Roadtesting the Vavilov Framework: Bell Canada v. Canada (Attorney General), 2019 SCC 66 and Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67

Readers who enjoyed my posts on the framework for judicial review of administrative action set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 will also enjoy Justice David Stratas’s updated paper, “The Canadian Law of Judicial Review: Some Doctrine and Cases“, which now takes account of Vavilov. It is available for free on SSRN and is self-recommending.

The Vavilov framework has now been applied three times by the Supreme Court, in Vavilov itself, in Bell Canada v. Canada (Attorney General), 2019 SCC 66* and in Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67.

Vavilov

Vavilov convinced the Supreme Court that the Registrar of Citizenship’s decision was unreasonable. Having regard to the text, purpose and context of para. 3 of the Citizenship Act, as well as Canada’s international law obligations, it was unreasonable to conclude that the Canadian-born “children of individuals who have not been granted diplomatic privileges and immunities in Canada” are excluded from Canadian citizenship (at para. 173). There being no question that Vavilov’s undercover-agent parents benefitted from diplomatic privileges and immunities, there was no basis for the Registrar to revoke his citizenship. Abella and Karakatsanis JJ. agreed with this conclusion, for substantially similar reasons. Given the Registrar’s failure in her reasons to grapple with the nuances of the Citizenship Act, its interaction with international law and Vavilov’s arguments, this conclusion was unsurprising.

Bell Canada/National Football League

Under the Vavilov framework, matters in Bell Canada/National Football League were, on the face of it, straightforward. Section 31 of the Broadcasting Act provides for an appeal, with leave, on questions of law or jurisdiction, from orders of the CRTC, to the Federal Court of Appeal. As the question of whether the CRTC had the authority to target a specific programme in its order “plainly” fell “within the scope of the statutory appeal mechanism” (at para. 35), correctness was the appropriate standard.

The same majority from Vavilov concluded that the authority under the statutory provision the CRTC invoked “is limited to issuing orders that require television service providers to carry specific channels as part of their service offerings, and attaching [general] terms and conditions…” (at para. 44). In dissent, Abella and Karakatsanis JJ. refused to follow the Vavilov framework. Applying reasonableness review to what they described as “an archetype of an expert administrative body” (at para. 83), they found nothing to exclude the possibility that CRTC orders “could relate to a single program in this context” (at para. 93).

First, although the majority in Vavilov excised “true” questions of jurisdiction from the correctness categories and thus from the common law of judicial review, the statute in Bell Canada created a right of appeal on questions “of law or jurisdiction”. In concluding that the question raised by the appellants “plainly” fell within the appeal clause, the majority in Bell Canada commented that the question “goes directly to the limits of the CRTC’s statutory grant of power” (at para. 35). This is the language of jurisdictional error. Even if “jurisdiction” has been eliminated from the common law of judicial review, post-Vavilov it seems likely to continue to be relevant in some statutory settings.

Appellate courts dealing with such clauses will presumably have to articulate an understanding of “jurisdiction”. There is no guidance in Vavilov on whether the understanding should be a pre-New Brunswick Liquor or pre-Dunsmuir understanding or something else. Most appellate courts do not give reasons when determining whether to grant leave. Given the importance “jurisdiction” will have in some statutory settings, they may have to depart from this practice in the near future, to guide counsel and citizens as to what will henceforth count as “jurisdiction”. Alternatively, appellate courts may take the view that “law or jurisdiction” is to be read conjunctively, to apply to any extricable question of law which materially affected the outcome of the matter under appeal [UPDATE: I meant to mention Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, especially at paras. 20-28]. This might not be an especially principled course of action, but it would be a pragmatic one.

Second, the conclusion that the issue here was simply one of jurisdiction was a convenient one. The CRTC has a general power under s. 18(3) of the Broadcasting Act to “issue any decision…if it is satisfied that it would be in the public interest to do so”. This power only extends to matters within the CRTC’s jurisdiction. The Supreme Court’s conclusion that the CRTC did not have jurisdiction meant that it was not necessary to consider whether the CRTC could have invoked its s. 18(3) power. This was a convenient conclusion because the s. 18(3) power is neither a question of law nor a question of jurisdiction. It is outside the scope of the appeal clause.

The inconvenient question which will have to be asked by the Federal Court of Appeal in a future case and will soon, I expect, be asked of counsel by anxious clients is: “If an issue appealed turns out not to be a jurisdictional or legal issue, can the Federal Court of Appeal still consider it?” In other words, if in Bell Canada the issue had not “plainly” fallen within the appeal clause, would that have been the end of the matter?

In Vavilov the Supreme Court made clear (at para. 35) that a limited right of appeal does not preclude an application for judicial review. So even in a case where the CRTC relied on its s. 18(3) power, judicial review would be an option. Therefore, it would seem possible for a party unhappy with a CRTC decision to (1) appeal the legal/jurisdictional elements of the CRTC decision and (2) judicially review the factual/discretionary elements of the CRTC decision. Indeed, it would be prudent to do so, for otherwise a party might be told its appeal is outside the scope of s. 31. A nice problem for the next meeting of the Federal Courts Rules Committee!

Thirdly, that Abella and Karakatsanis JJ. refused to apply the Vavilov framework is worthy of comment. On the one hand, the refusal to apply the framework does not augur especially well for the maintenance of the consensus reached in Vavilov. On the other hand, Bell Canada was a companion case and perhaps it is only natural that the judges who passionately concurred/dissented in the leading case would continue to have the courage of their convictions.

Looking forward, the majority in Vavilov has already lost one member (Gascon J., replaced by Kasirer J.) and there is more turnover to come, with Abella and Moldaver JJ. due to retire soon. Failures and refusals to apply the Vavilov framework could well embolden new members of the Supreme Court to develop their own approaches to administrative law. To put it mildly, this would not be a welcome development.

Canada Post

At issue here was the scope of s. 125(1)(z.12) of the Canada Labour Code, pursuant to which an employer shall,

…in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity…ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year

A complaint was filed about Canada Post’s compliance with this duty, in relation to employees in Burlington, Ontario. Canada Post took the view that the duty under the Code extended only to its local depot, not to all of the carrier routes its employees traipse along to reach letter boxes all around Burlington. The Union favoured a more liberal interpretation, which would encompass the routes and the letter boxes. The stakes here were high, as a determination in favour of the Union would, in principle, have nationwide repercussions. A Health and Safety Officer agreed with the Union, but an Appeals Officer took Canada Post’s side at the Occupational Health and Safety Tribunal Canada.

By majority, the Supreme Court upheld the Appeals Officer’s decision. Here, Rowe J. noted, the Appeals Officer had provided “detailed reasons” which were, indeed, “exemplary” (at para. 30) and “contended with the submissions of the parties throughout his analysis” (at para. 60). Crucially, these reasons “amply” demonstrated that the Appeals Officer “considered the text, context, purpose, as well as the practical implications of his interpretation” (at para. 43).

The Appeals Officer had not considered, because he had not been referred to it, another provision of the Code which deals with the concept of control. This, Rowe J. held, was not fatal, not least because the Appeals Officer had not been referred to it but because, more generally, “[f]ailure to consider a particular piece of the statutory context that does not support a decision maker’s statutory interpretation analysis will not necessarily render the interpretation unreasonable” (at para. 52). From there, the conclusion that the Appeals Officer’s decision was reasonable was unsurprising and, perhaps, inevitable.

In dissent, Abella J. (with whom Martin J. agreed) took the view that s. 125(1)(z.12) was:

…an unambiguous dual legislative direction to employers that their safety obligations — including the inspection duty — apply both to workplaces they control and, if they do not control the actual workplace, to every work activity that they do control to the extent of that control (at para. 78, emphasis original).

There would be much to be said for this approach, if the court were indeed interpreting the provision de novo, without the benefit of the Appeals Officer’s reasons. But given that the Appeals Officer had provided detailed reasons which responded amply to the fulsome submissions made by Canada Post and the Union, those reasons were properly the starting point for the Supreme Court’s analysis, not the text of the provision. In my view, Rowe J.’s approach is more faithful to the Vavilov framework than that of Abella J.

This was, however, a relatively straightforward case. The more difficult cases will involve sparse or defective reasons where important (but not necessarily determinative) points have been glossed over or ignored by an administrative decision-makers. If in such cases the Vavilov consensus holds (such as it is), then we may well be able to say that the Supreme Court has achieved clarity and consistency in the standard of review of administrative action.

* Disclosure: I provided some assistance to counsel for Bell Canada/National Football League in their preparation for the appeal.

This content has been updated on January 14, 2020 at 01:19.

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