(Director under Long-Term Care Homes Act, 2007),
2022 ONSC 5379
DIVISIONAL Court FILE NO.: 21-12811282
DATE: 2022-09-23
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Varpio, King JJ.
IN THE MATTER OF an Order of the Director under section 50(1) of the Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, in respect of SUNSET MANOR HOME FOR SENIOR CITIZENS, operated by The CORPORATION OF THE COUNTY OF SIMCOE
B E T W E E N:
THE CORPORATION OF THE COUNTY OF SIMCOE
Applicant
- and -
ONTARIO (DIRECTOR UNDER THE LONG-TERM CARE HOMES ACT, 2007)
Respondent
M. Karabus and J. Wilson, for the Applicant
H. Mackay and M. Valentini, for the Respondent
HEARD in Oshawa by videoconference: June 30, 2022
BY THE COURT:
REASONS FOR JUDGMENT
OVERVIEW
[1] The applicant seeks judicial review of the respondent Director’s June 10, 2021 Direction mandating that the Sunset Manor long-term care home cease admitting new residents until further notice. The Direction was issued pursuant to section 50 of the Long-Term Care Homes Act, 2007 (the “Act”)[^1] and O. Reg 79/10 (the “Regulation”) due to the Director’s belief that there “is a risk of harm to the health or well-being of residents…or persons who might be admitted as residents” at Sunset Manor.[^2]
[2] The applicant – which runs Sunset Manor - submits that the decision to issue the Direction was tainted with a reasonable apprehension of bias, the applicant was denied procedural fairness and the Direction was unreasonable.
[3] For the reasons set forth below, the application is dismissed.
FACTS
Statutory Scheme: The Act and the Regulation
[4] Long-term care homes (“LTCHs”) provide residential accommodation and 24/7 nursing and personal care to individuals who require assistance with the activities of daily living. Residents of LTCHs are commonly elderly and often have some degree of dementia or cognitive impairment, along with additional complex medical needs.[^3] The focus of the Act is the protection of residents in LTCHs.
[5] Part II of the Act, “Residents: Rights, Care and Services”, deals with the rights of residents of LTCH and the care and services they are entitled to. Licensees (LTCH operators) must ensure that certain programs and services are provided: nursing and personal support services; restorative care; recreational and social activities; dietary services and hydration; medical services; information and referral assistance; religious and spiritual practices; accommodation services; a volunteer program; as well as staffing and care standards.[^4] This Part also requires a licensee to ensure that residents are protected from abuse and neglect by the licensee or the licensee’s staff.[^5]
[6] Ministry inspectors have broad powers to conduct inspections under ss. 146 and 147 of the Act. Where they determine a home is in non-compliance, they must take at least one of the enforcement actions set out in s. 152(1). An inspector who has made a finding of non-compliance may issue a written notice, a voluntary plan of correction for achieving compliance, a compliance order ordering a licensee to achieve compliance with a requirement under the Act or to submit a plan to do so, a work and activity order, or a director referral. A director referral is the most serious action an inspector can take. It is done where an inspector recommends an enforcement action that exceeds their authority.[^6] An inspector is required to discuss a director referral with their manager before issuing it.[^7]
[7] Section 299 of the Regulation sets out the mandatory factors inspectors and the Director are required to take into account in determining what action(s) to take upon a finding of non-compliance with the Act or the Regulation:
i. the severity of the non-compliance;
ii. the scope of the non-compliance; and
iii. a licensee’s history of compliance, in any home.
[8] When an inspector determines there is non-compliance with the Act or the Regulation, the Ministry’s Long-Term Care Homes Quality Inspection Program requires all inspectors to apply a standardized approach to determine the appropriate enforcement action with the assistance of a Ministry tool called the judgment matrix. The judgment matrix takes into account three factors:
(a) the level of risk the non-compliance poses to residents;
(b) how widespread the risk is, or its scope, based on questioning of three random residents; and
(c) the home’s history of compliance.
[9] These three data points are plotted onto the judgment matrix and used to determine the appropriate enforcement action.
[10] In determining the severity of an incidence of non-compliance, the judgment matrix considers whether the non-compliance relates to a Key Risk Indicator. Key Risk Indicators are contraventions of the Act and the Regulation that have been identified by the Ministry as meriting the assignment of a higher severity level. Examples of Key Risk Indicators include abuse, infection prevention and control, medications, nutrition care and hydration, reporting, responsive behaviours and altercations, and skin and wound care.
[11] The Director is authorized to take several enforcement measures under the Act (which he or she can do with or without an inspector’s referral such as:
(a) issue a compliance order (s. 153(1));
(b) issue a work and activity order (s. 154(1));
(c) order that funding be returned or withheld (s. 155(4));
(d) issue a mandatory management order (s. 156(1));
(e) revoke a licensee’s licence to operate a LTCH (s. 157(1)); or
(f) direct the placement coordinator to cease admissions (s. 50(1)).
[12] The judgment matrix requires an inspector to review a LTCH’s compliance history for 36 months prior to the first day of the inspection to determine the appropriate enforcement action. The inspector is required to look at whether there are any incidents of non-compliance related to the same subsection of the Act or Regulation as well as the overall compliance history. The Ministry has ascribed six levels to the compliance history. The compliance history will determine what enforcement actions are available to the inspector and guide the inspector regarding whether the enforcement action should be reduced, remain the same or be escalated.
The April/May 2021 Inspection
[13] The April/May 2021 inspection of Sunset Manor was prompted by complaints to the Ministry. One of the “key complainants” was the home’s Medical Director and physician who had worked in the home for almost 25 years. This physician “reported their concerns to the action line and in person to inspectors in relation to a number of systemic issues which resulted in actual harm or risk of harm to residents. The MD has been quite clear that they are concerned for the wellbeing of residents in the home, and there needs to be a change before something even more egregious happens.”
[14] Kathryn Harrison and Amanda Coulter were the inspectors who carried out the inspection of Sunset Manor in April and May 2021. The inspectors prepared an inspection report following the inspection which led to eight compliance orders being issued as well as three director referrals recommending that a mandatory management order be placed over Sunset Manor. Ms. Harrison issued Orders 1 and 5 alone. Orders 2, 3, 4 and 8 were issued by Ms. Coulter alone. Orders 6 and 7 were issued jointly. Orders 5, 6 and 7 each resulted in a director referral. Order 5 related to skin wounds, Order 6 related to protection from neglect and abuse and Order 7 related to whistle blowing.
[15] As required by the judgment matrix, the three director referrals issued as a result of the April/May 2021 inspection were reviewed and approved by the inspectors’ Area Office Manager and her Senior Manager.
[16] Also as required by the judgment matrix, the inspectors considered the applicant’s compliance history in the 36 months preceding the April/May 2021 inspection and during their inspection. This history demonstrated multiple incidences of non-compliance involving Key Risk Indicators.
[17] The director referrals arising from the April/May 2021 inspection ultimately led to the Director issuing the Direction and a mandatory management order that Sunset Manor cease authorizing admissions.
[18] The parties disagree over whether the Director considered only the April/May, 2021 inspections or earlier inspections as well. The Record of Decision states: “My belief is based on information provided to me by Ministry staff regarding the results of a recent inspections [sic]…”. The applicant submits that this statement means the Director only considered the April/May 2021 inspections. The respondent submits that “a” is a typo and that the Director reviewed inspection reports for Sunset Manor dating back to May 2019 which are part of the Record of Decision. They revealed 42 instances of non-compliance with the Act or Regulation, 12 which resulted in compliance orders and one in a director referral.
[19] As noted above, the judgment matrix requires the inspectors to review Sunset Manor’s compliance history for 36 months prior to the first day of the inspection to determine the appropriate enforcement action. The director referrals issued arising out of the April/May 2021 inspection, which the Director reviewed, reveal that in the three years prior to the April/May 2021, Ministry inspectors had issued 61 written notifications, 29 voluntary plans of correction, 15 compliance orders, and one director referral.
[20] Most of the eight issues arising from the April/May 2021 inspection listed by the Director in his Record of Decision had previously been identified as incidences of non-compliance in the relevant 36 months: skin and wound care; protection from abuse and neglect; drugs not being administered as prescribed; deficiencies with nutrition care and hydration; and minimizing the risk of altercations. Skin and wound care and the duty to protect had such a poor compliance history that they resulted in director referrals. While whistleblowing arose for the first time on the April/May 2021 inspection, there were enough incidences of other misconduct that both inspectors and their manager determined that whistle blowing warranted a director referral.
Alleged Bias of One of the Inspectors
[21] Ms. Harrison had been employed as the Director of Care at Sunset Manor between 2006 and 2017, when her employment was terminated. According to the applicant, Ms. Harrison’s time at Sunset Manor was troubled as was her relationships with other employees. Nevertheless, the termination was without cause, and she received a settlement from the applicant upon termination.
[22] Ms. Harrison is a registered nurse, holds a Bachelor of Healthcare Sciences (Honours) in Healthcare Studies from the University of Leeds in England, and a Master’s certificate in Municipal Leadership from York University in Ontario. She has significant experience as a senior manager in three different long-term care homes.
[23] Ms. Harrison was appointed as an inspector with the Ministry in 2019, approximately two and a half years after her employment was terminated with Sunset Manor. At that time, the General Manager of Sunset Manor expressed concerns to the Ministry regarding Ms. Harrison’s assignment to inspect Sunset Manor and was advised that the Ministry tried to avoid assigning former employees of a specific home to inspect that home. The applicant fails to note in its factum that prior to the April/May 2021 inspection, Ms. Harrison had inspected Sunset Manor multiple times. No further objection was made by Sunset Manor after its initial concern expressed in 2019. Ms. Harrison did not take any enforcement action against Sunset Manor as a result of these inspections and, on one inspection, she determined that Sunset Manor had complied with two previously issued compliance orders.
[24] Ms. Harrison deposed that she had no animus against Sunset Manor and was at all times fulfilling her duties as an inspector in good faith.
[25] Ms. Harrison was the junior inspector on the April/May 2021 inspection. Ms. Coulter was the senior and lead inspector. The April/May 2021 inspection resulted in a further 13 findings of non-compliance resulting in eight compliance orders and three director referrals. Only two of those compliance orders were issued by Ms. Harrison alone.
[26] None of the enforcement actions taken in the three years prior to the April/May 2021 inspection (61 written notifications; 29 voluntary plans of correction; 15 compliance orders; and one director referral) were taken by Ms. Harrison.
[27] The applicant raises that the allegations of bias against Ms. Harrison were not known to the Director at the time he issued his Direction. These allegations were not raised in the meeting the General Manager of Sunset Manor had with Ministry staff on June 1, 2021.
[28] The Director’s reasons set out clear direction for the applicant as to what is required to have the Direction lifted. There have been four further inspections of Sunset Manor since the April/May 2021 inspection: August/September 2021; November 2021; January/February 2022; and May 2022, none of which have been conducted by Ms. Harrison or Ms. Coulter. The Direction remains in place.
[29] The applicant also asserts that the Director, Brad Robinson, “had been on the job for precisely one day” when he issued the Decision and his Reasons on June 10, 2021, having been appointed on June 9, 2021.” In fact, Mr. Robinson had been Acting Director since October 2020 with delegated authority under the Act to carry out the powers of the Director.
Procedural Fairness
[30] Neither the Act, nor the Regulation, require the Ministry to provide any notice to a licensee before taking any enforcement action under the Act. Every compliance order issued contains information about how to appeal it, and the Act provides three levels of “appeal” for a compliance order and two levels of appeal for a mandatory management order. While there is no right of appeal from a Direction, the three director referrals issued by the inspectors after the April/May 2021 inspection gave notice to the applicant that there was a potential for further enforcement action by the Director.
[31] The applicant was served with the inspection report on May 27, 2021, and the director referrals on May 28, 2021. The applicant had the opportunity to, and did, raise issues about the April/May 2021 inspection, its findings and the enforcement actions arising from that inspection, with the Ministry at the June 1, 2021 meeting.
ANALYSIS
Issues
[32] This application raises the following issues:
a. What are the applicable standards of review?
b. Was the Director’s Direction tainted with a reasonable apprehension of bias?
c. Was the applicant denied procedural fairness?
d. Was the Direction unreasonable?
Standard of Review
[33] The standard of review applicable to the Director’s Direction is typically one of reasonableness, unless the nature of the decision engages matters attracting a standard of correctness.[^8]
Reasonable Apprehension of Bias
[34] Administrative decisions must be made by an impartial decision maker, free from a reasonable apprehension of bias. Actual bias need not be demonstrated, nor must a party prove that the apprehended bias prejudiced or changed the outcome of the case. The test is an objective one. As noted by DeGrandpré J. in Committee for Justice and Liberty v. National Energy Board:
... the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
The stringency of the test for bias varies with the circumstances, including the context of the decision maker’s activities and the nature of its functions. [^9]
[35] The applicant submits that the Director’s decision was tainted by a reasonable apprehension of bias because of Ms. Harrison’s prior employment with Sunset Manor. Ms. Harrison’s allegedly acrimonious departure from her employment was such that her involvement in the inspection process raises the spectre of a reasonable apprehension of bias. Further, the applicant submits that Ms. Harrison played a central role in the decision-making process because the applicant submits that the Director’s reasons contain no independent analysis or consideration. Accordingly, Ms. Harrison became the de facto decision-maker in this case and the decision to prevent the applicant from accepting new residents was tainted by same.
[36] We find that the applicant’s position fails to adequately weigh the relevant evidence.
[37] Ms. Harrison’s previous employment does not rise to the level of concern whereby an informed person would find it more likely than not that the decision-maker would not decide the matter fairly.
[38] First, Ms. Harrison’s employment with Sunset Manor ended over two years prior to the impugned inspection. This is a sufficient period of time to suggest that whatever animus may have existed would have dissipated with the effluxion of time (assuming, of course, that any such animus ever existed). This finding is consistent with the evidence in that the applicant initially raised its concern about Ms. Harrison’s impartiality but, after Ms. Harrison conducted several inspections that resulted in positive results for the applicant, the applicant did not raise this concern again. The reasonable person would therefore conclude that Ms. Harrison had likely “gotten on with her life” by the time of the impugned inspection and that Sunset Manor had no concerns in that regard.
[39] Second, the Director’s apparent typographical error in his reasons does not provide sufficient evidence that the Director only considered the April/May 2021 inspection. Instead, the Act is clear that the Director had to consider historical data. The Director appears to have reviewed inspection reports dating back to May 2019. That historical data is replete with instances of significant non-compliance with the Act and the Regulation. Further, Ms. Coulter’s findings formed the bulk of the April/May 2021 inspection. Accordingly, the evidence does not support the view that the Director effectively relied upon Ms. Harrison’s portion of the April/May 2021 report as the basis for his decision. Ms. Harrison was not, therefore, the de facto decision maker.
[40] Ergo, since Ms. Harrison’s conduct and status do not raise the prospect of reasonable apprehension of bias, and since the Director did not rely exclusively – or even primarily – upon Ms. Harrison’s inspections as the basis for his decision, there are insufficient grounds to find a reasonable apprehension of bias.
Procedural Fairness
[41] The common law duty of fairness is presumed to apply whenever an administrative decision affects the rights, privileges or interests of an individual. This presumption can only be ousted by clear statutory language or necessary implication to the contrary. [^10]
[42] The nature and content of the procedural protections to be afforded to individuals is context specific and depends upon the application of factors identified by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)[^11]:
a. The nature of the decision;
b. The nature and terms of the statutory scheme and the role of the decision in that scheme;
c. The importance of the decision to the affected party;
d. The legitimate expectations of the affected party; and
e. The decision-maker’s choice of procedure.
[43] A review of the five Baker factors makes clear that the procedure chosen by the Director meets the burden of procedural fairness.
[44] The first Baker factor augers against robust procedures as the decision was not akin to a judicial process.
[45] With respect to the second factor in Baker, the Act affords no right of appeal from the decision, which would suggest some level of procedural fairness is required. With that said, however, the order is temporary, and the applicant had – and continues to have – the right of review on underlying orders and referrals. Indeed, Sunset Manor met with Ministry representatives prior to the imposition of the order. Further, the Direction allows for dialogue to rectify the problems identified within the temporary order which is, presumably, akin to further submissions. Moreover, the priority of the Act is protection of residents, and notice and submissions would undermine this mandate by delaying protective action, especially since LTHC residents are often vulnerable people. Thus, the second factor does not, on the aggregate, demand that a heightened level of procedural fairness be afforded the applicant in this situation. This is a weighty factor.
[46] The third Baker factor weighs in favor of more stringent procedural rigor since the decision is very important to the applicant.
[47] The fourth Baker factor weighs against a robust process that includes notice and submissions since the Act does not provide for such a process and, as such, the applicant could not have had a reasonable expectation of same.
[48] Finally, the fifth Baker factor suggests that the procedure chosen by the Director is appropriate in the circumstances. The temporary refusal to admit new residents protects vulnerable people from entering a potentially hazardous new home. Conversely, the invitation to provide updates enables the affected home to engage in a discourse with the Ministry such that the applicants’ concerns can be addressed in real time. Further, it is important to note that in this case, the applicant met with the Ministry prior to the rendering of the decision where the applicant voiced its concerns regarding the inspections and other relevant matters. Accordingly, the process undertaken by the Ministry adequately balanced competing interests and ensured that the applicant could voice its concerns prior to the rendering of said decision. This is therefore a weighty factor.
[49] When all five Baker factors are considered, it is clear that the applicant was afforded ample procedural fairness in that an appropriate balance was struck in the circumstances.
Was the Decision Reasonable?
[50] A reasonable decision is one that is “transparent, intellible and justified”. The burden of proving same is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside, a court must be persuaded that there are “serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”. Errors in the decision must be more than mere superficial flaws or be peripheral to the merits of the case.[^12]
[51] A reasonable decision must be based upon reasoning that is rational and logical. It must be justified in light of the law, the facts and the evidentiary record. It must contain a reasonable penalty or enforcement measure. The decision-maker’s interpretation of the statutory provision at issue must be consistent with the text, context and purpose of the provision.[^13]
[52] The applicant submits that the decision was not reasonable. First, the applicant submits that the Director’s decision is not justifiable, transparent or intelligible in that there is no reasoning process inherent in his decision. Rather, the Director simply adopted the inspector’s findings.
[53] Second, the applicant submits that the inspectors misapplied the “severity” and “scope” factors as required in s. 299 of the governing regulation. With respect to severity, the applicant submits that the inspectors neglected to assess the “severity of non-compliance” but only assessed the “severity of the harm or risk of harm”. Regarding scope, the applicant submits that the inspectors failed to consider “the scope of harm or risk of harm” and considered only the “scope of non-compliance”. The decision is therefore unreasonable in that it is not based on inspection reports completed in accordance with the relevant regulations.
[54] Third, the applicant submits that the judgment matrix is inconsistent with the regulation, is arbitrary and unduly fetters the discretion of the inspectors. Further, the applicant misapplied the judgment matrix by interviewing three people who had lodged complaints rather than a broader pool. A broader sample would provide a more contextualized finding for scope.
[55] As for the applicant’s first submission, the Director’s decision exhibited all the hallmarks of reasonableness. The Director listed the provision upon which he relied and then stated that “the suspension of admissions has been directed based on his belief that there is a risk of harm or wellbeing of residents of the home or persons who might be admitted as residents”. The Director then listed the findings of the recent inspections on which he relied to arrive at said conclusion. The corrective action meted out was reasonable given the vulnerability of many LTHC residents. This meets the threshold for being “justifiable, transparent and intelligible”. Put another way, Sunset Manor understood why it could not accept new residents and that outcome was entirely reasonable.
[56] With regard to the applicant’s second submission, the applicant appears to draw a distinction between the “severity of non-compliance” and the “severity of harm”. As noted earlier, section 299 of the Regulation states:
Factors to be taken into account
(1) For the purposes of sections 152 to 156 of the Act, in determining what actions to take or orders to make where there has been a finding of non-compliance with a requirement under the Act, an inspector or Director shall take all of the following factors into account, and shall take only those factors into account:
The severity of the non-compliance and, in cases where there has been harm or the risk of harm to one or more residents arising from the non-compliance, the severity of the harm or risk of harm.
The scope of the non-compliance and, in cases where there has been harm or risk of harm arising from the non-compliance, the scope of the harm or risk of harm.
The licensee’s history of compliance, in any home, with requirements under the Act and with requirements under the Nursing Homes Act, the Charitable Institutions Act or the Homes for the Aged and Rest Homes Act, the regulations under those Acts and any service agreement required by any of those Acts.
(2) In determining whether to make an order under section 157 of the Act, the Director may take into account,
(a) the factors referred to in subsection (1), where applicable; and
(b) any other factors the Director considers relevant.
(3) In this section,
“scope” means pervasiveness throughout the home.
[57] The plain wording of this section does not mean that the severity of non-compliance and the severity of harm are two separate inquiries. Rather, the section makes clear that there will be instances where non-compliance causes harm, and instances where non-compliance does not cause harm. The section does not contemplate two discrete inquiries, and the inspectors correctly applied the section in question. The applicant’s suggested interpretation of the Regulation is therefore incorrect.
[58] Finally, with respect to the inspectors’ use of the matrix, in this case, all the resident samples taken by the inspectors related to the same care area or situation. In some instances, every resident sampled made a complaint. There is nothing in the Ministry policy that precludes this or otherwise requires a resident to be excluded from the sample because they have lodged a complaint. Indeed, if every person in a given area lodged a complaint about a specific concern, the applicant’s argument would demand none of the residents in that area could be sampled because they all lodged a complaint. This is an absurd result. Further, in the case before this court, the inspectors identified instances where the applicant was compliant with the Ministry requirements. This fact demonstrates that the inspectors considered a broader sample than that claimed by the applicant. There is no merit to the applicant’s argument that the judgment matrix is inconsistent with the regulation, is arbitrary and unduly fetters the discretion of the inspectors. As a result, this ground of judicial review fails.
[59] Therefore, the decision was reasonable.
CONCLUSION
[60] In light of the foregoing, the application for judicial review is hereby dismissed.
COSTS
[61] As per agreement of the parties, there shall be no award of costs in the circumstances.
Backhouse J.
Varpio J.
King J.
Released: September 23, 2022
(Director under Long-Term Care Homes Act, 2007),
2022 ONSC 5379
DIVISIONAL Court FILE NO.: 21-12811282
DATE: 20220923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Varpio, King JJ.
B E T W E E N:
THE CORPORATION OF THE COUNTY OF SIMCOE
Applicant
- and -
ONTARIO (DIRECTOR UNDER THE LONG-TERM CARE HOMES ACT, 2007)
Respondent
REASONS FOR JUDGMENT
Released: September 23, 2022
[^1]: Long-Term Care Homes Act, 2007, S.O. 2007, c. 8.
[^2]: S. 50 (1) provides: If the Director believes there is a risk of harm to the health or wellbeing of residents of a long-term care home or persons who might be admitted as residents, the Director may direct the placement co-ordinator for the geographic area where the home is located to cease authorizing admissions to the home for such period of time and subject to such conditions as the Director specifies.
[^3]: Long-Term Care Homes Act, 2007, S.O. 2007, c. 8., s.147(1).
[^4]: Long-Term Care Homes Act, 2007, S.O. 2007, c. 8., ss..8-18.
[^5]: Long-Term Care Homes Act, 2007, S.O. 2007, c. 8., ss.19-20.
[^6]: Judgment Matrix Policy.
[^7]: Judgment Matrix Policy.
[^8]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 23.
[^9]: Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 58; R. v. S(RD), [1997] 3 SCR 484 at para. 109; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623 at paras. 11, 21 and 22; Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369 at para. 40; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at paras. 20 and 21.
[^10]: Canada (Attorney General) v. Mavi, 2011 SCC 30 at para. 39; Martin v. Ontario Civilian Police Commission, 2020 ONSC 1116 at para. 80.
[^11]: 1999 699 (SCC), [1999] 2 SCR 817 at para 23; see also Michalski v. McMaster University, 2022 ONSC 2625 at para. 79.
[^12]: Vavilov at paras. 15 and 100.
[^13]: Vavilov at paras. 102, 105, 107, 121 and 126.