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Charter - s.1 Oakes Test - Minimum Impairment. Covant v. College of Veterinarians of Ontario
In Covant v. College of Veterinarians of Ontario (Ont CA, 2023) the Court of Appeal considered (with leave) a further appeal from a s.35 Veterinarians Act Divisional Court appeal, which was in turn an appeal from a College of Veterinarians of Ontario (CVO) Discipline Committee's order that the appellant had "engaged in professional misconduct by re-selling large quantities of veterinary drugs to human pharmacies, contrary to a newly amended regulation".
In these quotes the court considers the doctrine of 'overbreadth', which can arise as a s.1 Charter issue - assuming that a substantive Charter rights or freedoms issue is present:[35] Generally speaking, s. 7 does not protect economic interests. In particular, “section 7 does not protect the right to practise a particular profession”: see Hamish Stewart, Fundamental Justice, 2nd ed. (Toronto: Irwin Law, 2019), at p. 107. This was the holding of this court in Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1, a case involving the mandatory revocation of a licence to practice medicine as result of the “sexual abuse” of a patient, as defined under s. 51(5) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
[36] Mussani challenged the validity of this provision under ss. 2(d), 7, and 12 of the Charter. Addressing the general scope of Charter protection, Blair J.A. said, at paras. 41 and 43:The weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession…[Citations omitted.]
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I am satisfied, therefore, that there is no constitutionally protected right to practise a profession, and that the mandatory revocation of a health professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter. ....[41] In his supplementary submissions, Dr. Covant clarified that his overbreadth and void for vagueness claims are no longer predicated on a breach of s. 7 of the Charter; instead, he submits that his claims are grounded in the rule of law, a precursor to the doctrines that evolved under s. 7 of the Charter: Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 S.C.R. 139, at p. 210. Further, Dr. Covant relies on vagueness and overbreadth as interpretative tools in relation to the enforcement of municipal by-laws, and other subordinate legislation, including s. 33(d) of the General Regulation. See, for example, Clublink v. Town of Oakville, 2018 ONSC 7395, 143 O.R. (3d) 738, at paras. 74-75 and Wainfleet Wind Energy Inc. v. Wainfleet (Township), 2013 ONSC 2194, 115 O.R. (3d) 64, at para. 31, both addressing alleged vagueness and uncertainty of by-laws.
[42] Acknowledging the authority of Tanase in this context, the College submits that “administrative legislation should generally be interpreted and applied in a manner consistent with the rule of law and basic constitutional values,” and that Dr. Covant is “not precluded from arguing that the regulation in question should not be enforced on the basis of ‘overbreadth’ and ‘vagueness’ on the basis that a regulatory regime should comply with the rule of law.”
[43] It is not necessary to definitively resolve the juristic footing of Dr. Covant’s submissions on this point in order to dispose of this ground of appeal. Whether rooted in the Charter or in more general rule of law considerations, I agree with the findings of the Committee and the Divisional Court that s. 33(2)(d) of the Regulation is not impermissibly vague, nor is it overbroad.
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[47] The question of overbreadth is even more straightforward. Returning to Mussani, the question is whether the means chosen by the legislator are “unnecessarily broad, going beyond what is needed to accomplish the governmental objective”: at para. 69, citing R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761. The rationale provided for the amendment by the College’s Council was “to mitigate the risk of veterinarians engaging in the purchase and sale of drugs for purposes other than to ensure a substance required by patients is legitimately available via a pharmacy or another member.” In my view, the Divisional Court reached the correct conclusion on this issue.
[48] Dr. Covant submits that there was no evidence before the Committee that his conduct created harm to the public and, for this reason, s. 33(2)(d) overshoots the mark. There are two problems with this submission. First, the College is not required to wait for harm to materialize before taking action. Instead, the College is entitled to regulate its members to mitigate risk. Second, this submission amounts to a challenge to the wisdom of the amendment to s. 33(2)(d). Indeed, this was a recurrent theme in a number of Dr. Covant’s submissions. That Dr. Covant does not agree with the Regulation is of no concern to the College, nor to the courts.
[49] Dr. Covant further submits that s. 33(2)(d) is overbroad because, as a result of pharmaceutical companies refusing to supply drugs to human pharmacies, the provision is in effect a categorical prohibition on the re-sale of drugs to pharmacies. I would reject this submission. The College has no control over the sales and marketing strategies of private pharmaceutical entities, something that may or may not shift over time. While pharmaceutical companies may refuse to supply human pharmacies with certain drugs, this does nothing to demonstrate that the impugned section of the Regulation captures conduct beyond what is required to achieve the College’s objective. Section 33(2)(d) is sufficiently tailored to its objective of mitigating the risk of re-sale of drugs for certain purposes, regardless of how this may impact pharmacies’ inventories. . Jacob v. Canada (Attorney General)
In Jacob v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an underinclusive Charter s.15 challenge to the CERB/CRB COVID programs.
The court considers the Charter s.1 Oakes test, here the minimal impairment element:(3) Section 1
[123] Under the Oakes framework, in order to satisfy the s. 1 test, the infringing measure must have a pressing and substantial objective. The infringement must also be proportional: first, it must be rationally connected to the objective; second, the means chosen must impair the infringed right as minimally as possible; and third, the benefits of the infringing measure must outweigh its negative effects.
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[137] As the parties recognize, the s. 1 question in this case turns on the minimal impairment stage of the Oakes analysis. Given that Ms. Jacob does not dispute the first steps of the s. 1 analysis, I would accept that the purpose of the emergency legislation responding to the COVID-19 pandemic, designed to be easy to roll out and administer, meets the threshold of a "pressing and substantial" objective. I would also accept that the $5,000 income threshold and its method of calculation, which were selected as a proxy for a minimum level of recent labour market attachment to justify the temporary, emergency income replacement, are rationally connected to that objective. The question remains, however, whether that threshold was minimally impairing of the rights of workers with disabilities.
[138] At the minimal impairment stage, the court is required to afford the legislature a margin of appreciation: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 999. Canada must establish that the limits chosen fell “within a range of reasonable alternatives” to achieve the legislative objectives, however “courts will not find [the limits] overbroad merely because they can conceive of an alternative which might better tailor objective to infringement”: RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160.
[139] Further, at this stage, a measure of deference should be accorded to the legislature when complex social issues are involved such as, in this case, the emergency public health, social and economic responses to the COVID-19 pandemic: Canada (Attorney General) v. JTI-MacDonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 43; and Ontario v. Trinity Bible Chapel et al., 2023 ONCA 134, 478 D.L.R. (4th) 535, at paras. 97-102, leave to appeal refused, [2023] S.C.C.A. No. 168.
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[144] Legislative amendments which mitigate or ameliorate the infringement of a person’s rights may be an indication that the original infringement was not minimally impairing.
[145] For example, in Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835, the British Columbia Vital Statistics Act, R.S.B.C. 1996, c. 479, which allowed a mother to “unacknowledge” the father of a child on a birth registration and precluded the father from thereafter amending the birth registration to include his information, was found to violate s. 15 and was not upheld under s. 1. Prior to the court’s decision, British Columbia amended the legislation so that the father could apply to court to have the birth registration amended. These amendments were not in issue in the case, but in the minimal impairment analysis, the court pointed out that “the legislature itself has chosen means that are less impairing of the father’s rights” through amendments to the legislation: para. 40. While the court did not consider whether the amendments were an adequate remedy for the constitutional defect, it was clear that they impaired the father’s rights less than the impugned provisions: para. 41. The court stated, at para. 41: “These amendments evidence that the legislature could have chosen less drastic means than it did in the unamended legislation. Therefore, the impugned provisions were not minimally impairing as they fell short of a less impairing alternative crafted by the legislature itself.”
[146] On the other hand, where, as here, a Charter challenge covers a period of time involving successive legislative amendment, those amendments may indicate the legislature or government was alive and responsive to the rights-infringing concerns.
[147] In Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344, aff’d 2023 ONCA 134, leave to appeal dismissed, [2023] S.C.C.A. No. 168, the court dealt with a constitutional challenge to the province’s restrictions on religious gatherings. The restrictions were imposed on the public via regulations. There were different restrictions at different times, depending on the severity of COVID in the province. Not every regulation was challenged, but those challenged placed numerical caps or percentage capacity limits on attendance. The application judge had found that the regulations infringed s. 2(a) of the Charter but were justified under s. 1. In the minimal impairment analysis, she referred to the fact that the restrictions were “tailored and modified.” In other words, the various modifications to the regulations showed that, as a whole, the regulations were minimally impairing.
[148] In upholding this decision, this court noted that “Ontario ensured the restrictions were time-limited and regularly revisited”, again referring to the fact that the restrictions went through several modifications throughout the pandemic: at para. 119.
[149] The modifications in Trinity Bible Chapel were evidence of minimal impairment because they were evidence that the government was tailoring the restrictions in a dynamic and evolving factual matrix. As McLachlin C.J. and Deschamps J. explained in Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 94, “[t]he Court will not interfere simply because it can think of a better, less intrusive way to manage the problem … [w]hat is required is that the [government concerned] establish that it has tailored the limit to the exigencies of the problem in a reasonable way.”
[150] In my view, this description also captures Canada’s response to the COVID-19 emergency through the design and evolution of CERB and the CRB. These were time-limited programs, responsive to an emergency situation, which evolved over the period of time covered by the application to include additional accommodations which responded to the situation of workers with disabilities such as Ms. Jacob.
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[154] The suite of new and modified benefits brought in after the expiry of the CERB program also represented a reasonable and tailored response to the challenges of that time. In light of the deference to be afforded to the legislature at the minimal impairment stage of the s. 1 analysis when complex social and policy issues are at stake, I am not able to conclude that Canada’s responses to COVID-19 over the period covered by the application failed to minimally impair Ms. Jacob’s rights.
[155] Even aside from the mid-course correction by Canada highlighted above, I would conclude Canada satisfied the minimal impairment threshold in light of the extraordinary nature of the crisis facing the Government in the COVID-19 pandemic, together with the temporary and emergency nature of the CERB and CRB programs.
[156] The Supreme Court addressed the greater “margin of appreciation” for Government action in responding to emergency contexts in the s. 1 minimal impairment analysis in Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, at para. 84. In holding that the delay of pay-equity settlement payments to claimants was justified as a response to the fiscal situation facing the province, Binnie J. emphasized in N.A.P.E. that an exceptional crisis may justify an exceptional response. A similar conclusion applies in this context. . R. v. Pike
In R. v. Pike (Ont CA, 2024) the Ontario Court of Appeal considers the 'minimal impairment' element of Charter s.1:Minimal Impairment
[95] However, I agree with the trial judge that the next step, minimal impairment, is fatal to the law’s constitutionality and shows that the law infringes s. 8 of the Charter. Laws pass this step if they limit the right “as little as reasonably possible” to achieve the legislature’s purpose: Brown, at para. 135. They fail this step if alternative means that limit the Charter right less severely would allow the government to fully realize its objective: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 70, 75-76. Courts can test the government’s assertions against its actions to determine this. For instance, the government could not justify an absolute liability offence’s limit on s. 7 rights because Parliament, by adopting a due diligence defence covering the same prohibited conduct, had all but admitted that the rights-limiting measure was not necessary: R. v. Hess, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906, at pp. 925-926; see also Goodwin, at paras. 84-85. In my view, courts may draw the same conclusion when the agency Parliament tasks with administering a legislative scheme concludes that less restrictive alternatives are adequate to advance its mandate. . Amalgamated Transit Union, Local 113 v. Ontario
In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].
Here the court considers the 'minimal impairment' element of the Charter s.1 proportionality test:(2) Minimal impairment
(1) The legal framework
[106] In Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 102, the Supreme Court of Canada provided the following summary of the minimal impairment stage of the Oakes proportionality analysis:At this stage of the analysis, the question is whether the limit on the right is reasonably tailored to the objective. The inquiry into minimal impairment asks “whether there are less harmful means of achieving the legislative goal”. The burden is on the government to show the absence of less drastic means of achieving the objective “in a real and substantial manner.” The analysis at this stage is meant to ensure that the deprivation of Charter rights is confined to what is reasonably necessary to achieve the state’s object. [Citations omitted.] [107] In OECTA, at para. 200, Favreau J.A. summarized the governing principles in the following terms:In Libman v. Quebec (Attorney General), the Supreme Court emphasized that “the law must be carefully tailored so that rights are impaired no more than necessary.” While the court accords deference to the legislature’s choices, deference does not insulate the government from having to demonstrate that an impugned measure is minimally impairing and justified under s. 1. At the same time, however, legislators are not held to a level of perfection; the court should not find a law minimally impairing because it can “conceive of an alternative which might better tailor the objective to infringement.” [Citations omitted.] [108] Whether legislation meets the minimal impairment requirement of Oakes is a question of law, reviewable on a correctness standard. However, to the extent that this question depends on findings of fact, these findings attract appellate deference and are reviewable on the palpable and overriding error standard. . Ontario English Catholic Teachers Association v. Ontario (Attorney General) [minimal impairment]
In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly denied) a Crown appeal from a successful lower court Charter s.2(d) ['freedom of association'] application by unions and employees associations against Ontario legislation ['Protecting a Sustainable Public Sector for Future Generations Act, 2019' (PSPSFGA)] limiting public sector salary raises by statute:
In these quotes, the court considers the 'minimal impairment' step of the s.1 Charter 'balancing' test - here after finding a s.2(b) freedom of association violation:(i) General principles
[199] In Carter, at para. 102, the Supreme Court explained this stage of the Oakes analysis as follows:At this stage of the analysis, the question is whether the limit on the right is reasonably tailored to the objective. The inquiry into minimal impairment asks “whether there are less harmful means of achieving the legislative goal” (Hutterian Brethren, at para. 53). The burden is on the government to show the absence of less drastic means of achieving the objective “in a real and substantial manner” (ibid., at para. 55). The analysis at this stage is meant to ensure that the deprivation of Charter rights is confined to what is reasonably necessary to achieve the state’s object. [200] In Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, the Supreme Court emphasized that “the law must be carefully tailored so that rights are impaired no more than necessary”: at para. 58, citing RJR-MacDonald Inc., at para. 134. While the court accords deference to the legislature’s choices, deference does not insulate the government from having to demonstrate that an impugned measure is minimally impairing and justified under s. 1: U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 S.C.R. 1083, at paras. 62-64. At the same time, however, legislators are not held to a level of perfection; the court should not find a law minimally impairing because it can “conceive of an alternative which might better tailor the objective to infringement”: Libman, at para. 58; see also Martin, at para. 112.
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(iii) The Act is not minimally impairing
[205] I agree with the application judge that the Act is not minimally impairing essentially for the reasons he provided.
[206] Ontario provided no evidence that the province could not achieve the same goals through collective bargaining with the employees under its direct employment and by capping the funding it provides to broader public sector employers thereby limiting the money those employers would have available for collective bargaining with their employees.
[207] As discussed above, the province had not tried to negotiate collective agreements with the respondents in which it put forward the position that it would not agree to increases in compensation above 1% per year. There was no evidence that further negotiation would be futile. As noted by the application judge and as discussed above, there were several examples in the record of agreements in prior years where wage increases were capped at 0%, not even allowing for increases that accounted for inflation. In addition, while I accept that Ontario’s objective is pressing and substantial, there is no evidence of urgency or of an imminent need to impose a cap on compensation increases, such that there was no time to achieve the desired cost savings through negotiations.
[208] As also discussed above, the right to collective bargaining protected by s. 2(d) is not a right to an outcome but a right to a process of collective bargaining. In my view, Ontario has failed to explain why, in this case, the right to such a process should be infringed without first attempting to engage in a process of good faith bargaining.
[209] Ultimately, the only potential rationale for obviating the process of collective bargaining is expediency. However, in the absence of any evidence showing a need for expediency, imposing broad-based legislation of this nature is not minimally impairing.
[210] Ontario argues that at the minimal impairment stage of the analysis, the court is only permitted to look at whether different legislative provisions could have been implemented that would be less impairing and that it was improper for the application judge to consider voluntary wage restraint as an alternative because this was not a legislative alternative. I reject this argument. Ontario has provided no authority for this position. More importantly, in the context of a s. 2(d) analysis, it is logically relevant to consider whether the government’s goals can be achieved without impeding the process of collective bargaining through legislation.
[211] Even if one were to accept Ontario’s argument that the only appropriate comparator on a minimal impairment analysis must be legislative, Ontario has failed to demonstrate that the Act is minimally impairing of the respondents’ collective bargain rights. Notably, as discussed above, the government’s failure to implement a meaningful process that would allow for exemptions demonstrates that the Act is not minimally impairing. I accept that a meaningful exemption process could provide evidence that legislation is carefully tailored to meet its objective by providing a mechanism to alleviate against a law’s potential disproportionate impact in a particular case. In this case, however, for the reasons discussed above, there is no evidence that the exemption process in s. 27 of the Act has provided such a mechanism. Ontario has not advanced evidence to establish that, as implemented, the exemption process affords a meaningful channel for negotiation and collective bargaining.
[212] Accordingly, I find that Ontario has not demonstrated that the Act is minimally impairing.
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