and application, and remitted the matter back to therefore unaccommodated during his time at the University’s Admissions Committee. Dalhousie. In light of L’s extenuating Specifically, the Divisional Court concluded that circumstances, the University convened an because of the discriminatory effect of L’s Admissions Committee to consider L’s Dalhousie grades, the University was required application. L submitted a package of to either assess L’s application without supplementary material to the University, recourse to those grades, or establish that to including medical information, reference do so would result in undue hardship. Since letters, writing samples and an outline of his the University failed to do either, it had failed experience and volunteer activities. in its duty to accommodate L’s disability.
Ultimately, the University declined to extend L The University appealed. an offer of admission, citing his failure to meet the “minimum admission requirements”.
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DECISION: Appeal allowed in part, upholding The HRTO did so, stating that L’s argument the Divisional Court’s ruling that the HRTO “would have the effect of requiring universities decision was unreasonable, but setting aside to complete an in-depth assessment of every the decision to remit the matter to the application by every student with a disability” Admissions Committee and instead remitting regardless of their past grades. The University the matter back to the HRTO to fashion an neither put forward on nor led evidence on appropriate remedy. any sort of undue hardship argument, making the HRTO’s decision unreasonable. The Ontario Court of Appeal applied the reasonableness analysis articulated by the COMMENTARY: In addition to the University’s Supreme Court of Canada in Vavilov, which appeal, the HRTO challenged the standard of was released after the Divisional Court’s review applicable to its decisions post-Vavilov. decision but before the appeal was heard. Relying on the Supreme Court’s direction that Under this framework, the HRTO decision was the presumption of a reasonableness standard found to be unreasonable both because (i) it can be rebutted where the legislature has contained an internal logical error and (ii) the indicated that it intends a different standard to Vice Chair made an implicit finding that the apply, the HRTO submitted that its decisions University would suffer undue hardship when should be reviewed under the “patent that defence was not relied on by the unreasonableness” standard prescribed by the University. Human Rights Code.8 That privative clause, which was enacted before the Supreme On the first point, once it was accepted that Court’s decision in Dunsmuir but which came the University’s minimum grade requirements into force after Dunsmuir, has been for transfer students were discriminatory, one interpreted to mean “reasonableness” as could not logically conclude that applying defined in Dunsmuir ever since the Divisional those same requirements to L constituted Court’s decision in Shaw.9 However, the HRTO reasonable accommodation of his disabilities. argued that Vavilov “reanimated” a pre- Reasonable accommodation cannot be met by Dunsmuir patently unreasonable standard for applying a discriminatory standard. Having its decisions. accepted that L’s grades were not reflective of his abilities, it was not rational to take those The Court of Appeal sidestepped this grades “at face value” and use them to predict argument, stating that it would be “unwise and his chances of future success for the purpose unnecessary” to undertake the standard of of admissions. review analysis here and the issue should
On the second point, in order to accept that 8 RSO 1990, c. H.19, s. 45.8 (“…a decision of the Tribunal the University met its duty to accommodate is final and not subject to appeal and shall not be altered or set aside in an application for judicial review notwithstanding that it applied a discriminatory or in any other proceeding unless the decision is standard, one must implicitly find that to do patently unreasonable.”) otherwise would amount to undue hardship. 9 Shaw v. Phipps, 2010 ONSC 3884 (Div Ct).
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ISSUE 28 • MARCH 2021 instead be decided in a case where the judicial oversight that can be imposed on standard of review makes a difference in the them. A university’s prerogative to set its outcome. As a result, there remains no admissions standards is a central feature of guidance from Ontario’s highest court on the that autonomy. As such, Lauwers J.A. issue of whether Vavilov intended to allow for acknowledged the “difficult reality” that some a legislated “patently unreasonable” standard. applicants will still fall short of university The present state of Ontario law appears to be admissions standards, even with that such a legislated standard cannot exist: accommodation. Both Lauwers J.A. and the since Vavilov, the Divisional Court has rejected majority decision of van Rensburg J.A. and the HRTO’s argument about the “patently Strathy C.J.O. specifically clarified that nothing unreasonable” standard on at least three in their reasons is intended to disparage occasions, applying reasonableness instead. grades-based admissions standards. The positive duty to accommodate does not The Court of Appeal’s decision to set aside the entirely displace an applicant’s obligation to remedy ordered by the Divisional Court is also demonstrate the capacity to succeed at noteworthy. The University argued that university, and the tension between deference following the Supreme Court’s guidance in to the university’s process and the duty to Vavilov, the most appropriate remedy would EEWaccommodate has to be worked out in be to remit the matter to the decision maker each case on its facts. (i.e. the HRTO) to fashion a remedy that would promote compliance with the Code. L argued that this case is one of the exceptional cases Test for examining vires of regulations not referred to by the Supreme Court in Vavilov impacted by Vavilov: Hudson’s Bay where the outcome is inevitable. While the Company ULC v. Ontario (Attorney General), 2020 ONSC 8046 (Div Ct) Court of Appeal agreed that the conclusion on the issue of discrimination was inevitable, the Facts: In response to the COVID-19 pandemic, question of the most appropriate remedy was the respondent Ontario made a series of not inevitable — and so the HRTO ought to regulations restricting the operation of retail have the opportunity to weigh in. The Court of businesses, including O. Reg. 82/20 under the Appeal noted that the case was being decided Reopening Ontario (A Flexible Response to in the “early post-Vavilov days”, perhaps COVID-19) Act10, which provides that suggesting that as the jurisprudence matures, businesses in certain regions of Ontario are to there may be more guidance as to when the be closed unless they are specifically listed in appropriate remedy can more readily be schedule 2 of the Regulation. decided at the review stage. Pursuant to the Act and the Regulation, HBC This decision ought to be read and was required to close sixteen of its stores. understood in light of the strong caution in Lauwers J.A.’s concurring reasons, which stressed the historical autonomy of universities and the necessary limit to the executive and 10 S.O. 2020, c. 17
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HBC brought an application for judicial review statutory purpose to be found ultra vires. It challenging s. 2(1)3 of schedule 2 of the takes an egregious case to fall in this category. Regulation, which provides that “discount and big box retailers selling groceries” are Vavilov does not change the test for permitted to open. HBC argued that this challenging regulations to review on a provision of the Regulation was ultra vires. standard of reasonableness. The test and According to HBC, the impugned provision principles from Katz remain the governing creates an impermissible and irrational framework. distinction between stores like Walmart (which were allowed to remain open) and HBC’s own In this case, the overall purpose of the Act is to stores, since big box stores like Walmart sell provide a flexible approach to balancing the the same lines of merchandise as HBC except health and safety of Ontarians during the that they also sell groceries. HBC sought an pandemic against the province’s economic and order allowing HBC’s sixteen stores to re-open. business interests. The listed retailers allowed to open under schedule 2 of the Regulation on Decision: Application dismissed. their face offer goods that are necessary, such as groceries and pharmaceuticals. It is clear, The principles for challenging a regulation as therefore, that the essential nature of a good ultra vires were outlined in Katz Group Canada or service is a factor underpinning the Inc. v. Ontario (Health and Long-Term Care).11 regulation. This restriction may be overly Regulations are presumed to be valid and, inclusive in the sense that it allows people to where possible, regulations should be go to certain types of retail stores in certain construed in a manner that renders them intra regions to buy more than necessary goods vires. Courts are not to assess the policy but, on its own, this does not mean that the merits of a regulation, or to decide whether it provision does not fall within the purposes of is necessary, wise or effective. The motives for the Act. Such arguments go to the wisdom or making a regulation are irrelevant. Under- the efficacy of a given measure. inclusiveness is not a valid ground for challenging a regulation as ultra vires. One effect of the impugned provision seems to be permitting behaviour that is inconsistent Judicial review of a regulation is usually with the broader policy goal of reducing restricted to the issue of whether the community transmission. But it is not the role regulation is inconsistent with the purpose of of the reviewing Court to make determinations the enabling statute or whether a condition about the efficacy or wisdom of policy choices precedent was not met before the regulation within the scope of Cabinet’s executive was made. Regulations must be irrelevant, authority. Nor is it the Court’s role to remove extraneous or completely inconsistent with the the “selling groceries” limitation and open up the exemption to all retailers. Legitimate policy choices might equally include narrowing 11 2013 SCC 64 or eliminating the exemption. These are
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ISSUE 28 • MARCH 2021 decisions for the government, not the Court, regulations in pursuit of the objects of its to make. enabling statute”.13
On this application, HBC put forward extensive Because reasonableness is a flexible concept expert evidence aimed at demonstrating the that is shaped by the context, the split between unfairness and ineffectiveness of the impugned the law (as it stands) on this issue in Ontario provision, while Ontario’s record contained and in other Canadian jurisdictions may be of two relatively brief affidavits. HBC’s evidence little practical import. It is hard to see a was irrelevant because the effectiveness or meaningful difference between assessing the wisdom of a regulation is irrelevant. vires of regulations through reasonableness Determining the vires of a regulation is an review, as opposed to a standalone application exercise of statutory interpretation. Evidence of the principles in Katz. Even if one adopts a may be helpful to understanding the factual reasonableness standard of review in such context in which a regulation was made, but matters, the principles in Katz would continue absent a statutory requirement to do so, to inform the assessment of what is required to governments have no obligation to provide satisfy that standard. As the Federal Court put evidence to justify the effectiveness of their it in one case, notwithstanding the fact that policy choices. reasonableness review should apply, “in the context of a vires challenge, other Supreme Commentary: Not all courts share the Court precedents where statutory grants of Divisional Court’s conclusion that despite authority were at issue remain relevant”. The Vavilov, reasonableness review does not apply Federal Court went on to cite extensively from when examining whether regulations are ultra Katz for the relevant principles and largely vires their enabling statutes. Indeed, post- relied on those principles in conducting its Vavilov, most other courts across the country reasonableness analysis.14 that have considered the issue have assessed these kinds of questions through the lens of One might expect the continued relevance of reasonableness review.12 This approach is the principles from Katz (and other pre-Vavilov understandable: in Vavilov, the Supreme jurisprudence dealing with the vires of Court endorsed the view that reasonableness regulations on judicial review) to be particularly review applies “where the legislature has pronounced in circumstances where there are delegated broad authority to an administrative no ‘reasons’ for the regulations in question — decision maker that allows the latter to make which, of course, will be most cases. In such circumstances, Vavilov’s reasons-centric 12 See, for example, 1120732 B.C. Ltd. v. Whistler (Resort approach to reasonableness will be of little Municipality), 2020 BCCA 101 at para. 39 (whether by- practical assistance to reviewing courts, and law falls within statutory authority of municipality); Innovative Medicines Canada v. Canada (Attorney General), 2020 FC 725 at paras. 65-73 (vires of 13 2019 SCC 65 at para. 66 (and para 67). regulations); TransAlta Generation Partnership v. Regina, 14 Innovative Medicines Canada v. Canada (Attorney 2021 ABQB 37 at para. 46 (vires of regulations). General), 2020 FC 725 at paras. 65-73.
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ISSUE 28 • MARCH 2021 the guidance from cases like Katz will effectively set the boundaries of what The ICRC expressed serious concerns about constitutes a reasonable decision or outcome. how the error happened in the first place and found that the error should not have occurred. It concluded that G did not ensure that the
pharmacy had robust policies in place Oral cautions are not penalties: Geris v. regarding return to stock practices. Moreover, Ontario College of Pharmacists, 2020 ONSC G did not ensure that pharmacy staff were 7437 (Div Ct) adhering to processes to make sure that
patients received the correct medication. Facts: G is a licensed pharmacist who was the
“designated manager” of the pharmacy where The ICRC also found that the new policies he worked. Nine days after taking on this role, instituted by G, which allowed bottles that a pharmacist at G’s pharmacy dispensed the contained liquid medication to be reused, wrong medicine to a pediatric patient, which would create a risk of contamination. It stated resulted in the patient being taken to the that without different policies, the risk of a hospital with serious symptoms. The error reoccurrence of the type of error that occurred occurred when a pharmacy assistant added remained high, particularly for liquid liquid medication to a reused bottle that medications. already contained a different medication. The dispensing pharmacist who was supervising As a result, the ICRC decided to issue G an oral the assistant did not notice the error and caution under s. 58 of the Health Professions dispensed the bottle. Procedural Code and to require him to
complete a remedial workshop. G was not present at the pharmacy when the error occurred. After learning about the G sought judicial review of the ICRC decision incident, he ensured that the matter was before the Divisional Court, arguing both that documented, sought to understand how the he was denied procedural fairness and that the error occurred, implemented new policies, and ICRC decision was unreasonable. apologized to the patient’s family.
Decision: Application dismissed. The matter came to the attention of the
Ontario College of Pharmacists and the G was not denied procedural fairness. The Registrar of the College appointed College’s investigation was not inadequate investigators to examine G’s conduct. The because it failed to interview the pharmacy Registrar’s Investigation Report was disclosed assistant to ascertain whether the to G and G provided his response. The matter contaminated bottle was restocked before or then went to the College’s Inquiries, after G became the designated manager. This Complaints and Reports Committee (“ICRC”), determination would not have affected the who considered the matter and released its outcome because the dispensing error decision on May 22, 2020.
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ISSUE 28 • MARCH 2021 occurred when G was designated manager directions are not meant as sanctions or and the ICRC took issue with the polices in penalties but are meant to benefit the place after G became designated manager practitioner and the patients by avoiding and for which he was responsible. future complaints of a similar nature” (para. 33). The educational and remedial nature of Further, G was not prejudiced by delay in the these orders is not altered by the fact that they College proceedings. G had never raised a are recorded on a public register. Further, it concern over delay previously, nor did he was not unreasonable for the ICRC to impose point to any specific prejudice resulting from a more serious remedy on G than the the delay. There was also a reasonable dispensing pharmacist because the regime explanation for the delay because the College makes the designated manager responsible for investigated the dispensing pharmacist first, the policies and practices of the pharmacy — and was only alerted to concerns about G’s which were lacking in this case. G was really role through the course of this investigation. asking the Court to re-weigh the factors underlying the ICRC’s decision and that “is not G was not denied procedural fairness because the role of any court on judicial review, he was not alerted to the fact that his post- especially where remedy is concerned” (para. incident policies were also under investigation. 41). G was clearly aware of his need to address his response to the incident and referred to the Commentary: Practitioners would do well to policies that he instituted both during the pay attention to the Court’s comments investigation and in response to the Registrar’s regarding delay in the administrative body’s Investigation Report. decision as it relates to procedural fairness. Courts may well be skeptical of allegations of The ICRC’s decision to issue an oral caution delay that are raised for the first time on was reasonable. Contrary to G’s arguments, judicial review. If delay is becoming an issue, the ICRC decision did not find G responsible then it is important to raise it early in the for something that he could not control. Upon proceedings — including before the becoming designated manager, G administrative body itself. Further, litigants acknowledged that he was aware of the cannot simply point to the mere lengthy policies and procedures in place at the passage of time as a bare assertion of a denial pharmacy. Even if the contaminated bottle was of procedural fairness. Parties must point to restocked before G became designated specific facts that would establish some form manager, the insufficient policies regarding of prejudice resulting from the delay. restocking containers continued on his watch when the actual dispensing error occurred. In addition, the Court’s decision makes crystal Finally, the ICRC was entitled to find that G’s clear that a caution is not a “penalty” per se, new policies remained insufficient. but rather a remedial measure meant to The ICRC’s decision was not too harsh. protect the public. This is still the case “Cautions and educational or remedial regardless of the fact that the caution may be
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ISSUE 28 • MARCH 2021 published by the disciplinary body and could F’s acquaintance reported another kidnapping therefore have a significant impact on a to him. Again, F did not report it to the TPS. professional’s reputation and career. The Court’s reasons suggest a willingness to afford On learning of this conduct in 2007, the TPS more deference to the ICRC’s decision to issue issued a notice of hearing alleging professional a caution than may have been the case for a misconduct, but those proceedings were more serious remedy amounting to a true adjourned while F responded to the criminal “penalty”. charges pending against him arising from the same events. This approach is relevant for the review of decisions of professional disciplinary bodies The disciplinary action proceeded again in with a variety of potential remedies, ranging 2013 after F was acquitted by a jury. from remedial measures meant to protect the public interest to more punitive measures to S.T. and G.T. were key witnesses at the address professional misconduct. Of course, all disciplinary hearing, as they had been at the remedies issued by professional regulatory criminal trial, but they had left Canada after bodies contain elements aimed at protecting appearing at F’s criminal trial— in part, out of the public (including revoking the licenses of concerns for their safety. The Hearing Officer individuals found to have committed allowed them to appear as witnesses at the professional misconduct). However, where hearing by video link. S.T. gave evidence by practitioners are able to situate the particular video conference. Before G.T. was able to give remedy in their case on this scale may impact testimony, their mother unexpectedly died. how heavily the reviewing court scrutinizes the Rather than cause further delay and expense, body’s reasons for imposing that remedy. the Hearing Officer decided to rely on the transcript of G.T’s evidence from the criminal trial. Use of video testimony and prior transcripts under the SPPA: Floria v. Toronto Police The Hearing Officer concluded, amongst other Service, 2021 ONSC 842 (Div Ct) findings of guilt, that F had brought discredit on the reputation of the TPS for failing to assist Facts: In 2005, F was a constable in Traffic S.T. and report his kidnapping and for failing Services for the Toronto Police Service (“TPS”). to report the second kidnappings. The hearing S.T. and his brother G.T. were working for a officer concluded that dismissal was an marijuana grow-op. S.T. claims that in appropriate penalty for F’s charges of November 2005 he was kidnapped and discreditable conduct. tortured until his boss had paid his ransom. S.T., who knew F socially, reported this crime F appealed to the Ontario Civilian Police to F. Instead of reporting the crime to the TPS, Commission (the “Commission”), but the F launched his own inadequate investigation appeal was dismissed. F then appealed the into the alleged kidnapping. Just weeks later, Commission’s decision to the Divisional Court.
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reliability and be admitted. F was relying on Decision: Appeal dismissed. distinguishable decisions where the opposing party had no opportunity to cross-examine the F was incorrect that the Hearing Officer had no witness on “absolutely key evidence”. The authority to allow S.T. to appear as a witness same was not true here. Just because F was by video link. The Hearing Officer did have the not able to cross-examine G.T. further on jurisdiction and authority to do so. That is certain issues, did not make this a denial of because F’s hearing was not an electronic natural justice. hearing under section 1 of the Statutory Powers Procedure Act.15 Under the SPPA an Commentary: This decision is timely in light of electronic hearing is “a hearing held by the global pandemic that has caused so many conference telephone or some other form of administrative tribunals and decision-makers to electronic technology allowing persons to hear rely on evidence given remotely. The SPPA still one another”. By contrast, the definition of requires tribunals and other administrative “oral hearing” is “a hearing at which the parties bodies to enact rules allowing for electronic or their representatives attend before the hearings where one or both of parties and or tribunal in person” [emphasis added]. F and his the members of the tribunal are not physically representatives were before the tribunal in present. However, where a witness or person. Only S.T. was participating by video. witnesses are not present, this will not qualify As such, s.5.2 of the SPPA, which only allowed as an “electronic hearing” under the SPPA, and a tribunal to hold electronic hearings where it the hearing will not be required to comply with had enacted rules for same, did not apply to the rules for an electronic hearing under s. 5(2) F’s hearing. of the SPPA.
F’s argument that reliance on G.T’s criminal This decision also confirms that tribunals or trial transcript amounted to a breach of natural decision-makers subject to the SPPA may rely justice must also be dismissed. The Hearing on transcripts of witness examinations from Officer had authority to rely on the transcript previous proceedings — and that relying on under s. 15(1) of the SPPA, which allows a such transcripts will not necessarily offend the tribunal to “admit as evidence at a hearing, principles of natural justice. The latter is whether or not given or proven under oath or particularly true where the witness was cross- affirmation or evidence in court, any oral examined during the previous proceedings, testimony and any document or other thing” although the Court’s decision suggests that the that is relevant. After considering that the result may be different if the witness was not evidence was given under oath, cross- cross-examined on issues that are of central examined by F and was in a reliable transcript, importance in the dispute in the current the Hearing Officer concluded that this was disciplinary proceedings. sufficient to meet the test for threshold
15 RSO 1990, c. S.22
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Decision set aside for lack of notice: Sbrissa Following a hearing, the OAA’s Registration v. Ontario Association of Architects, 2021 Committee reinstated S’s licence subject to ONSC 2087 (Div Ct) certain terms but refused to reinstate his certificate of practice, thus curtailing his ability Facts: S practised architecture in Ottawa and to provide independent architectural services had been a member of the Ontario to the public. Concerns about S’s discipline Association of Architects (“OAA”) since 1981. history and prior revocations for nonpayment He lived and worked out of the McGee House, of fees and insurance premiums were central a 138 year old historic building. In the summer to the Committee’s decision. These matters of 2018, the west wall of the building partially were not mentioned in the Registrar’s Notice collapsed. The City of Ottawa issued an order of Proposal. S appealed the Committee’s to S to ‘remedy an unsafe building’. A dispute refusal to grant him a certificate of practice. then ensued between S and the City as to whether the building was unsafe and as to the Decision: Appeal allowed. appropriate method of repair. Since this was a statutory appeal, the Court At the time of the collapse, S’s licence to applied the appellate standards of review practise architecture had been revoked by the according to Housen v. Nikolaisen17: OAA for nonpayment of his practice insurance ‘correctness’ for questions of law and ‘palpable premiums. After subsequently paying the and overriding error’ for questions of fact, or required premiums, S applied for his licence to mixed fact and law found that it was not be reinstated but was notified that the necessary to decide whether or in what Registrar of the OAA proposed to refuse circumstances the OAA may rely on repeated reinstatement of his licence. The Registrar’s defaults in the payment of fees and insurance Notice of Proposal specified two reasons for premiums to refuse re-instatement of a licence the refusal, which pertained to the wall or certificate of practice. That matter was not collapse at McGee House and S’s filing of referred to in the Notice of Proposal. In basing documents with the City representing that the its decision on factors that were not building was safe to occupy. At the hearing, considered by the Registrar in her Notice of however, the Registrar testified that her Proposal, the Registration Committee proposed refusal of S’s licence reinstatement committed an error of law. Section 25 of the was based on her belief that S’s conduct with Act provides that a hearing shall be “in respect respect to the building collapse violated the of a proposal by the Registrar…”. This is a clear good character requirement in the Architects indication that the hearing will address the Act.16 She also relied on S’s disciplinary record subject matter or concerns identified in the and his record of delinquent payment of fees. Registrar’s proposal.
16 R.S.O. 1990, c. A.26, s. 13(1)(a) 17 2002 SCC 33
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The Court explained that the lack of notice The decision reiterates the fundamental resulted in a failure of fairness and due process importance of an individual receiving notice in and prejudice to S who was not represented order to meaningfully exercise the right to be by counsel at the hearing and was placed in heard—especially in a professional regulation the position of dealing with these issues as context where the individual’s conduct is put in they arose at the hearing. The lack of notice issue. The outcome here illustrates the fatal also effectively precluded S from making an consequence that may apply in instances informed decision as to the need to obtain where basic notice is denied. legal representation. This decision is an important reminder of the The Court declined to order the OAA to issue need, when interpreting professional discipline to him a certificate of practice and instead legislation, to balance fairness to professionals remitted to the OAA the question of whether with the protection of the public interest. As further proceedings, based on a proper notice the Court of Appeal for Ontario commented in of proposal, were necessary and justified in the Abdul v. Ontario College of Pharmacists,18 para. circumstances. 18: “while the discipline process against health professional must recognize the public interest Commentary: In a post-Vavilov era, the involved, care must also be taken to accord appellate standards of review from Housen v. that professional the full due process that the Nikolaisen apply to statutory appeals from disciplinary legislation was intended to administrative decision-makers. Questions of provide”. law are reviewed for correctness without the court deferring to the administrative decision- maker.
Here, the Court concluded that the Registration Committee committed an error of law in conducting a hearing into the appellant’s history of payment defaults and other administrative and conduct issues not referred to in the Registrar’s Notice of Proposal. These actions violated the appellant’s right to natural justice and deprived him of a fair hearing. Even prior to Vavilov, procedural fairness issues of this nature were reviewable on a correctness basis (often without any standard of review analysis), whether on judicial review or through statutory appeals. 18 2018 ONCA 699.
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Andrea Gonsalves Justin Safayeni 416.593.3497 416.593.3494 [email protected] [email protected]
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