Jul 5, 2018

SCC casts doubt on the contextual approach and true questions of jurisdiction

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 (CanLII)

FACTS: In two separate decisions, the Canadian Human Rights Tribunal dismissed several complaints alleging that Indian and Northern Affairs Canada engaged in a discriminatory practice in the provision of services contrary to s 5 of the Canadian Human Rights Act. Specifically, the complaints were based on the denial of registration entitlements under certain provisions of the Indian Act. The Tribunal determined that the complaints were a direct attack on provisions of the Indian Act and that legislation is not a “service” under the CHRA. The Commission sought judicial review. Its application was dismissed by the Federal Court and that decision was upheld by the Federal Court of Appeal. The Commission appealed to the Supreme Court of Canada.

DECISION: Appeal dismissed (Côté, Rowe and Brown JJ concurring).

In reasons authored by Gascon J, the majority held that the reasonableness standard of review applied. The Tribunal was required to characterise the complaints before it and ascertain whether a discriminatory practice under the CHRA had been proven. That exercise falls squarely within the presumption of deferential review. The presumption arises where an administrative body interprets its home statute, but may be rebutted, and the correctness standard applied, where the issue under review falls within one of the established categories of correctness review or where a contextual inquiry shows a clear legislative intent that the correctness standard be applied.

The majority went on to comment at length, in obiter, about three bases for correctness review: true questions of vires, questions of central importance outside the Tribunal’s expertise, and contextual analysis. Regarding true questions of jurisdiction, the majority rejected the suggestion that the Tribunal was faced with such a question in determining what falls within the meaning of “services” in the CHRA. They commented that it is a challenge to identify a true question of jurisdiction in a coherent manner without returning to the jurisdiction/ preliminary question doctrine that was rejected in CUPE v New Brunswick Liquor Corp[1] and Dunsmuir v New Brunswick.[2] Since Dunsmuir a majority of the Court has not found a single instance where the category applied. Nonetheless, litigants and judges return to a broad understanding of jurisdiction as justification for correctness review, contrary to the Court’s jurisprudence. While the category may have conceptual value for some, it is questionable whether that value justifies the resources devoted to clarifying such an “inherently nebulous concept”. Indeed, the reasonableness standard allows a reviewing court to deal with the principles of rule of law and legislative supremacy that lie at the core of judicial review, and thus is sufficient to fulfill the courts’ role in supervising statutory power.

As for questions of central importance, the majority noted that the Court has repeatedly rejected a liberal application of that category and that the Tribunal has expertise in determining what is meant by a discriminatory practice.

With respect to the contextual approach, Gascon J opined that in the interests of simplicity, where the presumption of reasonableness applies the contextual approach should play a subordinate role in the standard of review analysis. The contextual approach should be applied sparingly. The presumption of reasonableness review and the identified categories will generally be sufficient to determine the standard of review. In exceptional cases where a contextual analysis may be justified to rebut the presumption, the analysis need not be long or detailed. The analysis has generally been limited to determinative factors that show a clear legislative intent justifying the rebuttal of the presumption. The majority disagreed with the application of the contextual analysis in this case by Côté and Rowe JJ.

Applying the reasonableness standard, the majority found that the Tribunal provided careful and well-considered reasons explaining why the complaints had not established a discriminatory practice under the CHRA. In coming to its conclusions, the Tribunal considered the complainants’ evidence, and submissions, the governing jurisdiction, and the purpose, nature and scheme of the CHRA, and relevant policy considerations. The decisions meet the standard of intelligibility, transparency and justifiability, and fall within the range of reasonable outcomes.

Justices Côté and Rowe agreed that the appeal should be dismissed, but they would have applied the correctness standard of review. They accepted that reasonableness presumptively applied since the interpretation of s 5 of the CHRA was at issue, but in their view the presumption was rebutted. The concurring judges distanced themselves from the majority’s comments on the category of jurisdictional questions – a concept tied to fundamental principles underlying judicial review. They also disagreed that a contextual analysis should play a subordinate role in determining the appropriate standard of review. In their view, the absence of a privative clause, the need for consistent interpretations of human rights protections across jurisdictions, and the fact that the primacy of human rights law has constitutional dimensions all indicate that deference is not appropriate. In their view, challenges to legislation cannot be brought under s 5 of the CHRA.

Justice Brown wrote separate reasons to express his own concerns about the majority’s statements on jurisdictional questions and the contextual analysis.

COMMENTARY: Although overshadowed by some of the more newsworthy administrative law decisions discussed in this issue, the Canadian Human Rights Commission case reveals the depth of the rift on the Court regarding the approach to standard of review. The case demonstrates the seismic challenge that faces the Court in finding a clear, coherent, unanimous approach to standard of review when it revisits Dunsmuir later this year.

As with other cases, Côté, Rowe and Brown JJ show in Canadian Human Rights Commission that they are much more comfortable with correctness review than the other members of the Court. And there are the recurring debates around the continued existence and value of the “true questions of jurisdiction” category, and the scope of the “questions of central importance” category. Wisely, all judges agreed that those debates will need to be resolved in future cases where they are squarely before the Court and have the benefit of full argument by counsel.

What is new in this case is the strong disagreement among members of the Court as to the proper role of the contextual analysis. Granted, Dunsmuir has long been criticized by some for its lack of clarity on the proper interaction between the categories of review identified in Dunsmuir, and the contextual analysis. But Canadian Human Rights Commission makes the first time that a majority has suggested that the contextual factors play only a “subordinate” and “ancillary” role, and should be applied “sparingly”. Indeed, the majority expressly disagreed with their colleagues that the standard of review framework requires correctness review whenever the contextual factors point towards correctness as the appropriate standard. This statement may come as a surprise to those who read Dunsmuir as requiring exactly that: correctness review where the context analysis points to correctness as the appropriate standard. Regrettably, the majority provides no alternative explanation of how the contextual analysis should work, or in what circumstances contextual factors pointing to correctness review will require the correctness standard.

The majority’s comments reducing the contextual analysis to an unclear but clearly subordinate role suggest that litigants in any case will face an uphill battle relying on the contextual factors to rebut the presumption of reasonableness review of a tribunal’s interpretation of its home statute (or a statute with which it has special familiarity). And since nearly any issue raised on judicial review can be characterized as a tribunal’s interpretation of its home statute, the majority’s approach in Canadian Human Rights Commission portends a situation of virtually universal and unrebuttable reasonableness review, not dissimilar from the single standard of review approach for which Abella J advocated in Wilson v Atomic Energy of Canada Ltd.[3]

The concurring judges seem prepared to make a last stand in favour of correctness review, but continue to be outnumbered on the Court. Until the Court’s complement changes, the narrowing of correctness review likely will continue. However, the practice of so-called “disguised correctness” is not necessarily decreasing despite the number of decisions clearly signaling that correctness review should have a very limited role. Instead of reduced interference with administrative decisions, we may be seeing more cases in which decisions are set aside as unreasonable – instead of merely incorrect – in order to preserve the Supreme Court majority’s apparent conceptual preference for the reasonableness standard.

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