Summaries Sunday: Supreme Advocacy

One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all appeals as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (December 14, 2019 − January 8, 2020 inclusive).

Appeals

Administrative Law/Citizenship: Standard of Review
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (37748)

Standard of Review Summary
1. Default: reasonableness [1]
Rebut in two ways:

• legislature says different standard [2]
• where rule of law so requires [3]

2. Where rule of law requires correctness:

• constitutional questions [4]
• general questions of law [5]
• jurisdictional boundaries between administrative bodies [6]

3. How-to-guide (for reasonableness):

• reasons are the “primary mechanism” [7]
• focus on “decision actually made” [8]
• court not to: ask itself “what decision it would have made”; ascertain “range” of possible conclusions; conduct a de novo analysis; find “correct” solution [9]
• context matters [10]
• perfection not the standard [11]
• be attentive to “specialized knowledge,” and “demonstrated experience and expertise” [12]
• exercise of “public power” to be “justified, intelligible and transparent,” and “formal reasons that fail to justify its decision” are unacceptable [13]
• understand the “reasoning process” [14]
• burden is on party challenging [15]
• unreasonable decision = “failure of rationality internal to … reasoning process,” or “untenable” [16]
• unnecessary to catalogue all “legal or factual considerations”; but relevant elements: governing statutory scheme, other relevant statutory or common law, principles of statutory interpretation, evidence, submissions, past practices/decisions, potential impact [17]
• if no reasons, remit back to decision maker [18]
• if “fail to provide a transparent and intelligible justification,” then decision is unreasonable [19]
• and if no reasons nor record/larger context sheds light, court to still examine decision [20]

 4. Choice of remedy:

• guided by: rationale for standard; proper administration of justice; access to justice; expedient and cost-effective decision making [21]
• elements include: delay, fairness, urgency, nature of regulatory regime, whether decision maker had genuine opportunity to weigh in, costs, efficient use of public resources. [22]

[1] “The starting point … is a presumption that the legislature intended … reasonableness” (para.23). Purpose: “… to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts” (para.33).
[2] In two ways:

• through statute
• providing for a statutory appeal mechanism (para.33)

[3] Para. 17.
[4] Para. 53.
[5] “…of central importance to the legal system as a whole…” (para.53).
[6] Para. 53. And “cease to recognize jurisdictional questions as a distinct category …” (para.65).
[7] Para.81.
[8] Including both “reasoning process” and “outcome” (para.83).
[9] Para. 83. “Instead, the reviewing court must consider only whether the decision made…was unreasonable” (para.83).
[10] Paras.88-90.
[11] Para.91.
[12] Para.93.
[13] Para.95.
[14] Para.99.
[15] Para.100.
[16] Untenable “in light of the relevant factual and legal constraints…” (para.101).
[17] Para.106.
[18] Para.136. But “even without reasons, it is possible for the record and the context [to indicate] improper motive or…another impermissible reason…” (para.137).
[19] Para.136.
[20] “…examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable.” (para.138).
[21] Para.140.
[22] Para.142.

Administrative Law/Telecommunications: Standard of Review; Jurisdiction
Bell Canada v. Canada (Attorney General), 2019 SCC 66 (37896) (37897)

The C.R.T.C. Final Order was issued on the basis of an incorrect interpretation of the scope of the authority conferred under s. 9(1) (h). Properly interpreted, s. 9(1) (h) only authorizes the issuance of mandatory carriage orders — orders that require television service providers to carry specific channels as part of their cable or satellite offerings — that include specified terms and conditions, and does not empower the CRTC to impose terms and conditions on the distribution of programming services generally. Accordingly, because the Final Order does not actually mandate that television service providers distribute a channel that broadcasts the Super Bowl, but instead simply imposes a condition on those that already do, its issuance was not authorized by s. 9(1) (h) of the Broadcasting Act.

Labour Law: Reasonableness Standard
Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 (37787)

The dissenting judge below (Near J.A.), with whom the S.C.C. agreed properly concluded the Appeals Officer’s decision was reasonable, bore the hallmarks of “justification, transparency and intelligibility”, and fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. Far from being internally incoherent, the Appeals Officer’s reasoning demonstrates his in depth understanding of the ways in which Canada Post fulfils the purposes of the Code, bearing in mind the practical limitations of a work place spanning 72 million kilometres of postal routes. With respect to the Union’s position, Canada Post’s ability to carry out some route audits does not imply that it has the capacity to inspect all routes in a year. Before the Appeals Officer, it was undisputed that Canada Post does not have physical control over individual points of call or lines of route, and that many of the points of call are private property, and the Appeals Officer further found that Canada Post cannot alter nor fix the locations in the event of a hazard.

Tax/Constitutional Law: Crown Agents
Canada (Attorney General) v. British Columbia Investment Management Corp., 2019 SCC 63 (38059)

The language of the federal-provincial agreements demonstrates that the Province intended to bind itself to fulfill the obligations found therein. Section 16(6) of the provincial Public Sector Pension Plans Act establishes that B.C. Investment Management Corp.’s. (“BCI”) tax immunities and obligations follow those of the Province; because the language of this provision is broad enough to include obligations voluntarily assumed by the Province, BCI is generally subject to the obligations set out in the agreements to the same extent that the Province would be. However the nature of any specific obligations under those agreements is beyond the scope of the cross-appeal.

Oral Judgments

Criminal Law: Dangerous Driving Causing Bodily Harm
R. v. Collin, 2019 QCCA 887; 2019 SCC 64 (38681)

Karakatsanis J.: “We are of the view that the trial judge made an error of law as regards the applicable test in his analysis of causation. We are also satisfied that the findings of fact made by the judge show that the accused’s dangerous driving significantly contributed to the bodily harm suffered by the victim. We agree with the Court of Appeal that a conviction must be entered on the count of dangerous driving causing bodily harm. The appeal is therefore dismissed and the judgment of the Quebec Court of Appeal is affirmed.”

Private International Law: Jurisdiction; Extraterritoriality
International Air Transport Association v. Instrubel, N.V., 2019 QCCA 78; 2019 SCC 61 (38562)

The Chief Justice: “A majority of this Court is of the opinion to dismiss the appeals with costs throughout, substantially for the reasons of the Court of Appeal save for the matters addressed in obiter. Justice Côté is dissenting. Her reasons will follow.”

Oral Judgments (“Reasons to Follow”)

R. v. Friesen 2018 MBCA 69 (38300)
The Chief Justice: “The appeal is allowed. The sentence of the sentencing judge is restored. Reasons to follow.”

Toronto-Dominion Bank v. Young 2018 QCCA 810 (38242)
The Chief Justice: “A majority of the Court would dismiss the appeal with costs. Reasons to follow.”

Michel v. Graydon 2018 BCCA 449 (38498)
The Chief Justice: “We are unanimous to reinstate the order of Judge G. Smith of the Provincial Court of British Columbia dated September 26, 2016. Therefore, the appeal is allowed with costs throughout. Reasons to follow.”