Administrative Law - SCC

Three retired female members of the Royal Canadian Mounted Police commenced a constitutional application challenging pension provisions that prevented job-sharing members from purchasing full-time pension credits for their service, a benefit available to members on unpaid leave.

The majority of the Court held that the pension plan's treatment of job-sharers created a distinction based on the enumerated ground of sex, as the program was disproportionately composed of women with childcare responsibilities.

The Court found that this arrangement perpetuated a long-standing source of economic disadvantage to women — gender biases embedded in pension plans historically designed for full-time male employees — thereby establishing a prima facie breach of s. 15(1) of the Canadian Charter of Rights and Freedoms.

The Attorney General failed to demonstrate a pressing and substantial objective capable of justifying the limitation under s. 1 of the Charter.

The Court granted a declaration that the inability of full-time RCMP members who temporarily reduced working hours under a job-sharing agreement to purchase full-time pension credit for that service violated their s. 15(1) equality rights.

The appeal was allowed with costs throughout, with three justices dissenting on the application of the equality framework and the sufficiency of causal nexus.

The appellant challenged lower court orders requiring production of a confidential Cabinet submission in the context of a Bodner review of the government's response to a judicial compensation commission's recommendations.

The Court held that the rules of evidence and production in Bodner reviews must reflect the unique nature of that review and respect both judicial independence and Cabinet confidentiality.

A party seeking production of a confidential Cabinet document must first establish some basis to believe the document may contain evidence tending to show the government failed to meet one of the Bodner requirements; failing that threshold, the document need not be produced.

The respondent association did not meet that threshold, as no evidence or circumstances were identified suggesting the Cabinet submission would reveal a constitutional failure.

Accordingly, the appeal was allowed and the production order quashed.

The appellant provincial government appealed from a declaration that the Attorney General's confidential Cabinet report to the Lieutenant Governor in Council must form part of the record on judicial review of the government's response to a judicial compensation commission's recommendations.

Applying the framework developed in the companion appeal, the Court held that the party seeking production of a confidential Cabinet document must first establish some basis to believe the document may contain evidence tending to show the government failed to meet a Bodner requirement.

Upon inspection, only two components of the report — the discussion of government-wide implications and the communications plan — provided such evidence, as they referenced labour relations considerations and political communications concerns that may not constitute legitimate bases for departing from the commission's recommendations.

The Court further held that the public interest in disclosure of those two components outweighed the public interest in their continued confidentiality, given their importance to the reviewing court's ability to assess the merits of the Bodner review.

The appeal was allowed in part to narrow the scope of the required production accordingly.

The appellant challenged the Quebec Court of Appeal's opinion that ss. 1 to 7 of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, exceeded Parliament's criminal law power under s. 91(27) of the Constitution Act, 1867.

The majority held that the pith and substance of the impugned provisions — prohibiting compelled genetic testing and non-consensual use or disclosure of genetic test results in connection with contracting and the provision of goods and services — was a valid exercise of the criminal law power, as the provisions respond to a reasoned apprehension of harm to autonomy, privacy, equality, and public health.

A concurring minority agreed on the result but characterized the pith and substance more narrowly as protecting health by giving individuals control over the intimate information revealed by genetic testing.

The dissent would have dismissed the appeal on the basis that the impugned provisions lacked a well-defined threat and adequate evidentiary foundation to constitute a valid criminal law purpose, falling instead within provincial jurisdiction over property and civil rights under s. 92(13).

The appellants, the sole French-language school board in British Columbia and associated parents' federation and individual rights holders, brought a constitutional challenge alleging systemic underfunding of minority language education and inadequate facilities in numerous communities, contrary to s. 23 of the Canadian Charter of Rights and Freedoms.

The majority clarified the sliding-scale framework for situating the number of minority language students so as to determine the level of educational services warranted, introducing a province-wide comparative presumption of pedagogical and cost appropriateness when majority language schools of comparable size exist elsewhere in the province.

The majority further held that substantive equivalence — not proportionality — is the applicable standard for assessing the quality of the educational experience throughout the sliding scale, and that infringements of s. 23 are subject to a particularly stringent justification standard under s. 1, such that the fair and rational allocation of public funds does not constitute a pressing and substantial objective.

The Court held that Mackin immunity from Charter damages does not extend to government policies infringing s. 23, and restored the trial judge's award of $6 million for the transportation funding freeze and ordered $1.1 million in additional damages for the Annual Facilities Grant Rural Factor breach.

Brown and Rowe JJ. dissented in part, rejecting the province-wide presumption as inconsistent with settled jurisprudence and as compressing the middle of the sliding scale, though agreeing on substantive equivalence, the invalidity of a purely financial s. 1 objective, and the appropriateness of Charter damages in the s. 23 context.

The Province of British Columbia referred the constitutionality of proposed amendments to the Environmental Management Act to the British Columbia Court of Appeal.

The proposed amendments would have introduced a hazardous substance permit system regulating the presence of heavy oil in the province, directly impacting the Trans Mountain pipeline expansion.

The BCCA held that the proposed amendments fell outside provincial legislative authority because their pith and substance — placing conditions on, and if necessary prohibiting, carriage of heavy oil through an interprovincial undertaking — related to Parliament's jurisdiction over federal undertakings under s. 92(10) of the Constitution Act, 1867.

The Supreme Court of Canada unanimously dismissed the appeal, adopting the reasons of the Court of Appeal for British Columbia.

The appellant, a federally-regulated Crown corporation, appealed a Federal Court of Appeal decision reinstating a Health and Safety Officer's direction that the employer had contravened s. 125(1)(z.12) of the Canada Labour Code by failing to ensure that workplace safety inspections covered letter carrier routes and points of call beyond the physical depot building.

The appeals officer had concluded that the statutory inspection obligation applied only to workplaces the employer physically controls, and the Federal Court upheld that decision.

The majority of the Supreme Court applied the Vavilov framework for reasonableness review and held that the appeals officer's interpretation — confining the inspection duty to employer-controlled premises — was reasonable, internally coherent, and defensible in light of the text, context and purpose of the provision.

The appeal was allowed and the appeals officer's order was restored.

The appellants challenged a CRTC order prohibiting simultaneous substitution during the Super Bowl, issued pursuant to s. 9(1)(h) of the Broadcasting Act.

The majority held that the applicable standard of review was correctness given the statutory appeal mechanism in s. 31(2) of the Act, and that the CRTC's authority under s. 9(1)(h) is limited to issuing mandatory carriage orders requiring television service providers to carry specific channels on specified terms — it does not confer a general power to impose conditions on the carriage of programming services outside that context.

Because the Final Order did not mandate carriage of any channel but merely imposed a condition on providers already carrying one, it exceeded the CRTC's delegated power.

The appeals were allowed and both the Final Decision and Final Order were quashed.

Abella and Karakatsanis JJ. dissented, finding reasonableness the applicable standard and the CRTC's interpretation of s. 9(1)(h) reasonable given its specialized expertise.

Landmark decision reforming the framework for judicial review of administrative decisions.

The Court established a presumption that reasonableness is the applicable standard of review, rebuttable where the legislature has indicated a different standard (including by providing a statutory appeal mechanism) or where the rule of law requires correctness review on constitutional questions, general questions of central legal importance, or jurisdictional boundaries between administrative bodies.

The Court also provided extensive guidance on conducting reasonableness review.

On the merits, the Registrar's decision to cancel the respondent's citizenship certificate was found unreasonable, as the statutory exception denying citizenship by birth to children of foreign government employees was intended to apply only to individuals whose parents had been granted diplomatic privileges and immunities.

A provincial Crown corporation (BCI) created to provide investment management services to public sector pension plans held pooled investment portfolio assets in trust.

The federal Crown argued that BCI was required to collect and remit GST on costs recovered from those portfolios under the Excise Tax Act.

The majority held that s. 125 of the Constitution Act, 1867 renders the relevant ETA provisions constitutionally inapplicable because BCI, as a provincial Crown agent, holds legal title to the portfolio assets and imposing GST would tax Crown property.

On the cross-appeal, the Court unanimously held that the Reciprocal Taxation Agreement and the Comprehensive Integrated Tax Coordination Agreement are legally binding intergovernmental agreements and that BCI is subject to them by virtue of s. 16(6) of the Public Sector Pension Plans Act.

Both the appeal and cross-appeal were dismissed.

Wagner C.J. dissented in part, finding that s. 125 immunity should not extend where private pension boards are the beneficial owners and the real impact of the tax falls on them.

The municipality appealed a judgment ordering restitution of $82,898.63 for event production services provided by a public relations firm through its subcontractor, where no valid municipal contract existed because the mandate was never authorized by council resolution or by an officer with delegated powers.

The Supreme Court held that the rules on restitution of prestations under the Civil Code of Québec apply in the municipal context and are not excluded by the public order provisions of the Cities and Towns Act.

Although no contract existed to be annulled, the conditions for receipt of a payment not due under art. 1491 C.C.Q. were satisfied, as the firm provided services in error believing it had a valid mandate.

The municipality's appeal was dismissed (6-3), with the dissent finding the firm knew at the time of payment that no contract existed and therefore did not pay in error.

Military accused persons charged with serious civil offences under s. 130(1)(a) of the National Defence Act argued that the military justice system's denial of a jury trial violated s. 11(f) of the Charter.

The majority held that s. 130(1)(a) falls within the military exception in s. 11(f) because it was validly enacted under Parliament's power over militia and defence under s. 91(7) of the Constitution Act, 1867, and is not overbroad under s. 7.

The majority rejected any heightened 'military nexus' requirement beyond the accused's military status.

In dissent, Karakatsanis and Rowe JJ. would have read a military connection requirement into s. 130(1)(a), limiting military court jurisdiction to offences directly connected to military circumstances.

The appellant trustee challenged a formal demand for information and documents issued by the Quebec tax authority (ARQ) to an out-of-province bank branch as beyond the ARQ's territorial jurisdiction.

The ARQ had sent the demand to a Calgary branch of the National Bank of Canada pursuant to s. 462(2) of the Bank Act, which requires notifications pertaining to bank customers to be sent to the branch of account.

The Court unanimously dismissed the appeal, holding that s. 462(2) — not s. 462(1) — applied to the demand, that the Bank Act does not treat a branch as a distinct entity from the bank for purposes of such a demand, and that complying with s. 462(2)'s procedural requirements did not render the ARQ's actions extraterritorial or ultra vires, since enforcement could only be effected in Quebec against a bank operating within the province.

The appellant was charged with a provincial driving offence in British Columbia and applied to be tried in French pursuant to s. 530 of the Criminal Code.

The provincial court dismissed the application, holding that the 1731 Act mandated English-only proceedings.

The Supreme Court of Canada held that s. 133 of the Offence Act incorporates s. 530 of the Criminal Code, granting the right to be tried in either official language in provincial offence proceedings.

The Court further held that the provincial court's refusal to honour this right constituted a jurisdictional error amenable to immediate certiorari review, and that an appeal following conviction was not an adequate alternative remedy given the fundamental and personal nature of the language right violated.

An immigration detainee applied for habeas corpus after 13 months in immigration detention, challenging the legality of his detention on the grounds that it was lengthy and of indeterminate duration and was being served in inappropriate maximum-security lockdown conditions, both in alleged violation of ss. 7 and 9 of the Charter.

The chambers judge declined jurisdiction on the basis that the Immigration and Refugee Protection Act provided a complete, comprehensive and expert statutory scheme at least as broad and advantageous as habeas corpus (the Peiroo exception).

The majority of the Supreme Court held that the Peiroo exception does not bar habeas corpus applications in all immigration matters; rather, a court must examine whether the statutory scheme is as broad and advantageous as habeas corpus with respect to the specific grounds raised.

The IRPA scheme fell short in three ways regarding lengthy, indeterminate detention: the onus on detainees is less advantageous; the scope of federal court review is narrower than superior court review on habeas corpus; and the IRPA offers a less timely remedy.

The appeal was dismissed, with Abella J. dissenting on the basis that the IRPA scheme, properly interpreted, provides review at least as broad and advantageous as habeas corpus.

The appellant brought a claim under the Independent Assessment Process of the Indian Residential Schools Settlement Agreement, alleging compensable sexual abuse under category SL1.4 when a nun touched his genitals over his clothing while he was a student at a residential school.

The Hearing Adjudicator denied the claim by erroneously importing a requirement of sexual intent not found in SL1.4.

All internal review levels upheld the denial, and the supervising judge at the Manitoba Court of Queen's Bench ordered reconsideration.

The Manitoba Court of Appeal set aside that order, holding the supervising judge had exceeded his jurisdiction.

A majority of the Supreme Court of Canada allowed the appeal and reinstated the reconsideration adjudicator's compensation award, finding that supervising courts have an ongoing duty to intervene where an adjudicator makes an unauthorized modification of the IAP, and that a gap in the IRSSA justified judicial intervention to ensure the appellant received the compensation bargained for.

A long-term offender was charged with breaching the residency condition of his long-term supervision order, which required him to reside at a community correctional centre.

The appellant sought to collaterally attack the validity of that residency condition at trial, arguing it exceeded the Parole Board's statutory authority under s. 134.1(2) of the Corrections and Conditional Release Act and violated his s. 7 Charter rights.

The majority held, applying the Maybrun framework, that Parliament did not intend to permit such a collateral attack because effective review mechanisms — including writing to the Parole Board and applying for habeas corpus — were available to the appellant.

The concurring minority would have permitted the collateral attack given the constitutional dimensions and severity of the potential penalty, but agreed the s. 7 claim failed on its merits because the residency condition was not arbitrary.

The appeal was dismissed and the conviction upheld.

The appellants, a provincial energy regulator and an orphan well association, appealed from a decision holding that provincial oil and gas licensing obligations could not be enforced against a trustee in bankruptcy because they conflicted with the federal Bankruptcy and Insolvency Act.

The majority of the Supreme Court allowed the appeal, holding that the regulator's use of its statutory powers to enforce end-of-life abandonment and reclamation obligations did not create an operational conflict or frustration of purpose with the BIA.

The majority found that s. 14.06(4) of the BIA shields trustees only from personal liability, not the liability of the bankrupt estate, and that a bona fide public regulator enforcing public duties is not a creditor asserting a claim provable in bankruptcy.

Moldaver and Côté JJ. dissented, finding a genuine operational conflict and frustration of purpose under both branches of the paramountcy test, and that the Abitibi three-part test for provable claims was satisfied.

The Crown brought a motion to stay a declaration of invalidity issued by the Court Martial Appeal Court of Canada, which had declared s. 130(1)(a) of the National Defence Act of no force or effect in its application to any civil offence carrying a maximum sentence of five years or more imprisonment, pending the Crown's appeal of that decision.

The Court applied the well-established test from Manitoba (Attorney General) v. Metropolitan Stores Ltd. and RJR-MacDonald Inc. v. Canada (Attorney General) and found that the balance of convenience did not favour granting the stay.

The motion was dismissed.

Two Canadian citizens residing abroad for more than five years challenged the constitutionality of provisions of the Canada Elections Act that denied the right to vote in federal elections to non-resident citizens absent from Canada for five consecutive years or more.

The Attorney General conceded a breach of s. 3 of the Canadian Charter of Rights and Freedoms.

The majority held that the five-year limit could not be justified under s. 1, finding that the restriction was not minimally impairing and that the vague electoral fairness objective was outweighed by the deleterious effects of disenfranchising well over one million non-resident Canadians.

The relevant impugned provisions were declared of no force or effect and the Act was modified to extend the vote to all non-resident citizens.