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lundi 11 mai 2015

The Standard of Review on Appeal

Rizwan Ahmad Khan Gondal.

Among other points of law, the Supreme Court case of Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, is instructive upon the point that there is no one fixed standard of review on appeal whether that appeal be from a decision of a tribunal or from that of a court of law. In particular, the applicable standard of review has been held to rest ‘primarily on the nature of the questions that have been raised’ in the context of the underlying dispute. (Para 45.)

Context
In Mouvement laïque québécois, the claim rested on the allegation that the recitation of a catholic prayer at the City Hall of the City of Saguenay ‘amounted to discriminatory interference with the complainant’s, Mr. Simoneau’s, freedom of conscience and religion, contrary to ss. 3 and 10 of the Quebec Charter.’ The complainantalso alleged that ‘the [said] prayer interfered in a discriminatory manner with [the complainant’s] right to dignity and his right to information, contrary to ss. 4, 10, 11, 15, 44 and 82 of the Quebec Charter’. In relief, the complainant asked the Quebec Human Rights Tribunal (‘Tribunal’) to order the ‘City and its mayor to cease the recitation of the [said] prayer and to remove all religious symbols from the chambers in which the council’s meetings were held’. (Para 11.)

In response to the complaint, while maintaining ‘the nature [and] the substance of the prayer’ (para 100), the City passed a by-law which simply changed the wording. Subsequently, the Mouvement laïque Québécois, who filed a complaint of Mr. Simoneau’s behalf, amended its complaint to seek an additional declaration that the latest by-law which allowed the continuation of the recitation of the said prayer was void in respect to the complainant.

Based upon the evidence presented, the Tribunal opined that the said prayer had indeed ‘interferen[ed] with Mr. Simoneau’s freedom of conscience and religion for the purposes of ss. 3 and 10 of the Quebec Charter’. (Para 112.)

Gagnon J.A. of the Court of Appeal, on the other hand, stated that ‘Mr. Simoneau had not been treated unfairly in relation to other citizens who [had also] attended the [same] council meetings’. (Para 112.) In reaching its conclusion, the Court of Appeal characterized the tribunal as a ‘specialized tribunal (para 35)’ and applied two separate standards of review on appeal. First, concerning the matter of ‘religious neutrality’, the Court considered the matter to be important to the legal system as a whole and applied “the ‘standard of review of correctness’ (Para 18) and second, concerning the issue of expert evidence, the Court of Appeal opined that the applicable standard of review was that of ‘palpable and overriding error (para 49)’ (para 19).

Commentary
Quoting Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, the Supreme Court, in turn, confirmed that ‘the applicable standards on judicial review of the conclusions of a specialized administrative tribunal can sometimes vary depending on whether the questions being analyzed are of law, of fact, or of mixed fact and law’. (Para 51)

The Supreme Court further clarified that there were two contradictory approaches to the standard of review on appeal from the decision of a tribunal: 1) the application of an appellate standard of ‘palpable and overriding error’ or, 2) reliance upon the ‘principles related to judicial review’ (Para 31) and since, the Court noted, that the tribunal had been correctly characterized as a ‘specialized administrative tribunal’, (para 39) the correct standards were those which were applicable under the administrative law principles: correctness and reasonableness. (Para 36)

Concerning the Court of Appeal decision, the Supreme Court opined that the lower court erred in first, applying the administrative law principle of ‘correctness’ to all of the Tribunal’s findings (para 30) and then, in applying the appellate standard of ‘palpable and overriding error’ to just the admissibility of the expert evidence on trial. (Para 29)

Quoting Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654, the Court stated that ‘on judicial review of a decision of a specialized administrative tribunal interpreting and applying its enabling statute, it should be presumed that the standard of review is reasonableness’. (Para 46) However, in the case where ‘general questions of law are raised that are of importance to the legal system and fall outside the specialized administrative tribunal’s area of expertise (Dunsmuir, at paras. 55 and 60)’, the correct standard to be applied was that of ‘correctness’. (Para 47).

Decision
In deciding for the complainant, the Supreme Court expressed its opinion that although the Court of Appeal was correct to have applied the ‘correctness standard’ to the question of ‘the scope of the state’s duty of religious neutrality that flows from the freedom of conscience and religion protected by the Quebec Charter’, (Para 49) the Court of Appeal erred in applying the same standard to the entire appeal. The Court of Appeal should have applied the ‘reasonableness standard’ to expert evidence and to other questions raised for example, ‘whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was [indeed] discriminatory’ (Para 50) for these matters fall within the Tribunal’s area of expertise.

The decision can be found here.

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