I Don’t Know: Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16

My administrative law students will sit their final exam on Friday. So some of them having been coming to see me with questions about the finer points of Canadian administrative law doctrine. Often, my answer is: “Je ne sais pas”. And, unfortunately, the Supreme Court of Canada decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 did nothing to ease my confusion. If anything, the law is less clear now than it was before the judgment.

Elsewhere you will find commentary about the substantive aspects of the decision on the state’s duty of religious neutrality — violated here by a prayer read by the mayor of a Quebec city before municipal meetings. Ultimately, the Court upheld the conclusion of the Quebec Human Rights Tribunal that the prayer was an impermissible discriminatory interference with the freedom of religion and conscience of an atheist participant, a breach of the provincial human rights code interpreted by the Tribunal:

The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a distinction, exclusion and preference based on religion — that is, based on Mr. Simoneau’s atheism — which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs. The latter could participate in municipal democracy in an environment favourable to the expression of their beliefs. Although non‑believers could also participate, the price for doing so was isolation, exclusion and stigmatization. This impaired Mr. Simoneau’s right to exercise his freedom of conscience and religion (at para. 120).

In this post, I will focus exclusively on the technical standard of review issues, though it perhaps bears mentioning at the outset that there is something odd about the decision of an administrative tribunal whose remedial jurisdiction is limited to the parties appearing before it becoming the occasion for the Court to pronounce expansively on the nature of religious freedoms across the country — municipalities Canada-wide are grappling with the decision as we speak. Use of human rights tribunal decisions as an on-ramp to a cross-country highway is not a new phenomenon in Canada but the apparently coast-to-coast result here is worthy of note.

Gascon J. wrote the majority reasons. There was a brief concurrence by Abella J. Gascon J. identified an “important question” implicated by the Tribunal’s decision: “the scope of the state’s duty of religious neutrality that flows from the freedom of conscience and religion protected by the Quebec Charter” (at para. 49). Correctness was the appropriate standard on this question: “the importance of this question to the legal system, its broad and general scope and the need to decide it in a uniform and consistent manner are undeniable” (at para. 51). In addition, the presumption of deference applicable because the Tribunal was interpreting its home statute (at para. 46) was rebutted: “the jurisdiction the legislature conferred on the Tribunal in this regard in the Quebec Charter was intended to be non‑exclusive; the Tribunal’s jurisdiction is exercised concurrently with that of the ordinary courts” (at para. 51).

I found this confusing. Post Dunsmuir, a question falls either in a ‘correctness category’ or a ‘reasonableness category’. General questions of law of central importance to the legal system that are outside the expertise of the decision-maker under review is a correctness category. If a question falls into this category, that is (I always thought) the end of the matter: correctness is the standard and it is up to the reviewing court to resolve the issue. Here, Gascon J. concluded — without explaining why: his conclusion was said simply to be “undeniable” — that the state neutrality question was of central importance to the legal system. If this is the case, there is no need to rebut the presumption of deference. Nonetheless, although there was (as far as I can tell) no need to do so, Gascon J. went on to hold that the presumption of deference had been rebutted, because of the existence of concurrent jurisdiction: individuals can ask the Tribunal or a court to apply the Quebec Charter.

This further muddies the already murky waters of the relationship between Dunsmuir’s categorical approach and context. In order to convince a court to apply a correctness standard, does an applicant have to demonstrate both that a decision falls in a correctness category and that the presumption of reasonableness can be rebutted? Or is there just one step in the analysis, with the contextual factors used to determine whether a correctness category applies? Or does an applicant have two kicks at the can, one to try and knock it into a correctness category and another to rebut the presumptive application of reasonableness based on the context? And one must also ask (as many of my students do): does the rebuttable presumption apply only to interpretations of a decision-maker’s home statute or to the other reasonableness categories (exercises of discretion and questions of mixed fact and law)? We simply do not know.

Now, one might say that Dunsmuir only provided “signposts“, not an automated GPS device. But signposts are not very helpful if there is not a road-map to help the user understand how they relate to one another. We also do not know the identity of all the contextual factors. These were drawn originally from the defunct pragmatic and functional analysis and are now evidently supplemented by the notion of concurrent jurisdiction, an idea most of us thought had been used once and then sensibly discarded. As I will demonstrate below, there was unusual statutory language which would have provided a better route to Gascon J.’s conclusion.

Categories and context continue to exist side-by-side with no guidance on how they relate to one another. Lawyers attacking administrative decisions should argue (a) that a decision falls in a correctness category and, in the alternative, (b) that an undefined set of contextual factors support judicial intervention. I will grant that in many cases, there is no dispute about the standard of review (though there may be a dispute about the meaning of reasonableness). But as soon as there is, the problems with the Court’s approach to standard of review are all too apparent.

In addition, Gascon J. segmented the question before the Tribunal into two separate parts. On the general question of state neutrality, the standard was correctness. But, “the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was discriminatory fall squarely within the Tribunal’s area of expertise”, as did “the qualification of the experts and the assessment of the probative value of their testimony, which concerned the assessment of the evidence that had been submitted” (at para. 50). Clever lawyers will be licking their lips at the possibility of slicing decisions apart, extracting “general” or — an old favourite — “jurisdictional” issues for intensive judicial review. Abella J. was quite right to warn of problems to come in her concurring reasons:

What do we tell reviewing courts to do when they segment a tribunal decision and subject each segment to different standards of review only to find that those reviews yield incompatible conclusions?  How many components found to be reasonable or correct will it take to trump those found to be unreasonable or incorrect?  Can an overall finding of reasonableness or correctness ever be justified if one of the components has been found to be unreasonable or incorrect? (at para. 173)

Treating the discrimination based on religious belief as bound up with the facts as found by the Tribunal is more consistent with current trends in reasonableness review and with the role of administrative decision-makers: as Abella J. put it in a previous case, they are not Royal Commissions, but respond to particular factual situations. A deferential approach to judicial review is more respectful of an incremental, bottom-up development of policy. Here, we are simply told that the state neutrality question is ‘undeniably’ of central importance to the legal system, without any explanation of why it is important outside the setting of the Tribunal and without any guidance as to how this category might be applied in future cases.

As a preliminary matter, Gascon J. had to grapple with unusual statutory language. Decisions of the Tribunal are appealable, with leave, directly to the Quebec Court of Appeal. The relevant statute also provides that the general rules governing appeals are to apply in this context. The Quebec Court of Appeal has split previously on the proper interpretation of its role on appeal from the Tribunal: some judges apply judicial review criteria (following the well-established rule that appeal clauses do not eliminate deference to specialized tribunals) but some apply appellate criteria based on the apparently plain language of the statute (see para. 24).

Gascon J. held that judicial review criteria apply: the Dunsmuir framework is the appropriate one. Though this point is not mentioned, I think this is the first time the Court has applied the Dunsmuir framework to an appeal with a leave provision.* This is not hairsplitting. One might reasonably think that the leave requirement is designed to ensure that matters of general importance should be addressed by the courts. One might further deduce from the legislator’s reference to rules governing appeals that a differentiation between questions of law (de novo review) and fact (appellate review) is in order. Recently, in Tervita, the Court relied on unusual statutory language to rebut the presumption of reasonableness. Surely the better route to Gascon J.’s conclusion would have been to do the same.

Finally, there is a lengthy discussion of the Tribunal’s power to consider an ancillary complaint about the display of religious symbols in the municipal chamber (at paras. 53 to 62). The Tribunal is seised of matters after a review by the Commission, a screening body. Here, it was not properly seised of the legality of the religious symbols. Gascon J. accepted that the religious symbols could be taken into account in determining the overall character of the prayer but held that the Tribunal had no “jurisdiction” to rule on the legality of the display (at para. 156). Yet, no standard of review analysis was conducted of this question. Another example of the Court dealing with arguably a “true” jurisdictional issue without acknowledging it. Indeed, one might wonder whether a standard of reasonableness should have been applied to the question of whether the Tribunal did have the competence to make a finding in relation to the display of religious symbols.

My other stock phrase for my administrative law students is “Ça dépend”. I will evidently be using it again next semester.

* UPDATE: I was wrong! Mark Rubenstein points me to Bell Canada v. Bell Aliant Regional Communications, [2009] 2 SCR 764 though the significance of the leave provision is not discussed.

This content has been updated on April 16, 2015 at 12:02.