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Charter - Administrative (2). Association for Reformed Political Action Canada v. Hamilton (City of)
In Association for Reformed Political Action Canada v. Hamilton (City of) (Div Court, 2023) the Divisional Court considered (and granted) a Charter s.2(b) freedom of expression JR, here involving with municipal bus advertising on the conceded basis of inadequate reasons.
In these quotes the court considers the Charter s.1 administrative Dore/Loyola 'balancing' doctrine:[2] The Applicants sought judicial review of the City of Hamilton’s decision not to accept an advertisement that they wished to have posted on City transit vehicles. The proposed advertisement (the “Ad”), submitted in March 2021, was a banner which stated: “We're for women's rights”. Below the banner it stated: “Defendgirls.com”. The Ad had four photographs, which were captioned, respectively: Hers. Hers. Hers. And Hers. The four photographs were of: (a) a smiling woman in her twenties; (b) a smiling girl around 11 years old; (c) a smiling girl around 6 years old; and (d) an ultrasound scan of a fetus in a pregnant woman.
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[7] ... In their Notice of Application, the Applicants submitted, among other things, that the reasons provided for the City’s decision were unreasonable and that the decision violated s. 2(b) of the Canadian Charter of Rights and Freedoms[1], which protects freedom of expression. ...
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The City’s Concession and the Appropriate Remedy
[8] About a week prior to the case being heard, the City conceded that the reasons it provided for rejecting the Ad made no reference to the balancing of the Applicants’ right to freedom of expression against the City's statutory objectives, as required by the Supreme Court of Canada’s decisions in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 ("Doré"), and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 ("Loyola"). It was only in its after-the-fact affidavit that the City asserted that it had performed the balancing of interests.
[9] The City acknowledged, as stated by this Court in Guelph and Area Right to Life v. City of Guelph, 2022 ONSC 43, 160 O.R. (3d) 574 (Div. Ct.), at para. 74, that "... it is improper for the City to try to supplement its reasons for decision for the purpose of the application for judicial review by having the decision maker state after the fact that she considered the matters she was required to consider at the time she made the decision in the absence of any indicia that she did so at the time of the decision.”
[10] The City submitted that just as this Court in Guelph declined to consider what may have been in the mind of the decision maker but was not articulated, the Court must decline to consider what the City may have considered but did not communicate. As its reasons were inadequate, the City submitted that the appropriate course is to remit the matter back to perform a robust Dore/Loyola analysis and to prepare the required reasons . As the City noted, the result of a proper, robust analysis is not a foregone conclusion. . Canada (Public Safety and Emergency Preparedness) v. Ewen
In Canada (Public Safety and Emergency Preparedness) v. Ewen (Fed CA, 2023) the Federal Court of Appeal considered an unusual appeal from interlocutory orders that granted an interim stay of an immigration removal in order to receive the written submissions on court-initiated Charter issues.
In this quote the court considers the propriety of a tribunal raising Charter s.15 issues unilaterally:[25] In several cases, this Court and the Supreme Court have cautioned that an administrative tribunal should not raise a new section 15 Charter issue on its own initiative: see, for example, Weatherley v. Canada (Attorney General), 2021 FCA 158 at para. 20. Similarly, in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, the Supreme Court was quite clear that it was an error for a court of appeal to decide an appeal on the basis of a section 15 Charter violation in the absence of any factual record (paras. 25-27). . Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").
In these quotes the court contrasts the fuller Charter Oakes s.1 test with the administrative Dore-Loyola doctrine:[53] There is no issue that the framework for the Charter analysis is as set out in Doré and Loyola, above, rather than under R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. For a discretionary administrative decision that “engages the protections enumerated in the Charter”, “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that [the decision-maker] is obliged to pursue.”: Loyola, at para. 4, citing Doré. . Peterson v. College of Psychologists of Ontario
In Peterson v. College of Psychologists of Ontario (Div Court, 2023) the Divisional Court considered Charter s.2(b) expressive freedom issues in a judicial review of a regulatory order (here, from the College of Psychologists) that imposed a 'specified continuing education or remedial program' ('SCERP') on a member in relation to social media statements. Note that such orders are not viewed as ones of 'professional discipline, but more ones of maintaining professionalism - particularly wrt non-clinical public statements. They tends to have a much more persuasive (even educational) nature, and in these days of social media, culture wars and COVID they are often quite 'political'.
In these quotes the court reviews the Dore/Loyola doctrine of balancing Charter freedoms in with the administrative mandate of the Psychology Act, 1991, and their interaction with JR standard of review deference ('reasonableness'):Doré and Vavilov – the legal framework
[30] In Doré, the Supreme Court addressed the question of “how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions.” (para. 3.) As the Court elaborated in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, at para. 57 ("Trinity Western"), the Doré framework is "concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context."
[31] This requires an administrative decision-maker, such as the ICRC, to proportionately balance Charter rights and values and its statutory objectives. This is a highly contextual inquiry. A decision-maker must first consider the statutory objectives it is seeking to uphold, and then, secondly, “ask how the Charter value at issue will best be protected in view of the statutory objectives.” This requires conducting a proportionality exercise, balancing “the severity of the interference of the Charter protection with the statutory objectives.” However, as with the proportionality test under s. 1 of the Charter, which will be met if the measure falls within a range of reasonable alternatives, “in the context of a review of an administrative decision for reasonableness, … decision-makers are entitled to a measure of deference so long as the decision…‘falls within a range of possible, acceptable outcomes’.” (Doré at para. 56)
[32] The Supreme Court elaborated on the Doré framework in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 ("Loyola"), and Trinity Western, observing that the Doré approach is not to be a “watered-down version of proportionality”, but is to be “robust.” On an application for judicial review, therefore, the role of the Court is to ensure that the administrative decision-maker “proportionately” balanced the impact on Charter rights and the statutory objectives which “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate” (Loyola, at para. 39).” As the Court stated in Trinity Western at para. 80:Put another way, the Charter protection must be “affected as little as reasonably possible” in light of the applicable statutory objectives (Loyola, at para. 40). When a decision engages the Charter, reasonableness and proportionality become synonymous. Simply put, a decision that has a disproportionate impact on Charter rights is not reasonable. [33] However, it is also clear that the Doré approach still requires deference. A reviewing court need not agree with the outcome, as that would impose a standard of correctness; nor must a decision-maker “choose the option that limits the Charter protection least”; rather, the question is “always whether the decision falls within a range of reasonable outcomes.” (Trinity Western, at para. 81). As Abella J. put it at para. 58 of Doré: “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”
[34] Vavilov does not change the standard of review which remains, clearly, a test of reasonableness, showing deference to, and respect for, decision-makers and their specialized expertise. Rather, Vavilov focuses the reviewing court on “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.” As the Court continued at para. 83:The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem. [35] A reasonable decision, we are told in Vavilov at para. 85, “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” However, reasons “must not be assessed against a standard of perfection”, they need not include all arguments, nor should they “always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge.” As the Court put it, “‘Administrative justice’ will not always look like ‘judicial justice’ and reviewing courts must remain acutely aware of that fact.” (Vavilov, at paras. 91 -92)
[36] Reasons must be read “in light of the history and context of the proceedings in which they were rendered”, including the evidence and submissions of the parties. As the Court continued at para. 94 of Vavilov, “[t]his may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.”
[37] Further, the degree of justification found in reasons, like reasonableness review itself, must reflect the stakes of the decision. As the Court stated at para. 133 of Vavilov:Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood. At paras 38-49 the court applies the case facts to this law, and then continues:[50] High standards are imposed on members of the College of Psychologists who, like members of other regulated professions, take on responsibilities to their profession and to the public. As the Supreme Court observed in Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 SCR 513, at para. 36, “[t]he importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them.”
[51] Even when “off duty”, courts have recognized that members of regulated professions can still harm public trust and confidence in their profession by their statements and conduct. As the British Columbia Court of Appeal put it in Kempling v. British Columbia College of Teachers, 2005 BCCA 327, 255 DLR (4th) 169, at para. 43, citing the Supreme Court in Ross: “When a teacher makes public statements espousing discriminatory views, and when such views are linked to his or her professional position as a teacher, harm to the integrity of the school system is a necessary result.”
[52] A similar situation arose recently in Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513, 164 OR (3d) 433, in which two nurses spoke out on social media and at a public gathering against masks and vaccines during the COVID-19 pandemic. Both identified themselves as registered nurses. The College of Nurses’ ICRC identified concerns with certain statements which were misleading and spread what could be dangerous misinformation. As this Court held, at para. 14:Given its statutory mandate, it was reasonable for the ICRC to be concerned about the Applicants’ statements. As the committee noted, in their public statements, both Applicants identified themselves as health professionals. Ms. Pitter publicly identified herself as a nurse practitioner and Ms. Alviano publicly identified herself as a registered nurse. This not only put the public at risk of being guided by false information, but also risked impacting the reputation of the profession. [53] In Pitter, the Court upheld the ICRC’s direction that the nurses be cautioned and attend remedial education through a SCERP.
[54] Many other professional discipline cases have involved situations in which a member’s misconduct in their personal life, or outside the immediate context of practising their profession, has nevertheless resulted in regulatory action. As observed by Copeland J. (as she then was) in Dr. Jha at para. 119:It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members: Wigglesworth at pp. 562-563; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 at paras 97-98; Re Cwinn and Law Society of Upper Canada (1980), 1980 CanLII 1694 (ON SC), 1980 CanLII 1964, 28 O.R. (2d) 61 (Div. Ct.), leave to appeal refused 28 O.R. (2d) 61n (C.A.); Adams v. Law Society of Alberta, 2000 ABCA 240, 82 Alta. L.R. (3d) 21. [55] Like the legal profession, the health professions recognize limitations on free expression to maintain "boundaries of civility" and professionalism: Ontario (College of Physicians and Surgeons of Ontario) v. Waddell, 2020 ONCPSD 9; Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821; Ontario (College of Physicians and Surgeons of Ontario) v. Wright, 2018 ONCPSD 19.
[56] Here, the Panel of the College of Psychologists’ ICRC – an expert body - reviewed its Code and Standards and expressed concern that Dr. Peterson’s public statements, insofar as they contained degrading and demeaning language, may be inconsistent with its professional standards and could undermine public trust in the profession. The court continues with the Charter balancing - in light of the statutory objects of the Psychology Act, 1991 [paras 57-67] and the Vavilov 'reasonableness' JR standard of review [paras 68-76]. The case attracted a lot of media attention.
. Binance Holdings Limited v The Ontario Securities Commission
In Binance Holdings Limited v The Ontario Securities Commission (Div Court, 2023) the Divisional Court considers a Charter s.8 ['search and seizure'] argument against a regulatory OSC summons and investigation orders:[57] The Summons Amounts to an Unreasonable Search and Seizure and Offends s. 8 of the Charter of Rights and Freedoms: Binance submits that the broad scope of documents described in the Summons, affecting its privacy interests and that of third parties, engages s. 8 of the Charter of Rights. To some extent, this argument relies on a finding that this search was not prescribed by law, where it falls outside of s. 13 of the Act by virtue of being made subject to an improper Investigation Order or by failing to meet the requirements of s. 13. This Charter argument requires a foundation from the previous arguments. As discussed, these are lacking in merit, thus weakening the seriousness of the Charter issue.
[58] Further, the Supreme Court of Canada in British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, confirmed that documents demanded pursuant to securities regulation are subject to a reduced expectation of privacy. There, the majority rejected arguments challenging the power to demand documents in the context of a summons under comparable securities law in B.C. under ss. 7 and 8 of the Charter of Rights.
[59] In Branch, the regulator served summonses on two former officers of Terra Nova, seeking “all information and records […] relating directly or indirectly to Terra Nova and other named companies”.
[60] The majority in Branch confirmed the following general principles concerning the relationship between s. 8 and the reasonableness of searches carried out in this specific regulatory context:. The standard of reasonableness applicable in the criminal context is not the appropriate standard in the administrative/regulatory context (at para. 52, citing Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425);
. The primary goal of securities regulation is investor protection (at para. 54);
. Those who are involved in the business of trading securities do not have a high expectation of privacy with respect to regulatory requirements expressed in securities legislation. It is widely known and accepted that the industry is well regulated, and the reasons for that regulation are also well known (at para. 58);
. The demand for the production of documents by way of a summons is one of the least intrusive of the possible methods used to obtain documentary evidence (at para. 60);
. The important social purpose of securities legislation renders the summons power to obtain documents and things a justifiable intrusion into privacy rights (at para. 61); and
. Documents produced in a regulated, business context attract a diminished degree of privacy than do personal papers (at para. 62, citing La Forest, J. in Thomson Newspapers, at pp. 517-18). . R v Conway
On the general question of when an administrative tribunal has Charter jurisdiction, the Supreme Court of Canada in the 2010 case of R v Conway (SCC, 2010) had to decide whether the Ontario Review Board, established under the Criminal Code to decide custodial issues respecting persons declared not criminally responsible ("NCR") by the courts, was a "court of competent jurisdiction" for the purposes of considering Charter law and granting Charter remedies under s.24(1) of the Charter. The court took the oppourtunity to clarify and summarize the law with respect to when any administrative tribunal could apply Charter s.24(1). The court held that the primary question was (similar to that discussed in Tranchemontagne regarding the Human Rights Code) whether the tribunal generally had jurisdiction to decide questions of law. Unless that was expressly restricted by statute, then the tribunal had Charter s.24(1) jurisdiction, but could only grant remedies within it's conventional remedial jurisdiction: [78] The jurisprudential evolution leads to the following two observations: first, that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them. And secondly, they must act consistently with the Charter and its values when exercising their statutory functions.
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[82] Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function ('Dunedin'). The law prior to this was quite similar, though it focussed on requiring that the tribunal have jurisdiction over the parties, the subject-matter, the law, and the remedies sought.
. Trinity Western University v. Law Society of Upper Canada
In Trinity Western University v. Law Society of Upper Canada (SCC, 2018) the Supreme Court of Canada sets out the administrative law approach used where the Charter is invoked:[30] Administrative decisions that engage the Charter are reviewed based on the framework set out in Doré and Loyola. The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context. In this way, Charter rights are no less robustly protected under an administrative law framework.
[31] Under the precedent established by this Court in Doré and Loyola, the preliminary question is whether the administrative decision engages the Charter by limiting Charter protections — both rights and values (Loyola, at para. 39). If Charter protections are engaged, the question becomes “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré, at para. 57; Loyola, at para. 39). . Ontario Nurses’ Association v. Participating
In Ontario Nurses’ Association v. Participating (Ont CA, 2021) the Court of Appeal explains the role of Charter law in the administrative context [though it was not necessary to apply the Taylor-Baptiste v. Ontario Public Service Employees Union (Ont CA, 2015) case in the appeal]:Charter values and s. 15 Charter rights
[26] The Unions have asserted throughout that the Tribunal and the courts must consider Charter values as an aid to interpret the Act – an argument that was accepted by the Divisional Court. They rely, in part, on this court’s decision in Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, 126 O.R. (3d) 481, leave to appeal refused, [2015] S.C.C.A. No. 412. In Taylor-Baptiste, the court had the following to say about Charter values in the administrative law context, at paras. 54-57:Their first submission is that an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its home or enabling statute at issue in a case….
Binding authority prevents the acceptance of the appellants’ submission. Slightly more than a decade after deciding Bell ExpressVu, the Supreme Court rejected an argument similar to the appellants’ when, in R. v. Clarke, it stated, at para. 16:Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme. The appellants’ second submission is that the Charter values interpretive principle articulated in Doré only applies to instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy. They say it does not apply to the kind of adjudicative decision made by the Tribunal in this case – i.e. whether the respondents’ conduct violated s. 5(1) of the Code.
While I take the appellants’ point that in both Doré and Loyola High School the Supreme Court frequently referred to the exercise of a discretionary power under a home statute, in my view the decision in Doré, when read as a whole, prevents the acceptance of the appellants’ submission. First, in Doré the Court stated that “administrative decisions are always required to consider fundamental values” (emphasis in original). Second, the context which framed the court’s discussion in Doré was analogous to the present case – i.e. the determination by an administrative tribunal about whether a person’s conduct had violated the strictures of a statutory or regulatory rule. [Footnotes omitted.] [27] The Unions further submit on their cross-appeal that, if the Act does not require maintenance using the proxy method, the Act contravenes s. 15 of the Charter.
[28] The PNH and the AGO submit that the Tribunal was not required to consider Charter values because, unlike in Taylor-Baptiste, there was no ambiguity in the statute. They further submit that if Taylor-Baptiste stands for the proposition that administrative actors must always consider Charter values when interpreting statutes, even in the absence of ambiguity, then Taylor-Baptiste was wrongly decided because it is inconsistent with Supreme Court authorities.
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Charter Values
[85] My conclusion that the Tribunal’s decision is unreasonable rests on the application of the modern principle of statutory interpretation. It is unnecessary to determine whether the Tribunal also erred in failing to take into account Charter values in interpreting the Act. While I leave the Charter values issue for another day, I would question the need to resort to a Charter values analysis in a situation like this one where the Charter value in question – equality – is consistent with the purpose of the legislation, which is to redress discrimination in compensation. Accordingly, there is no need to determine whether Taylor-Baptiste was wrongly decided on the question of Charter values.
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