Appeal (LTB)

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII)

Administrative law — Judicial review — Standard of review — Proper approach to judicial review of administrative decisions — Proper approach to reasonableness review.

[2] In these reasons, we will address two key aspects of the current administrative law jurisprudence which require reconsideration and clarification. First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review. The revised framework will continue to be guided by the principles underlying judicial review that this Court articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190: that judicial review functions to maintain the rule of law while giving effect to legislative intent. We will also affirm the need to develop and strengthen a culture of justification in administrative decision making.

Distinguishing Reasonableness Review from Correctness Review

[15] In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.

[17] The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. As a result, it is no longer necessary for courts to engage in a “contextual inquiry” (CHRC, at paras. 45-47, see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify the appropriate standard.

[32] That being said, our starting position that the applicable standard of review is reasonableness is not incompatible with the rule of law. However, because this approach is grounded in respect for legislative choice, it also requires courts to give effect to clear legislative direction that a different standard was intended. Similarly, a reviewing court must be prepared to derogate from the presumption of reasonableness review where respect for the rule of law requires a singular, determinate and final answer to the question before it. Each of these situations will be discussed in turn below.

[35] It follows that where a legislature has indicated that courts are to apply the standard of correctness in reviewing certain questions, that standard must be applied. In British Columbia, the legislature has established the applicable standard of review for many tribunals by reference to the Administrative Tribunals Act, S.B.C. 2004, c. 45: see ss. 58 and 59. For example, it has provided that the standard of review applicable to decisions on questions of statutory interpretation by the B.C. Human Rights Tribunal is to be correctness: ibid., s. 59(1); Human Rights Code, R.S.B.C. 1996, c. 210, s. 32. We continue to be of the view that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.

[37] It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, (2002) 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.

[38] We acknowledge that giving effect to statutory appeal mechanisms in this way departs from the Court’s recent jurisprudence. However, after careful consideration, we are of the view that this shift is necessary in order to bring coherence and conceptual balance to the standard of review analysis and is justified by a weighing of the values of certainty and correctness: Craig, at para. 27. Our conclusion is based on the following considerations.

Standard of Correctness for Certain Types of Legal Questions

[52] Third, we would note that statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism.

[53] In our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The application of the correctness standard for such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary: Dunsmuir, at para. 58.

[54] When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker’s reasoning into account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come to its own conclusions on the question.

[62] In short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows.

[64] Administrative decisions are rarely contested on this basis. Where they are, however, the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another. The rationale for this category of questions is simple: the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions: see British Columbia Telephone Co., at para. 80, per McLachlin J. (as she then was), concurring. Members of the public must know where to turn in order to resolve a dispute. As with general questions of law of central importance to the legal system as a whole, the application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making.

[65] We would cease to recognize jurisdictional questions as a distinct category attracting correctness review. The majority in Dunsmuir held that it was “without question” (para. 50) that the correctness standard must be applied in reviewing jurisdictional questions (also referred to as true questions of jurisdiction or vires). True questions of jurisdiction were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”: see Dunsmuir, at para. 59; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, at para. 32. Since Dunsmuir, however, majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and “expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law”: McLean, at para. 25, referring to Alberta Teachers, at para. 34; Edmonton East, at para. 26; Guérin, at paras. 32-36; CHRC, at paras. 31-41.

[67] In CHRC, the majority, while noting this inherent difficulty — and the negative impact on litigants of the resulting uncertainty in the law — nonetheless left the question of whether the category of true questions of jurisdiction remains necessary to be determined in a later case. After hearing submissions on this issue and having an adequate opportunity for reflection on this point, we are now in a position to conclude that it is not necessary to maintain this category of correctness review. The arguments that support maintaining this category — in particular the concern that a delegated decision maker should not be free to determine the scope of its own authority — can be addressed adequately by applying the framework for conducting reasonableness review that we describe below. Reasonableness review is both robust and responsive to context. A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessment regarding whether a particular interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctness standard.

[74] In this section of our reasons, we endeavour to provide that guidance. The approach we set out is one that focuses on justification, offers methodological consistency and reinforces the principle “that reasoned decision-making is the lynchpin of institutional legitimacy”: amici curiae factum, at para. 12.

Reasonableness Review

B. Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes

[82] Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law: see Dunsmuir, at paras. 27-28 and 48; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 10; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para. 10.

[83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.

Right to Appeal

Lafontaine v. Grant, 2019 ONCA 552 (CanLII)

[6] The Divisional Court noted that s. 210 of the RTA restricts the right to appeal from the Board to questions of law. The Divisional Court dismissed Mr. LaFontaine’s appeal on the basis that it did not raise a question of law. Instead, that court stated that Mr. LaFontaine was challenging the findings of fact made by the Board: “[H]e disagrees with the Board’s finding that he has his own kitchen and bathroom in the basement, and he disagrees with the finding that the Respondent was not required to share any such facilities with him.”

[7] From the materials filed by Mr. LaFontaine on this motion, it is apparent that his quarrel with the Board’s decision at most raises a question of mixed fact and law – namely, whether the particular configuration of his rental accommodation brought it within the exemption in s. 5(i) of the RTA. The limited right of appeal available under s. 210 of the RTA leads me to conclude that there is little merit to Mr. LaFontaine’s proposed appeal of the Divisional Court’s order. In those circumstances, I do not see that the justice of the case requires granting Mr. LaFontaine an extension of time to file a motion for leave to appeal.

Appeal Deadlines

The Notice of Appeal

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

61.04 (1) An appeal to an appellate court shall be commenced by serving a notice of appeal (Form 61A or 61A.1) together with the certificate required by subrule 61.05 (1), within 30 days after the making of the order appealed from, unless a statute or these rules provide otherwise,

(a) on every party whose interest may be affected by the appeal, subject to subrule (1.1); and

(b) on any person entitled by statute to be heard on the appeal. O. Reg. 14/04, s. 31; O. Reg. 536/18, s. 2 (1).

(1.1) The notice of appeal and certificate need not be served on,

(a) a defendant who was noted in default; or

(b) a respondent who has not delivered a notice of appearance, unless the respondent was heard at the hearing with leave. O. Reg. 14/04, s. 31.

61.05 (1) In order to minimize the number of documents and the length of the transcript required for an appeal, the appellant shall serve and file, with proof of service, with the notice of appeal an appellant’s certificate respecting evidence (Form 61C) setting out only the portions of the evidence that, in the appellant’s opinion, are required for the appeal. O. Reg. 570/98, s. 5; O. Reg. 82/17, s. 8 (1).

(2) Within fifteen days after service of the appellant’s certificate, the respondent shall serve on the appellant, and file with proof of service, a respondent’s certificate respecting evidence (Form 61D), confirming the appellant’s certificate or setting out any additions to or deletions from it. R.R.O. 1990, Reg. 194, r. 61.05 (2); O. Reg. 82/17, s. 8 (2).

Amendments or Changes to the Appeal

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

61.08 (1) The notice of appeal or cross-appeal may be amended without leave, before the appeal is perfected, by serving on each of the parties on whom the notice was served a supplementary notice of appeal or cross-appeal (Form 61F) and filing it with proof of service. R.R.O. 1990, Reg. 194, r. 61.08 (1).

(2) No grounds other than those stated in the notice of appeal or cross-appeal or supplementary notice may be relied on at the hearing, except with leave of the court hearing the appeal. R.R.O. 1990, Reg. 194, r. 61.08 (2).

(3) No relief other than that sought in the notice of appeal or cross-appeal or supplementary notice may be sought at the hearing, except with the leave of the court hearing the appeal. R.R.O. 1990, Reg. 194, r. 61.08 (3).

Perfecting the Appeal

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

61.09 (1) The appellant shall perfect the appeal by complying with subrules (2) and (3),

(a) where no transcript of evidence is required for the appeal, within thirty days after filing the notice of appeal; or

(b) where a transcript of evidence is required for the appeal, within 60 days after receiving notice that the evidence has been transcribed. R.R.O. 1990, Reg. 194, r. 61.09 (1); O. Reg. 570/98, s. 6 (1).

61.12 (1) Every respondent shall,

(a) serve on every other party to the appeal,

(i) a typed or printed copy of the respondent’s factum, and

(ii) the respondent’s compendium;

(b) file with the Registrar, with proof of service,

(i) three typed or printed copies of the respondent’s factum, and where the appeal is to be heard by five judges, two additional copies, and

(ii) three copies of the respondent’s compendium, and where the appeal is to be heard by five judges, two additional copies; and

(c) file with the Registrar an electronic version of the respondent’s factum. O. Reg. 19/03, s. 17.

Respondents Deadlines

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

61.04 (5) The appellant shall within thirty days after filing the notice of appeal file proof that the appellant has ordered a transcript of all oral evidence that the parties have not agreed to omit, subject to any direction under subrule 61.09 (4) (relief from compliance). R.R.O. 1990, Reg. 194, r. 61.05 (5).

61.12 (2) The respondent’s factum and compendium shall be delivered within 60 days after service of the appeal book and compendium, exhibit book, transcript of evidence, if any, and appellant’s factum. O. Reg. 19/03, s. 17.

Standard of Review

See Rule 61 and all sub-rules

Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44 (CanLII)

(1) Standard of Review

[17] When this court considers a decision of the Divisional Court reviewing a decision of an administrative tribunal, it “steps into the shoes” of the Divisional Court and asks whether the Divisional Court identified the appropriate standard of review and applied it correctly: see Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (CanLII), (2013) 2 S.C.R. 55, at paras. 45-47; Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477 (CanLII), at para. 27. Where an administrative tribunal interprets or applies its home statute, the standard of review is presumptively reasonableness: Onyskiw at para. 28; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., 2011 SCC 61 (CanLII), (2011) 3 S.C.R. 654, at para. 39.

[18] Determining whether notices of rental increases were required under s. 116(1) of the RTA is one of the LTB’s core functions. The Divisional Court properly identified and applied a reasonableness standard of review. Indeed, the appellant does not argue to the contrary.

Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477 (CanLII)

[28] Where an administrative tribunal interprets or applies its home statute, the standard of review is presumptively reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII), (2011) 3 S.C.R. 654, at para. 39. A correctness standard may apply if the question at issue is both of central importance to the legal system and outside the adjudicator’s specialized area of expertise: Alberta (Information and Privacy Commissioner), at para. 46. However, this exceptional category must be interpreted conjunctively and not as separate and distinct factors: see Loewen v. Manitoba Teachers’ Society, 2015 MBCA 13 (CanLII), 315 Man. R. (2d) 123, at para. 48.

[29] Where, as here, the jurisprudence has already determined the standard of review and thus the degree of deference to be accorded to a particular category of question before a given administrative tribunal, this will end the inquiry: see Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), (2008) 1 S.C.R. 190, at para. 62; First Ontario Realty Corporation v. Deng, 2011 ONCA 54 (CanLII), 274 O.A.C. 338, at para. 20. Subject to the exception stated above, decisions of the Board are subject to review on a standard of reasonableness: Deng, at para. 21. In Deng, this Court held, at para. 21, that the Board administers a specialized adjudicative regime for resolving residential tenancy disputes, and where it is required to interpret its “home statute” (the RTA) and regulations, with which it has particular familiarity, in making determinations with respect to its core functions, deference is owed to its decisions.

[30] In the present case, determining whether to order an abatement of rent based on a breach of the landlord’s duties to repair and maintain under s. 20(1) is one of the Board’s core functions and required the Board to interpret the RTA and related regulations.

[31] Applying these general principles, unless the tenants can persuade the court that the issue before us is both of central importance to the legal system and outside the Board’s expertise, the standard of review to be applied to the Board’s decision is reasonableness.

Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289 (CanLII)

[29] Pursuant to s. 210(1) of the RTA, a statutory right of appeal lies from a decision of the Board on questions of law. The Court of Appeal has held that the Board is charged with administering a specialized adjudicative regime for resolving disputes with which it has particular familiarity, when it is interpreting its “home statute” or making determinations with respect to its core functions, and as such, the deferential standard of reasonableness applies to its decisions. see First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54 (CanLII)

[30] In Dunsmuir v. New Brunswick the Supreme Court held that reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[31] Questions of sufficiency of evidence or credibility, being questions of mixed fact and law, are not reviewable on appeal. (Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), (1997) 1 SCR 748)

Gatien/Brown v. Bombaci, 2019 ONSC 2679 (CanLII)

[7] An appeal lies to this Court pursuant to section 210 (1) of the Act only on a question of law. The parties are agreed that the standard of review is reasonableness.

Residential Tenancies Act, 2006

210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. 2006, c. 17, s. 210 (1).

Board to receive notice

(2) A person appealing an order under this section shall give to the Board any documents relating to the appeal. 2006, c. 17, s. 210 (2).

Board may be heard by counsel

(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal. 2006, c. 17, s. 210 (3).

Powers of Court

(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,

(a) affirm, rescind, amend or replace the decision or order; or

(b) remit the matter to the Board with the opinion of the Divisional Court. 2006, c. 17, s. 210 (4).

Same

(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper. 2006, c. 17, s. 210 (5).

Board may appeal Court decision

211 The Board is entitled to appeal a decision of the Divisional Court on an appeal of a Board order as if the Board were a party to the appeal. 2006, c. 17, s. 211.

Marineland of Canada Inc. v. Olsen, 2011 ONSC 6522 (CanLII)

[8] As the Board was interpreting provisions of its home statute, the standard of review is reasonableness (First Ontario Realty Corp. v. Deng, 2011 ONCA 54 (CanLII) at para. 21). This is not a case like Darragh v. Normar Developments Inc., [2008] O.J. No. 2586 (Div. Ct.) at para. 15, where the Court held that the standard of review was correctness. There, the Board was applying common law principles of statutory interpretation respecting retroactivity and retrospectivity of legislation.

Grounds for Appeal

Failure of Natural Justice

Brewer v. The Landlord Tenant Board Southern RO, 2018 ONSC 1006 (CanLII)

37 It has been repeatedly held that a failure of natural justice is reviewable on appeal by this court (see Decosse v. Isles of Innisfree Non Profit Homes, 2012 ONSC 1413 (Div. Ct.) (CanLII) (“Decosse”); and Duncan v. Toronto Community Housing Corp., 2015 ONSC 4728 (Div. Ct.) (CanLII) (“Duncan”)).

[38] I adopt the following summary of the requirement for natural justice from Decosse (at paragraphs 6-8):

A Tribunal is required to comply with the requirements of natural justice. There is no standard of review. On appeals on questions of law, the standard of review to be applied is correctness. Failure to meet the standards will result in a Tribunal's order being quashed.

Under the Residential Tenancies Act, 2006, S.O. 2006 c. 17, there is a statutory right of appeal on questions of law alone, a factor suggesting a more rigorous standard of review. Further, the Court has wide powers on appeal, and may affirm, rescind, replace, or amend the decision below, remit the matter back with the opinion of the Court, and make any other order that it considers proper. It may substitute its own opinion for that of the Tribunal.