Administrative Law Case Law Update

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Administrative Law Case Law Update

• 2013 2014 The Year in Review

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British Columbia (Ministry of Public Safety and
Solicitor General) v. Mzite, 2014 B.C.J. No.
1122 (BCCA)
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• Decision illustrates growing trend of
  deference to discretionary decisions of the BCHRT
• HRT exercised discretion to accept late-filed
  complaint (2012 BCHRT 53). Complainant was an
  HIV positive prisoner in provincial correctional
  facilities. Complained that he was denied
  regular access to anti-retroviral medications.

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• HRT held that it was in the public interest to
  accept the complaint. In doing so, considered a
  number of factors, including
• the long delay in filing (18-22 months),
• the reasons for that delay, many of which
  related to the unique obstacles faced by a
  prisoner in getting legal advice,
• the vulnerabilities of the complainant, and
• the public interest in the systemic issues
  raised by the complaint.

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• Ministry applied for JR. BCSC overturned
  decision, holding decision to be patently
  unreasonable (2013 BCSC 1116)
• the evidence did not support a reasonable
  explanation for the delay, and
• HRT placed undue weight on systemic issues
  raised by the complaint, suggesting an improper
  purpose
• Complainant appealed. On appeal, BCCA
  overturned the BCSC decision, and remitted
  complaint to HRT to hear on the merits.

6

• BCCA held
• On prematurity issue argued by complainant
  Chambers judge exercised discretion to hear
  petition properly.
• Judge identified the correct standard of
  review, but misapplied it.
• Interestingly, BCCA, while citing s. 59 of the
  ATA, which mandates review on the standard of
  patent unreasonableness, referred to the
  applicable standard as reasonableness
  (simpliciter). Correct question on review stated
  to be is there a reasonable basis, in law or
  on the evidence, for the Tribunals conclusion
  that the late filing of the complaint should be
  permitted in the public interest?.

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• BCCHA held
• Held that BCSC failed to pay respectful
  attention to the reasons of the HRT. Tribunal
  must be given significant latitude in assessing
  whether it is in the public interest to accept a
  late-filed complaint, a matter within its
  knowledge and expertise. Tribunal must be taken
  to know the law.
• NB Ministry has applied for leave to appeal
  to the SCC (2014 S.C.C.A. No. 358).

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Silver Campsite Ltd. v. James, 2013 B.C.J. No.
1302 (BCCA)
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• BCHRT, after full hearing, upheld complaint filed
  on behalf of mentally disabled adult man,
  alleging discrimination in the area of tenancy on
  the basis of both mental disability and source of
  income (2011 BCHRT 370 and 2012 BCHRT 141).
  Tribunal ordered 10,000 in compensation for the
  injury to the complainants dignity, feelings and
  self-respect.

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• Respondent trailer park sought JR of decision on
  a number of grounds. BCSC rejected most grounds
  but accepted two (2012 BCSC 1437). Most
  important of the two was its finding that the
  Tribunal's award of compensation was arbitrary
  because
• It was not based on any objective evidence of the
  effect of the discrimination on Mr. James's
  dignity, feelings and self-respect and
• That the decision to award compensation was an
  exercise of discretion for an improper purpose
  namely, to punish the respondents rather than to
  compensate Mr. James.
• Central to BCSCs decision was the fact that the
  mentally disabled complainant did not give
  evidence and that the Tribunal relied on his
  mothers evidence about the effect of the
  discrimination on Mr. James.

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• Complainant appealed to BCCA. Court overturned
  BCSCs decision and restored decision of HRT in
  its entirety
• Damages for injury to dignity are discretionary,
  and subject to most deferential standard of
  review. Decision must be assessed in light of
  remedial purposes of the Code.
• Tribunal entitled to take judicial notice of
  effect of discrimination on mentally disabled
  complainant. Inferences about the effect of the
  discrimination are a matter of common sense.

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• Complainant appealed to BCCA. Court overturned
  BCSCs decision and restored decision of HRT in
  its entirety
• Tribunal is entitled to accept evidence that
  would be inadmissible in court, including hearsay
  evidence. Tribunal was entitled to accept and
  rely upon mothers evidence about the effect of
  the discrimination on her son. Not necessary for
  the complainant to testify to establish
  compensable injury.
• Award was compensatory, not punitive.

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McCormick v. Fasken Martineau DuMoulin LLP,
2014 S.C.J. No. 39
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• Case illustrates the limits of deference.
  Question of law, assessed on a correctness
  standard of review.
• Very high profile complaint file by equity
  partner in Faskens alleging that mandatory
  retirement required under partnership agreement
  was discriminatory on the basis of age.
• Faskens applied to have the complaint dismissed
  on a preliminary basis on the basis that it was
  outside the jurisdiction of the Tribunal because
  McCormick, as a partner, was not in an employment
  relationship with the firm. Therefore, s. 13 of
  the Code did not apply.

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• HRT denied preliminary application (2010 BCHRT
  347). Applying the Crane factors of utilization,
  control, financial burden, and remedial purpose,
  the HRT held that the parties were in an
  employment relationship for the purposes of the
  Code, and that accordingly, the complaint was
  within its jurisdiction.
• On JR, BCSC affirmed HRTs decision (2011
  B.C.J. No. 999), and on appeal the BCCA
  overturned it (2012 B.C.J. No. 1508).

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• SCC upheld the BCCAs decision quashing the HRTs
  decision
• Crane factors may be useful in determining if
  employment relationship present, but cannot be
  applied formulaically.
• Deciding who is in an employment relationship
  for purposes of the Code means, in essence,
  examining how two synergetic aspects function in
  an employment relationship control exercised by
  an employer over working conditions and
  remuneration, and corresponding dependency on the
  part of a worker. In other words, the test is who
  is responsible for determining working conditions
  and financial benefits and to what extent does a
  worker have an influential say in those
  determinations?

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• SCC upheld the BCCAs decision quashing the HRTs
  decision
• In most cases, partners will not be employees of
  their firm, because control over workplace
  conditions and remuneration lies with the
  partners.
• Does not mean that in every case partners will
  not be in an employment relationship, but usual
  elements of control would have to be greatly
  diminished to reach that conclusion.
• Does not necessarily mean partners are without
  recourse for discrimination s. 22 of the
  Partnership Act applies.

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United Steel Paper and Forestry Rubber Rubber
Manufacturing Energy Allied Industrial and
Service Workers International v. British Columbia
(Ministry of Mines), 2014 B.C.J. No. 1945 (BCSC)
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• One of a series of recent cases in which trade
  unions and others have sought to challenge the
  use of temporary foreign workers under the
  federal governments Temporary Foreign Worker
  Program. Demonstrates the limits of judicial
  review as a means of trying to address policy
  issues related to the temporary foreign worker
  program.
• There was a previous case in Federal Court filed
  by another trade union challenging the decision
  to issue positive Labour Market Opinions, which
  enabled HD Mining to obtain Temporary Foreign
  Worker Permits, entitling it to bring in Chinese
  workers to work in the Murray Mine (Construction
  and Specialized Workers' Union, Local 1611 v.
  Canada (Minister of Citizenship and Immigration),
  2013 F.C.J. No. 553). The union in that case
  had been granted public interest standing to
  challenge the issuance of the Labour Market
  Opinions, but was unsuccessful in its challenge
  to the merits of that decision.

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• Here, the Steelworkers filed a JR challenging
  decision(s) of the Chief Inspector of Mines with
  respect to the Murray Mine. The substance of the
  Steelworkers concern was that these foreign
  workers will not speak English and that that may
  impair communication and safety in the mine.

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• Three questions decided in JR
• Should the Steelworkers be granted to public
  interest litigant standing to challenge the
  decisions of the CIM?
• Is an email written by the CIM to HD Mining
  discussing English language requirements in the
  mine a decision properly subject to JR?
• What are the merits of the JR with respect to the
  decision by the CIMs delegate to issue an
  Amendment to HD Minings permit allowing it to
  carry out certain work at the mine?

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• In respect of the first question, the Court
  declined to grant Steelworkers public interest
  standing
• No serious justiciable issue. Court relied on
  petitioners own submission that the nature of
  the issues under review are yet inchoate to
  drive home the point that the petition failed to
  define a serious justiciable issue.
• Accepted that Steelworkers have a serious and
  genuine interest in mine safety, but held that
  they had no real interest in the particular
  decision(s) under review.
• Steelworkers real concern the effect of
  language on mine safety is not actually engaged
  by the decision(s) under review. They can
  address that concern through their work on a
  committee responsible for reviewing regulations
  to the Mines Act. So JR is not an effective and
  reasonable means to bring the challenge before
  the Court.

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• In respect of the second question, the Court
  held that the CIMs email is not a decision
  properly subject to JR
• Communication between two governmental
  authorities is not a decision.
• Court is critical of petitioners failure to
  identify the email as a decision under review in
  its petition.
• Real subject of attack is the decision of
  Citizenship and Immigration Canada to issue the
  temporary foreign worker permits to HD Mining.
  Seeking to JR email written by CIM to CIC and HD
  Mining was really a collateral attack on the CIC
  decision.

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• Given the analysis on the first two questions,
  answer to third, alternative, question a foregone
  conclusion the petition was doomed to fail in
  any event.

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Ontario (General Manager, Ontario Health
Insurance Plan) v. Clarke, 2014 O.J. No. 1569
(Ont. Div. Ct.)
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• Case illustrates some of the perils to which
  temporary foreign workers may be exposed while
  working in Canada, and the limits of
  administrative law in remedying them.
• Two workers were working in Canada under the
  Seasonal Agricultural Worker Program. Signed
  standard from employment agreement under SAWP
  whereby their employer was obligated to provide
  them medical and occupational health and safety
  coverage. Two days into their employment, the
  workers were seriously injured in a MVA while
  riding in a van operated by their employer.

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• As a result of their injuries, required medical
  care in Canada that extended past the end date of
  their work permits. Applied for extended visitor
  status, which federal government granted.
  Applied for extended OHIP coverage, which was
  denied. The workers appealed that decision to
  the Health Services Appeal and Review Board,
  which held they were residents of Ontario and as
  such entitled to OHIP coverage.

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• OHIP appealed that decision. The Ontario
  Divisional Court overturned the decision of the
  Review Board. The case turned on the
  interpretation of s. 1.3(2) of Health Insurance
  Act Regulation, which reads, in part
• The following persons are residents, even if
  they do not meet the other requirements in this
  Regulation, and they are not affected by any of
  the other rules in this Regulation regarding
  recognition as a resident, other than the
  requirements under sections 3 and 4
• 4. People who are present in Ontario because
  they have a work permit issued under the program
  of the Government of Canada known as the
  "Seasonal Agricultural Worker Program".

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• The Court held that the Review Boards
  interpretation of that Regulation was
  unreasonable in light of the plain and ordinary
  meaning of the words used. After the expiry of
  their work permits, the workers could no longer
  be said to have a work permit. The Board erred
  in considering the SAWP agreement as an external
  interpretive aid, both because the language in
  the Regulation was unambiguous, and because it
  wasnt a proper interpretive aid in any event
  given that the Ontario government is not a party
  to it.
• Any resulting gap in coverage cannot be filled
  by a contrived interpretation of an existing
  regulation.

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Bernard v. Canada (Attorney General), 2014
S.C.J. No. 13
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• As described by the Court, the self-represented
  appellant in this case is the protagonist in a
  legal odyssey which has found its way through
  three administrative tribunal proceedings, two
  rounds of judicial review in the Federal Court of
  Appeal and now an appeal to this Court.
• Bernard is a member of the federal public
  service who objects to being represented by PIPS,
  the Union which has the exclusive bargaining
  rights for her bargaining unit. She is a Rand
  Formula employee not a member of the Union,
  but obliged to pay union dues, and with the Union
  obliged to represent her.
• Over many years and in many legal proceedings,
  Bernard has objected to her employer giving the
  Union her home contact information, information
  the Union says it needs in order to communicate
  with her and represent her.

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• Office of the Privacy Commissioner issued an
  opinion that the Union was not entitled to this
  information under the Privacy Act. As a result,
  employer ceased providing it. After some
  legislative changes, Union filed complaint with
  the Public Service Labour Relations Board
  alleging that employers conduct was an unfair
  labour practice. The Board agreed and the Union
  and the Employer entered into a consent order,
  the terms of which were communicated to all
  affected employees, including Bernard.

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• Bernard filed for JR of the consent order in
  Federal Court. She argued
• Boards order forced employer to breach Privacy
  Act
• The Board should defer to the Privacy
  Commissioner
• She should have been given notice and
• The Boards order breached her Charter freedom
  not to associate.

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• Matter bounced back and forth between the
  Federal Court of Appeal and the Board, with
  Board, affirmed by the Court of Appeal,
  ultimately holding that there was no breach of
  the Privacy Act in disclosing home telephone
  numbers and addresses to bargaining agents
  because that disclosure was consistent with the
  purpose for which the information was obtained
  and was, as a result, a "consistent use" of the
  information under s. 8(2)(a) of the Privacy Act.
• Bernard sought and obtained leave to appeal to
  the SCC.

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• Applying a reasonableness standard of review,
  the SCC upheld the decisions below with respect
  to the disclosure of employees contact
  information being a consistent use and thus
  permissible under the Privacy Act. The labour
  relations context, and the principle of
  majoritarian exclusivity, were important
  considerations in reaching this conclusion.
• No adjudicative bodies below had ever
  considered Bernards freedom from association
  argument. The SCC decided it at first
  impression, in order to bring finality to this
  journey. It determined those arguments were
  without merit, as the provision of contact
  information, like the payment of union dues by
  Rand employees, was a necessary incident of the
  unions representational obligations.

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• In an interesting partial dissent, Rothstein J.
  would have held that the Board made an error of
  law in failing to exercise its jurisdiction to
  decide the Charter arguments at first instance.

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(No Transcript)