In this year’s Annual Update on Judicial Review, held on October 18, 2021, the Honourable Justice David Stratas, Federal Court of Appeal, and Professor Paul Daly, University of Ottawa, discussed recent cases and developments in the administrative law jurisprudence across Canada. The event was chaired by Dina Awad and Jillian Siskind of the OBA Administrative Law Section Executive. This summary of the lively discussion is categorized into six themes, following the structure and flow of the event.
1. Selecting the Standard of Review
The first case discussed was United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 [AHS], where the Alberta Court of Appeal applied the correctness standard to the interpretation of family status discrimination. It is worth noting that there is a divergence between the provinces in terms of the prima facie test for family status discrimination and, in particular, whether the person who is complaining of discrimination has to demonstrate that they made a reasonable attempt to reconcile their family obligations with their professional obligations. The Alberta Court of Appeal in AHS took the view that because the interpretation of a human rights concept is the interpretation of a quasi-constitutional statute and is of central importance to the legal system, it is one of those situations where there has to be uniformity. The Alberta Court of Appeal applied a correctness standard. Alberta Health Services has sought leave, though it might be another month before we learn whether the SCC will grant leave or not. In Professor Daly’s view, AHS is the most interesting of the standard of review cases in the past year.
Flowing out of this discussion arose the topic of the Supreme Court taking public law notions of standard of review and applying them to private arbitrations and statutory appeals from private arbitrations. It was noted that there is a public-private divide in administrative law, and its standards apply only to public law matters. However, some SCC cases pre-Vavilov have applied a reasonableness standard to private arbitrations. It will be interesting to see whether the SCC continues to persist with that approach post-Vavilov. On the one hand, some argue that the arrival of Vavilov creates arguments that this rubric no longer applies, and that the normal appellate standard of review should apply instead. On the other hand, others argue that reasonableness review may apply to the arbitral context. After all, private parties have chosen an arbitrator to decide their legal question, and they may have opted out of a correctness rubric. There has yet to be a Supreme Court decision that settles the point.