The Persistent Jurisprudential Muddle: Determining the Standard of Review for Procedural Fairness in Saskatchewan

The “‘black-letter rule’” is that procedural fairness should be reviewed on a standard of correctness.¹ Yet, the question is not settled in Canada. This rule is founded on the interpretation of two Supreme Court of Canada decisions: Canada (Citizenship and Immigration) v. Khosa² and Mission Institution v. Khela.³ However, as Justice Stratas explains in Maritime Broadcasting System Limited v. Canadian Media Guild,⁴ the Supreme Court in Khosa proclaimed “in passing and in obiter (in a case not involving procedural fairness) that Dunsmuir affirmed correctness as the standard of review for procedural matters. But Dunsmuir did not actually do that.”⁵ A different panel at the Federal Court of Appeal later coalesced toward this view in Bergeron v. Canada (Attorney General),⁶ and described the question as a “jurisprudential muddle.”⁷ This confusion is further fueled by the fact that the Supreme Court in Khela applies correctness with “a margin of deference.”⁸ Moreover, the trial judge in Vavilov v. Canada (Minister of Citizenship and Immigration)⁹­­ attracted criticism from the Federal Court of Appeal for having called the standard of review “‘settled law.’”¹⁰ In short, the proper standard of review for matters of procedural fairness remains a mystery, at least among Federal Courts.¹¹

Does the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov¹² settle this issue? The answer is no. Despite Stratas J.A. once again raising the issue in his reasons from the Federal Court of Appeal,¹³ the Supreme Court essentially sidestepped it. The Supreme Court’s most substantive treatment of this issue is found at paragraph 23.¹⁴ Here, the Court provides the general presumptive rule at the heart of the new Vavilov regime: the presumption of reasonableness applies to “the merits of an administrative decision (i.e., judicial review of an administrative decisions [sic] other than a review related to a breach of natural justice and/or the duty of procedural fairness).”¹⁵ The wording here is not remarkable for what it says, but what it manages not to say.¹⁶ By omitting the presumption of reasonableness for procedural fairness, the Supreme Court neither affirms the application of the correctness standard nor permits the application of the reasonableness standard. They say precisely nothing on the issue.¹⁷

This leaves it up to appellate courts to chart their own course through the thicket.¹⁸ What is Saskatchewan’s approach? The Court of Appeal for Saskatchewan maintains that the standard of review is correctness. Even so, the following discussion illustrates that the current law in Saskatchewan remains murky.

 

At first blush, the Court of Appeal for Saskatchewan seems unequivocal: correctness is the appropriate standard.¹⁹ In Eagle’s Nest Youth Ranch Inc. v. Corman Park (Rural Municipality #344),²⁰ the province’s leading case on this point, a majority of the Court embraced correctness.²¹ However, Chief Justice Richards chose to keep the door open.²² In a later case, Saskatoon (City) v. Amalgamated Transit Union,²³ Richards C.J.S. re-expressed this openness:

 

[T]his is not a situation where it would be appropriate to reconsider a self-evidently difficult aspect of the law. Accordingly, I will proceed on the basis that, as per the leading authorities, the standard of review is correctness, i.e., that no deference should be shown to the Board’s decision insofar as it involves procedural fairness.²⁴

The gravity of Richards C.J.S.’s comment is substantial. He carefully considered the Court’s preparedness before concluding that circumstances were not right for a departure from the standard of correctness.²⁵ By actively weighing the case’s suitability, Richards C.J.S. expresses earnest interest in grappling with this issue in the future.²⁶

In Amalgamated Transit, Richards C.J.S. touched upon another area of uncertainty: It is unclear whether procedural review should even be couched in terms of substantive review.²⁷ In Saskatoon Co-operative Association Limited v. Saskatchewan Joint Board, Retail, Wholesale and Department Store Union,²⁸ the Court said that “the assessment of whether there was a breach of procedural fairness is not viewed through the standard of review lens. The content of procedural fairness in this appeal is derived from common law principles that transcend the standard of review analysis.”²⁹ This notion has been supported by the Supreme Court of Canada as well as other appellate court decisions.³⁰ Despite the dicta of RWDSU³¹ and Moreau-Bérubé v. New Brunswick (Judicial Council)³² above,³³ the Court in Eagle’s Nest affirmed that the applicable standard of review is correctness.³⁴ This clearly leaves the question open as to whether a standard of review choice is warranted in the first place.

 

Due to this prevailing uncertainty, lower courts have clearly struggled to navigate to the appropriate standard of review.³⁵ Justice Danyliuk, at the Court of Queen’s Bench for Saskatchewan, recently grappled with this issue in Risseeuw v. Saskatchewan College of Psychologists³⁶ where he stated as follows:

 

Thus, on this point I find myself standing in a central place where I can neither take a step toward the applicant (correctness) nor the respondent (reasonableness). Rather, I take a step to the side to assess this substantive issue (procedural fairness) on the basis outlined in the authorities cited above. It is my view that while, generally, this decision of the respondent must be considered within the context of correctness, the tribunal is to be afforded a measure of deference; thus, I am applying a hybrid standard of review.³⁷

Yet, on appeal, Danyliuk J.’s characterization drew rebuke from the Court of Appeal.³⁸ Justice Schwann asserted that Danyliuk J.’s “correctness standard but with a measure of deference accorded to the procedural choices of the decision-maker”³⁹ approach is “not consistent with the law in this jurisdiction.”⁴⁰ She also emphasized that the final result of the appeal should not be taken as any endorsement of Danyliuk J.’s reasoning whatsoever.⁴¹

This marks a point of considerable difficulty. On one hand, as suggested by Justice Rennie of the Federal Court of Appeal, the notion of “a correctness standard with some deference is both confusing and unhelpful.”⁴² On the other hand, Baker factors,⁴³ when properly applied, prescribe a margin of deference.⁴⁴ In Eagles Nest, the Court of Appeal for Saskatchewan explicitly applies a “measure of deference” to the decision of the administrative body,⁴⁵ as did the Supreme Court in Khela.⁴⁶ However, in CPR, Rennie J.A. makes a principled stance for coherence: Deference is owed in “determining the content of fairness” but not in determining whether the party met that content.⁴⁷ Likewise, in Risseeuw QB, Danyliuk J. merely applied deference toward the Baker factors and does not appear to have applied any deference toward the breach itself.⁴⁸ Accordingly, it remains unclear whether the issue of correctness i­­s anything other than judicial semantics.⁴⁹

The discussion above demonstrates that Saskatchewan is not sheltered from the jurisprudential muddle concurrently plaguing other Canadian jurisdictions. Although the Court of Appeal for Saskatchewan continues to advocate for a standard of review of “correctness,” it remains simultaneously open to debate as to the appropriate standard while being careful not to stray from calling it “correctness”. Therefore, in Saskatchewan, it is entirely accurate to say that the standard of review for procedural fairness is “correctness.” However, it is also accurate to say that the area is maddeningly uncertain—and open to creative argumentation.

* JD Candidate (Saskatchewan).

 

¹ Maritime Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59 at paras 59, 75, 373 DLR (4th) 167 [Maritime Broadcasting], quoting Re:Sound v Fitness Industry Council of Canada, 2014 FCA 48 at para 34, [2015] 2 FCR 170.

 

² 2009 SCC 12, [2009] 1 SCR 339 [Khosa]. See ibid at para 43, citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]. See also Maritime Broadcasting, supra note 1 at paras 53, 78–79, citing Khosa, supra note 2 at para 43.

 

³ 2014 SCC 24, [2014] 1 SCR 502 [Khela]. See ibid at para 79, cited in Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132 at para 12, [2018] 3 FCR 75 [Vavilov FCA].

 

⁴ Maritime Broadcasting, supra note 1.

 

⁵ Ibid at para 53, Stratas JA (concurring in result, but not on this point), citing Dunsmuir, supra note 2 at para 43. Webb J.A., in his concurring reasons (Near J.A. concurring), disagreed on this point: see Maritime Broadcasting, supra note 1 at paras 74–80.

 

⁶ 2015 FCA 160, 474 NR 366, leave to appeal to SCC refused, 36701 (14 April 2016) [Bergeron].

 

⁷ Ibid at para 71.

 

⁸ Khela, supra note 3 at para 89, cited in Bergeron, supra note 6 at para 67.

 

⁹ 2015 FC 960, [2016] 2 FCR 39 [Vavilov FC].

 

¹⁰ Vavilov FCA, supra note 3 at para 13, quoting Vavilov FC, supra note 9 at para 15. The majority of the Court, citing Bergeron, supra note 6, noted that, “in [its] view[,] the law remains unsettled”: Vavilov FCA, supra note 3 at para 13.

 

¹¹ But see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 37ff, [2019] 1 FCR 121 [CPR]. In CPR, the apparent disagreement on the state of the law is acknowledged. Justice Rennie, writing for the Court, noted that “[t]here is commentary in some decisions of this Court that the law on this question is unsettled. Closer examination, however, reveals that this is not the case” (ibid at para 37). Can an area of law be settled if competing authorities disagree that it is so?

 

¹² 2019 SCC 65, 441 DLR (4th) 1 [Vavilov SCC].

 

¹³ See Vavilov FCA, supra note 3 at paras 11–14, citing Bergeron, supra note 6 at paras 67–72, Khela, supra note 3 at paras 79, 89.

 

¹⁴ Vavilov SCC, supra note 12.

 

¹⁵ Ibid at para 23 [emphasis added].

 

¹⁶ Granted, this case is remarkable in other contexts which are not under discussion here.

 

¹⁷ Procedural fairness is also left untouched in subsequent Supreme Court cases (as of the time of this publication): see Bell Canada v Canada (Attorney General), 2019 SCC 66, 441 DLR (4th) 155; Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67, 441 DLR (4th) 269. However, consider a scenario where an administrative body interprets a home statute to resolve a question of procedural fairness; its treatment on judicial review may now be governed by the Vavilov framework: see infra note 49 for discussion. See also Vavilov SCC, supra note 12 at para 25, where the majority stated the following:

 

“[I]t is now appropriate to hold that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. While this presumption applies to the administrative decision maker’s interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision” [emphasis added].

 

For a thoughtful interpretation of Vavilov SCC on this issue, see Likhi v Canada (Citizenship and Immigration), 2020 FC 171 at paras 19–24.

 

¹⁸ See The Honourable Simon Ruel, “Reasonableness or Correctness Part Two – What Is the Standard of Review to Be Applied to Issues of Procedural Fairness” (Paper delivered at the Canadian Institute for the Administration of Justice Advanced Judicial Seminar on Administrative Law, Ottawa, 26 May 2016) at 12ff, online: <ciaj-icaj.ca/wp-content/uploads/documents/2016/07/j2016-2.pdf?id=7534&1520942929>, archived: <perma.cc/V2TG-3QBU>.

 

¹⁹ See e.g. Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality #344), 2016 SKCA 20 at para 20, 395 DLR (4th) 24 [Eagle’s Nest]; Saskatoon (City) v Amalgamated Transit Union, Local 615, 2017 SKCA 96 at paras 24–32, [2018] 4 WWR 822 [Amalgamated Transit]; Risseeuw v Saskatchewan College of Psychologists, 2019 SKCA 9 at paras 63–64, 437 DLR (4th) 681 [Risseeuw CA].

 

²⁰ Eagle’s Nest, supra note 19.

 

²¹ See ibid at para 25.

 

²² See ibid at para 84. Dissenting in Eagle’s Nest, Richards C.J.S. did “not want to foreclose its consideration in some future case by declaring that the review of all procedural fairness issues must necessarily be conducted using the ‘correctness’ standard of review or by otherwise showing no deference to a statutory decision-maker on this front” (ibid).

 

²³ Amalgamated Transit, supra note 19.

 

²⁴ Ibid at para 32 [emphasis added]. In that decision, Richards C.J.S. was clearly uncomfortable with the underlying doctrinal principles at play (see ibid at paras 24ff) and recognizes the area to be a “difficult and somewhat evolving corner of the law” (ibid at para 31).

 

²⁵ Ibid at para 32.

 

²⁶ Richards C.J.S.’s analysis goes further than indicated in the quote above: see ibid at paras 24–32.

²⁷ Ibid at para 31. Richards C.J.S. acknowledges the uncertainty by noting that “[e]lsewhere, there have been suggestions that questions of procedural fairness are simply not amenable to a traditional standard of review analysis” (ibid).

 

²⁸ 2016 SKCA 94, 484 Sask R 157 [RWDSU].

 

²⁹ Ibid at para 19, citing Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 at para 74, [2002] 1 SCR 249 [Moreau-Bérubé], Dunsmuir, supra note 2 at para 79.

 

³⁰ Writing for the Court in Moreau-Bérubé, supra note 29, Justice Arbour stated that procedural fairness “requires no assessment of the appropriate standard of judicial review” (ibid at para 74). See also CPR, supra note 11 at paras 50ff, citing Brooks v Ontario Racing Commission, 2017 ONCA 833 at para 5, 33 Admin LR (6th) 316.

 

³¹ Supra note 28.

 

³² Moreau-Bérubé, supra note 29.

 

³³ See also Risseeuw CA, supra note 19 at paras 63–64; Amalgamated Transit, supra note 19 at paras 24–32.

 

³⁴ Supra note 19 at para 25. See also SEIU-West v Heartland Regional Health Authority, 2017 SKCA 84 at para 4; Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA 86 at para 26, [2020] 4 WWR 212, citing Risseeuw CA, supra note 19 at paras 63–64, Eagle’s Nest, supra note 19 at paras 21–26, Amalgamated Transit, supra note 19 at paras 24–32, Khosa, supra note 2 at para 43, Khela, supra note 3 at para 79. Writing for the majority in Eagle’s Nest, supra note 19, Caldwell J.A. admitted that using the term “correctness” was “‘awkward’” in the circumstances (ibid at para 20, quoting Spinks v Alberta (Law Enforcement Review Board), 2011 ABCA 162 at para 23, [2011] 10 WWR 264).

 

³⁵ See e.g. UNIFOR Local 1-S v Saskatchewan Telecommunications Holding Corporation (SaskTel), 2016 SKQB 62 at paras 23–26. Here, Justice Barrington-Foote (as he then was) reviewed the jurisprudential contention in this area (ibid) and agreed to apply a measure of deference on procedural decisions “regardless of whether the standard of review is characterized as correctness or reasonableness” (ibid at para 26 [emphasis in original]).

 

³⁶ 2017 SKQB 8, [2017] 7 WWR 797 [Risseeuw QB].

 

³⁷ Ibid at para 45. Danyliuk J. provides an excellent summary of the jurisprudence across Canada (see ibid at paras 37ff).

 

³⁸ See Risseeuw CA, supra note 19 at paras 63–65.

 

³⁹ Ibid at para 63.

 

⁴⁰ Ibid at para 64.

 

⁴¹ Ibid at para 65.

⁴² CPR, supra note 11 at para 44.

 

⁴³ See Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 at paras 21–28.

 

⁴⁴ Ibid at para 27. With respect to according deference to administrative decision-makers in matters of procedural fairness, Justice L’Heureux-Dubé, writing for the majority, stated the following:

 

[T]he analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.

 

(Ibid). But see Maritime Broadcasting, supra note 1 at para 61: “[R]eview conducted in a manner ‘respectful of the agency’s choices’ or with a ‘degree of deference’ to those choices is really a species of deferential review.”

 

⁴⁵ Supra note 19 at para 31. See especially ibid: “[T]he…council exercises—within general procedural norms and statutory requirements—a measure of discretion in its choices as to the manner in which it records its decisions and the content of that record. In this respect, a corresponding measure of deference is owed by a reviewing court to some of the RM council’s choices in this regard” [emphasis added]. See also ibid at para 28.

 

⁴⁶ See Khela, supra note 3 at paras 79–89 (see especially ibid at paras 79, 89). This interpretation is shared by the Federal Court of Appeal in Bergeron, supra note 6 at para 67. See also Canadian Pacific Railway Co. v Vancouver (City), 2006 SCC 5, [2006] 1 SCR 227, where, in the context of a public consultation, “flexibility” (ibid at para 50) was granted to Vancouver City Council to exercise its “discretionary power in the public interest” (ibid at para 48).

 

⁴⁷ See CPR, supra note 11 at para 41 [emphasis in original].

 

⁴⁸ See Risseeuw QB, supra note 36 at paras 102–117.

 

⁴⁹ Troublingly, semantics is apparently at play in other ways: see Saskatchewan (Workers’ Compensation Board) v Gjerde, 2016 SKCA 30 at paras 56–59, 395 DLR (4th) 331 [Gjerde]. In Gjerde, the Court recharacterized a procedural question into a substantive one, suggesting that a reasonableness standard of review should prevail where a decision-maker essentially makes a procedural decision through the interpretation of their home statute (see ibid). This approach mirrors the one taken by the Court of Appeal of Québec in Syndicat des travailleuses et travailleurs de ADF - CSN c Syndicat des employés de Au Dragon forgé inc., 2013 QCCA 793, [2013] RJQ 831 [Syndicat]. In Ruel, supra note 18 at 13–15, Justice Ruel describes the similar treatment of the Court of Appeal for Saskatchewan’s decision in Gjerde and the Court of Appeal of Québec’s decision in Syndicat of questions regarding procedural decisions stemming from the interpretation of a decision-maker’s home statute. See also RWDSU, supra note 28: “The procedural fairness requirements in this appeal are not determined by interpreting the tribunal’s home statute, which would require a measure of deference” (ibid at para 19, citing Gjerde, supra note 49 at para 57). Curiously, however, Gjerde applies a reasonableness standard of review, not a procedural review with “a measure of deference”: Gjerde, supra note 49 at para 57. For criticism on this state of affairs, see The Honourable David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42:1 Queen’s LJ 27. In particular, Justice Stratas aptly characterizes this seemingly semantical inconsistency as follows:

 

If a tribunal denies a person standing to make submissions on the ground that her submissions will not be relevant to the issues in the case, is the decision “procedural” or “substantive”? It is “procedural” if you characterize the decision as preventing her from having her say on an issue that is of concern to her and creating an appearance of unfairness. It is “substantive” if you characterize the decision as being a ruling on the nature of the issues before the tribunal and the relevancy of the person’s proposed submissions to those issues. So which is it? Do we call the wine glass half empty or half full? The margin of appreciation to be afforded to the tribunal should not depend on the arbitrary outcome of a labelling exercise.

 

(Ibid at 55).