Constitutional Questions in Administrative Tribunals: Findings of Fact and Remedies
Next week, the Supreme Court of Canada will hear the appeal from Association des cadres de la Société des casinos du Québec c. Société des casinos du Québec, 2022 QCCA 180.
This case sits at the intersection of constitutional law and administrative law. It poses interesting questions about the standard of review for factually infused constitutional issues and the remedies administrative tribunals can grant.
On the one hand, the central issue is one of constitutional law: the Association argues that the statutory exclusion of managers from the definition of “employee” in the Quebec Labour Code and thus from the scope of collective bargaining is a violation of the Charter right to freedom of association (as expansively interpreted by the Supreme Court of Canada). On the other hand, the Association made this argument in the the context of a petition for certification before the provincial labour relations tribunal, which concluded after a detailed factual analysis that the statutory exclusion was inoperative as applied to the Association and consequently granted the petition.
The Superior Court quashed the tribunal’s decision but the Court of Appeal reinstated it. Notably, the Court of Appeal observed at para. 140 that the tribunal had concluded that the effects of the statutory exclusion constituted [translation]:
…a substantial obstacle to the establishment of a genuine collective bargaining process between the parties given their negative impacts on (i) the representativeness and independence of the Association vis-à-vis the Employer and its ability to collectively bargain the working conditions of its members, (ii) the ability of the [supervisors] to carry out a concerted stoppage of work in the context of negotiations and their ability to carry out a concerted stoppage of work in the context of negotiations and (iii) their non-access to an effective dispute resolution mechanism in the event of interference or breach by the Employer of its obligation to bargain in good faith, or in the event of a strike.
In short, “everything” in the tribunal’s analysis pointed to a substantial interference with freedom of association (as defined by the Supreme Court of Canada’s jurisprudence) and, thus, a constitutional violation (at para. 144).
That should have been that but the Court of Appeal went on to issue and suspend the decision of the tribunal for a period of 12 months (at paras. 185-189).
I say that should have been that because the tribunal had no power to issue a declaration of invalidity (Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54,  2 SCR 504, at para. 31; R. v. Lloyd, 2016 SCC 13,  1 SCR 130, at para. 15. cf my comment here on Sullivan) and, quite properly, did not seek to make any such declaration: it found that the statutory exclusion was inoperative and proceeded to certify the bargaining unit; its decision has no force or effect beyond the parties that were before it. On judicial review, the question for the courts was whether the tribunal’s decision should be set aside or not. The constitutionality of the statutory exclusion was not, strictly speaking, a live issue on the application for judicial review.
It was decidedly odd, therefore, for the Court of Appeal to suspend the decision of the tribunal. Suspended declarations are justified where the public is entitled to the benefit of legislation or where legislative action is required to remedy the constitutional defect (Ontario (Attorney General) v. G, 2020 SCC 38, at para. 126). Neither of these considerations was in play here. Indeed, neither of these considerations could ever be in play when an administrative tribunal finds a statutory provision inoperative. Has this ever happened before? I would be grateful for any pointers.
The other question arising at the intersection of constitutional law and administrative law is how much deference, if any, is due to the tribunal in this instance. The standard of review of constitutional questions, such as the consistency of the statutory exclusion with the Charter, is correctness. But what about the factual determinations underpinning the tribunal’s analysis? And, in any event, can the tribunal’s interpretation of the statutory exclusion and the Charter be separated from its factual analysis?
The Supreme Court’s prior utterances on this issue are few in number and difficult to reconcile. On the ‘no deference’ side of the ledger is Westcoast Energy Inc. v. Canada (National Energy Board),  1 SCR 322, a case about whether a pipeline and related facilities constituted a federal undertaking. Iacobucci and Major JJ were sceptical about whether deference would be appropriate on the Board’s application of law to the facts before it:
even questions of mixed law and fact are to be accorded some measure of deference, but this is not so in every case. It would be particularly inappropriate to defer to a tribunal like the Board, the expertise of which lies completely outside the realm of legal analysis, on a question of constitutional interpretation. Questions of this type must be answered correctly and are subject to overriding by the courts. It seems reasonable to accept the proposition that courts are in a better position than administrative tribunals to adjudicate constitutional questions. It is interesting to note that this particular panel’s professional training was not in law. So, although the question here was one of mixed law and fact, it follows that the Board was not entitled to deference because of the nature of the legal question to be answered (at para. 40).
However, Iacobucci and Major JJ went on to observe that the case turned not on the “Board’s conclusions as to the different activities carried on by Westcoast” but on the “constitutional effect” of the conclusions (at para. 42). In other words, there was no attack on the Board’s findings of fact. And when it came to apply the law to those findings, the correctness standard was appropriate. Accordingly, it is difficult to say that Westcoast resolves the deference question one way or another.
In Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at para. 9, albeit addressing the ‘overlapping jurisdiction’ category of correctness review rather ‘constitutional questions’, Brown J was clear that the decision-maker had to be “correct” on the factually suffused question of characterizing the essential character of the dispute between the parties (as relating to labour relations or human rights adjudication). This led me to comment that “when determining whether or not a decision about competing jurisdictional boundaries was lawful, the decision-maker must be correct and the reviewing court must satisfy itself, based on the record, that the decision-maker came to the correct conclusion”.
The most prominent entry on the ‘deference’ side of the ledger is Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16,  2 SCR, where Gascon J commented at para. 46 that deference is appropriate “where the Tribunal acts within its specialized area of expertise, interprets the Quebec Charter and applies that charter’s provisions to the facts to determine whether a complainant has been discriminated against” (see also Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11,  1 SCR 467). But the emphasis on expertise means that the authority of this statement has been weakened by the downgrading of expertise in Vavilov.
Consider also Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53,  3 SCR 407. Here, the issue was whether a company was subject to provincial or federal regulation. A provincial labour relations board held that the company was an interprovincial undertaking subject to federal labour relations legislation. Rothstein J. observed that the board’s “constitutional analysis rested on its factual findings”: “Where it is possible to treat the constitutional analysis separately from the factual findings that underlie it, curial deference is owed to the initial findings of fact” (at para. 26). At first glance, this might appear to be a pro-deference proposition, but on closer inspection, it appears that deference is only appropriate where the constitutional question is can be separated from the underlying factual findings: deference on facts in constitutional cases, but only as long as deference does not influence legal determinations as to constitutionality.
This issue was also discussed in Toussaint v. Canada (Attorney General), 2011 FCA 213,  1 FCR 374, in the context of appellate review rather than judicial review. Whilst deference is appropriate on “factual findings and exercises of discretion that are heavily suffused with facts” (at para. 54), correctness review is often applied in constitutional cases “probably… because of the centrality of the legal issues in such appeals, and the fact that questions of constitutional law are often extricable from the questions of mixed fact and law that arise” (at para. 55).
That said, when a tribunal’s analysis is avowedly fact-specific, the applicable law is context-sensitive and the resultant remedy is narrowly tailored, the case for deference must be at its strongest. The situation in Casinos is arguably analogous to the situation in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29. There, Rowe J suggested that the standard of review of procedural fairness questions arising on appeal would be correctness (a point that most lower court judges who have subsequently considered the matter have emphasized) but the outcome of the case turned on the deference Rowe J accorded to the factually suffused analysis of the decision-maker. (See further Paul Daly, “Future Directions in Standard of Review in Canadian Administrative Law: Substantive Review and Procedural Fairness” (2023) 36 Canadian Journal of Administrative Law & Practice 69). The same could well occur in Casinos. The tribunal (in its intervention factum) makes a powerful argument for deference on these grounds.
Indeed, it is questionable whether correctness is the appropriate standard at all. As the tribunal points out, in Vavilov, correctness is said to apply to certain types of “legal questions” (at para. 53). But is a factually suffused interpretation of a statutory exclusion, in light of a highly context-sensitive Charter provision, which applies just to the parties before a tribunal really a “legal” question? Perhaps not.
One thing is certain: this is potentially a significant case on foundational issues relating to the role of administrative tribunals in interpreting and applying the Constitution of Canada.
This content has been updated on April 15, 2023 at 00:47.