Standard of Review, Regulation of Positive/Negative Rights and Remedial Jurisdiction of Administrative Tribunals: Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13

In Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13 the Supreme Court of Canada dealt with a number of important issues that are significant for the law of judicial review of administrative action and for regulation more broadly. I previewed the case in this post.

The case involved a claim for certification by casino managers based in Quebec. Certification would allow them to bargain as a group with their employer. But managers are excluded from the provincial collective bargaining legislation. So the managers invoked s. 2(d) of the Charter of Rights and Freedoms, which protects freedom of association. Applying the context-sensitive Charter test to the facts, the expert tribunal concluded that the exclusion of the managers represented a “substantial interference” with their freedom of association. The remedy was that the legislative exclusion was inoperable as applied to the managers who, accordingly, were entitled to go ahead with their claim for certification. This conclusion was, ultimately, upheld by the Court of Appeal albeit that the effects of the decision were suspended for 12 months to allow for legislative intervention.

However, the Supreme Court allowed the appeal, an outcome on which the seven judges who heard the case were agreed, concluding unanimously that there was no “substantial interference” with associative freedom. In doing so, they addressed: (1) the standard of review for mixed questions of fact and law in the ‘constitutional questions’ category of correctness review; (2) whether there are distinct tests or standards applicable to Charter claims where a positive or negative right is being asserted; and (3) the jurisdiction of administrative tribunals to grant remedies relating to the inoperability of legislation. The third question was addressed only by Côté J in her concurring reasons but the others were treated by all seven (Jamal J for the majority and Rowe J concurring separately).

Standard of Review

The Court of was unanimous on standard of review. Côté J addressed the point in detail and the others agreed with her analysis (at paras. 45, 199). That analysis is brief and to the point. Here is what she said:

In this case, determining whether the exclusion from the L.C. regime constitutes substantial interference with the freedom of association of the Association’s members is not a simple question of fact. Such an inquiry involves weighing “the constitutional significance” of the findings of fact made on the basis of the members’ situation by reference to freedom of association (Westcoast Energy, at para. 39). To some extent, this amounts to defining the constitutional standard of “substantial interference”.

The definition of this standard requires a determinate and final answer (Vavilov, at paras. 53 and 55). In Westcoast Energy, cited with approval in Vavilov, at para. 55, our Court noted that no deference is owed in respect of questions of mixed fact and law that arise in connection with a constitutional question because it is important that constitutional questions be answered correctly (paras. 39‑40).

It follows that the Superior Court did not owe deference to the ALT’s findings of law and findings of mixed fact and law, but only to the findings of fact made by that tribunal.

A reviewing court must show deference to findings of pure fact that can be isolated from the constitutional analysis (Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, at para. 26). Such deference to findings of this kind is based on considerations related to “judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker” (Vavilov, at para. 125). The rule of law does not require that there be a determinate and final answer to questions of pure fact, as they will vary from case to case (at paras. 94-97).

The parties agreed (see para. 93) that this case fell into the ‘constitutional question’ category set out in Vavilov: the question was the Charter compliance of the legislative exclusion of the managers and so, indeed, the correctness standard properly applied, as the answer to this question should be given definitively by the courts. Evidently, however, the parties did not agree on what exactly the correctness standard should apply to.

As I noted in my preview of the case, the Supreme Court’s prior jurisprudence had not been especially clear on this point. It is clear now: when applying the correctness standard, a reviewing court must take the findings of fact made by the decision-maker as they are (as long as they are reasonable), but it is for the court to determine for itself the legal effects of those findings of fact. Put another way, the legal characterization of the facts as found by the decision-maker is a matter for the court.

Whatever about my scepticism of the law/fact distinction (see chapter 6 of A Theory of Deference in Administrative Law), this is now definitively the law. And, to be fair, In its post-Vavilov case law applying the correctness categories, this has certainly been the Supreme Court’s approach. I noted Northern Regional Health Authority v. Horrocks, 2021 SCC 42 in my preview post (an overlapping jurisdiction case) and would now add Sharp v. Autorité des marchés financiers, 2023 SCC 29 (a constitutional question case): there, the decision-maker had made findings of fact about a ‘pump and dump’ scheme run by out-of-province actors but the application of a context-sensitive legal standard to those facts was done without any deference to the decision-maker’s conclusion. In the correctness categories, then, pure findings of fact — the who, what, when, where and why of adjudication — get deference but everything else is ultimately for the court.

Of course, it is always open to a reviewing court to adopt the analysis of the decision-maker (and perhaps this is now the best way to understand the decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29) but the judge retains the final word on whether the legal standard has been met based on the facts as found.

Positive and Negative Rights

In some of the Supreme Court’s Charter jurisprudence it has distinguished (or seemed to distinguish) between two different types of Charter claim: positive and negative. A negative claim involves using the Charter as a protective shield against state action. A positive claim involves wielding the Charter as a sword to slash away a barrier to benefiting from an existing statutory regime (see Côté J’s concurring reasons at paras. 129-131).

In Canada v. Boloh 1(a), 2023 FCA 120, at para. 69 (a positive claim under s. 6 of the Charter), the Federal Court of Appeal suggested that there is a general positive/negative “framework” established by Supreme Court decisions such as Dunmore v. Ontario (Attorney General), 2001 SCC 94, Baier v. Alberta, 2007 SCC 31, and Toronto (City) v. Ontario (Attorney General), 2021 SCC 34. Dunmore was a freedom of association case but the other two were freedom of expression cases.

Here, the majority did not accept that there is any general framework, or at least their reasons are not compatible with the existence of a general framework. Jamal J accepted that in respect of freedom of expression the positive/negative distinction is hardwired into the Supreme Court’s jurisprudence (at para. 44) but sharply distinguished the association and expression cases:

In the freedom of association context…the threshold for both “positive” and “negative” freedom of association claims is the same: substantial interference (see Dunmore, at para. 25; Health Services, at paras. 19 and 90; Fraser, at paras. 2 and 47; Mounted Police, at para. 72; Meredith, at paras. 4 and 24-25; Saskatchewan Federation of Labour, at paras. 2 and 25). There is not a more stringent threshold for positive rights claims under s. 2(d). For freedom of association claims, the “elevated threshold in the second Dunmore factor” (Toronto (City), at para. 25) of substantial interference already applies to all claims involving both positive and negative duties (Fudge, at pp. 545-46 and 550) (at paras. 41-42).

The concurring judges took a different view but for my purposes the important point that emerges from the majority reasons is that the positive/negative distinction is not a concept of general application when interpreting the Charter. Ease of access to a regulatory regime or to other forms of state action will not depend on a prior characterization of a claim as positive or negative in nature. What matters is the claim that is made and the Charter provision that is invoked.

This is not to say that the positive/negative distinction might not have purchase in particular cases (as was the case with the mobility rights claimed in Boloh) but whether it does or not will depend on the proper interpretation of the Charter right or freedom at issue, in light of the claim. This is an important point for those charged with designing regulatory regimes and for those seeking to leverage Charter rights or freedoms to gain access to them.

Tribunals and Remedies

The only member of the Supreme Court to address the remedial jurisdiction of the decision-maker (here, the Quebec Administrative Labour Tribunal) was Côté J.

She noted that the managers had decided to bring a claim for certification rather than to seek a declaration of unconstitutionality in superior court and suggested that “[p]roceeding before a superior court is preferable insofar as such a court has the power to make a formal declaration of unconstitutionality and to suspend the declaration in order to give the legislature all the latitude it needs to enact a particular regime that meets the minimum constitutional requirements of s. 2(d)” (at para. 156).

In fairness to the managers, they may well have brought the claim in the tribunal to avoid being met in superior court by the counter-argument that they should first have sought a remedy from the tribunal (Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, at paras. 38-45). And there is surely no doubt that the Supreme Court’s consideration of the issues was enriched by the tribunal’s detailed analysis of the facts (see also Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, at paras. 42-47; Denton v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 403, at paras. 51-52; Campisi v. Ontario, 2017 ONSC 2884, at para. 13).

It is true that the tribunal could not suspend any declaration of inoperability (at para. 157), but it did not seek to do so. It was the courts that suspended the effect of the tribunal’s decision, on the theory that on the standard of correctness the judges were stepping into the shoes of the tribunal (cf. Okwuobi at para. 45). I expressed some scepticism about this point in my preview post and remain sceptical: the advantage of the decision could only apply to the particular managers who brought the certification application so the need for broad legislative consideration of the regulatory regime (the usual justification for suspending a declaration of unconstitutionality) is not particularly keenly felt. Côté J correctly noted this point, but I do not think it can mean that the tribunal should not have been seized of the matter in the first place.

For my part, I have sympathy for the managers’ choice of forum and, given the need for extensive fact-finding, I suspect the fact that they first went to the tribunal ultimately facilitated the Supreme Court’s comprehensive analysis of the important freedom of association issues (on which see David Doorey).

In the end then, this is an important decision on standard of review and regulatory design, with interesting points made too about forum choice in cases arising at the intersection of administrative law and constitutional law.

This content has been updated on April 22, 2024 at 11:41.