Refreshing the Places Other Frameworks Cannot Reach
Heineken once ran an advertising campaign claiming it was the beer that refreshed the parts other beers cannot. As Ian MacKenzie notes in a kind review of A Culture of Justification: Vavilov and the Future of Administrative Law, I think that the framework for judicial review of administrative action set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65,  4 SCR 653 can make a similar claim. True, the proportion of decisions upheld under Vavilov is probably little different from the proportion upheld under its predecessors. Nonetheless, Vavilov raised the bar and, in some areas, its effects have been keenly felt.
In this post I want to highlight some recent cases on ministerial discretion, high-volume decision-making and professional discipline. Of course, not every case decided under the Vavilov framework will come out in favour of the applicant. On balance, however, these cases support the proposition that Vavilov has made a meaningful difference in some areas, because of the new requirement that administrative decisions be justified rather than simply justifiable. I will also comment at the end on the high-profile decision in a case involving Jordan Peterson, which in my view was wrongly decided and should be reversed on appeal (should leave be granted, which I think it should).
Consider, first, Shell Canada Limited v Alberta (Energy), 2023 ABCA 230. This was a case relating to the calculation of royalties payable to the province from a Shell oil sands project. Alberta Energy audited the project and disallowed some costs claimed by Shell. Shell appealed under the applicable regulations but the Director of Dispute Resolution found that under the ordinary and grammatical sense of the regulations the costs were properly disallowed. Shell then applied for the appointment of a Dispute Resolution Committee. The Minister refused to convene a DRC, on the basis that Shell’s position on the underlying point of interpretation was wholly without merit:
The department’s position in this matter is that the interpretation requested by Shell in relation to “solely dedicated” costs is inconsistent with the regulations as written. The regulations remain the legal framework within which such matters must be reviewed.
This was the entirety of the reasoning on the underlying point of interpretation. Unsurprisingly, the Court of Appeal found that it was unreasonable:
The Minister’s reasons do not explain the analysis undertaken or test applied to determine that Shell’s position was “without merit”. The reasons simply repeat the department’s position that Shell’s interpretation was “inconsistent with the regulations as written”. The reasons do not disclose the reasoning process that led to that conclusion, fail to address the context and purpose of the regulations and, in the result, do not bear the “the hallmarks of reasonableness — justification, transparency and intelligibility” (at para. 23).
As Shell’s position could not be said to be manifestly unfounded, this was not enough by way of justification. Interestingly, because the Minister had taken so long — 3 years! — to respond to Shell, the reviewing judge had not only ordered the Minister to convene a DRC but also formulated the question for the DRC. The Court of appeal considered that this was the appropriate course of remedial action in the circumstances.
Traditionally, ministerial discretion has been subject to deferential review by the courts, in part because of the possibility of political accountability through the legislature. But this decision is evidence that there is no Vavilov opt-out for ministers; whatever about political accountability, they have to demonstrate responsiveness to the satisfaction of the courts.
Another Alberta example, this time relating to high-volume decision-making, comes from Smit v Alberta (Director of SafeRoads), 2023 ABKB 435 . At issue here was a decision by an adjudicator who upheld a roadside penalty imposed on S for drink driving: S had failed a breathalyzer after veering off the road and driving into a lamppost. I confess that I am familiar with these adjudicators because I am regularly alerted to swathes of decisions they make. In 2022, they made just under 2000. In particular, I have an RSS alert for decisions mentioning Dore v Barreau du Québec, which virtually all of these decisions do — but the reference to Doré comes in an appendix to the decision setting out, in boilerplate form, the applicable legal principles.
In this case, as it happens, the adjudicator’s approach to the Doré issue was held to be reasonable, as no Charter interests were at stake (a conclusion that is slightly too quick, in my view). However, the adjudicator’s decision to uphold the penalty was unreasonable on other grounds, one of which was the failure to justify the refusal to consider video evidence from the police officer’s body and car cameras. The officer had failed to either provide video evidence or to advise that none was available. It was unreasonable for the adjudicator to rely on this refusal:
That is, the Adjudicator failed to consider that any such existing evidence would be highly reliable and potentially dispositive of the events at issue, and would be relatively easy and inexpensive to produce. In other words, the Adjudicator failed to consider that the search for truth was seriously compromised by Cst. Lal’s refusal to disclose the best available evidence, or alternatively, to advise that it did not exist. Instead, the Adjudicator’s primary basis for dismissing the Applicant’s submissions in relation to this ground was that “In most cases, this function [of determining the basis for the issuance of the NAP] is fulfilled by the records required under Sections 2(a) and 2(b) of the Regulation, and I am satisfied that this case is no exception” (para. 15). With respect, the fact that other evidence exists is not a valid basis for excluding the best evidence that exists, and the Applicant was not required to bring herself within any “exception”, since no such exception is known to the law (at paras. 98-99)
This was a classic failure of justification. Even when dealing with a high volume of matters, a decision-maker must respond to the arguments made by the individual concerned. And, of course, responsiveness means actually grappling with the argument, providing meaningful reasons in response. When under time pressure, an adjudicator may release reasons that are shorter and more to the point than Vavilovian responsiveness might require — as with the principles of procedural fairness, when shortcomings that might be attributable to high volumes run into the common law, it is the common law that prevails.
The Federal Court deals with a large amount of front-line decisions produced in high-volume environments. The requirements of responsiveness in relation to visa applications by those wishing to come temporarily to Canada are well known (see e.g. Rodriguez Martinez v. Canada (Citizenship and Immigration), 2020 FC 293).
More recently, they have been extended to decisions on entitlement to COVID-19 tax benefits, as in Mitchell v. Canada (Attorney General), 2023 FC 858 . M had received the Canada Emergency Response Benefit but the Canada Revenue Agency subsequently conducted a review and concluded that M had not met the income threshold. At M’s request another officer reviewed this decision but also concluded that she was ineligible because she had voluntarily ceased work for reasons unrelated to COVID-19. What had happened was that M was diagnosed with a disease pre-pandemic, was put on COVID leave by her employer and due to pandemic-induced delays in the medical system was not cleared to return to work for several months. M made these points clear to the decision-maker, who did not engage with them and also concluded, apparently without any evidence, that M had chosen to quit her job.
Go J held that the decision was unreasonable:
On the whole, I am unable to discern from the Decision, the Officer’s notes and the Officer’s Second Review Report, whether or not the Officer did in fact consider the information provided by the Applicant with respect to her diagnosis and her being placed on COVID leave status at work, when finding the Applicant not eligible for CERB. Further, I find the Officer mischaracterized the information provided by the Applicant by stating that the Applicant did not want to return to work and that she ““quit her job voluntarily.”” As such, the Decision is unreasonable (at para. 24).
This was a front-line decision by an officer in a high-volume environment. It is quite possible that institutional context makes responsive decision-making more difficult. Again, however, context is not an excuse for manifest failures of responsiveness.
I want to turn, lastly, to screening decisions by professional disciplinary bodies. I am not, here, concerned with matters that proceed to a full disciplinary hearing through a highly formal process. Rather, I am interested in decisions — sometimes described as “screening” decisions — about whether it is appropriate to send a regulated professional to a formal disciplinary hearing. When making such decisions, the disciplinary body might well impose lesser sanctions designed to punish behaviour that is not thought to warrant more serious consequences.
The decision in Law Society of Newfoundland and Labrador v Buckingham, 2023 NLCA 17 is instructive. B’s client died while in custody in the provincial correctional system. In media comments, B suggested that correctional officers were responsible for the death. A trade union for public employees complained to the Law Society and, after some back and forth, the matter was referred to the Complaints Authorization Committee. The Committee concluded that B was deserving of sanction (though it did not refer the matter for a formal hearing) and issued a “Letter of Counsel”. The Committee believed that it was not under any duty to give reasons and so, in issuing the Letter, it simply stated that it was doing so based on the information on file:
The Committee noted that at the time [Mr. Buckingham] gave these two public statements, the evidence to support them did not exist. The record demonstrated that [Mr. Buckingham] provided these statements on November 8, 2019 and that the death was ruled a homicide in December 2019.
O’Brien JA quashed the decision for unreasonableness, noting how Vavilov “affirmed the need to develop and strengthen a culture of justification in administrative decision-making” (at para. 44). He emphasized that in this instance, the Committee was making a final decision and that in such a context “usually more will be needed to explain the result to the people affected because there will not be any further opportunity for them to be heard” (at para. 53). Critically, B’s response to the allegations was part of the factual matrix and something the Committee was obliged to respond to (at para. 55). In addition, there would be important consequences for B in the future should he face other disciplinary proceedings or seek a judicial appointment. Given these constraints, the decision was unreasonable for want of justification:
The Letter of Counsel had significant consequences for Mr. Buckingham. Law Society rules required him to respond to NAPE’s allegations of professional misconduct. He responded with relevant submissions. In this context, the CAC could not reasonably issue a counsel or caution without addressing Mr. Buckingham’s key arguments (at para. 86)
O’Brien JA also found that there were gaps in the Committee’s decision (in relation to the absence of evidence for B’s statement and the application of the disciplinary code to the facts), which was an independent ground for a conclusion of unreasonableness.
Therefore, even a mere screening decision — which resulted in a more favorable outcome for B than a reference to a formal disciplinary hearing — triggers the requirements of Vavilov and obliges decision-makers to be responsive.
This leads me, finally, to the recent decision in Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685. The Registrar of the College conducted an investigation into P’s activities on social media and reported to the Inquiries, Complaints and Reports Committee. The Committee engaged with P and found that some of the activities did not require further action. However, it formed the view that P had made public statements (whilst identified as a psychologist) that may be demeaning, degrading and unprofessional and proposed that P engage in remedial coaching with a person to be identified by the Committee. P rejected this proposition and the Committee subsequently released a decision imposing a remedial programme. In its decision, the Committee commented:
The Panel is concerned that making public statements that may be inconsistent with the professional standards, policies, and ethics currently adopted by the College poses moderate risks of harm to the public. These potential harms include undermining public trust in the profession of psychology, and trust in the College’s ability to regulate the profession in the public interest. Public statements of this nature may also raise questions about Dr. Peterson’s ability to appropriately carry out his responsibilities as a registered psychologist. While Dr. Peterson may not currently have an active clinical practice, he continues to be registered and authorized to do so. Furthermore, public statements that are demeaning, degrading, and unprofessional may cause harm, both to the people they are directed at, and to the impacted and other communities more broadly.
In terms of P’s Charter protected right to freedom of expression — which he vigorously relied upon throughout his engagement with the College — the Committee had relatively little to say. As summarized by the Divisional Court (at para. 57), the Committee:
acknowledged Dr. Peterson’s submission that his “conduct on Twitter is protected by his right to freedom of expression and is unrelated to his practice of psychology.” However, as the Panel noted, while Dr. Peterson has a constitutional right to freedom of expression, “as a member of the College of Psychologists, he is also obligated to maintain the professional standards of the College” which “includes ensuring that any public statements made are consistent with the professional standards, policies and ethics currently adopted by the College. This is especially the case where Dr. Peterson identifies himself as a member of the profession.”
That was it, apart from the Committee having “noted” P’s invocation of his constitutional rights earlier in its decision (at para. 59). Nonetheless, Schabas J found that the Committee’s brief consideration of the Charter was sufficient for the purposes of reasonableness review:
The fact that the Decision did not provide a detailed discussion of the value of freedom of expression does not mean the ICRC did not appropriately consider it. Furthermore, the ICRC should not be expected to do so. The ICRC is, essentially, a screening body. It reviews complaints and investigations and, where appropriate, sends cases to a disciplinary hearing for adjudication, in which case its decision is not even subject to judicial review as the process has not run its course: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 OR (3d) 561, at para. 68. The ICRC, however, also has other, less serious options available to it to address concerns that may be raised by a complaint or complaints, including directing a SCERP, which is not disciplinary, but remedial (at para. 62).
This reasoning is diametrically opposed to that of the Newfoundland and Labrador Court of Appeal in Buckingham and out of step with the consistent line taken by Canadian courts post-Vavilov that there are no decision-making settings where responsive justification is not required. No one expects a screening body to produce a treatise on the law of freedom of expression and the appropriate limits of speech of regulated professionals: but responsiveness requires meaningful grappling with the interests at stake and arguments made. It is difficult to see how the passing references to the Charter in the Committee’s decision represent the responsive engagement required by Vavilov.
Indeed, P’s Charter rights were at stake (not merely Charter values), which imposes a requirement to demonstrate that “the decision-maker has furthered his or her statutory mandate in a manner that is proportionate to the resulting limitation on the Charter right” (Law Society of British Columbia v. Trinity Western University, 2018 SCC 32,  2 SCR 293, at para. 82; see further here). In Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, at para. 151 the Ontario Court of Appeal insisted that a “robust analysis” is required when Charter “rights” are in play. Schabas J distinguished Lauzon on the basis that it did not involve a screening decision (at para. 73) but even if some allowance is made for the institutional setting in which the Committee’s decision is made, context cannot provide absolution for a basic failure of responsiveness.
Schabas J also seemed to suggest (at paras. 63-66) that it could be inferred from the decision that the Committee sought to narrowly tailor its decision to minimally interfere with P’s rights. The Federal Court of Appeal recently roundly rejected a similar argument (advanced by me as amicus curiae) in Société Radio-Canada v. Canada (Attorney General), 2023 FCA 131. I made that argument because, for various reasons relating to the procedural posture of Radio Canada’s appeal, the standard of correctness (and arguably a different standard for sufficiency of reasons) applied. But had reasonableness been the standard of review, the decision would have been doomed to be struck down, as the decision in Peterson should have been. In short, the Federal Court of Appeal’s analysis applies a fortiori to Peterson: where the Charter is concerned, responsive justification is not to be inferred but must be demonstrated.
To return to where I began, it seems to me that Vavilov has been successful in refreshing the parts of the administrative state that previous frameworks did not reach. Of course, this is an ongoing project so errors and omissions are to be expected (and carceral institutions seem to be a notable exception so far). Nonetheless, the broad outlines are clear: an institutional setting is relevant to assessing the reasonableness of a decision but context does not provide a decision-maker who has written deficient reasons with a ‘get out of jail free’ card. In his review, Ian Mackenzie wonders whether this should prompt us to ask difficult questions about the tension between responsiveness and efficiency. This is a legitimate concern. But whilst I recognize that responsiveness may be time consuming and difficult (without overstating its demands either), these decisions indicate that, post-Vavilov, Canadian courts give greater weight to responsiveness than to efficiency when the two come into conflict.
This content has been updated on September 7, 2023 at 10:52.