COURT OF APPEAL FOR ONTARIO DATE: 20230817 DOCKET: COA-22-CV-0252

Roberts, Trotter and Sossin JJ.A.

BETWEEN

Canada Christian College and School of Graduate Theological Studies Applicant (Appellant)

and

Post-Secondary Education Quality Assessment Board and His Majesty the King in Right of Ontario as Represented by the Minister of Training, Colleges and Universities also known as the Minister of Colleges and Universities Respondents (Respondents)

Counsel: Gavin MacKenzie and Matthew Diskin, for the appellant Heather Mackay and Ryan Ng, for the respondents Sujit Choudhry and Jesse Hartery, for the intervener Canadian Constitution Federation

Heard: June 14, 2023

On appeal from the judgment of the Divisional Court (Justices Harriet E. Sachs, Edward M. Morgan and David L. Edwards), dated March 17, 2022, with reasons reported at 2022 ONSC 1608.

Sossin J.A.:

OVERVIEW

[1] This case raises the question of the extent of a minister’s discretion to recommend or not to recommend proclamation of enacted legislation, and more broadly the accountability of the executive branch of government for its role in the legislative process.

[2] In 2020, the Legislature passed Bill 213 granting the appellant, Canada Christian College and School of Graduate Theological Studies (“CCC”), the right to refer to itself as a university and certain degree-granting rights: Better for People, Smart for Business Act, 2020, S.O. 2020, c. 34, Sched. 2. The legislation received Royal Assent on December 8, 2020. The Legislature decided that the amendments would not come into force upon Royal Assent.

[3] The legislation provided that the amendments, including the provision relating to the appellant’s change in status and degree-granting rights, were to come into force on a day to be named by the Lieutenant Governor. The respondent Minister of Training, Colleges and Universities recommended against proclaiming the amendments in force at this time following his solicitation of recommendations from the respondent Postsecondary Education Quality Assessment Board (the “Board”). [1] The appellant sought judicial review of both the Minister’s and the Board’s decisions. The Divisional Court dismissed the application.

[4] CCC is a degree-granting educational institution established pursuant to statute in 1999. In 2001, the Post-secondary Education Choice and Excellence Act, 2000, S.O. 2000, c. 36, Sch. (“PSECE Act”) established a new licensing process allowing institutions to apply to the respondent Minister of Training, Colleges and University for consent to acquire university status and to grant university degrees without the need for the enactment of establishing legislation. Until the passing of the PSECE Act, institutions could be granted university status exclusively through statutes. The Act also established the respondent Postsecondary Education Quality Assessment Board, which makes recommendations concerning applications for ministerial consent.

[5] The relevant sections of the PSECE Act provide:

Authority to grant a degree, etc.

2 (1) No person shall directly or indirectly do any of the following things unless the person is authorized to do it by an Act of the Assembly or by the Minister under this Act:

1. Grant a degree.

Authority to establish a university, etc.

3 No person shall directly or indirectly do any of the following things unless the person is authorized to do it by an Act of the Assembly or by the Minister under this Act:

1. Operate or maintain a university.

Consent of Minister

4 (1) The Minister may give a written consent to a person who makes an application under section 5 to authorize the person to do one or more things described in sections 2 and 3.

Terms and conditions of consent

(2) The Minister may attach such terms and conditions to a consent as the Minister considers appropriate, including a termination date after which the consent will cease to be effective unless renewed by the Minister.

Same

(3) A person to whom a consent is given shall ensure compliance with all terms and conditions attached to the consent.

Application for consent

5 (1) A person may apply to the Minister for a consent and for a renewal of a consent.

Referral to Board or other prescribed body

(2) Subject to subsection (2.1), the Minister shall,

(a) refer applications for a consent or renewal of a consent to the Post-secondary Education Quality Assessment Board or another accrediting or quality assurance body or authority, in accordance with the regulations, if any; or

(b) refer elements of an application for a consent or renewal of a consent to the Post-secondary Education Quality Assessment Board and elements to another accrediting or quality assurance body or authority, in accordance with the regulations, if any. 2010, c. 12, s. 6 (1).

Rejection of application

(2.1) The Minister may, in the prescribed circumstances or in accordance with the prescribed criteria, reject an application for consent or renewal of consent without making a referral with respect to the application. 2010, c. 12, s. 6 (1).

Recommendation

(3) Subject to subsection (2.1), the Minister shall not grant or reject an application unless he or she has received a recommendation,

(a) from the Board or the accrediting or quality assurance body or authority; or

(b) in the case of a referral under clause (2) (b), from both the Board and the accrediting or quality assurance body or authority.

Post-secondary Education Quality Assessment Board

7 (1) The board known in English as the Post-secondary Education Quality Assessment Board and in French as Commission d’évaluation de la qualité de l’éducation postsecondaire is continued.

(3) The Board shall,

(a) review applications made under section 5 and other matters referred to it by the Minister and make recommendations to the Minister in a manner and within a time period specified by the Minister.

[6] On July 2, 2019, CCC’s president, Charles McVety, wrote to the Minister to request legislative changes so that CCC could call itself a “university” and expand its degree-granting authority. On October 10, 2019, the Minister’s Chief of Staff advised McVety that amending legislation could not be passed without an application to the Board. According to the appellant, the text messages were exchanged between the Chief of Staff and McVety that offered assurances that the Board’s recommendations “would be non-binding and that the legislation would be proclaimed in the normal course”. On January 31, 2020, McVety wrote the Minister to indicate that it had “chosen to pursue a simple legislative amendment, not ministerial consent.” According to the CCC, on March 11, 2020, the Minister told McVety that, for political reasons, the Ministry would require CCC to submit an application to the Board. On July 10, 2020, CCC submitted an application to the Board. While the Board’s review was ongoing, the bill granting the amendments CCC sought received Royal Assent in December 2020. The bill stipulates that the schedule granting the amendment comes into force on a day to be named by proclamation of the Lieutenant Governor. Meanwhile, the Board completed its review and concluded that CCC did not meet a number of the established standards as set out in the 2019 Manual for Private Organizations Applying for Ministerial Consent (the “Manual”).

[7] Before making its recommendations to the Minister, the Board provided the CCC with an opportunity to respond to its panel’s findings. On May 18, 2021, the Board issued its report and recommendations. The report found that CCC was “not ready” to use the term “University” and communicated the recommendations to the Minister.

[8] The panel of the Board reviewing the CCC application identified significant concerns in areas of governance, administrative capacity, financial stability and academic decision-making. According to the panel, CCC’s application met only four of the 10 Board criteria for obtaining the status of a university.

[9] The criteria not met in the view of the panel included:

1. having a mission and practice including the creation of knowledge through research and/or scholarly activity and the dissemination of knowledge through teaching, publication and presentation;

2. Offering a comprehensive range of degree programs normally including, but not limited to, arts and science;

3. Normally offering programs at both undergraduate and graduate levels, and has appropriate curriculum design and degree level learning outcome standards for each program offered leading to the respective degrees;

4. Possessing a policy on faculty qualifications appropriate to the degree programs offered and to the mission of creating and disseminating knowledge; and

5. Having a governance system in which faculty members participate in decisions determining academic standards that provides for appropriate student involvement and that is committed to principles and practices of academic freedom and responsibility.

[10] Consequently, the Board recommended against approval of the CCC application. Based in part on this analysis, ministerial staff recommended the Act not yet be proclaimed.

[11] The Minister agreed with the recommendations of the Board and ministerial staff and recommended to Cabinet that the legislation not be proclaimed at this time.

[12] The Minister’s recommendation to Cabinet took the following form. Ministerial staff prepared a Decision Note to assist the Minister in making his decision. The Decision Note included the Board’s reports, outlined the background of CCC’s request, the panel’s findings, and the Board’s recommendations, and addressed the public response to CCC’s request that had been broadly negative in communications to the Board and the Ministry, and evidence given to the Standing Committee of the Legislature. The Decision Note presented the Minister the two options (recommend or do not recommend proclamation) and made a recommendation against proclamation at this time, which the Minister accepted.

[13] In response, CCC brought an application for judicial review in the Divisional Court challenging both the Minister’s and the Board’s decisions. CCC’s argument was that the Minister and Board undermined the will of the Legislature. Specifically, CCC argued that the Board’s process was ultra vires, procedurally unfair and tainted by bias and that the Board’s findings and the Minister’s decision to recommend against proclamation were unreasonable.

[14] The Divisional Court dismissed CCC’s judicial review application and concluded that the Board’s recommendations were not reviewable because the Board’s authority is confined to making recommendations, not decisions. The Divisional Court only has jurisdiction to grant relief in relation to “decisions.” The court found the Minister’s decision to refer the matter to the Board was intra vires. First, the court considered the availability of Board review to the Minister even when the application was made for legislative amendment. The Ministry’s policy is to refer all requests to the Board, regardless of whether the request is being made for a legislative amendment or for ministerial consent. Second, the court found that nothing in the PSECE Act precludes the Minister from referring a request for a legislative amendment to the Board for consideration.

[15] The Divisional Court held that the Minister’s decision to refer the matter to the Board in this case did not undermine the will of the Legislature. The Legislature’s will was expressed in the bill, which provided that the amendments would only come into force on a day to be named by proclamation of the Lieutenant Governor. The court added that there is no presumption in Ontario that every enacted statute that is subject to proclamation will be proclaimed.

[16] The Divisional Court concluded that the Minister’s decision not to recommend proclamation in these circumstances was reasonable.

[17] The Divisional Court explained that while there may have been some inaccuracies in the Board’s reports provided to the Minister (in that they did not include the latest information from CCC’s response to the panel’s reports), the inaccuracies were not significant and would not have affected the Board’s recommendations. The Board’s report stated that it had considered CCC’s submissions, and as a result, the Minister could reasonably assume that CCC’s response did not persuade the Board that the panel’s findings were wrong. Further, prior to the Minister’s decision to recommend against proclamation, McVety wrote twice to the Ministry pointing out the alleged inaccuracies.

[18] The Divisional Court further held that the Minister did not breach the duty of procedural fairness in making his decision. The decision about whether to proclaim legislation into force is a legislative function exercised by the executive based on grounds of public policy, and procedural fairness does not apply, relying on Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at pp. 557-58. In any event, even if the Minister owed CCC a duty of procedural fairness, the court found that CCC’s continued participation in the process indicates that he met this duty.

[19] The Divisional Court accordingly dismissed CCC’s judicial review application and ordered CCC to pay costs in the agreed-upon amount of $25,000.

ISSUES

[20] The appellant is not appealing the decision of the Divisional Court with respect to the Board’s recommendation. Its appeal focuses on the decision of the Minister not to recommend proclamation. The appellant raises the following grounds of appeal:

1. the Divisional Court erred in finding that the Minister’s decision not to proclaim the legislation was not justiciable;

2. the Divisional Court erred in finding that the process applied by the Minister in relation to granting university status to the CCC was intra vires the PSECE Act; and

3. the court erred in finding the hybrid process was procedurally fair.

ANALYSIS

[21] The first question to address is the standard of review. Prior to conducting its judicial review of the Minister’s decisions, the Divisional Court concluded that the decision of the Board recommending against approval of CCC’s application was not reviewable by the court, but that the decisions of the Minister to refer the CCC application to the hybrid process, and then ultimately to recommend against proclamation at this time, were reviewable. On appeal, it falls to this court to determine whether that decision with respect to reviewability was correct.

[22] On an appeal from a judicial review itself, the court steps into the application judge’s position and reviews the decision to determine whether the correct standard of review was selected and whether it was properly applied: see Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at paras. 10-12; and Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, at paras. 45-47.

[23] In this case, the Divisional Court proceeded on the basis that the Minister’s decisions were intra vires and reviewable on a reasonableness standard. I agree with the Divisional Court’s conclusions.

A. The justiciability of the Minister’s decisions

[24] The Divisional Court held that the decision of the Board, which made a recommendation to the Minister that the CCC’s application for a change to its status and degree-granting authority was not yet ready for approval, as certain benchmarks had not been met, was not reviewable.

[25] The appellant does not challenge this aspect of the Divisional Court’s decision.

[26] With respect to the Minister’s decisions – both the decision to refer the matter to the Board and the decision to recommend against proclamation of the amendments to the CCC’s establishing legislation at this time – the Divisional Court accepted that these decisions were reviewable.

[27] The Divisional Court characterized the Minister’s decisions as “legislative, not adjudicative in nature.”

[28] The appellant argues that the Divisional Court’s finding that the Minister was exercising a legislative function, in effect, means that the decision of the Minister (the executive) to recommend not proclaiming the legislation is not justiciable, and therefore not reviewable by the court.

[29] I would reject this submission. There is no question that the Minister’s decisions under review are justiciable and that the Divisional Court treated them as such in the decision below. Whether those decisions are characterized as legislative, administrative or adjudicative in nature may be relevant to the substance of the judicial review analysis, as discussed below, but such characterization does not affect their justiciability.

B. The Minister’s decisions were intra vires and reasonable

[30] The appellant argues that the Divisional Court erred in failing to find the Minister’s decisions ultra vires, and on that basis, unreasonable.

[31] For the reasons that follow, I am not persuaded by these arguments.

(1) The Minister’s decision to refer CCC’s application to the Board

[32] First, the appellant takes issue with the Minister’s decision to refer the CCC application to the Board. The appellant argues that, in effect, the Minister created a hybrid approach that exceeded his authority under the PSECE Act, involving both legislation conferring on CCC the status of a university and a distinct process for ministerial approval informed by a recommendation by the Board based on its independent review of CCC’s application.

[33] The statutory language governing the Minister’s referral of CCC’s application is s. 7(3) of the PSECE Act:

The Board shall,

(a) review applications made under section 5 and other matters referred to it by the Minister and make recommendations to the Minister in a manner and within a time period specified by the Minister.

[34] The Minister’s decision to refer CCC’s application, according to the Divisional Court, was rooted in the authority provided under the PSECE Act. The court held, at paras. 53-54:

Under the [PSECE Act], an institution may not grant a degree or call or hold itself out to be a university unless authorized by (i) statute or (ii) the Minister of Training, Colleges and Universities: ss. 2(1) and (3). An institution may pursue the second approach by filing an application for Ministerial consent under s. 5 of the [PSECE Act].

According to CCC, the legislative regime clearly sets up two distinct paths: the legislative and the Ministerial consent path. The Board is to become involved if an institution has chosen the Ministerial consent path, not if it has chosen the legislative amendment path. In this case the Minister created what the Applicant describes as a “hybrid process”, which involved the Board in a case where the institution was not seeking Ministerial consent. This process was ultra vires the Minister’s authority and contrary to the purpose of the legislative scheme.

[35] In rejecting CCC’s argument, the Divisional Court emphasized that s. 7(3) of the PSECE Act does not limit the Board’s role to s. 5 matters. The language is much broader and includes “any other matters referred to it by the Minister”. The Divisional Court rejected CCC’s argument that this language did not authorize the Minister to refer matters to the Board as a means of effectively overriding the will of the legislature.

[36] I see no error in this analysis.

[37] The appellant submits that, in University of Ontario Institute of Technology v. Ontario (Finance), 2016 ONSC 7741 (“UOIT”), the Superior Court affirmed that the legislative and ministerial consent routes are mutually exclusive, thereby confirming that the hybrid process created here is outside the bounds of the PSECE Act. In that case, the court observed that UOIT was required to apply to the Minister for consent to call itself a university and to grant degrees because its enabling statute did not yet grant it these rights.

[38] UOIT was about the tax status of an institution granted authority to confer degrees as a university. The court did not consider the viability of a hybrid approach but rather confirmed the existence of two different routes to obtain the authority to confer degrees as a university – by express authority conferred by an Act of the Legislature or by degree-granting authorizations “by the Minister” in s. 2 and s. 5 of the PSECE Act.

[39] In my view, this case does not stand for the proposition that the hybrid approach adopted by the Minister in the context of the CCC application was in any way ultra vires.

[40] Looking at the text, context and purpose of the Act, it is clear the Minister was granted a broad discretion over referrals of matters to the Board. There is no statutory bar to a referral of an applicant for “University” status to the Board where there is also legislation conferring that status.

[41] Importantly, this referral to the Board occurred prior to the legislation receiving Royal Assent, and ideally, the process would have been completed by this date. The fact that the process continued beyond the date of Royal Assent makes this case unusual. It does not render it unlawful.

(2) The Minister’s Decision Note, stating that it would not be recommending proclamation of the legislation at this time, was not unreasonable

[42] The appellant argues that by recommending against proclamation, the Minister for all practical purposes undertook a legislative act that reversed the approval of university status for the appellant as enacted by the Legislature. According to the appellant, “[t]he Minister’s recommendation to cabinet regarding proclamation was a ‘hard no’, without any possibility (or means) for further consideration.”

[43] The appellant’s position flies in the face of the actual language of the Minister’s decision, which was to recommend that proclamation not move forward “at this time.” There is no suggestion in the record that proclamation was being taken off the table, or that the question would not be reconsidered if and when the appellant met the threshold set out by the Board and accepted by the Minister for approval.

[44] The discretion to determine when proclamation would occur is a power expressly provided through the commencement provision in the Act. Exercising this discretion was not ultra vires to the Minister. To the contrary, it was precisely what the commencement provision contemplated.

[45] While the Minister’s exercise of this lawful authority is entitled to deference, the power of a minister to defer proclamation is in no way unlimited.

[46] On this point, the Divisional Court held, at paras. 68-70:

There is no presumption in Ontario that every enacted statute that is subject to proclamation will be proclaimed. On the contrary, Legislation Act, 2006, S.O. 2006, c. 21, Sched. F., contemplates that some legislation will never be proclaimed. Section 10.1 of the Act provides that legislation that is not brought into force within 10 years of enactment will be automatically repealed (unless the legislature adopts a resolution that it not be repealed).

In her leading text, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada, 2014), at paras. 24.19 and 24.23, Ruth Sullivan makes it clear that when legislatures choose to delay the commencement of legislation by making it subject to proclamation by the Lieutenant Governor in Council (“LGIC”), they may do so for a number of reasons, including achieving a political goal. As she puts it:

Commencement can occur at the same time as enactment or it may be delayed. It also is possible that commencement may never occur. Statutes may be repealed before they are fully or even partially brought into force.

Legislatures may choose to delay the commencement of legislation for one reason or another: to await events, to allow time to prepare administrative machinery, to give fair warning to the public, to achieve a political goal. In such cases the time chosen for commencement is set out or described in the Act or a power is given to the executive branch, usually the Governor General or Lieutenant Governor in Council, to bring the Act into force on a day within its discretion. It is possible to have parts of an Act come into force upon enactment while other parts are delayed. Also, the executive branch may be authorized to bring different provisions of an Act into force on different days [s. 8(3) of the Legislation Act does authorize this]. This authority is normally exercised by way of order or proclamation.

[47] It is clear from this quote that Sullivan referred to the possibility that legislation may never be proclaimed on the basis that it is repealed before proclamation (either by a separate act or by the effect of the deemed repeal after 10 years pursuant to the Legislation Act 2006, S.O. 2006, c. 21, Sched. F.). Of course, acknowledging the possibility of the repeal of legislation not yet proclaimed is quite different than claiming the executive is under no obligation to proclaim enacted legislation, or that there is no presumption that enacted legislation will be proclaimed.

[48] The Canadian Constitution Foundation (“CCF”) intervened on the narrow question on the meaning of this statement in the Divisional Court’s reasons. According to the CCF, the commencement provision like the one at issue in this appeal only grants the executive the limited power to determine when to bring legislation into force, not whether to bring it into force at all.

[49] I agree that this statement requires clarification. I do not read the sentence in the Divisional Court’s reasons to mean that the Minister’s discretion is unfettered, or that it is open to a Minister to decide that legislation once enacted will never be proclaimed. Rather, read in context, I understand the Divisional Court simply to be reiterating the point from Sullivan that not all enacted statutes will in fact be proclaimed. For this reason, I would not accept that the Divisional Court erred in this analysis.

[50] That said, there should be no ambiguity as to the limits on the Minister’s discretion. Put simply, it would not be open to a Minister to decide that an enacted statute will never be proclaimed. Indeed, in oral argument, the respondent acknowledged that it would not be accurate to state that the Minister had the authority to decide never to proclaim enacted legislation.

[51] Section 8(1) of the Legislation Act provides that “[u]nless otherwise provided, an Act comes into force on the day it receives Royal Assent.” Commencement clauses within legislation thus represent an exception to this default standard.

[52] In the case of the Better for People, Smarter for Business Act, 2020, Royal Assent was given on December 8, 2020. Section 5 of Schedule 2 of this legislation provides that Schedule 2 “comes into force on a day to be named by proclamation of the Lieutenant Governor.”

[53] The discretion to exercise the authority conferred by this commencement provision is subject to the same constraints that apply to all exercises of ministerial discretion. The exercise of a discretion “is to be based upon a weighing of considerations pertinent to the object of the [statute’s] administration”: Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140. See also C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 94.

[54] Here, the “perspective within which a statute is intended to operate” is to fulfil the purpose of the legislation by operationalizing the will of the Legislature. The legitimate grounds for delaying proclamation must be related to the conditions necessary for implementing the legislation. In this case, the appellants have not alleged the Minister acted for improper purposes or on the basis of irrelevant considerations.

[55] In its analysis, the Divisional Court also referred to s. 10.1 of the Legislation Act. This provision, which deems legislation not yet proclaimed to be repealed after 10 years, underscores the point that not all enacted legislation will be proclaimed, but does not relieve the executive of its continuing obligation to determine whether to exercise its statutory discretion under a commencement provision.

[56] The appellant and intervener relied on the House of Lords’ decision in R. v. Secretary of State for the Home Department ex p Fire Brigades Union, [1995] UKHL 3 (“Fire Brigades Union”). In that case, the court was required to construe s. 171(1) of the Criminal Justice Act, 1988, which provided that some provisions of the legislation “shall come into force on such day as the Secretary of State … may appoint.”

[57] In 1993, the Secretary of State had announced that those provisions would not come into force and that the existing non-statutory scheme would be replaced by a different non-statutory scheme. A majority of the House of Lords held that the Secretary of State had acted unlawfully by refusing to bring the legislation into force and pursuing this alternative course of action.

[58] The judges in the majority noted that a commencement provision confers discretion on the executive for the purpose of bringing the sections into force. They held that the Secretary of State was under a duty to keep under consideration from time to time whether or not to bring the provisions into force. He could not exercise the power so as to exclude its future exercise. In other words, the House of Lords held that it is for Parliament, not the executive, to repeal legislation.

[59] The Divisional Court distinguished Fire Brigades Union by stating, “In this case, the Minister has only chosen not to recommend proclamation at this time. He has not foreclosed the possibility of the Applicant being successful in obtaining proclamation of the legislation at a future date when the concerns identified by the Board have been fully addressed.” I agree with this analysis.

[60] For these reasons, I see no basis on which to conclude the Minister’s decision was ultra vires or unreasonable.

(3) The Minister’s decisions were not unfair

[61] As an alternative to its argument that the Minister’s decisions were ultra vires and unreasonable, the appellant argues that the hybrid process was unfair, as it failed to respect the CCC’s legitimate procedural expectations and the process applicable under s. 5 of the PSECE Act. Additionally, the appellant submits that information was withheld by the Board’s Secretariat and by the Board to the Minister. The appellant further submits that the Board failed to give reasons and made public information which the appellant was advised would be kept private.

[62] The respondent argues that no duty of fairness applies, as the Minister’s actions were part of the legislative process.

[63] I would reject the appellant’s arguments. Whether the Minister’s actions were part of an executive or legislative function (or both), those actions did not breach any fairness rights to which the appellant was entitled.

[64] That said, I also would not accept the respondent’s premise with respect the proper characterization of the Minister’s discretion. First, the setting of a Minister’s decision whether or not to recommend proclamation is distinct from the actions of the Legislature itself, which are not subject to judicial review on fairness grounds. As the Supreme Court stated in Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40, at para. 37:

Long-standing parliamentary tradition makes it clear that the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislation within Parliament’s competence is unassailable.

[65] Second, this setting is distinct from executive decision-making over the issuing of regulations and other delegated legislative functions, which also is not subject to the duty of fairness: see Attorney General of Canada v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735.

[66] For purposes of resolving this appeal, it is unnecessary to determine if ministerial discretion with respect to proclaiming legislation generally attracts a duty of fairness. The answer to this broader question may well depend on the context. Rarely will the exercise of this discretion be either a purely legislative or purely executive act.

[67] Assuming for purposes of this analysis that a duty of fairness was owed by the Minister to the appellant, the record discloses that the process followed by the Minister was fair. The appellant was granted extensive opportunity to make submissions to the Board and the appellant’s final responses were before the Board when it made its decision, in addition to the summaries prepared by the Board secretariat. If there was a duty to give reasons, that duty was met by the Decision Note signed by the Minister, which clearly set out the recommendations of the Board, and grounds for the Minister’s decision.

[68] The appellant argues that, based on certain communications with the Minister’s staff, it was implied that the Minister would go against the Board if necessary, and that the process was, in the words of the appellant, “effectively political window dressing.” One text message from the Minister’s Chief of Staff to McVety, for example, states, “The good news is that [the Board]’s recommendation to the Minister is not public and the Minister just makes his own decision.”

[69] The appellant has not alleged that the Minister promised that the recommendations of the Board would not be followed if they were not in the appellant’s favour. While the appellant alleges that the Minister somehow “implied” that he would not follow negative recommendations of the Board, this does not constitute a “clear, unambiguous and unqualified” representation required to establish a legitimate expectation: Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68. Further, this representation did not promise a different or more rigorous procedure but rather a substantive outcome, which does not constitute a legitimate expectation in Canadian administrative law: Mavi, at para. 68.

[70] While the Manual makes clear that the application process through the Board is public, representations were made to the appellant that the Board’s process with respect to the CCC application would remain confidential. It does appear, for example, that the appellant’s full application was published inadvertently. The responsibility for this is to some extent shared. First, the appellant was directed to provide a redacted version of its application and it did not do so. Second, in any event, the respondent should not have published the full version of the application. This inadvertent error, while unfortunate, did not affect the fairness of the process provided to the appellant.

[71] For these reasons, I would reject the appellant’s argument that the Minister acted unfairly.

DISPOSITION

[72] For the reasons set out above, I would dismiss the appeal.

[73] The respondent is entitled to costs from the appellant, in the agreed upon all-inclusive amount of $20,000.

Released: August 17, 2023 “L.B.R.” “L. Sossin J.A.” “I agree. L.B. Roberts J.A.” “I agree. Gary Trotter J.A.”

[1] While both the Minister and the Board are respondents in the appeal from the Divisional Court, the appellant is not pursuing any appeal against the Divisional Court’s findings in relation to the Board, and so the “respondent” will refer only to the Minister hereafter.