Preliminary Refusal to Allow the Case to Proceed
There are two issues to be considered with respect to any appeal or review of a human rights complaint. In most Canadian jurisdictions, the human rights process commences by the applicant making a complaint with the relevant commission, which then investigates and determines whether the case is one which should be referred to a hearing.
Should the complaint then be dismissed, certain statutes then allow the complainant some form of review of this decision. 1 Where no such statutory right of review is allowed, given that this is a statutory decision, there will be a right of judicial review in any event.
Judicial Review of Tribunal Decision
Where the case has proceeded to hearing, Canada, Ontario, B.C. and Manitoba allow for judicial review applications, which is a difficult task to accomplish when such a review has been made from a specialized tribunal. New Brunswick and P.E.I. allow for no review at all, which will mean a judicial review may, nonetheless, be made. Nova Scotia allows for an appeal on only a question of law, Newfoundland on a question of law but also on a question of fact or mixed fact and law with leave. Alberta, Saskatchewan, Nunavut, N.W.T and the Yukon allow for an appeal without limitations. Quebec provides for an appeal to the Court of Appeal with leave of an appellate justice.
The Test on Judicial Review
There are two possible common law standards of review in an application of judicial review, these being correctness and reasonableness. 2
This decision conflicted with the then newly amended Human Rights Code which had yet to become law. The new Code stated that the test for judicial review was “patently unreasonable”. It had been passed but had yet to become law until after the above Supreme Court decision. [efn_ note] S. 45.7 [/efn_note]
Following these events, the Divisional Court reviewed these issues and determined that the correct test to be applied was “reasonableness”, a decision which was later upheld by the Court of Appeal in the same case. 3
The reasonableness standard, itself, is one which has some degree of flexibility, as stated by the Divisional Court in that it will have regard to factors such as the presence of a privative clause, the nature of the issue, the decision maker’s purpose and its expertise. The Divisional Court also noted the “high degree of deference” owed to the Tribunal to questions within its subject matter of expertise and facts. 4
As the central issues in this case are issues of fact and the application of the law to the facts, reasonableness is the applicable standard.
A high degree of deference is therefore to be accorded to the Tribunal’s determination whether there has been discrimination under the Code and what the appropriate remedy should be, given that these are questions within the specialized expertise of the Tribunal.
On questions of law only, the standard of review is correctness. 5 As noted, where the review application, however, raises a question of law which involves the interpretation of the tribunal’s “home” statute or a statute closely related to such, the standard is reasonableness.6This standard may be “rebuffed” in such a context when it is inconsistent with the legislative intent.7
Questions of mixed fact and law are subject to the same standard provided that the factual issues cannot be extricated in which case the factual findings are subject to a reasonableness standard.
A discretionary decision must be shown to be “patently unreasonable”. 8
Court of Appeal on Secondary Review
An appellate review of a prior judicial review decision puts the appellate court into the shoes of the first reviewing court. In the Imperial Oil case, the Court of Appeal then put itself into the position of the Divisional Court, to which the first review was brought. It then assessed the decision of the Tribunal on the standard of reasonableness. 9 It then must determine whether this first decision in the chain “is based on an internally coherent and rational chain of analysis and … is justified in relation to the facts and the law that constrain the decision maker”.
New Submissions Foreclosed
The party seeking review will not be allowed to raise submissions which were not argued on first instance. In the Imperial Oil case, the company sought to raise as a defence a plea of BFOR which had not been made before the tribunal. This request was denied. 10
The responding party may raise submissions designed to uphold the reasons from which a review is sought, even though these issues had not be raised by the applicant. Entirely new arguments which were not heard on first instance will not be allowed. 11