R v King, 2026 ONCA 522 (July 17, 2026)

Context: This is not an administrative law case, but it does show how the Court of Appeal for Ontario is applying the “text as anchor” jurisprudence. See also: R v Maniatis, 2026 ONCA 567. It is proof positive that lower courts are taking the Supreme Court’s message on statutory interpretation and running with it — not that the Supreme Court’s message has been clear. The inconsistency, in fact, is remarkable. But the Court of Appeal’s decision here gives us something to work with, rejecting the invitation to “improve” upon Parliament’s work product.

This case involves Pat King, who was a ringleader of the Freedom Convoy protests. The Crown appealed from King’s acquittal on a count of intimidation, contrary to s.423(1)(g) of the Criminal Code—blocking or obstructing a highway, which is a means of committing the offence of intimidation. The trial judge concluded that King must be acquitted because the offence “cannot be committed by blocking or obstructing a highway during a political protest unless threats or acts of violence are used with the intent to intimidate” [6]. The trial judge reasoned that, otherwise, the offence of intimidation would sweep too broadly, which would “capture a broad range of lawful protests against government actions in which there is no proven intent to intimidate individuals” [56].

Citing CISSS A, 2024 SCC 43, and concluding that of the elements of the modern approach, the text acts as the anchor [38], the Court rejects this. This solution would have the effect of cutting down the reach of the intimidation offence, intentionally enacted without a requirement of violence or an exception for Charter-compliant protests. Hence, the Court says that “...by attempting to limit the reach of s. 423(1) in this way, the trial judge moved beyond interpretation of the provision and engaged in impermissible legislating...” [56]. This is in the absence of a direct Charter challenge to the provision.

This is one view of what it means for the text to be the anchor. It prevents a court from constructing doctrinal rules that are not consistent with the statutory scheme. Here, the scheme was intentionally broad about the manner in which intimidation could be committed, and it lacks the limiting principle envisioned by the trial judge. By failing to root the limitation in the statutory text, the trial judge appeared to be filling in a gap in the legislation. But that is not their job.

Three contextual and purposive points support the Court’s application of the text as anchor approach. First, if “threats of violence” were included, by interpretation, in s.423(1)(g), it would duplicate another statutory provision, which forbids intimidation by violence or threats of violence [58]. This sort of conflict should be avoided, since legislation should be functionally coherent.

Second, another structural inference supports a rejection of the trial judge’s supplementation. Section 423(1) requires that an act be wrongful and without lawful authority, and done for the purpose of compelling someone to abstain from doing something they have a lawful right to do (or vice versa). This imports an internal limiting principle into the section, obviating the need to adopt the trial judge’s chosen narrowing. This is important: we cannot replace Parliament’s chosen limitations with ones we think might be better.

Finally, and while the Court does not put it this way, the purpose of the intimidation offence supported its application to King. As mentioned, s.423(1) enacts a wide prohibition on intimidation in various ways. Where the language “blocks or obstructs a highway” is used, it was enacted to criminalize this act alone as wrongful, without any requirement for additional limitations outside the text. A purpose of the section is to prevent the self-help remedy of blocking highways [43]. That purpose is vindicated by the Court’s interpretation.

Now, in fairness, one takeaway of the text as anchor approach that I explore in a forthcoming paper is that where statutory language is highly general and undetermined on the facts, it may be tailored to suit the scheme of the statute: see the Supreme Court’s recent decision in Carignan, 2025 SCC 43, and its previous decisions in R v Kuldip, [1990] 3 SCR 618, and Sidmay Ltd v Wehttam Investments Ltd, [1971] SCR 445, which did just this. But this is a technique that must be used with caution, and normally, the ordinary meaning of the text governs.

We can determine when this move would be appropriate by comparing King to other cases. Take the Supreme Court’s decision in Skoke-Graham v The Queen, [1985] 1 SCR 106 (ht Paul Daly). There, the Criminal Code made it an offence to do “anything” that wilfully disturbs the order or solemnity of religious worship. In holding that this broad provision did not reach the appellants, who merely refused to receive communion standing up, Dickson J noted that “the use of the all-encompassing term ‘anything’ to describe the type of acts that can be the cause of the disturbance is an indication of the meaning of the word ‘disturb’” [37]. Wilson J, concurring, was clearer. Because “…nothing could be broader than ‘anything’” the accused “is entitled to argue that the intendment of the Act is narrower than the words construed in their ordinary sense might indicate” [62]. That was the solution adopted in that case: the terms could be narrowed to require a threshold of seriousness.

The difference between King and Skoke-Graham is instructive. First, in King, the language “blocks or obstructs a highway” is general, but it is bounded by the need for a wrongful act to occur with a certain purpose of compulsion. This is less general than in Skoke-Graham, leaving less room to supplement the text. Second, other internal, contextual indications supported giving the words their natural meaning. In King, narrowing would have collided with a neighbouring provision; in Skoke-Graham there was nothing structural pushing back. In this way, King is of a piece with several SCC cases that select a broad interpretation of Criminal Code provisions in the face of arguments that they should be narrowed: see e.g. R v Paré, [1987] 2 SCR 618.

On the other hand, the text in Skoke-Graham was the quintessential case of “general words,” a recurring and ancient problem in law: a rule applying to “anything” that “disturbs.” The limiting principle here was not obviously encoded in the text: the Court had to supply it by reading “disturbs” narrowly to counteract the breadth of “anything.” In King, the internal limitations were clearer in the text, countering the trial judge’s solution.

Ultimately, statutory interpretation is a matter of judicial judgment—but judgment guided and bounded by methodology and judicial craft, applied with some consistency. King is one exemplar.

Reasonableness Review

Canadian Association of Elizabeth Fry Societies v Canada (Attorney General), 2026 FC 958 (July 16, 2026)

Context: The Applicant sought judicial review of the continuing conduct of the Correctional Service of Canada (CSC) with respect to its operation of the Edmonton Institution for Women (EIFW). The complaint arises from alleged extreme indoor temperatures in the maximum-security unit (Secure), said to have persisted for roughly 20 years. The Applicant asserted that CSC had known that those incarcerated in Secure at EIFW have suffered from extreme temperature conditions and had failed to take reasonable steps to effectively manage the temperature. The Applicant submitted that the continued inaction is in breach of s.70 of the Corrections and Conditional Release Act and breaches sections 7, 12, and 15 of the Charter.

Section 70 of the CCRA provides:

70 The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity.

Analysis: The Court (per Conroy J) deals with several issues, but I will mention two. First, adequate alternative remedy. Second, whether CSC breached the statutory duty contained in s.70.

The ordinary rule is that the applicant should have exhausted any internal administrative processes before seeking judicial review, absent exceptional circumstances. In relation to heat, Conroy J finds those exceptional circumstances here. Applying Strickland v Canada (Attorney General), 2015 SCC 37, she parses out two situations: (1) situations where staff can control temperature by increasing it when it is too cold; and (2) situations where the institution’s temperature is too high. In the latter case, she notes that the “root of the concern lies in the existing building structure and equipment, not about a particular decision by a staff member” [129]. Since the grievance process can only deal with staff member decisions, rather than systemic, institutional issues, she concludes that the grievance process is inadequate for hot temperatures. This conclusion was bolstered by looking at the record: complaints about cold temperatures have been dealt with via the grievance process, whereas those involving hot temperatures have not [135-136].

Everyone agrees that, absent exceptional circumstances, internal administrative processes must be exhausted: C.B. Powell v Canada (Border Services Agency), 2010 FCA 61. But there does appear to be a difference in how courts evaluate exceptionality. Generally, the Federal Courts have interpreted “exceptional circumstances” narrowly, as a sort of rule: only where prohibition would lie should judicial review follow: Dugré v Canada, 2021 FCA 8. On the other hand, a more liberal interpretation of Strickland invites a more wide-ranging policy analysis of the adequacy of remedies.

That more wide-ranging analysis underwrites Conroy J’s move, here, permitting a comparison of CSC’s responses to different temperature settings. The court evaluates CSC’s conduct abstracted away from any particular decision. Indeed, Conroy J says that undertaking judicial review permits the assessment of “longitudinal evidence about both the temperature conditions and the mitigation measures taken by CSC” [133]. That the grievance process cannot reach a structural problem is an orthodox adequacy point. What is more striking is the second step: the comparison of CSC's responses across temperature settings, drawn from the record, in relation to a systemic set of practices rather than a specific decision.

Putting aside whether Conroy J properly exercised her discretion here, this is a garden variety statutory interpretation case under the reasonableness standard. As the Supreme Court has instructed, and as Conroy J notes, we start with the text of s.70, and view it as the anchor [170]. The wording of s.70 is more prescriptive than some delegations: it says that CSC “shall take all reasonable steps” to ensure a safe and healthful living environment. This is a mandatory duty, coupled with a general signifier for CSC to do everything reasonable within its power to rectify the conditions. As written, this is not an obligation to ensure a result, but it is an obligation to take all steps, which include maintaining a written temperature log and taking steps to install A/C [176]. As an interpretive matter, I think Conroy J reaches the only result she could: the text is relatively clear, and no amount of context and purpose can displace it.

In addition to the substantive conclusion, Conroy J issues mandamus, finding a declaration would have no practical effect, and that an ongoing supervision order would be inappropriate. But while it is uncontested that this is a mandatory statutory duty, and while CSC’s recalcitrance is undeniable, mandamus to perform a duty whose content is “all reasonable steps” might sit awkwardly with the strictures of mandamus, which require a clear, specific, and public legal duty. Absent that limiting principle, the risk is that mandamus in these circumstances will inevitably turn into a mandatory supervision order, measuring CSC’s conduct against the “reasonable steps” threshold.

It is true that, as Conroy J points out, the duty in these circumstances is not precise as to a result, and that this does not undermine the basic point: s.70 is a public legal duty to act. Fair enough. But whether the duty is precise and specific enough, with a corresponding right, to foreground mandamus is an interesting question. Perhaps there was no other option given CSC’s recalcitrance. But we should always be alive to the limits built-in to mandamus, given that it is an extraordinary remedy.

Frontier Lithium Inc v Canada (Attorney General), 2026 FC 998 (July 24, 2026)

Context: As I understand the facts, Frontier Lithium is a pre-revenue exploration company that raises money through flow-through shares under s. 66 of the Income Tax Act. Having no revenue of its own, it renounces exploration deductions so its investors can claim them instead [64]. The look-back rule lets those investors deduct in the year they subscribe for expenses the company incurs the following year. Frontier entered written agreements with 40 investors on that basis. Exploration delays meant it missed the deadline to spend the eligible expenses, and it sought to make a late second renunciation. The CRA refused. As the Court (per Régimbald J) notes, this appears to be the first time these provisions of the Income Tax Act have been interpreted by a court [80].

Issue: The decision deals with several issues, including procedural fairness. But I focus on one: is the CRA’s interpretation reasonable?

Holding and Analysis: No.

I highlight this case for several reasons. First, Régimbald J’s summary of the principles of statutory interpretation is helpful, especially in light of recent cases on the matter [56-62]. I commend it to your reading. He synthesizes the recent Supreme Court case law—no easy task.

Second, Régimbald J’s decision shows how an administrative decision-maker can go wrong in the process of dealing with questions of law. Generally speaking, decision-makers can go wrong under Vavilov, 2019 SCC 65, in two ways: (1) failing to reason appropriately according to the applicable constraints; (2) failing to render a defensible outcome, consistent with the text, context, and purpose of the law. These are often related. As Stratas JA explained in Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157, the failure to provide adequate reasons might be evidence that the outcome cannot be supported [31]. The decisions in Mason, 2023 SCC 21, and Pepa, 2025 SCC 21, raise a high bar for (1), requiring a decision-maker to demonstrate, through the reasons, that they addressed text, context, and purpose. It is true that this need not be done in a formulaic way, but the bar remains high—the tenor of these cases proves that courts will not do a decision-maker’s job for them.

The problem here was (1). Frontier argued, among other things, that the terms of any “agreement” for the purposes of the ITA need not be strictly observed, rejecting the idea that the “ ‘agreement’ must specifically provide a specific date or period within which the [expenses] must be incurred” [83]. As Régimbald J notes, the CRA “provided no substantive response” to this argument, among others [83]. This failure of reasoning was important; if the CRA actually engaged with the principles of statutory interpretation, it “could have led to a different conclusion” [6].

This was especially important here. Régimbald J cites to Jennings-Clyde v Canada (Attorney General), 2025 FCA 225, and the fundamental proposition that Parliament expresses itself in word [85, Jennings-Clyde, at para 10]. The CRA must make sense of those words. Vavilov’s big innovation absolved courts of having to do the administrative state’s job for it.

The case highlights the importance of dotting I’s and crossing T’s when an administrative decision-maker interprets a statute for the first time. As Pepa said, and as this case proves, it will be risky for a decision-maker—as the CRA did here [88]— to just rely on a precedent or fail to delve into the text, context, and purpose when a statute comes up for the first time.

Subordinate Legislation

Valero Energy Inc v Minister of the Environment, 2026 ONSC 4044 (July 21, 2026)

Context: In the underlying notice of application for judicial review, Valero challenged a regulation that requires gasoline and diesel fuels to include minimum percentages of bio-based content that is produced in Canada. In addition to a division of powers argument, Valero makes a vires argument: the regulation is not consistent with the authority in the Environmental Protection Act.

Here, the Court (per Matheson J) was faced with a “request to exercise an inherent jurisdiction....[to] order the production of documents where there is no statutory obligation to do so” [9]. To support its challenges, Valero sought “all the internal materials that were before the Cabinet when the Cabinet made the impugned regulation,” as well as all materials related to two related decisions [7].

Issue and Analysis: Matheson J rejects the invitation to order production. Valero tried to argue that Auer v Auer, 2024 SCC 36, compelled production, particularly to show improper motive [34]. But as Matheson J properly points out, Auer review is far more limited: it is, fundamentally, a question of law [32]. One cannot simply plead improper purpose and get around the limited judicial task on Auer review [35].

There were worries after Auer that the scope of judicial review would expand, permitting routine evaluation of the policy merits of a particular regulation. This case is one data point showing that those worries may have been misguided.

Reasons and Fairness

Fineday v Public Complaints Commission, 2026 SKCA 77 (July 17, 2026)

Context: From the Court (per Kalmakoff JA):

[1] David Fineday made a complaint to the Public Complaints Commission [PCC], the government body responsible for investigating complaints against municipal police officers in Saskatchewan. In his complaint, Mr. Fineday alleged that four Saskatoon Police Services [SPS] officers involved in arresting and detaining him on April 18, 2021, had mistreated him in several ways. The PCC investigated the matter and dismissed Mr. Fineday’s complaint because it determined that the SPS officers had acted “in the lawful execution of their duties and did not commit any misconduct” when they dealt with him (Chair Michelle Oullette, K.C., November 1, 2021 [PCC Decision]).

On judicial review, the chambers judge dismissed the application. The judge held (1) that Fineday did not have standing to apply for judicial review of the merits as a complainant; and (2) that he may have limited standing to challenge the fairness of the process [17]. The thrust of Fineday’s argument on process concerned the alleged inadequacy of reasons.

Holding: The appeal was dismissed.

Analysis: This case is governed by SKCA jurisprudence, including Toutsaint v Investigation Committee of the Saskatchewan Registered Nurses’ Association, 2023 SKCA 11 (Issue 74). Toutsaint held that, generally speaking, complainants in the investigative stage of a process do not have standing to challenge the reasonableness of a screening decision. However, there is limited standing to challenge on procedural fairness. Traditionally, this could not encompass a challenge based on adequacy of reasons: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62. In Toutsaint, this meant that the claimant’s creative argument—that the reasons he received amounted to no reasons at all—did not pass muster (though over a dissent by Jackson JA). However, Toutsaint left the door open that Vavilov “may have added strength to the proposition that concerns about the adequacy of reasons are not a matter of procedural fairness” (Fineday, at para 82).

Fineday’s arguments meet the same fate here, and the Court states a more categorical rule than in Toutsaint, following jurisprudence from other provinces [85]. Kalmakoff JA summarizes the bottom line well:

[85] In my view, the reasoning from R.N.L. Investments and Paladin Security fits comfortably with Eagle’s Nest and Toutsaint and demonstrates that the principles from Newfoundland Nurses continue to apply. That is to say, the duty to provide reasons is shaped by the context, which includes the relevant aspects of the dispute, issue or complaint before the decision-maker; the nature of the decision being made (i.e., whether it is adjudicative, administrative, executive, etc.); and any relevant statutory requirements respecting the provision of reasons. Absent a failure to comply with a legislated requirement, or a complete failure to decide a matter that needs to be decided, alleged deficiencies in reasons are a matter of reasonableness, and not a matter of procedural fairness.

Here, we have a test of sorts for when reasons will be totally deficient under procedural fairness: a “complete failure to decide a matter.” This is Newfoundland Nurses restated: a failure to provide reasons where required is procedurally unfair. On the other hand, later on, Kalmakoff JA frames it slightly differently: ignoring or failing “to address any of the substantive matters raised by the complaint” [86]. This calls to mind responsive justification in Vavilov—which is a matter of reasonableness, not fairness.

In the end, the vibe of this decision is categorical. But there is a difference between a failure to decide via reasons and a failure to address an issue. The latter is a more demanding bar for decision-makers, opening them up to responsive justification claims dressed up as a total failure to provide reasons. On balance, though, paragraph 86 reads as a restatement of para 85. At any rate, I doubt this is the last word. Vavilov’s central point was the importance of responsive justification. That principle, potentially, sweeps broadly—even in procedural fairness.

For a unanimous Court, Wagner CJC articulated a new form of “legality review” rooted in the idea that it is the “exclusive preserve of the courts to review the legality of an exercise of delegated power” [7]. “Legality” is broad: it includes the right to seek review on “all aspects of an administrative decision,” whether the issue is one of fact, law, or fairness [8, 37-38, 71]. It does not include reasonableness review per se, though the Court reserved when a legislated standard might trench on the constitutional core [70-71]. Thus, s.66 of the Conflict of Interest Act—which barred review on law and fact—is of no force and effect [82-84]. Parliamentary oversight over the Conflict of Interest and Ethics Commissioner cannot act as an adequate remedy [35].

This is a big statement and it resolves a long running issue. The resolution of the issue is good for everyone—and my congratulations go to Paul Daly and Sujit Choudhry for their excellent lawyering. As Daly says, bench, bar, and academy engaged in worthwhile debate on these issues.

But let’s not get too excited in the afterglow of a big case. The case constitutionally guarantees review of some sort on all issues. That’s all. How review is done continues exactly as before, especially given Vavilov’s deference on facts. The next temptation is to say that Democracy Watch affects the standard of review, but here sober second thought is our friend.

Three main issues that I address (if you want a more structured blow-by-blow of the case, see here): Democracy Watch’s main holding on questions of law and fact; the intensity of review; and a small note on statutory interpretation. I conclude with an implication for the Court’s own docket: what Democracy Watch might mean for CN v Alberta Pacific Forest Industries where leave has been granted and s.18.5 of the Federal Courts Act is squarely in issue.

Questions of Law and Fact

Democracy Watch holds that all aspects of an administrative decision must be open to review, whether the question is one of law, fact, or fairness. A privative clause barring review on any of these issues will be ineffective. Key to this, in my view, is the idea that the constitutional guarantee generally speaks to the availability of review, but not its intensity—save where the prescribed intensity is tantamount to no review at all.

In reaching this conclusion, Wagner CJC rejects the proposition that I advanced, channeling Near JA in Canada (Attorney General) v Best Buy Canada Ltd, 2021 FCA 161, that restricting the constitutional guarantee to errors of law meets “any threshold established in Crevier” (Best Buy 2021, at para 60) [71]. This would include egregious errors of fact that rise to the level of a question of law, like findings based on no evidence, because such errors in the fact-finding process are legal errors: see Best Buy Canada Ltd v Canada (Border Services Agency), 2025 FCA 45 at para 11; Schuldt v The Queen, [1985] 2 SCR 592. On this much all parties agreed: as Wagner CJC said in Democracy Watch, “rationality review has a constitutional aspect” [69]. The disagreement lay in which factual errors should be open to correction, with those in the “legislative intentionalist” camp preserving space for legislatures to bar review on many fact issues.

But this is not what the Court accepts. Paragraph 64 of the judgment unlocks the entire thing. Wagner CJC says that, after CUPE v New Brunswick Liquor Corp, [1979] 2 SCR 227, patently unreasonable findings of fact could not be protected by a privative clause—such a finding would be a jurisdictional error. Crevier v Quebec (Attorney General), [1981] 2 SCR 220 came next, guaranteeing review for jurisdiction, including such errors. But Crevier did not indicate a departure from what Wagner CJC sees as the basis for CUPE: the idea that an irrational finding could not be protected by a privative clause. Porting that to the current day, the constitutional guarantee tracks a set of principles requiring review, rather than any particular category of error (see Paul Daly, counsel for Democracy Watch, here). An unreasonable error is just as irrational as a patently unreasonable one on this approach. What the Court establishes, then, is that the guarantee tracks a principle rather than a category of this or that error.

Evidence for this comes from Wagner CJC’s own analysis. The authorities Wagner CJC relies on speak only to egregious—patently unreasonable—errors, rather than any error of fact, which is where Democracy Watch ends up. In Toronto (City) Board of Education v OSSTF, District 15, [1997] 1 SCR 487, the issue was whether a finding was based on “no evidence.” In Blanchard v Control Data Canada Ltd, [1984] 2 SCR 476, a centrepiece of Wagner CJC’s reasons, Lamer J spoke of “unreasonable findings,” but did so in applying the patently unreasonable standard (499-500).

The distance between these formulations and Democracy Watch is by design. It doesn’t matter so much that only patently unreasonable errors were reviewable. What matters is that a principle of rationality was guaranteed. That principle of rationality now promises review on all facts.

But this headline won’t mean much in day-to-day practice, I do not think. Courts will continue to review decisions as they have. While some decisions involving facts will now be reviewable, I expect courts to fasten onto a key part of Vavilov, para 126: “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” In the end, it won’t be easier to make out factual errors once in court.

Constitutionalizing Reasonableness?

The statute in Democracy Watch is squarely about availability of review, not intensity. Indeed, the Court said that legislative limits on review are ultra vires “not because reasonableness review, per se, is constitutionally entrenched, but because the Constitution guarantees the courts’ role in ensuring that all exercises of public power … are sourced in law” [71]. However, the issue was not directly in front of the Court.

But Wagner CJC leaves the door open a crack, and the evolution at the heart of Democracy Watch will undoubtedly force debate on the scope of the decision. We should hold the line on para 71 of Democracy Watch. When the time comes, there is good reason to fully decline the invitation to recognize reasonableness review as a constitutional floor. This was raised in CN v Alberta Pacific Forest Industries, where the appellant argued in alternative— before Democracy Watch — that reasonableness review is constitutionalized. Let me set out some initial and tentative thoughts.

The starting point is that the guarantee is about availability. Intensity should be a constitutional question at one point only: where a legislated standard is so deferential that it is tantamount to no review at all. In principle, I agree with Khullar CJA, dissenting, in Northback Holdings, 2025 ABCA 186: the constitutional guarantee and a particular standard of review, such as reasonableness, “are not a package deal logically speaking” [228]. Vavilov and Democracy Watch both permit legislated standards of review that are consistent with the rule of law—British Columbia has long included, and not changed, the standard of patent unreasonableness in the Administrative Tribunals Act.

It would be a remarkable assertion of power under ss.96-101 to hold these legislative efforts to prescribe standards unconstitutional because of a constitutionalized reasonableness standard. Three reasons come to mind.

First, Democracy Watch itself counts against a constitutionalized reasonableness standard. Since the constitutional guarantee is about availability, it is not prescriptively tied to reasonableness specifically. Notably, Wagner CJC's statement of the courts' role (to ensure administrative action is sourced in law) and his disclaimer about reasonableness are not merely adjacent, but are side-by-side in the same paragraph.

Second, and as a result, for any argument on intensity to be cognizable, it must present the same problem that Democracy Watch deals with—something tantamount to an ouster of review. We can imagine rare, colourable situations where this might be the case, but the test should be deliberately strict to match the concern in Democracy Watch—a statute that made review totally unavailable on certain grounds. Something like patent unreasonableness, for example, would pass the test. Though patent unreasonableness is no longer a recognized common law standard of review, it does permit review for legality.

Finally, this strict test is consistent with principles internal to the law of judicial review, and the constitutionalization of reasonableness would run roughshod over them. The power of legislatures to calibrate the relationship between administrative actors and courts—outside of constitutional concerns—is unquestioned. Vavilov endorses it in its articulation of the importance of institutional design choices. That principle is embedded in our law of judicial review. It holds a place in the Court’s holding on rights of appeal, where a highly deferential standard—palpable and overriding error—can be prescribed by the legislature. It generally permits legislatures, as BC has, to prescribe a standard explicitly. To hold such efforts unconstitutional because of a specific common law standard we happen to adopt in 2026 would be an odd retrofit—and it would be inconsistent with Democracy Watch’s principle-based approach. Section 96 has a “judicially nourished luxuriance,” as Laskin once said, but this would be a new level.

Statutory Interpretation

The decision also contains a nugget on statutory interpretation, one that marks the trajectory of Wagner CJC’s own jurisprudence in this area.

Wagner CJC rejects an invitation to read the partial privative clause in s.66 in conformity with the Constitution, and instead declares s.66 ultra vires [81]. While noting that “[t]he presumption of constitutionality is an important principle of statutory interpretation,” its use in relation to privative clauses has obviously strained its limits [83]. He notes that “[c]ourts must not assign to these provisions meanings that are fundamentally incompatible with the intent of the enacting legislature” [83].

This is good. I have long thought the presumption of constitutionality, in privative clause cases, provided a “get out of text free” card. This conclusion reminded me of two other cases where Wagner CJC limited the role of these presumptions of legislative intent. In La Presse v Quebec, 2023 SCC 22, Wagner CJC was adamant that presumptions of legislative intent are “external” to the modern approach, assigning them a distinctly secondary position. In the Impact Assessment Act Reference, 2023 SCC 23, Wagner CJC also warned against extending the presumption of constitutionality to “rewrite legislative text…in order to bring it into compliance with the Constitution” [73]. All of this can be drawn under the rubric of Wagner CJC’s opinion in CISSS A, 2024 SCC 43 (see here), which emphasized that the text is the anchor of the modern approach.

Putting these points on intensity and interpretation together, we might get a coherent package out of Democracy Watch. Privative clauses barring legality review are unconstitutional—an honest position—but the legislature’s powers to prescribe the intensity of review and how courts conduct that review remain untouched. Courts stop re-writing statutes and stop growing the constitutional minimum to eat legislative powers.

Implications

Predicting how a Supreme Court case will land is a gamble. But let me crystal-ball one implication for the SCC docket, without being prescriptive.

Recall CN v Alberta Pacific Forest Industries. One issue there is whether a limited right of appeal can effectively oust judicial review under s.18.5 of the Federal Courts Act, which bars judicial review on issues “to the extent that” those issues are “appealable” under a right of appeal. The Federal Court of Appeal has long said that any appeal—whether to a court or to Cabinet—can effectively bar review on issues not covered by the right of appeal: Scott, 2018 FCA 148. Democracy Watch certainly throws doubt on s.18.5: para 73 says that Parliament cannot combine an allocation of jurisdiction to the Federal Courts with a limit on review that would “circumvent the constitutional guarantee of legality” [73]. And, worse, Democracy Watch is not enthusiastic about political remedies.

I think the arrangement in CN channels, rather than directly bars, curial review, leaving it open on issues of fact and law. It permits review on questions of law to the Federal Court of Appeal, while permitting a Cabinet appeal on other issues, including fact and policy, subject to ultimate review in the Federal Courts: see Stratas JA in Canadian National Railway Company v Emerson Milling Inc, 2017 FCA 79. As a matter of statutory interpretation, we cannot look at the Cabinet appeal in isolation, but must look at the entire structural arrangement Parliament put together to channel review: this is the principle of institutional design in practice, one on which Vavilov hung its hat.

Taking this global look, the arrangement in CN resembles cases where the Court found certiorari to be properly ousted. It is, in that sense, constitutionally adequate, unlike the arrangement in Democracy Watch. What disqualified parliamentary oversight there was not that it was weak, but that it was not a court. The Cabinet appeal in CN ends in curial review. And this read of things falls squarely within language in Democracy Watch: “[p]rovided that courts can exercise their supervisory jurisdiction over the legality of all exercises of public power, the rule of law does not preclude meaningful decision-making by other state actors” [69]. Because it is constitutionally adequate, the Cabinet appeal becomes one of the remedies a party must exhaust before seeking review. Gleason JA is onto something in saying that s.18.5 merely codifies the idea that parties must exhaust all available remedies: see CNR v Alberta Pacific Forest Industries, 2025 FCA 160 at para 26.

Conclusion

As I say above, the resolution of the constitutional guarantee issue is good for everyone. Going forward, my own view is that nothing in this judgment should change how courts review administrative decisions. It does change which aspects of decisions are available to review. The answer provided by Wagner CJC is clear: all of them. That is significant, but not everything.

I am working on a statutory interpretation primer for the benefit of practicing lawyers and administrative decision-makers. The primer is not a textbook or treatise. It is a much smaller and more usable how-to guide that I will update from time to time. It will be a detailed guide for how to navigate the confusion in this important area. The primer will be freely available.

If you have suggestions for thorny interpretive problems the primer should address, I am all ears. Your suggestions are always welcome: mmancini@tru.ca.

Statute Interpretation: Henriksen Estate (Re), 2026 BCSC 1058

Context: Readers will know that statutory interpretation in Canada is a mess. It isn’t a mess because we don’t know what the approach should be. We know that we look to text, context, and purpose. But how these elements interact—and even what they mean taken individually—are obscure, at best. We see divergent Supreme Court opinions, written by different judges, emphasizing different elements of the approach. Some of us seem to be missing that the modern approach calls for a harmonious reading of statutes—contrary to the impetus, among some judges of the Court, to emphasize purpose at all costs.

In a recent case in the BCSC, Morley J builds on an excellent opinion from Stratas JA in Hunt v Canada, 2026 FCA 88 (see “The Mushiness of the Supreme Court”). Morley J tells us how the modern approach can and should be committed to the text without devolving into literalism. He also notes why the text is an important constraint in statutory interpretation. I reproduce Morley J’s comments in full:

[24] In any interpretative exercise, the court must look at the statute’s text, its context and its purpose. That all three are part of the interpretative enterprise is universally acknowledged and is sometimes referred to as the “modern approach” to statutory interpretation, although it was arguably well-known to Pufendorf, Coke and Blackstone. But while the importance of all three is undisputed, exactly how they relate has become something of a controversy recently: see Hunt v. Canada, 2026 FCA 88 at paras. 10–13.

[25] As Justice Stratas argues, it is important to recognize that when judges are interpreting a statute — as opposed to developing the common law or considering the statute’s constitutionality — text must be the “anchor of the interpretative enterprise”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 at para. 24. That is because it is of the very nature of interpretation, as opposed to legislating, that it is about figuring out what the text means. Any discussion of what the law should be that is not anchored to the text is something other than interpretation.

[26] That does not imply that courts should take a literal approach to statutes that purports not to refer to the context in which the words appear or the purposes for which it could plausibly be said to have been enacted. Realistically, when humans try to understand what another person has said or written, they always use the context in which the speech or writing occurs and they always do so making assumptions of what the speaker or writer wanted to accomplish. The modern principle’s injunction to always consider context and purpose just makes this process conscious and explicit.

[27] Since a legislature is always trying to accomplish some public policy goal, it is therefore perfectly appropriate to consider what those policy goals might have been in trying to make sense of the words on the page. However, in doing this, the judge is not trying to figure out what they think would best promote those goals, but what the legislature did for that purpose. And it is important to bear in mind that any actual legislation is a compromise between competing purposes [citations omitted].

An excellent set of reflections.

Charter and Subordinate Legislation: Fox v Victoria (City), 2026 BCSC 1076 (June 11, 2026)

Context: The challengers seek to quash two bylaws enacted by Victoria. The petitioners are “persons who have engaged in temporary overnight sheltering in City parks at various times.” The bylaws the petitioners challenge regulate temporary overnight sheltering. Among other things, the claimants advanced a somewhat interesting proposition: that review of a bylaw for its vires under Auer v Auer, 2024 SCC 36 requires the consideration and balancing of Charter values with the enabling statute’s purpose. The Court (per Hughes J), properly concludes that Charter values do not attach to the exercise of a delegated power to promulgate bylaws.

There were two competing characterizations put forward of the bylaws. The petitioners said the bylaws were administrative, and thus attracted review as a typical administrative decision. This meant that the City might have been under a burden to consider Charter values. Their argument was facially attractive: the City’s failure to consider common law constraints on its power, in this case Charter values, represented “an unreasonable application” of the Charter because “it failed to consider the availability of washrooms, in and proximity to services of, the parks remaining available for overnight sheltering” [26]. The City argued that the bylaws were legislative in nature, and thus required a fresh constitutional challenge to the bylaw, not merely as an incident of vires review under Auer. But, even if the bylaws are legislative in nature, the claimants nonetheless argued that Charter values could act as constraints on the promulgation of the bylaw.

There is an argument that the petitioners were onto something, but that argument rests on a fundamental misapprehension of what Auer did. So, too, do comments that Auer licenses “judicial activism” or the consideration of the policy wisdom or consequences of a bylaw, expanding the judicial remit. The argument is something like this: because Auer says that Vavilov reasonableness review applies to the review of subordinate legislation, subordinate legislation should be treated like any administrative decision. Any administrative decision must be consistent with the Charter, its rights and values. So, the City might have been under an obligation to consider Charter values.

As a matter of coherence in the law, there is an attraction here. I argued prior to Auer that we need not complicate matters: review of subordinate legislation could be treated like review of an administrative decision under Vavilov, because both are products of the exercise of delegated power. But pure coherence should never come at the price of workability or an ill-fit with the scaffolding of the law of judicial review. There were simply too many roadblocks that would have had to be rammed over to assent to the petitioners’ argument.

First, and perhaps most fundamentally, Vavilov is contextual in nature. It takes on the character of the instrument under review and its connection to an enabling statute. When we review the exercise of a delegated power that results in the creation of a legislative instrument, we can use reasonableness review as a set of tools to assess whether the legislative instrument fits with the enabling statute as a matter of law. Here, as Auer says, the constraints from reasonableness review that will always be relevant include the scope of the enabling statute and the principles of statutory interpretation. It is fundamentally—almost exclusively—a legal question of statute interpretation rather than a free-standing assessment of Charter compliance (see Auer, at para 53). In other words, we do not review the policy merits and consequences, nor question the wisdom of the law—hence why claims that Auer licenses judicial activism, or a free-standing assessment of the Charter consequences, miss some basic points about how administrative law works. To the extent the petitioners wanted the court to assess the consequences of the law themselves for being Charter compliant, that ask is not supported by Auer review [69, see also Auer at para 56).

Second, and as Hughes J points out, a constitutional challenge to a legislative instrument—even if reviewed for reasonableness in normal administrative law settings—cannot be haphazardly attached to an existing administrative law challenge. Constitutional challenges require a record, evidence, and the like. As Hughes J says, “[t]he petitioners cannot avoid the procedural and evidentiary demands of a Charter claim by recasting constitutional limits as legal constraints on legislative decision-making” [72, see also 83]. Incidentally, this is a related problem in the Charter values jurisprudence more generally.

Finally, the existing scaffolding of the law of judicial review cautions against a full merge of administrative and constitutional review. There is a longstanding distinction between a challenge to the constitutionality of legislation and a challenge to an administrative decision, including for standard of review purposes. For the purposes of the Constitution, a bylaw is still a legislative instrument, even when it is challenged on the basis of reasonableness review in a normal administrative law context. That narrow conclusion cannot justify the breakdown of this longstanding distinction, which is also relevant for standard of review: after all, a direct constitutional challenge should be evaluated without any deference, at least not as a going-in presumption (though, as we know, the Oakes test contemplates deference).

For another case like this, see Shrieves v British Columbia (Attorney General), 2025 BCSC 1792.

Mandamus: Kia v Canada (Citizenship and Immigration), 2026 FC 780 (June 11, 2026)

Context: In this case, the applicant sought an order of mandamus requiring a decision on his study permit application.

I highlight this case for two reasons:

First, it offers comments on Benison v Canada (Royal Canadian Mounted Police External Review Committee), 2026 FCA 53 (see Issue 201). Benison cleaned up the structure of mandamus by bifurcating the eight factors from Apotex v Canada (Attorney General), 1993 CanLII 3004 (FCA): the first four factors must be shown by the applicant, while the remaining four factors provide “an opportunity for the respondent to demonstrate that the remedy should be withheld” [3]. In this case, the government argued that Benison had limited relevance because (1) “it only applies to situations in which no explanation has been provided for a delay…” and (2) Benison does not apply to cases, like this one, where “immigration levels are set by target categories” [4].

Battista J rightly rejects these arguments. For those who have read Benison, and as Battista J says, nothing in it is restrictive in the manner the government suggests. Rather, Benison is binding appellate authority that sets out a revised template for the conduct of mandamus applications.

Secondly, and perhaps most importantly, Battista J answers an important question: on an application for mandamus, how does one evaluate whether an explanation for the delay is adequate? His answer to this question is bold: because “[m]andamus is a species of remedy, not a species of judicial review,” it can remedy both delays that are substantively unreasonable (via an application of Vavilovian reasonableness) or unfair as an abuse of process [23-25]. In other words, “[i]nordinate delay is simply another form of administrative unreasonableness or fairness, remedied by the specifically tailored relief of mandamus” [25].

As I wrote in relation to Benison, cases like Kia represent the general trend of Canadian administrative law: a move away from a consideration of the technical requirements of the prerogative writs, and into an articulation of general principles that guide review. For the most part, this development is salutary: it leads to a simplification of the law. But we should be cautious and careful if the trend is to merge forms of relief under the ambit of general principles. Here, incrementalism will be our friend.

This was the point registered by Côté and Rowe JJ (joined by Jamal J) in Dorsey v Canada (Attorney General), 2025 SCC 38. In holding that the writ of habeas corpus could be used to attack a decision that otherwise should have been challenged on reasonableness review, they worried that habeas corpus was being broadened “beyond its purpose,” transforming it into “an alternative venue to challenge decisions of correctional administrators, undermining both the integrity of the writ and the orderly administration of the correctional system” [163]. They worried about the practical consequences of such a move: it would mean that habeas corpus applications, in which time is of the essence, would leapfrog the entire legal framework of correctional administration and judicial review in the Federal Court.

With mandamus, there are not as many complications: for one, the Dorsey majority’s conclusion relating to habeas corpus threatens the jurisdictional boundary between provincial and federal courts by allowing habeas corpus relief in provincial superior courts over matters generally subject to review in the Federal Court. But at the same time, the Dorsey dissent’s worries might have some force in mandamus. Mandamus should not become easier to obtain merely because it can be framed as a remedy for any form of unreasonable administrative action. The strictures of the test in Benison should mean that mandamus is best suited to very specific forms of administrative error. And as the case law develops in this area, we should not rush to cohere the law without thinking through the practical consequences. I take this to be the point of the Dorsey dissent.

General Judicial Review: Benson v Canada (Public Safety and Emergency Preparedness), 2026 FC 839

Context: The Applicant is a Nigerian citizen who sought Canada’s protection based on his fears of persecution. He claimed to be at risk as a gay man. However, a Pre-Removal Risk Assessment (PRRA) Officer refused his application due to the insufficiency of his evidence, without conducting an oral hearing. The respondent argued that the application for judicial review should be dismissed without an examination of the merits because of the doctrine of “clean hands”: “the Applicant’s misconduct in failing to appear for removal should disqualify him from judicial review of the refusal of his PRRA application.”

Battista J concludes that the doctrine of clean hands has no applicability in this case, despite the applicant’s evasion of removal. More particularly, Battista J provides some clarifications on the place of an equitable doctrine like clean hands in the conceptual structure of judicial review: see Budlakoti v Canada (Citizenship and Immigration), 2015 FCA 139.

Budlakoti is a useful case because it sets out a conceptual structure for the law of judicial review. In that case, Stratas JA says that judicial review can be contained in three boxes: (1) preliminary objections to judicial review; (2) review for substance and procedure; (3) remedies. Sometimes, because of the development of judicial review, (1) and (3) are mixed. For example, preliminary objections to judicial review might include the existence of an adequate forum, but from time to time some have said this is a reason to deny a remedy, when it is more appropriately and specifically a reason not to engage in judicial review in the first place. The loose language around boxes 1 and 3 can be confusing for judges and lawyers.

Battista J helps clarify the boxes when it comes to clean hands. He says, first of all, that “clean hands” has almost always been described as a reason to deny a remedy, not a reason to forego review in the first place (see the opinion of Rothstein J in Khosa, 2009 SCC 12 at para 131). In other words, courts will not forego review simply because it has been shown the applicant does not have clean hands.

Battista J advances several reasons for this. First, he notes that most of the preliminary objections to judicial review have to do with judicial economy: adequate alternative remedy and mootness, for example. In the specific case of adequate alternative remedy, I would also add that Parliament has quite clearly contemplated review in another forum. To conduct judicial review in a court would disrespect Parliament’s design choice, and is a good reason not to conduct review at all.

Clean hands is a different matter. The issue is not so much judicial economy, or Parliament’s design choice, but the conduct of the applicant seeking relief. This has nothing to do with the institutional design choices of Parliament or the conservation of resources: in fact, the doctrine of clean hands requires a balance between the misconduct and the administrative unlawfulness at issue. As Battista J says, the structure of the inquiry is flexible and guided by legal discretion, which is similar to how a remedy is crafted in the normal course.

If Battista J is right that the preliminary objections are of a certain kind, clean hands is properly a matter of remedy, after the administrative decision has been assessed in the normal course of judicial review. As someone who appreciates clear and simple rules, I find the effort in Benson notable.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

The Supreme Court has granted some very interesting leaves in administrative law matters over the last while. Two are particularly intriguing if you spend your nights up worried about Charter values. While it is hazardous to read the grant or denial of leaves as anything more than what they say, permit me to read the tea leaves.

First, the Supreme Court granted leave in Forum des maires, 2025 NBCA 99 (see Issue #191). This is significant. The case involves the closure of courthouses in a predominantly Francophone region of New Brunswick. On judicial review, the judge found the Minister’s decision unreasonable for failure to take account of Charter values underlying s.16.1 of the Charter, which recognizes the equality of status of the French and English populations of New Brunswick through the protection of distinct educational and cultural institutions. The NBCA disagreed, holding that s.16.1 can’t be expanded to cover courthouses, which are not “distinct institutions” listed or contemplated by s.16.1. LeBlanc JA noted that “[e]xtending the scope of s. 16.1 by way of values that exceed those expressed therein would constitute an inadmissible change to this provision.” This approach follows the one inaugurated in the Federal Courts by Stratas JA. As I have written in my newsletter, the NBCA decision provided a useful corrective to the Charter values framework. LeBlanc JA faulted the judge below for failing to first consider the wording of the relevant provision before asking whether there is a link between any values embedded in that wording and the matter at issue. This approach seems to dovetail with the approach endorsed in York Region, which focuses the question of “engagement” of a Charter interest on rights, reviewable on a correctness standard. On the other hand, CSFTNO might already mean that the die is cast, and that this objection to the Charter values framework simply will no longer fly.

The Supreme Court previously granted leave in Vabuolas, 2025 BCCA 83 (Issue #172). This case also involves Charter values, but in a different way: it concerns whether a legislative grant to the BC Information and Privacy Commissioner can be exercised in a constitutionally-compliant manner. A related question is how such an exercise of administrative discretion would be assessed. In her learned opinion, Horsman JA raised the question of how the standard of review would apply. Broadly speaking, she endorsed a bifurcated standard, implied by York Region, in which the correctness standard applies to the determination of the scope of a Charter right—and importantly, that in a case like Vabuolas where there is a clear Charter right implicated (unlike CSFTNO where there was not), we speak of rights.

The grants of leave in these cases might shed light on how the post-Vavilov approach to Charter values may develop. Again, at the risk of reading too much, recall that our framework has evolved in the following way:

1. Where a Charter right applies to a dispute (where an individual has the benefit of a right), York Region is applicable. The standard of review on whether a Charter right is engaged, and its scope, is correctness. As some lower courts have held, this implies that a question whether a right is proportionately balanced with a statutory objective will be reviewable on reasonableness: see Vabuolas itself.

2. Where the Charter is not directly applicable, there may still be a procedural duty to consider Charter values.

It may be that Vabuolas provides us guidance on (1), and Forum des maires on (2).

General Law of Judicial Review: Sierra Club Canada Foundation v Canada (Environment and Climate Change), 2026 FCA 110 (June 3, 2026)

Anytime Justice Stratas clarifies the law of judicial review, we should pay close attention. Here, he offers guidance on two points: (1) the exercise of judicial discretion in the law of judicial review; and (2) the role of courts in reviewing major project approvals.

This case involved the Bay du Nord Development Project and the technical, environmental, and Indigenous consultation requirements for the project. Equinor, which has an interest in the project, alleged that the appellants could have raised several environmental issues at a much earlier point in the process under the Canadian Environmental Assessment Act. It said that the Federal Court should have dismissed the application for judicial review on that basis alone [51].

Equinor’s legal basis for this argument was the general proposition that judicial review is discretionary [54]. Sometimes, this can be taken at face value—that the exercise of discretion is driven by the court’s own personal view of the equities of the case. But as Stratas JA says, this cannot be so:

[58] If it were, then the results of cases would depend on the sensibilities of a judge, or, as the English jurist and scholar John Selden once memorably put it back in the seventeenth century, relief would depend on “the length of the Chancellor’s foot,” a very “uncertain measure” indeed: John Selden, Table-Talk: Being the Discourses of John Selden, Esq. (ed. Richard Milward, 1689); see also Lord Denning, Landmarks in the Law (London: Butterworths, 1984). That would be the rule of whim, not the rule of law.

So, it was not enough for Equinor to point to the clean hands doctrine [61]. But this did not mean that Equinor’s concerns were inapposite. Because of a proper appreciation of the statutory purpose, Stratas JA notes that while the statute contemplates consideration of environmental and Indigenous impacts, the direct purpose statement in the law compels the completion of environmental assessments in a timely manner. Parties must live and die by this. So, “[t]his means that those with concerns must advance them meaningfully in a responsive, timely way,” because “The Act is not to be interpreted and applied as if it were a long, multi-year stoplight designed to delay projects just for the sake of delay” [66].

As Stratas JA nicely explains, rules relating to timeliness are not just important for environmental assessments under this statute. They are riddled throughout our law, including in the law of procedural fairness, which requires parties to raise procedural concerns as soon as they become aware of them. And similar rules apply in Indigenous consultations, which are often attached to multi-year, complex project approvals. Parliament has created two different design choices relevant in this case. For one, it entrenched a general principle of timeliness in the statutory framework. It has also set up a statutory and regulatory process for project approvals that impose environmental and Indigenous consultation requirements. Both things must be kept in mind at once. And so to permit parties to raise concerns at any particular point would not be consistent with one of the central design choices in the statute. This is a solid example of a case where statutory purpose can legitimately be relied upon in the exercise of discretion.

This case is an important reminder of several fundamental principles. Discretion is never unbounded. Even the loosest discretionary frameworks contemplate the exercise of discretion according to law. So, it is not a free-for-all. And as Stratas JA points out, the presence of rules is just as important even when the stakes are high, like in Indigenous or environmental contexts.

Procedural Fairness: Cespedes Leon v Canada (Citizenship and Immigration), 2026 FC 669 (May 25, 2026)

Eagle-eyed Supreme Court observers will know that the Court granted leave in a key case on the standard of review for procedural fairness. The case raises the prospect of whether the Quebec Court of Appeal’s approach to procedural fairness—applying the reasonableness standard—is appropriate. Of course, that approach differs in the rest of the country, where the standard of review is “akin to correctness” or “correctness” or “fairness in all the circumstances.”

In Cespedes Leon v Canada (Citizenship and Immigration), 2026 FC 669, the Federal Court was faced with perhaps the best case scenario for the application of the reasonableness standard. The question raised by the case was whether there was an oral hearing owed to an applicant on a pre-removal risk assessment application, under s.113(b) of the IRPA. There is a split on the issue in the Federal Court [12]. For his part, however, Régimbald J notes that the Federal Court’s decision in Huang v Canada (Citizenship and Immigration), 2018 FC 940 presents a “compelling case that the reasonableness standard should apply, because the issue as to whether a hearing should be held involves the interpretation of the IRPA,” a garden variety statutory interpretation issue [13]. However, the Federal Court of Appeal has, apparently, held otherwise [14].

On the facts of this case, Régimbald J notes that a failure to provide an oral hearing when required would fail any standard of review [14]. But he lays out the key issue: what is the standard of review when there is an exercise of discretion to hold a hearing as permitted under an enabling statute? When the issue is one of statute interpretation, it is very difficult to distinguish why—merely because the label of the issue is “fairness”—it should be treated any differently for standard of review purposes: see Maritime Broadcasting, 2014 FCA 59. Of course, there are other types of procedural fairness cases that do not involve the interpretation of a statute. Those are the hard cases.

Statutory Interpretation: Droits collectifs Québec v. Office of the Registrar of the Supreme Court of Canada, 2026 FC 706

Statutory interpretation has been on our minds recently, given the Supreme Court’s apparent interest in the matter. Readers will recall the controversy over the translation of the Supreme Court’s historical precedents, decisions rendered before the passage of the Official Languages Act [OLA]. The applicants in this case sought a remedy under the OLA, on the theory that the SCC’s historical decisions fall within the ambit of the OLA as services and communications to and with the public.

In deciding the case, Deputy Judge LeBlanc was faced with a statutory interpretation argument that I see frequently: that the OLA must be given a broad and liberal interpretation. This is a common phrase across the law of interpretation. Something like this exists in s.12 of the Interpretation Act, which requires enactments to be given “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Specific types of legislation, including the OLA, are sometimes said to require this broad and liberal type of interpretation: Abrahams v Attorney General, [1983] 1 SCR 2.

This argument is apt for abuse. It is sometimes used to “drive” legislation to a pre-determined result (see Hillier v Canada (Attorney General), 2019 FCA 44 at para 25). In light of this, Deputy Judge LeBlanc is completely correct to say that “[t]he principles of broad and liberal interpretation do not preclude the application of recognized methods of statutory interpretation” [63]. She notes that the presumption of broad and liberal interpretation is strongest “where [interpretation] leads to two potential interpretations” such that a broad and liberal approach will be preferred. In other words, we cannot use “broad and liberal” as a talisman to get around the hard work of statutory interpretation.

Reasonableness Review: Oleynik v Canada (Attorney General), 2026 FC 657 (May 22, 2026)

One of the core constraints in reasonableness review under Vavilov involves considering the impact on the affected individual. In this case, Gascon J provides what I think is a very valuable clarification for decision-makers and reviewing courts: decision-makers need not ready their pens for long decisions every time there is an “impact” on an individual.

This case is a judicial review of a decision of the Judicial Conduct Committee of the Canadian Judicial Council. The Committee dismissed a complaint alleging misconduct by a judge.

In this case, Gascon J properly notes that “the degree of responsive justification” varies depending on the circumstances of the case. He says the following:

[74] I stress that the degree of responsive justification varies. On the one hand, where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect these high stakes. This is the case for decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood (Vavilov at para 133). On the other hand, where the stakes are on the lower end — as in the case of potentially frivolous complaints to the CJC —, less justification is required, even though some is still needed.

A valuable point. Vavilov requires a decision-maker to provide reasons addressing consequential impacts on an individual. But not every impact requires a dissertation. Some can be dispatched carefully but quickly.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

Hunt v Canada, 2026 FCA 88 (May 7, 2026)

When the Supreme Court says different things in different cases on the same topic over a span of two years, what is a lower court judge to do? That is the problem that faced Stratas JA in the Hunt case. His comments are remarkable, and allow an opportunity to reflect on the Supreme Court’s mushiness—its inconsistency—in matters of public law (see Michael Plaxton and Leonid Sirota).

Hunt was a tax case, but like many tax cases, involved issues of statutory interpretation. As readers will know, the Supreme Court’s statutory jurisprudence has been in flux to put it nicely. Everyone cites Rizzo Shoes. But in recent years, the Court has indicated that the text is the anchor of the interpretive exercise (see my paper explaining the methodological significance of this). Then, in R v Wilson, 2025 SCC 32 (Issue #198) without explanation, the Court majority (per Karakatsanis J) did not even cite the text as anchor cases. This, over a powerful dissent by Jamal J that did just that. Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 (Issue #185) also stands alongside Wilson. There, Martin J also did not refer or integrate the text as anchor cases, over a dissent by Côté and O’Bonsawin JJ that spent some time integrating that doctrinal instruction into their analysis.

So, Stratas JA says the following:

[11] Today, however, we have a great deal of stability. A recent series of consistent Supreme Court cases deserves the credit. In the process of analyzing text, context and purpose, the text is “the anchor of the interpretive exercise”: […] Many Supreme Court cases just before and just after CISSS A have faithfully followed this methodology and are admirably consistent: see, e.g., TELUS Communications Inc. v. Wellman, 2019 SCC 19 , [2019] 2 S.C.R. 144; R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838; MediaQMI Inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899; Piekut v. Canada (National Revenue), 2025 SCC 13; R. v. Carignan, 2025 SCC 43 ; Kosicki v. Toronto (City), 2025 SCC 28 ; and many others.

[12] The majority reasons in a recent Supreme Court case, R. v. Wilson, 2025 SCC 32 , seem at odds with this line of cases. The majority did not refer to the principle that the text is the anchor, seemed to de-emphasize the role of the text in the interpretation exercise, arguably found unexpressed legislative intention under the guise of purpose interpretation, and did not attempt to reconcile its reasoning with the earlier cases. This is regrettable: R. v. Sullivan, 2022 SCC 19 , [2022] 1 S.C.R. 460 (horizontal stare decisis); Canada v. Boloh 1(A), 2023 FCA 120 , [2023] 2 F.C.R. 915 at para. 24 (the need for doctrinal stability, especially on fundamental points of law like this). Wilson must be taken as an outlier and, thus, cannot be taken to have modified or repealed the long string of recent legislative interpretation cases that came just before it, cited above: […] Perhaps confirming that the long string of case law on this point continues is Carignan, a case postdating Wilson.

A few comments on this.

Doctrinally, I see no other way for a lower court to proceed given the instability in the Supreme Court’s method. The point is not, as I will say later on, that the Supreme Court’s analyses in these cases differ from one another (though they do), while agreeing on the proper method and its description. That sort of thing is par for the course.

The problem is worse. The judges simply do not seem to agree, beyond the boilerplate in Rizzo, how to describe the Court’s approach to statutory interpretation with any degree of consistency.

This is a fundamental rule of law problem. If the Court cannot describe its ongoing approach to the interpretation of statutes, what is a judge (or an administrative decision-maker) to do? I see no other alternative than for lower court judges to merely state the lay of the land and reason about each line of cases. Here, Stratas JA does so by trying to unearth the deeper principle undergirding the inconsistencies in method. I think he is right that the text-as-anchor method presents the best account of what the Supreme Court has done in the last five years in statutory interpretation. And there’s a broader point too: in situations of deep legal uncertainty, the lower, appellate courts play an outsized role in tightening Supreme Court cases.

This is a rational response to deep uncertainty, but it is not ideal, given the methodological outliers. The question is why this is happening, and what follows from it.

One cause, I think, is that the Court is simply not thinking hard about method—how cases are decided across the range of cases. One gets the impression that every statutory interpretation case is a new day—with a dispute on specific facts that must be resolved. So, there are always different statements of the governing rule, with particular judges emphasizing different features of the modern approach given their own view of the facts in front of them, or even their own ideological predilections. Take the recent case of R v Nguyen, 2026 SCC 10 with an opinion written by Kasirer J. There, in resolving the dispute before the Court, he does not cite the text as anchor cases. Rather, he purports to emphasize “the key elements of the modern approach that are particularly relevant to our task in this appeal” (Nguyen, at para 79). Fair enough. But then, in his description of the governing principles, Kasirer J says that the text "is, in all cases, one among a broader range of factors relevant to the exercise of statutory interpretation” (Nguyen, at para 80).

When you look at Nguyen and Wilson, one senses a lack of interrogation about what interpretation is about and for. Yet there are traces of this work in the Supreme Court’s cases that Wilson, Nguyen, and Pepa pass over in silence, alongside the text as anchor instruction.

The Supreme Court has said many times that the point of statutory interpretation is a normative identification of the legislature’s intent. Methodology is designed to assist us in identifying that. So, the text as anchor jurisprudence makes sense from this perspective. It is rooted in the idea that the legislature promulgates a text, that goes through the prescribed law-making process, and reveals how the legislature sought to achieve its goods—the means—and the goods it, in fact, seeks to attain (the “why” of the statute). This understanding is reflected in cases like CISSS A. See also R v Heywood, [1994] 3 SCR 761. Again, some judges have been consistent on this normative point. But the Court itself has not been consistent on the whole, despite—as Stratas JA says—some admirable consistency in some cases in recent years, which justifies his methodological comments in Hunt.

Another potential cause: perhaps the judges just simply disagree amongst themselves on how interpretation should be conducted. This assumes that the judges all have individual methodological commitments that can be discerned across a range of cases. But in statutory interpretation—and with the exceptions of Justices Rowe, Jamal, and Côté, whose opinions have indicated a seriousness about methodology—it is very hard to discern any through-lines or “camps.” For her part, Justice Martin wrote R v Rafilovich, 2019 SCC 51, which set out a highly structured approach to statutory purpose; but then resiled from that approach, on different facts, in Pepa.

Whatever the real cause, and again, the issue is in the basic description of the modern approach itself. There are consequences.

First, and principally, is a lack of coherence in interpretive method. There seems to be at least a tension between “one among a broader range of factors” and “text as anchor.” This was the same problem that Wilson presented. There, Karakatsanis J— reading in words to a statute based on its overarching purpose—said that “the text is not determinative” without reflecting on how or why reading in words might be contrary to the text as anchor jurisprudence, or the concept of the legislature’s intent (Wilson, at para 34). If you line up Wilson, Nguyen, and the text as anchor cases, we get three propositions: (1) the text is not determinative; (2) it is one among a broader range of factors; (3) it is the anchor of the interpretive exercise, which means that any use of other interpretive tools must be consistent with the semantic frame of the text. These statements are in tension with one another. They could be made consistent. But the Court must interest itself in methodology as it connects to the very point of statutory interpretation.

I sometimes hear that this state of affairs is just the pragmatism of the modern approach; so we should not be surprised that there is diversity in opinions: see Ruth Sullivan. But for one, the idea that the modern approach is eminently pragmatic is just one (contestable) view of the approach. And it isn’t apparent that the Supreme Court’s mushiness is even justified by this pragmatism. It is not ever overtly stated, in any of these cases, that the modern approach requires different statements of the governing rules. Nor should such a thing be desirable.

This lack of coherence in method leads to normative and practical consequences. Normatively, and for one, it does not meaningfully constrain judges. As Justice Malcolm Rowe and Michael Collins wrote in an important article, a methodology of statutory or constitutional jurisprudence should serve to limit “the ways in which the elements of legal reasoning can be used and combined...[i]f one adheres to a structured methodology, certain types of justifications become unavailable” [5]. Methodology is important because, as Rowe and Collins say, “[d]ecisions do not emanate directly from rules or principles.” It is not enough to say that “justice” requires some result without more to produce reasoning that is acceptable to those who may not agree with a decision. Absent an integration of such rules or principles in the decided cases or statutory law, this approach begins to look like instrumentalism, and those kinds of decisions take a pound of flesh in legitimacy.

Instead, more must be shown, in the process of legal reasoning, that a result flows from a predictable—if flexible—methodology that is rooted in the precedent. Perhaps most powerfully, the authors put their fingers on the problem when they say that a structured and deliberate methodology will force judges to “confront the challenging aspects of a decision instead of skirting them or even passing over them in silence, as a judge unconstrained by methodology might feel free to do” [7]. That is the Wilson problem.

For another, this lack of structure is also bad for litigants and lower court judges, as Hunt itself shows. No enterprising lawyer under the current state of the law could advise their clients about how a judge might approach an issue of statutory interpretation, let alone resolve it. Not every case of interpretation requires discussion of methodology, but it must be predictable enough in the background to allow people to make rational decisions.

There are obviously responses to all of this. A common one is that of the legal realist. Methodology and legal tests, on this account, are rarely explanatory of how judges act—instead, judges will exercise power according to their own perspective on what the law requires with the law used as a convenient after-the-fact justification for that decision. There is no constraint here, as Rowe and Collins would have it.

I think this proves too much, and that the relationship between methodology and judicial judgment is more complicated. Of course judges have their own predilections and perspectives. But this is only a causal explanation of judicial and human behaviour; it points out that judging is not robotic, that it is a human endeavour. It doesn’t help us answer another question we should be interested in: how do we make statutory interpretation decisions cognizable to others in the legal system, so that we can evaluate them; so they aren’t a universe of single instances.

A second response: maybe cases like Nguyen aren’t an opportunity to provide a thesis-like restatement of the principles of statutory interpretation. Sometimes, courts are merely asked to decide the equities of a dispute. That could be defensible if the court didn’t purport, as in Nguyen, to define aspects of the modern approach on which it was relying. If the Court aims to do this—as it sometimes does, like in La Presse, 2023 SCC 22 (see Issue #110)— it should be careful. If one must say something, it should at least be made consistent with what came before it. Sometimes, it is better to just say less.

A final note on legitimacy. In an era of distrust of legal institutions, courts should do more by doing less. Tours, photo-ops, press conferences—these are all bells and whistles that distract from the more simple task of developing a consistent methodology across a range of cases. These days, there is resistance to this. Members of the public don’t care about interpretive methodology; it may be that politicians and political actors see interpretive methodology as a terrain to fight their own battles; and it may be that technical issues of law just aren’t interesting anymore in the world we inhabit. There is a certain nihilism reflected in these fashionable beliefs.

But I don’t find them persuasive. In a period when trust in public institutions is already strained, the most powerful thing a court can do is demonstrate that its decisions follow from a principled and predictable method, rather than from the predilections of whichever judges happen to sit on a case. Methodological consistency is, in this sense, a form of institutional self-discipline: it constrains the court, and shows that the court is willing to be constrained.

Hunt, then, is a small but revealing case. Stratas JA did what a careful lower court judge must do when the Supreme Court speaks inconsistently: he mapped the terrain, identified the more deeply rooted line, and followed it. That is a defensible response. But the fact that it is the best available response—that the task has become one of navigating competing lines of authority rather than applying a clear and settled rule—is itself a sign that the Supreme Court should clarify its approach to statutes.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

Context:

[1] Damian Stanley Chijindu Ahamba is a refugee claimant from Nigeria. He was found inadmissible to Canada based on his past membership in an organization called the Indigenous People of Biafra [IPOB]. The Immigration Division [ID] of the Immigration and Refugee Board [IRB] determined that the IPOB was engaged in subversion by force of the Nigerian government, and that Mr. Ahamba’s membership in the organization therefore rendered him inadmissible under ss 34(1)(b) and (f) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Mr. Ahamba argues that the ID’s interpretation of the legislation failed to take international law into account and was unreasonable. As explained below, I agree and will set aside the decision.

Issue and Analysis: Following Mason v Canada (Citizenship and Immigration), 2023 SCC 21 and Ali v Canada (Public Safety and Emergency Preparedness), 2025 FC 1682, this decision skewers yet another Immigration Division decision for failure to take international law into account. This is merely another recognition of the reality that the holding in Mason carries implications beyond its facts, flowing from the bold choice in that case to declare one reasonable result.

In Mason, of course, at issue was s.34(1)(e) of the IRPA which establishes inadmissibility for engaging in acts of violence that would or might endanger the lives or safety of persons in Canada. Ali involved s.34(1)(b.1) of the IRPA, which establishes inadmissibility for “engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada.” Both cases concluded that, regardless of whether it is raised before the decision-maker, the principle of international law of non-refoulement must be considered (see e.g. Ali, at para 32). That conclusion rested on the fact that s.3(3)(f) of the IRPA specifies that it “is to be construed and applied in a manner that…complies with” international law instruments to which Canada is a signatory. Because it must be applied, it need not matter that it wasn’t raised before the decision-maker.

In Ahamba, and as a matter of precedent, that same move is applied again. Here, the government tried to argue—again—that Ahamba did not raise the principle of non-refoulement directly in his submissions [25]. The Court rejects this argument. Since “Mason was explicitly raised in Mr. Ahamba’s challenge to the reasonableness of [the decision]…” and because no prejudice resulted, there was no need to worry about dealing with the international law issue for the first time on judicial review [26].

Two points about this case that allow me to renew some criticisms of how the post-Vavilov jurisprudence is developing. First, Ali and Ahamba are the product of Mason’s bold move to declare one reasonable result on the facts of that case. But because that signal was sent by the Supreme Court, it is unsurprising to see its declaration of the meaning of one of the grounds of inadmissibility apply to other grounds, as well. This makes me think of Rowe J’s important warning in Pepa: when courts declare one reasonable result, they don’t know what they don’t know. The downstream risks are important.

But maybe the story isn’t so bad. In both Ahamba and Ali, the courts do not follow Mason and Pepa and declare one reasonable result. They, instead, remit. In Ahamba, Brouwer J puts the point well:

While the question of how international law – in particular the principle of non-refoulement – impacts the interpretation of ss. 34(1)(b) and (f) of the IRPA remains open, to be addressed by the ID on redetermination, the question of whether it has a role to play is settled.

This is a small mercy. But as the cases below show, reasonableness review is developing into quite a “robust” exercise. Especially when there are important legal constraints, decision-makers will be required to consider them if they are encoded in a statute—or perhaps if not. It is a good sign that the Federal Courts system (see Cholewa, below) is trying to make the Supreme Court’s “innovations” stick together with foundational principles of administrative law. But it might be a tall order.

Evely v Nova Scotia (Minister), 2026 NSSC 118 (April 17, 2026)

Context: In 2025, the Nova Scotia Minister of the Department of Natural Resources issued a “travel ban” covering the woods in the entire province because of the threat of destructive fires. Among other things, the claimant argued that “the Minister engaged in no consideration of the impact of the travel ban on the Charter rights of Nova Scotians and by failing to do so acted unreasonably so that the proclamation was invalid.”

Issue and Analysis: One core error, in the Court’s mind (per Campbell J), summarized at the end of the decision:

[65] The Supreme Court of Canada in Doré provided a roadmap for decision makers. When Charter rights are involved, it is necessary to consider them in a meaningful way. That means thinking about whether there are ways to achieve government objectives that intrude less on the rights protected by the Charter. That may be difficult to do in the context of a quickly evolving emergency. But with the benefit of hindsight, it might be something that can be considered before the next one.

At first blush, this is an entirely defensible proposition—the executive is always bound by the Charter. The Charter values framework is one way to implement that proposition. It forces decision-makers to consider Charter values in the exercise of discretionary powers as a means of subjecting the exercise of that power to Charter scrutiny.

In this sense, Campbell J’s decision is an application of existing law—or at least a plausible interpretation of it. But I continue to maintain that the Charter values framework as it is currently structured leads to problems in principle and in practice.

First, in principle. Campbell J’s decision is well-written, but I am a bit confused about the backbone of his reasoning. Relying on the Supreme Court’s recent decision in Taylor v Newfoundland and Labrador, 2026 SCC 5, Campbell J begins his analysis of the travel ban by noting that Taylor declared a right to interprovincial travel simpliciter as a component of s.6 mobility rights under the Charter. The Court, in that case, split on the source of this interprovincial travel right. However, the majority (per Karakatsanis and Martin JJ) framed the mobility right broadly—“a broad right to mobility simpliciter is foundational to s.6 as a whole” (see Taylor, at para 65; Evely, at para 29). This statement, for Campbell J, seems to do a lot of heavy lifting, taking Taylor out of the context of interprovincial mobility and into the context of mobility more broadly.

From this, Campbell J moves to the next step, which involves reasoning from Taylor to the travel ban case. Here, Campbell J reasons that even if the mobility right does not strictly apply in this case, the question under the Charter values framework is whether the ban “limits or engages [Charter] rights or the values that underlie those rights” (Evely, at paras 32, 34). This feature of the Charter values jurisprudence allows judicial review courts to abstract away from the precise limits of rights. So, in this case, it permits Campbell J to gloss over the factual context of Taylor—a case of interprovincial mobility—and glom on to statements in Taylor that the essence of s.6 is a right to mobility generally.

Here, it was that failure to consider mobility generally that was the flaw for the Minister’s travel ban. One senses that Campbell J’s reasoning is arranged around the invitation, in CSFTNO, 2023 SCC 31, that decision-makers are required to consider Charter values where there is a link between the matter and a “value” at issue. This requirement is vague in the normal course—how can a decision-maker determine whether there is a link between the matter and some “value”? But it is especially bad when we couple (1) the broad statements of purpose in Taylor; and (2) the CSFTNO requirement. Here, I suppose the value is “mobility,” which stands against any restrictions that are more than trivial and “substantially affect people’s lives” [33]. The end result is that the Minister should have considered this value, not clearly before him, that arises from infelicitous phrases in a Supreme Court decision that are arguably broader than the actual holding of the case.

In this way, Evely shows us something interesting: an interpretive approach heavy on purposivism (as in Taylor) makes it much easier to find heretofore undeclared Charter values in later cases. The end result is an expansion of the domain of the Charter beyond its textual limits. In this sense, Evely follows on the heels of cases like Égalité Santé en français N.-B. Inc. et al v. Province of New Brunswick (Executive Council Office) et al., 2025 NBBR 302 (Issue 200), where the NBKB faulted the government for removing a board of directors elected by the Francophone community to a health network. On the other hand, some courts have cautioned against the tendency, in cases like Evely, to expand the Charter beyond its textual limits: see Minister of Justice and Public Safety v Forum des maires de Péninsule acadienne Inc., 2025 NBCA 99 (Issue #191). More to come on this, I am sure.

Turning to the practical problems, Evely showcases some of the problems with Charter values. First, while I am not keen on giving politicians the benefit of the doubt, the Minister was in an impossible position in this case. This was a discretionary decision, taken under specific circumstances. There were no “arguments” before the decision-maker. There was no one directing the Minister to the specific Charter values argument that ended up succeeding against the decision. Indeed, as Campbell J admits, Taylor was issued after the travel ban was enacted [31].

This creates two practical problems for decision-makers. First, and more basically, it is hard enough for decision-makers to anticipate Charter values and incorporate them into a decision. As I noted above, there is very little clarity in this case about what the “value” precisely is. In this case, it may have been mobility, but it is unclear how the Minister could have shown reasoning that demonstrates attention to this right.

Second, the bigger problem is that the Minister is not a fortune-teller. He could not have known that Taylor would be decided in the way it was, nor that the majority would make broad pronouncements about “mobility.” This is precisely why CSFTNO’s “link” discussion is so vague. It is very difficult to understand how to address something in the ether.

Here, the problems in principle and practice come together. The Charter values framework was supposed to be an informal way for decision-makers to conduct Charter analysis. It has turned into an impossible ask. This is a product, arguably, of the standard of review of reasonableness in Charter matters. If the question was only whether the Minister’s decision was consistent with the Charter—with no deference owed—we would not need to demand that administrators engage with an undefined set of Charter values. We would only ask, on judicial review, whether the decision is consistent with the Charter’s text, context, and purpose in its outcome; and whether any infringement of the Charter is justified under Oakes. This is much cleaner, and solves the problem of trying to defer to something that just isn’t there.

In the end, the point is not that Campbell J misapplied the law. It is rather that Campbell J shows what the Charter values framework actually requires. That’s the problem!

Cholewa v Canada (Attorney General), 2026 FCA 73 (April 15, 2026)

Context and Analysis: This is a from-the-bench decision dismissing an appeal. The appellant was dismissed from the Canadian Armed Forces because he failed to comply with the Forces’ COVID-19 Vaccination Policy. He was denied an exemption for religious purposes. The Human Rights Commission filtered out the appellant’s complaint. The Federal Court found the Commission’s decision reasonable.

At the Federal Court, the appellant tried to raise Charter arguments for the first time. The Federal Court rejected this request because he failed to raise these arguments before the decision-maker.

Interestingly, and despite CSFTNO, the Federal Court of Appeal concluded that there was no reviewable error in the Federal Court’s decision on this matter. In this sense, the Federal Court of Appeal follows its practice of bucking the Supreme Court, rejecting the invitation to consider Charter values for the first time on appeal (see, e.g., Sullivan v Canada (Attorney General), 2024 FCA 7 (Issue 120)).

This is the right instinct, and it ties back to the broader concern animating Ahamba and Evely above. CSFTNO’s invitation to entertain Charter values arguments for the first time on judicial review compounds the problem identified in Evely: decision-makers are already being asked to anticipate values that may not be clearly before them, and reviewing courts are now being invited to assess that exercise on a record that was never built for it. The FCA’s reluctance reflects a sound principle of administrative law—that judicial review is review of a decision on the record before the decision-maker, not a vehicle for litigating new constitutional theories on appeal. For now, Cholewa is a useful counterweight, and a reminder that the post-Vavilov drift toward expansive reasonableness review has not gone unchallenged.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed, i.e., I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

Mandamus

Benison v Canada (Royal Canadian Mounted Police External Review Committee), 2026 FCA 53 (March 13, 2026)

Facts: The appellants are current or former RCMP members who sought orders of mandamus to compel the RCMP External Review Committee [ERC] to complete its review of the appeals they had filed of certain RCMP decisions within 30 calendar days of the grant of mandamus. The appellants also sought mandamus relief seeking the publication and reporting on service standards that apply to ERC review. The Federal Court dismissed the requests for both orders of mandamus, in part because the appellants failed to show “significant prejudice” which some judges in the Federal Court have said is a requirement for a successful mandamus application.

Issue: Should the orders for mandamus be granted?

Holding: Appeal allowed in part. The Court (per Heckman JA) concludes that the Federal Court made reviewable errors in deciding that the appellants did not satisfy all the criteria for the issuance of the first writ of mandamus. However, it did not err in holding that the appellants failed to satisfy the criteria for the issuance of the second writ of mandamus.

Analysis: This is a significant and learned decision that clarifies several elements of the writ of mandamus. It is also significant for what it tells us about the future of the prerogative writs in the landscape of Canadian administrative law, which has moved from a focus on remedies to a focus on principles and doctrine (think “reasonableness” and “fairness” as general principles, guided by the doctrinal frameworks implemented in Vavilov and Baker, respectively).

Significant Prejudice

The first clarification offered in this case pertains to the requirement of significant prejudice. As I have written in this newsletter (see, recently, Issue 177), some judges in the Federal Court in the immigration context have required applicants to show “significant prejudice” where mandamus is ordered to compel performance of a statutory duty in cases of delay. This requirement was imported from a related area of law: where a claimant seeks relief for an abuse of process arising from delay, and seeks the extraordinary remedy of a stay of proceedings [120].

Heckman JA, for good reason, puts the kibosh on that hasty import from the abuse of process doctrine. In so doing, he resolves the split in the Federal Court on this question. This conclusion is sound. First, in fundamentals, the original and enduring purpose of mandamus is to compel the performance of statutory duties where those duties are clearly owed. The justification for the writ in the battery of prerogative writs is clear. Where power is delegated to an administrative decision-maker, the failure to exercise a clearly-defined power in a particular case would amount to an abdication of duty. It is the very failure to exercise the power/duty itself that is the wrong sought to be remedied by mandamus.

By importing a requirement of “significant prejudice,” the line of jurisprudence in the Federal Court arguably distorted mandamus by making it harder to obtain—harder than it should be. Mandamus is rightly cabined by several preconditions and is also subject to the court’s discretionary power to refuse a remedy. But these conditions are rooted in the historical development of the writ and its original purpose. “Significant prejudice” is rooted in the abuse of process doctrine as it relates to the problem of delay. While both mandamus and abuse of process can remedy delay, they do so in different ways, and it does us no good to mix them up.

Second, and relatedly, that this is the purpose of mandamus is reflected in the relationship between mandamus and abuse of process. As Justice Rowe said in Law Society of Saskatchewan v Abrametz , 2022 SCC 29 (Issue 48), mandamus is a useful tool to “prevent” abuses of process (see also Tousi v Canada (Citizenship and Immigration), 2025 FC 671 , Issue 177). This tells us that the requirements associated with abuse of process are not preconditions to mandamus, which can prevent prejudice. It would, then, make no sense to say that prejudice is part of the burden an applicant must bear to obtain mandamus. Heckman JA rightly accepts this line of thinking.

Incidentally, and by doing so, Heckman JA preserves the “specialness” of the writ of mandamus. As we shall see, the general move from remedies to general principles and doctrinal frameworks has contributed to the internal coherence of Canadian administrative law. At the same time, there are good reasons to at least identify some of the consequences of this blurring, and to draw lines where appropriate.

The Apotex Test

Heckman JA also provides important clarifications to the traditional test for mandamus: clarifications that, as Paul Daly notes, arguably coheres mandamus with the broader principles of the law of judicial review, at the price of the “specialness” of the writ. As I will explain, the same trend is arguably at play in habeas corpus, though with different consequences.

The traditional criteria for mandamus are set out in Apotex Inc v Canada (Attorney General)(CA), [1994] 1 FC 742 (FCA):

1. there is a public duty to act;

2. the duty is owed to the applicant;

3. there is a clear right to performance of that duty, in that the applicant has satisfied all conditions precedent giving rise to the duty and there was a prior demand for its performance, a reasonable time to comply with the demand and a subsequent refusal, either expressed or implied (e.g., by unreasonable delay);

4. certain criteria are satisfied if the duty sought to be enforced is discretionary;

5. no other adequate remedy is available to the applicant;

6. the order will be of some practical value or effect;

7. the court finds no equitable bar to the relief sought; and

8. the balance of convenience favours issuing the order.

While this list is typically perceived as conjunctive (an applicant must meet all of the requirements), Heckman JA notes that the eight criteria can be grouped into two categories, in that the criteria “do not serve the same purpose” [45]. The first four criteria are legal requirements for the issuance of mandamus [46]. Notably, Heckman JA clarifies that upon the applicant meeting its burden under each of the four Apotex criteria, she is “prima facie entitled to a writ of mandamus” [50]. The second category of criteria “relate to reasons for which the reviewing court should exercise its discretion to deny the remedy to which the applicant would otherwise be entitled” [45]. Here, Heckman JA is referring to traditional grounds on which courts may refuse to grant a remedy on judicial review, grounds which channel the court’s wide remedial discretion. Unlike the first four criteria which require the applicant to bear the burden, the second category “may be raised by the respondent or by the reviewing court, on its own motion, as discretionary bars to mandamus” [50]. This procedural shift is significant: the applicant no longer needs to preemptively disprove every equitable bar; rather, once the legal duty is established, the onus shifts to the state to justify why the remedy should be withheld.

As Professor Daly notes, Heckman JA’s organization of the Apotex factors coheres mandamus with the broader law of judicial review, under which the applicant bears the burden to demonstrate that a decision is unreasonable (say, under the Vavilov framework), but there may be a reason for a court to decline to grant a remedy in a particular case. I agree that this amounts to a decoupling of principles from remedies to some extent, especially so because mandamus, here, was used to essentially remedy a failure to exercise powers under statutory terms, in the language of reasonableness. But I want to raise a few questions about this approach, and tie it to other developments in the prerogative writs.

In Dorsey v Canada (Attorney General) , 2025 SCC 38 , the Supreme Court of Canada was faced with a question pertaining to the scope of habeas corpus relief. Habeas corpus typically attaches to deprivations of liberty, which usually manifest in decisions that moves someone from a more restrictive carceral situation. But in this case, a majority of the Court (per Moreau J) concluded that habeas corpus also attaches to decisions to deny an individual a transfer to a less restrictive custody condition. In so doing, the Court concluded that these sorts of decisions—normally subject to normal judicial review in the Federal Courts—can be challenged on habeas corpus. Dorsey can be seen as endorsing a more substantive approach for habeas corpus, tied together by substantive reasonableness, in which it is a tool to resolve that unreasonableness in the context of decisions that broadly affect liberty. Put this way, it is one procedural tool available, like mandamus, to remedy particular aspects of unreasonableness. This is especially so because Moreau J preserves remedial flexibility for courts on habeas corpus review: normally, release is the only remedy, but Moreau J concludes that remittal (as in normal judicial review) might be an option [89].

But in dissent Côté and Rowe JJ (joined by Jamal J) outline significant concerns about this endless drive to coherence. Coherence must be achieved within the confines of the legal system we, in fact, have. And so they worried that habeas corpus was being broadened “beyond its purpose,” transforming it into “an alternative venue to challenge decisions of correctional administrators, undermining both the integrity of the writ and the orderly administration of the correctional system” [163]. They worried about the practical consequences of such a move: it would mean that habeas corpus applications, in which time is of the essence, would leapfrog the entire legal framework of correctional administration and judicial review in the Federal Court.

I am on record as supporting a stricter application of habeas corpus, uninfected by considerations of “carceral expertise.” But the concerns raised by Côté and Rowe JJ pertain to a different issue: not the intensity of review, but the issues which are amenable to review under this particular prerogative writ. While the majority states that habeas corpus as a “right and remedy” must be “flexible and adaptable to contemporary deprivations of liberty,” [89], that flexibility cannot be endless, and there must truly be a deprivation of liberty to entitle an applicant to habeas corpus relief. That is the dissent’s worry.

So, we might transpose these same worries to the world of other prerogative writs like mandamus. The concerns are not the same as in habeas corpus: for one, the Dorsey majority’s conclusion threatens the jurisdictional boundary between provincial and federal courts by allowing habeas corpus in provincial superior courts over matters typically subject to judicial review in the Federal Courts. Benison involves mandamus within the Federal Courts’ jurisdiction. But mandamus, like habeas corpus, does have its own structured conditions for relief, which Heckman JA does preserve to some extent in this decision. To that extent, the preservation of those conditions do not simply reduce mandamus to a remedy among many for unreasonable administrative action.

Perhaps the horse has left the barn. Since the access to justice reforms of the 1970s, the move to a unified application for judicial review in place of specific prerogative writs has largely continued unabated. Yet the common law writs still remain, and are embedded in the structure of the law of judicial review. We might be careful, and have good reason, before we uproot them in a drive towards coherence.

Search and Production

Jewish National Fund of Canada Inc v Canada (National Revenue), 2026 FCA 63 (March 26, 2026)

Context: From the Court’s (per Stratas JA) decision:

[1] In this appeal, the Jewish National Fund of Canada Inc. seeks to set aside the Minister’s decision to revoke its status as a registered charity. Among other things, the Fund says the Minister’s decision is fatally tainted by bias.

[2] The Fund says that over a period of thirty years or so, the Minister and, more broadly, the Canada Revenue Agency, actively considered letters, petitions, and other materials from parties who wanted the Fund’s registration revoked because it is Jewish. It asserts that in making the decision in this case, the Minister succumbed to a weighty and illegitimate pressure campaign against the Fund.

At issue in the case is whether the Minister has fully complied with the Court’s previous search and production order which required a “supplementary search of CRA’s records…” to substantiate a potential allegation of bias [49].

Issue and Analysis: In concluding that the Minister “must conduct a further search for certain documents, confirm the adequacy of previous searches, and provide a further affidavit on the nature and scope of certain searches” [56], Stratas JA eloquently lays out some basic principles governing search and production orders in the administrative context. For that reason, this case is important, and an exemplar of a court taking doctrine and its development seriously.

In the first place, Stratas JA was faced with conflicting jurisprudence in the Federal Courts on the trigger for a search and production order. On one hand, some decisions have intimated that a mere allegation of “maladministration” is sufficient to order a search and production order; on the other hand, other decisions showed that the “…Court requires something more underlying or surrounding the allegation, such as some evidence, before the Court will make a search and production order” [19].

In resolving legal questions like this, it is wise to try to marry principle and practicality. We want legal rules that are rooted in fundamental principles and implemented by orderly doctrine; and we want to make sure that these principles and doctrines are workable for courts and parties. Too many in my line of work (academia) sometimes forego practicality for Platonics. But as Justice Malcolm Rowe has said, principle and practicality should be the best of friends.

Stratas JA makes that point real in this case by search and production orders require more than an allegation of maladministration. The fundamental principles underlying this area of law are timeless: as in the law of judicial review more generally, search and production orders ensure that no administrative decision-maker is above the law. They do so because, in their absence, maladministration can remain “hidden and unexposed, immunizing administrative decision-makers from meaningful review and accountability” [12-13]. Implementing that principle in doctrine requires considering the fundamental purpose of these sorts orders in a judicial reviews, and considerations of practicality and judicial economy. Judicial reviews are not actions, nor do they permit extensive discovery. Judicial review is summary and on the record, as the Federal Courts Rules say. Search and production orders in absence of evidence distort the court’s role, and enable fishing expeditions. As Stratas JA memorably says: “In some cases, by making a search and production order, judges have fuelled the fishing boat, cast off the mooring lines, and sent the boat off to trawl the deep for whatever fish are to be found” [22].

Stratas JA constructs a doctrinal solution that balances these competing considerations. He insists that (1) an order for search and production must have an air of reality; and (2) the order must be proportionate between the time and expense associated with the order, and the importance of the matters at stake, including public confidence in administrative decision-making [27, 32].

This is a practically important area of the law, because search and production orders are tools in a court’s arsenal to facilitate subjection to legal accountability. That is important. But as noted above, principle and practicality must be the best of friends. So, in constructing doctrine that faithfully balances these considerations, Stratas JA has clarified an area of the law in a principled manner. When judges engage in judicial law-making of this sort, it stands as a welcome clarification of the law, contributing to stability and predictability.

Charter Values

Christian Heritage Party of Canada v. Hamilton (City), 2025 ONCA 195 (March 18, 2026)

Context: The CHP asked the City’s advertising agent to accept a discriminatory ad that said children need to be protected from LGBTQ propaganda and that there are only two genders: male and female. The City had an advertising policy that governed commercial advertising on City-owned or City-controlled assets and public property. The advertising policy required that advertisements not adversely affect public safety. While there was some back-and-forth between the parties concerning the basis on which the ad could be rejected (see paras 5-9), the City ultimately denied CHP’s application. It concluded that while it was required to consider CHP’s freedom of expression, the statutory objective of providing a safe and welcoming transit system required vindication in these circumstances. The City reasoned that the ad could “potentially cause serious psychological harm to transgender transit users beyond ‘hurt feelings’” [12]. Importantly, in reaching this conclusion, the City relied on a study that it sourced which “found that exposure to anti-trans media messaging was associated with adverse mental health outcomes in transgender and gender diverse individuals” [12], supported by a Hamilton Police repor tthat showed an increase in “hate/bias occurrences” against trans people.

Issue and Analysis: There has been much angst over the role of Charter values in administrative decision-making. Debate revolves around the relative roles of Charter “values” and “rights,” and the juxtaposition of two recent Supreme Court cases on the matter (see CSFTNO, 2023 SCC 31 (Issue 117) and York Region , 2024 SCC 2 (Issue #141)).

This case is a rote application of the framework as it currently exists. This is a case where Charter rights clearly apply, and so the City had to first identify, under York, that a Charter right was engaged. This is a decision subject to correctness review. Once that hurdle is cleared, the decision-maker must demonstrate a proportionate balance between the applicable statutory objective and the implicated Charter values. While the standard of review is somewhat unclear, most courts have assumed post-York that the standard of review is reasonableness in a Vavilovian sense, which requires the decision-maker to demonstrate a “robust proportionality exercise” [69; see Lauzon v Ontario (Justices of the Peace Review Council), 2023 ONCA 425, Issue 93; Toth v Canada (Mental Health and Addictions), 2025 FCA 119 at para 19, Issue 184).

Here, Sossin JA faithfully applies these precedents, and by the standard of reasonableness, it is likely that the City’s decision survives. But in other cases, we might raise questions about whether deference in these circumstances is appropriate. In the context of challenges to statutes, as the Supreme Court confirmed, questions of mixed fact and law must be evaluated on a correctness standard as an analogue to the court’s power—over administrators—as guardians of the Constitution (Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec , 2024 SCC 13 (Issue #133). Now, quite clearly, this point does not apply in the context of discretionary administrative decision-making, but we might wonder whether it should. Here, for example, the key for the city was its evaluation of a study linking ads on buses to psychological harm for trans folks and an increase in potential violence. In this case, that connection might be borne out on the evidence—there may be a rational connection. But we can think of other cases where we might question the City’s evaluation of social science evidence in this manner as it pertains to the satisfaction of legal standards. City staff are not social scientists, nor can they reliably evaluate the methodological precision of these sorts of studies. That is not a mark against them, but a recognition of their limitations. Where such evidence is the root of a decision to limit rights, we might wonder whether deference is appropriate.

Maybe in the end it doesn’t matter. After all, it is quite clear that first-instance s.96 judges evaluating constitutional issues are owed deference in the evaluation of evidence. But yet again, the Casinos case carved out a different rule when decision-makers are faced with first instance challenges to provisions of their statutes. There is clearly a difference between s.96 courts and administrative decision-makers. It is worth thinking about whether, in the discretionary context, deference should be extended to mixed fact and law questions where those questions are wrapped up in the determination of constitutional rights.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

Two papers for your reading pleasure:

1. I have written many times in this newsletter about the Supreme Court’s recent focus on the text as the “anchor” of the modern approach to statutory interpretation. Many are wondering what this might mean. In a paper forthcoming in the Canadian Bar Review, I tackle this question head-on (“Text as Anchor” in Statutory Interpretation”). Here is the abstract:

   

2. With my friend Charlie Feldman, we have a paper now out in the Alberta Law Review, entitled “Revisiting the Use of Legislative History in Statutory Interpretation.” Here is the abstract for that one:

Charter Values

Égalité Santé en français N.-B. Inc. et al v. Province of New Brunswick (Executive Council Office) et al., 2025 NBBR 302

The Charter Values Saga lives on.

Recently, the Supreme Court granted leave on Vabuolas v British Columbia (Information and Privacy Commissioner), 2025 BCCA 83 (Issue #172). Readers will recall that, in that case, Horsman JA raised several outstanding issues surrounding the Charter values jurisprudence. The leave materials demonstrated the parties’ interest in these issues.

This dispute arises from the New Brunswick government’s decision to remove the board of directors of the Vitalité Health Network, who were elected by the Francophone community. They were replaced with an unelected trustee. The applicants argue that this decision violated the constitutional rights of the Francophone minority community – specifically they argue that the network is a distinct institution protected by the Charter (fundamental right of community governance and control) [1]. They argue that the right to separate institutions under s. 16.1 of the Charter necessarily includes a right of management and control by the Francophone minority over the institutions as community management is necessary to achieve the objective of s. 16.1 (the preservation and promotion of the minority language and culture) [45].

The province argued that its decision was justified because there is a crisis in the health care. Appointing the trustee was a necessary temporary measure in the public’s interest to stabilize the system, remove bureaucratic barriers and rapidly implement the Provincial Health Plan. [2 and 23] . The province also argued that a right to manage health institutions by the Francophone community is not a right recognized by the Constitution. Provinces have the exclusive jurisdiction over hospital administration. [2]

Issues: (1) What is the standard of review? (2) Is the decision wrong because it fails to properly account for Charter values and unwritten principles?

Holding and Analysis: The decision fails on any standard of review.

Readers will be familiar with litigation in the province of New Brunswick on Charter values. In Minister of Justice and Public Safety v Forum des maires de Péninsule acadienne Inc., 2025 NBCA 99 (Issue #191), the NBCA overturned a decision of Bourque J at the King’s Bench, which concluded that the closure of courthouses violated the values underlying s.16.1 of the Charter. LeBlanc JA warned that the use of Charter values—undefined as they are—could be dangerous. In a particularly important passage, relying on Stratas JA’s decision in Singh Brar v Canada (Public Safety and Emergency Preparedness), 2024 FCA 114, LeBlanc JA concluded that “[e]xtending the scope of s.16.1 by way of values that exceed those expressed therein would constitute an inadmissible change to this provision.” I thought this was a good warning, paring back the worst of the Supreme Court’s Charter values precedent

Bourque J, however, returns in this case to conclude that Charter values and the unwritten principles of constitutional law can impose a distinct obligation here. In my view, this case presents the same legal risks as Forum des maires did.

On the standard of review, Bourque J applies what is now standard law: the decision of whether the Charter is engaged and applies in a particular case is subject to review on correctness (York Region District School Board v. Elementary Teachers’ Federation of Ontario , 2024 SCC 22; see also Issue #184); if engaged, whether the right is properly balanced with statutory objectives is reviewed on reasonableness (see Vabuolas, Issue #172; see, more centrally, CSFTNO, 2023 SCC 31, Issue #117 ). As far as this goes, this is true (though, as I will point out, Bourque J arguably misapplies this framework), but it will be interesting to see what the Supreme Court does with Vabuolas. But, centrally, the CSFTNO framework permits and encourages decision-makers to take account of Charter values, even where they are not argued or even where the Charter does not apply. Some lower courts have rejected this invitation (as the NBCA case shows), properly so, but Bourque J does not.

Bourque J, bound by Forum des maires, first concludes that although health institutions can play a crucial role in the development of the Francophone community, s.16.1 does not impose a constitutional obligation itself on the government—the text of the provision simply does not require this. This is where the penumbral version of Charter values inaugurated in CSFTNO rears its ugly head—it applies even where a Charter right does not. In other words, the case could have simply ended here.

Not so, in the wonderful world of Charter values. Bourque J begins her analysis by outlining the alleged Charter values at stake: equality of status, rights, and privileges between the French and English communities [89]; the remedial purpose of language rights [90]; and the right to distinct institutions and governance. According to Bourque J, once a government decision affects these abstract values, a decision can fall for being unreasonable: so, here, the decision affects the Francophone community’s ability to participate in the functioning of one of its institutions [96].

One might think this runs counter to the NBCA decision in Forum des maires. Bourque J disagreed [97]. She says that in this case the evidence demonstrates a strong link between these values and the decision—ie) the decision somehow adversely affects the values [98-102, 136, 139]. Based on the evidence, Bourque J concluded that the health network played an essential role in promoting the Francophone minority community, in health services and beyond; for example, the network provides clinical placements, residencies, and research activities in French for future health professionals [101].

As a result, Bourque J examined the Minister’s decision-making to determine whether he adequately grappled with the values at stake, as required under the reasonableness standard by CSFTNO. Bourque J found the decision lacking in this regard. The Minister did not produce “reasons” for this decision in the traditional sense, but generally justified the removal of the board through an appeal to the current state of the New Brunswick healthcare system, and later on justified the move by noting that the government appointed a Francophone trustee. But these justifications for Bourque J were unsatisfactory, and in the case of the trustee, was an ex post facto argument [108]. Similarly, the Minister’s lack of reasoning about the unwritten principle of the protection of minorities was fatal to the decision [137-138].

I will take this opportunity to renew some of my problems with the CSFTNO/Charter values framework, using this case as a foil. First, there is a problem in principle. As the NBCA noted in Forum des maires, one cannot—even indirectly—use the Charter values framework to impose obligations beyond the specific text of the Charter. This, along with cases like Brar, peeled back the most adventurous interpretations of CSFTNO, which could lead to a two-track Charter: an ordinary, run-of-the-mill Charter of Rights, and a more abstract, enigmatic Charter of Vibes. In this case, however, Bourque J embraces the more radical interpretation of CSFTNO. She admits—as she must, after Forum des maires—that s.16.1 cannot apply in its text to the health network. Therefore, she must rely on the Charter values framework to make it so.

Second, there are problems in practice. Bourque J’s decision rests on her ability to distinguish Forum des maires. She does so, apparently, on the evidence. But the Charter values framework gives us no standards to evaluate which cases present a strong link between a decision and values (thus warranting attention by a decision-maker) and cases which do not. At least some of the evidence cited by Bourque J merely declared the importance of the health network to Francophone cultural interests. One could have said the same thing about the courthouses at issue in Forum des maires. The worry becomes ad hoc decision-making.

Third, I worry about the burden that the Charter values framework puts on adjudicative decision-makers. The case law applying the CSFTNO framework matured in the language rights context, where ministerial decisions are at stake. In this context, it might be much easier to assume that Ministers should be aware of their Charter obligations. But CSFTNO does not just apply to ministerial decisions in the language rights context. It applies to the entire gamut of administrative decision-making. Adjudicative decision-makers who might have a complex record before them are asked to rely on CSFTNO in order to raise Charter values if there is a sufficient link on the facts. This, it bears repeating, asks decision-makers to deal with legal issues that may not have been argued and that may not be central to the resolution of the case. In turn, and as a result, the framework encourages the transformation of run of the mill administrative decisions into complex Charter cases on judicial review.

This is odd, because the Charter values framework was designed to be lead to an informal application of constitutional law, considering the reality that administrative decision-makers might not be lawyers. Ironically, the complexity of the Charter values framework requires these decision-makers to speculate about the presence of a potential constitutional issue, even when a Charter right strictly does not apply.

A final note on nomenclature in this case. Bourque J ultimately concludes that, on either a correctness or reasonableness standard, this decision does not survive [125-126]. The primary basis of the decision is that the decision is “incorrect’ under York [125]. But I do not think this is strictly true. York deals with cases where a Charter right applies and is engaged on the facts. The question then becomes whether the decision-maker properly appreciated that the Charter right was engaged. In York, the problem was the arbitrator’s application of an arbitral “balancing of interests analysis” rather than the s.8 search framework. That is not the case before Bourque J. Here, s.16.1 of the Charter is not engaged, and so York is not the proper framework. Rather, the only question is whether the decision failed to reasonably grapple with the impact on the Charter values in light of various statutory objectives. For what it is worth, Bourque J may be right that the evidence supports a strong link requiring consideration by the Minister. But again, we go back to the point of principle: if s.16.1 does not apply, what more is there for a court to do?

Reviewability

West Whitby Landowners Group Inc v Elexicon Energy Inc, 2025 ONCA 821

Context: This case concerns a “decision” by the Ontario Energy Board. The parties were engaged in negotiations over the provision of electricity to residential subdivisions. As part of their agreement, they agreed to be bound by the OEB’s conclusion on the application of a regulatory provision to the project. One of the parties wrote to the OEB and asked for a final determination in the name of the Board; Board staff responded in two letters expressing their “views and conclusions” on the application of the substantive law. On review, the Divisional Court concluded that it lacked jurisdiction to review the OEB staff letters, centrally because “the OEB did not exercise a statutory power of decision giving rise to judicial review within the meaning of s.2 of the Judicial Review Procedure Act” [10].

Issue: The question was whether the OEB letters were truly “decisions” attracting judicial review: that is, are they sufficiently public to warrant judicial review?

Analysis: The Court (per Sossin JA) concludes that both letters are reviewable, principally because the OEB staff exercised a statutory power of decision and the decision is of a sufficiently public character (see Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26).

There are two questions in these kinds of reviewability cases, set out by Rowe J’s reasons in Wall. First: did the decision-maker exercise a statutory power? Second: was the exercise of the power sufficiently public in character?

Sossin JA resolves this case on the first question through a rather orthodox application of the principles of statutory interpretation. Section 105 of the Ontario Energy Board Act empowers the OEB to resolve complaints/disputes through binding legal determinations of law and fact, and through “a wide range of dispute resolution mechanisms” [63]. For Sossin JA, “[n]othing in the text distinguishes between the OEB’s power to “mediate” and its power to “resolve”” [54], which means that the OEB could finally resolve a complaint in the manner it did [99].

One counter-argument raised by the OEB was that its staff simply have no power to decide anything, and that its “decision” was merely an “opinion” (a conclusion affirmed by the Divisional Court, see para 93-94). The OEB, in essence, argued that its authority could only be exercised through its Commissioners and through official orders [101]. Sossin JA rejects both arguments. As noted above, the exercise of power here was “discretionary,” but it was premised on the exercise of a statutory power. And, here, while the OEB is permitted to decide how best to exercise its functions, it does not only operate through the Commissioners. Rather, the statutory text grants exclusive jurisdiction to the Board [101].

With regard to the second issue—whether the exercise of the OEB’s power in this case was sufficiently public—there were two key factual issues. The first was whether it mattered the OEB’s role in this dispute was triggered by a private agreement; and whether it was fatal for a finding of jurisdiction that the OEB lacked a compulsory power. One might think that because the parties agreed to be bound by the OEB’s determination that its jurisdiction is predicated on a private act, and is thus unreviewable. Not so, according to Sossin JA, because the decision is grounded by a “clear statutory basis” [86]. As a result, the agreement itself “does not alter the public character of the OEB’s actions or the appropriateness of public law remedies” [86]. Nor was it fatal that the OEB decision did not come in the form of a binding instrument like an “order.” Here, “it was understood by the parties and by the OEB that its determination would have binding effect” [87].

A good set of reminders in this case about reviewability. For one, judicial review can sometimes run to unexpected places. Decision-makers need not exercise their powers in specific or particular ways to attract judicial review. At the same time, it is important that the role of judicial review be limited to the exercise of truly public powers, lest supervision over the machinery of government lead to micromanagement. In my view, the Wall test admirably walks this line. Here, while the OEB may have thought it was operating in the world of non-binding opinions, its own labelling or characterization of its power is not decisive on judicial review.

For an interesting application of Wall in Quebec, see the following case from this month:

Kahnawà:ke Gaming Commission c. Magic Palace, 2026 QCCA 200.

Statute Interpretation

Clearview AI Inc v British Columbia (Information and Privacy Commissioner), 2026 BCCA 67

Context and Analysis: From the Court’s summary

This appeal arises from a judicial review of the British Columbia Information and Privacy Commissioner’s decision that the appellant, Clearview AI Inc., contravened the Protection of Information and Privacy Act by collecting facial data of British Columbians from social media websites without their consent to use in its facial recognition business. The Commissioner prohibited Clearview from offering its facial recognition services in BC and required it to make best efforts to stop collecting facial data of British Columbians without their consent and delete the facial data of British Columbians in its possession.

The Court (per Iyer JA), concludes that PIPA is constitutionally applicable to Clearview, and that it was reasonable for the Commissioner to conclude that PIPA does not exempt Clearview from obtaining individual consent.

Among other things, Iyer JA’s conclusion is driven by an interesting point of statutory interpretation. Individual consent is not required under the legislative regime for information available to the public, including “a magazine, book or newspaper in printed or electronic form” [83]. Clearview argued that the meaning of “publication” could include social media sites. But Iyer JA, properly I think, rejects this interpretation. When statutes are designed in this way—with the word “including” followed by a list—any implied items have to be of the same kind as the existing words in the list. Iyer JA notes that the excepted materials in PIPA are “created primarily by their authors, no by the individual readers,” and that is different from social media [87].

This case is a good example of how courts are treating Clearview’s actions (see Issue #179). But, on interpretation, it is a classic example of the the ejusdem generis canon.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

IEEPA is an emergency statute that authorizes the President to enact a series of economic emergency measures upon (1) the President’s identification of an “unusual and extraordinary threat” to American national security arising outside of the country; and then (2) a declaration under the National Emergencies Act. Then, the President is empowered to

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and…

At first blush, you can drive a truck through this delegation of power. The majority’s reasoning shows why it is not so simple.

Writing for that majority, Roberts CJ essentially built his opinion on two pillars: a basic textual analysis, and then a constitutional analysis based on the “major questions doctrine.”

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First, in a pithy and powerful paragraph, he says the following:

Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA—“regulate” and “importation”—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.

And how. The core idea is straightforward. While the text covers off a broad array of presidential actions, the one missing word is one that Congress uses all the time when it delegates the power to impose tariffs: “duty.” And that would make sense. As congressional practice indicates, “duties” and “regulations” are two different legal/economic tools. Duties can have a regulatory impact, but that impact is incidental—not the “central case” of regulation.

This basic intuition about congressional practice was bolstered by compelling textual indications, all of which are live tools in the law of Canadian statutory interpretation:

1. Implied exclusion: given longstanding congressional practice, we would assume that Congress—in delegating a laundry list of powers—would specify the tariff power (see the counter-argument below).

2. The term “regulate,” if given a meaning that includes tariffs, would mean that the other eight verbs listed in the provision are “simply wasted ink” (14). This is a presumption against surplusage argument.

3. Noscitur a sociis is a textual rule of thumb that tells interpreters that words are known by their neighbors. A term that is facially broad in isolation like “regulate” can sometimes be narrowed if we consider the surrounding words. As Kagan J said in her concurring opinion: “Combine the verbs and objects in all possible ways, and the statute authorizes 99 actions a President can take to address a foreign threat. And exactly none of the other 98 involves raising revenues. […] But when that phrase (“regulate”) is invoked to impose tariffs? Then it becomes the odd man out—the only one of 99 permission slips to involve “the core congressional power of the purse.”

All of these textual indications, when we add them up, make this a relatively easy case, at least from a statutory interpretation perspective. In that sense, I agree with Kagan J’s concurring opinion: the majority’s statutory interpretation analysis is entirely dispositive of the case. And one might think that this textual analysis is nitpicky, but as we well know in Canada, “the executive has no power beyond that which the law of the land allows him.” Here, this is no real inherent executive authority to levy tariffs. The boundaries of Congress’ delegation is everything. Words control that power, and it is only by an appeal to a sort of “atmospheric” deference to the executive qua executive that we can spuriously change the meaning of the words. Such a move would, ironically, sap power from the legislative branch.

In terms of counterarguments on the textual analysis, Kavanaugh J presented one: he said this is a case of necessary implication, or a “lesser included” case. The argument is this: if Congress delegated power over regulation, why wouldn’t Congress include the lesser tariff power? There is an intuition here, but I think it is ultimately misguided. The claim that an otherwise deliberate omission is hiding around the corner of a broad delegation is, sometimes, the last refuge of those seeking to twist statutory language. Canadian courts are sometimes known to do this. Consider the Supreme Court of Canada’s recent decision in R v Wilson, 2025 SCC 32, where Karakatsanis J held that an immunity from arrest was implied in the Good Samaritan Act’s immunity from charge and conviction. Jamal J, rightly I think, took issue with this (see para 197).

For the same reasons as the majority rejects the expansion of presidential power in Learning Resources, so too should the Supreme Court have rejected the “necessary implication” argument in Wilson. Sometimes gaps exist in statute for good reasons (good “purposes” in the Canadian context). So, the exercise of the purported implied power must be necessary to the primary power—the power to tariff must be necessary to the power to regulate. But there is no sense in which this is true. Indeed, there are good reasons why that might not be the case, just as Jamal J offered good reasons why arrest is separate from charge and conviction. As Alex Tabarrok argues, in Learning Resources, the regulation powers in the IEEPA are “big” powers that are only triggered after meeting the preconditions in the statute. As President Trump has shown, however, the power to tariff can be exercised quickly and costlessly. Tariffs are not typical “emergency” tools, as blockades may be. As the majority points out, while one might consider the statute “broad,” it is broad in the wrong sense: tariffs are just simply a different kind of economic tool, and there are good reasons to exclude them from the IEEPA.

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That could be the end. But if you think the textual argument is close, there might be more lurking in the background to explore in order to justify the majority’s conclusion. The judges on the court disagree on the triggers and status of the “major questions doctrine.” This doctrine holds that Congress is not likely to delegate broad powers over issues of social or economic significance in unexpected places or buried in broad language (see West Virginia v EPA). I have always thought this doctrine was open to abuse. Where Congress delegates power, it sometimes does so over issues that are important or significant. I simply do not see—if one accepts the constitutionality of delegation—why we should expect more from Congress over issues that a court happens to think are “important.”

But there is an interesting common law intuition underlying the MQD that might square it (in this connection, I recommend reading the debate between Gorsuch J and Barrett J). There is an old tool of interpretation that words that denote broad coverage might not always cover everything they purport to cover. Consider the comment in the old English case of Stradling v Morgan:

From which cases it appears, that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter, they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only […]

The Supreme Court of Canada has accepted this principle: see, very recently, R v Carignan, 2025 SCC 43 at para 124. The idea is that a court faced with a statutory term that apparently confers a power (for example, “The delegate may exercise any power that is reasonable in the circumstances”) might adopt a different meaning: the communicative content of the text and its legal meaning might be two different things. The raw text of this provision could authorize any statutory power whatever. But, as Rand J said in Roncarelli, there is always a “perspective” in which a statute operates. Statutes are not disembodied purposes or isolated textual provisions. They are total plans, covering off a certain domain, that consist of means (power-conferring provisions, statutory formulae, definitions, and the like) and ends, with the overall goal of shifting the law. Statutes are not perfectly coherent at a substantive level (in that there might be a slippage between means and ends). That is expected for human law-making.

If the interpretation of an isolated provision would expand the domain of the statute in a way unsupported by the overall scheme, that might provide a good reason not to give the term “any” its ordinary meaning. This is not anti-textual; it is simply reasonable interpretation of text as part of a statutory plan. But the tool must be used with caution, and most times, a broad term will be given its normal meaning (see R (Jackson) v Attorney General [2005] UKHL 56).

So, stipulate that the provision of IEEPA at issue could support the President’s argument. If that interpretation of a word like “regulate” would result in an expansion of the IEEPA in a way that would make no sense given the purpose and structure of the IEEPA, then it is a good reason not to give the word a meaning that could cover off tariffs. This “domain restricting” move can also be justified in cases where a purported interpretation would result in some constitutional anomaly, or would otherwise affect common law rights, as in the principle of legality (in other words, these are reasons, or applications, of the overall domain-restriction canon). Here, extending IEEPA would arguably undermine the separation of powers; it would render incoherent the IEEPA itself, since it would render much of it surplusage; and it would stand inconsistently with congressional practice in other statutes. The restriction of the statutory domain, then, makes sense in this context.

Justified this way. the MQD is neither a substantive canon of construction (deriving purely from the common law constitution) nor a pure inference from communicative content, but a syntactic tool that interprets statutes as stand-alone packages that stand in relation to other sources of law, including the common law, constitutional law, and other statutes. It offers an additional reason in Learning Resources if one does not accept the textual claim. Where the claim of statutory power is extravagant, and the textual signals slight, it makes sense to conclude that the legislature simply didn’t authorize a result that would destroy the internal coherence of the statute and run roughshod over other sources of law. This is all about Congress’ likely intention, and it should not matter whether the issue is politically or economically significant. The issue is the asserted power in relationship to the supporting textual signals. But one should not see this as a tool of ordinary recourse. The communicative content of words is almost always the law.

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A final note on this case.

In relation to the Federal Court of Appeal’s decision in the Emergencies Act case, I reasoned that while courts must avoid being “knights errant,” the current moment calls for courts to do what they must do: apply the law, without fear or favour. Courts will not be our saviours. A rule of law society depends on much more than people in robes. As Dicey mentioned, it requires a “spirit of legality” among the people.

Nonetheless, courts are particularly suited to enforcing the legislation against the executive. This does not involve the creation of new rights; it does not involve the Charter; nor does it involve the overriding of legislation. This is an age-old function, going back to the prerogative writs.

Canadians will be familiar with the debate. When the Supreme Court decided Auer, there were worries that courts applying reasonableness review would intrude on the policy prerogatives of the executive. The government and others argued that the status of the executive in the constitutional pattern warranted a going-in presumption of deference, separate and apart from the deference prescribed by the breadth or narrowness of the statutory text. In our constitutional tradition, this claim did not make much sense. With some exceptions, and in administrative law, Cabinet mostly exercises power delegated to it from the legislature. We usually determine this deference, under Vavilov, with the ordinary tools of interpretation.

A lot of the time, those ordinary tools will lead us to a conclusion that Cabinet is authorized, in broad terms, to do many different things. That is because the legislature supplied Cabinet with broad powers. But not always. The Emergencies Act is such an example, where Parliament cabined executive power for good reasons, and after much consideration.

Gorsuch J makes the point well in his opinion. He outlines the importance of the legislative process vis-a-vis the executive. He notes that the resources and practices of the legislative branch supply good reasons for Article I’s grant of legislative power to Congress. Where Congress acts in a considered way, it destroys legislative power for the executive to stretch the meaning of Congress’ considered act. There are good reasons, for example, why Congress would hold-back the tariff power, and why Parliament made a structured and cabined emergency statute. Even in Canada, where the executive is responsible to the legislature, it is worth respecting the distinct place of Parliament’s legislative act by rebuffing executive attempts to distort it.

Absent an argument that the executive is owed some “atmospheric” deference simply because it is the executive (a proposition that would amount, I think, to judicial abdication), Learning Resources is a garden variety statutory interpretation case. It is not a case of judicial activism, nor does it disrespect the results of an election to hold the President to the letter of the law. Like the Federal Court of Appeal’s Emergencies Act case, Roberts CJ’s opinion is minimalistic—but devastating for that reason. There are no bells and whistles, no grand statements of judicial power, nor any self-indulgence.

It is a good example of how courts, in these times, can do more by doing less. Or put differently, courts should stick to their knitting, but when they are knitting (as in Learning Resources), they should do it without fear.

Some broader news in the Canadian administrative law community, as a reminder:

1. As I pointed out last week, the Honourable Guy Régimbald of the Federal Court, John J. Wilson of Gowling WLG, and I are proud to announce the upcoming publication of 4th edition of LexisNexis Canadian Administrative Law is now available for pre-order. Pre-order now!

2. Earlier in January, the Federal Court of Appeal rendered its decision in the Emergencies Act case. I analyzed the case here.

Review of Executive Legislation

Canada (Attorney General) v Responsible Plastic Use Coalition, 2026 FCA 17

When the Supreme Court rendered its opinion in Auer v Auer, 2024 SCC 36 observers were worried that the application of Vavilovian reasonableness review would lead to judicial micromanagement of executive policy choices. For my part, I wasn’t so convinced. Properly applied, reasonableness review can be sufficiently deferential, particularly where broad legislative authority enables executive policy-making (see also Canadian Coalition for Firearm Rights v Canada (Attorney General), 2025 FCA 82).

The Federal Court of Appeal’s decision in Responsible Plastics is a good example of how Auer review is—and, in my own anecdotal experience, turned out to be—sufficiently deferential when the enabling authority calls for it. The Court’s decision (per Rennie JA) effectively shows how and why Auer review is keyed to the most important feature of the law of judicial review under Vavilov: the language of the enabling statute. While the Federal Court’s decision was, in my view, justifiable, Rennie JA’s decision supplies good reasons to think otherwise. But importantly, the Federal Court and Rennie JA are disagreeing about the right thing—what the enabling statute properly permits.

The case centres on the Governor in Council (GIC)’s issuance of an order under the Canadian Environmental Protection Act [CEPA], listing “plastic manufactured items” as a toxic substance. The Federal Court held that the government’s assertion of regulatory authority over a broad category of “plastics” did not fit the statutory scheme, for two broad reasons: (1) the CEPA distinguishes between the singular and the plural, and so it would not make textual sense to say that “plastics” as a genus is captured by the legislation; (2) not all plastic items in this broad category have the potential to be pollutive. Rennie JA recapitulates the Federal Court’s holding in the following way: “…not all plastics enter the environment, [and so] not all plastics cause harm; consequently, [the legislation] required the specific identification of the particular plastics that enter the environment…” [14].

Rennie JA, however, takes issue with both lines of reasoning adopted in the Federal Court’s decision. He starts by noting that the CEPA is structured in a two-step process. Step 1 permits the GIC to list a substance as toxic. The GIC must only “be satisfied” that the substance “may enter the environment” or “may cause harm.” If the GIC is so satisfied, and under Step 2, it can then regulate that substance, but that regulation requires “exquisite particularization” [13]. As Rennie JA notes, the effect of a listing decision enables the Ministers to further consider how to control the substance through regulatory or non-regulatory responses. This two-step structure “underpins the reasonableness inquiry into the GIC’s answers to those questions” [92].

Rennie JA concludes that the Federal Court’s decision effectively collapsed this two-stage process into one stage, because it required that specific plastic items be listed at the initial stage [13-14]. That belied the statutory scheme, which requires particularization at the regulatory stage. The effect of the Federal Court’s decision was to narrow the GIC’s power at the listing stage.

This meant that the Federal Court improperly required that the GIC list specific plastic items. At the listing stage, the language used by Parliament is permissive and discretionary. It permits the GIC to operate on a precautionary basis (“may” and “. As Rennie JA points out, the terms deployed at this stage—“substance” and “harm” are broad, open-ended, and qualitative in nature [110]. Rennie JA was not convinced that the singular/plural issue was decisive in the context of the two-step scheme, and given the Interpretation Act’s statement that words in the singular include words in the plural [55-57].

Rennie JA then went on to consider whether the GIC improperly concluded, based on the available evidence, that all plastics “cause or might cause harm” [142]. He rejected this argument. It is not that all plastics cause harm, but that all “plastic manufactured items” have the potential to cause harm, and that regulatory authority may be required to specify that listing [146-149]. To the extent the Federal Court held otherwise, it engaged in a “line-by-line treasure hunt for error” [149].

I view this case as proof-positive of a few facts about the law of judicial review in Canada. First, Auer review assesses deference at the source—through the interpretation of statutory language. Indeed, the disagreement between the Federal Court and Rennie JA in this case is a disagreement about what the statute means. This is productive ground on which to disagree. Prior to Vavilov, the disagreement might have revolved around a more abstract and value-laden question: whether the executive should receive deference when it engages in a polycentric type of decision-making. That is an ancillary question to the main one, which is whether the legislation contemplates such deference. The Federal Court thought it did because of the precision of the word “substance.” Rennie JA, however, took a more contextual view of the statute, noting how its machinery operates. While the Federal Court’s decision is justifiable, Rennie JA offers good reasons to doubt it, especially because—as he notes—the language used in the statute (“satisfied” “may” “harm”) are qualitative in nature.

Second, Auer review is not insufficiently deferential. As I noted above, there were worries that Auer review would permit the court to wade into the record to identify alternative regulatory options that might better achieve some stated regulatory purpose. As this case shows, Auer review counsels precisely the opposite. Rennie JA, under Auer review, rejected the invitation by the respondent to “shift the debate away from the language of the statute by asking whether the evidence could have been stronger, whether laboratory tests should have been conducted or whether only those items that might ultimately be regulated should have been listed in the Order” [78].

As Rennie JA points out, those are the wrong questions. Instead, the question is “straightforward”: “whether…the GIC could have reasonably been satisfied…[that] PMI have the potential to cause harm to the environment” [78]. That is a legal question which asks whether there is some rational basis in the record to conclude that the GIC could be “satisfied” as to a relevant set of facts (here, the potential for harm). That is different than a court faulting the GIC for choosing one regulatory option over another, even though both of those options are plausibly supported by legislation.

Professional Regulation and Statutory Interpretation

Law Society v Ontario v AA, 2026 ONCA 47

Professional regulation is an area in which courts have generally taken a deferential approach, particularly when assessing penalties. That approach has generally survived Vavilov, as James Casey aptly pointed out in his contribution to the Vavilov at 5 symposium. But there are some interesting signs that the post-Vavilov jurisprudence could have interesting spin-off effects in the world of regulation. Specifically, the Supreme Court’s decision in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108) .meaningfully increased the scope of what decision-makers must do to properly interpret statutes. Moreover, Mason stands for the proposition that courts will hesitate before declaring that a decision-maker offered an implied interpretation of a statutory provision.

All of these themes are present in the Court of Appeal for Ontario’s (per Sossin JA) recent decision in AA. This case surrounded a good character finding made by the LSO. In 2009, while living abroad, the applicant sexually abused three children, including his eldest daughter, through clothed sexual touching. He later disclosed his actions but was not criminally charged. Between 2009 and 2017, the applicant was dishonest with medical practitioners, child protection authorities, and the Law Society of Ontario about his misconduct. In 2012, he applied for a licence but withdrew after an investigation. He reapplied in 2019, prompting a hearing into whether he met the “good character” requirement.

The LSO Tribunal Hearing Division (upheld on appeal at the Appeal Division), found the applicant to be of good character and imposed a licensing condition requiring supervision in meetings with minors.

The Court of Appeal found this conclusion unreasonable, fundamentally because of a flawed statutory interpretation analysis [123]. It is useful to explore Sossin JA’s analysis, in part because it presents a defensible reprisal of the Supreme Court’s recent statutory interpretation jurisprudence.

The case revolved, principally, around s.27 of the Law Society Act. Section 27 (2) merely states that “[i]t is a requirement for the issuance of every licence under this Act that the applicant be of good character,” while s.27(4) mandates that a licence may be refused only after a hearing by the Hearing Division. Following the Supreme Court’s guidance in CISSS A, 2024 SCC 43, Sossin JA pointed out that this text is “the most important constraint on the Hearing Division’s interpretation of s.27” [52]. As I have written before, this means that a court engaging in statutory interpretation must, first, notice whether the text is capacious enough to warrant enrichment via context and purpose. Here, as Sossin JA pointed out, “…the text of s.27 is broad and open-ended” [51]. Given the lack of definition in the statutory terms (see, recently, the Supreme Court’s explanation in Lundin Mining, 2025 SCC 39 at para 6), this meant that context and purpose were dominant considerations in the case.

The Supreme Court’s approach to administrative interpretations of law in Mason calls for fairly clear engagement with the text, context, and purpose of the statute, and so the question here was whether the LSO Tribunal adequately grappled with context and purpose, which took on a greater role given the relative generality of the text. As Sossin JA points out in this case, “[a] key context for the good character assessment is that of the self-regulation of the legal professions in the public interest…” [61]. In other words, the Tribunal had to turn its mind to whether its good character finding was consistent with the broader public interest mandate of the law society [117-118]. This was a straightforward conclusion: given the importance of context and purpose here, its omission from the analysis was fundamental.

There is a lot of interesting detail in Sossin JA’s decision that is worth considering. First, Sossin JA’s treatment of the text in this case offers a good example of how CISSS A’s “text as anchor” approach works. In cases of textual precision, there will be less room for supplementation and enrichment via context and purpose (see, most recently, the Supreme Court’s decision in Kosicki v Toronto (City), 2025 SCC 28 at para 37). In other words, Sossin JA was right to give attention to the public interest context/purpose on this particular occasion.

But, secondly, there are risks with this approach. There are two associated worries. First, under the text as anchor approach, the Supreme Court has offered little guidance (so far) about when a text is sufficiently general to fault a decision-maker for failing to address context and purpose in a proper manner. This means that judges may disagree about when a text is sufficiently general. This was the precise disagreement in Reference re iGaming Ontario, 2025 ONCA 770 (Issue #198).

Answering this question is difficult, but it should be sufficient to say that consideration of context and purpose is relevant in every case. In other words, the question is not whether the text is “clear” enough to warrant addressing context and purpose—that would be a methodological backslide to an era where courts sometimes considered whether meaning was “plain” enough. Instead, the question is the uses to which context and purpose can be put in relation to text. For example, a precisely-drafted text will resist efforts to add on “omitted exceptions” to the semantically-bound statutory term (Kosicki furnishes a good example). One can contrast such a situation with AA, where the good character finding must be constrained by considerations of context and purpose.

Secondly, Sossin JA’s contextual analysis calls to mind the Supreme Court’s recent steeling of reasonableness review in cases like the Cabinet Mandate Letters Case, 2024 SCC 4 (Issue #123). Recall, there, that the Supreme Court majority faulted Ontario’s Information and Privacy Commissioner for failing to consider the constitutional significance of Cabinet privilege in its decision to compel the production of Cabinet mandate letters. Karakatsanis J took a bold step (an unjustified one, by my lights) to hold the Commissioner to a definition of Cabinet privilege that arose out of academic work [29-30]. There is a risk that, under the guise of robust reasonableness review (and an expansive approach to “context”), reasonableness review will become a tool that requires run-of-the-mill decision-makers to grapple with quasi-constitutional norms without warrant or prompting from a party or statutory context.

This worry is live on the current state of the Supreme Court’s jurisprudence, but AA is not an example of this “contextually-heavy” form of reasonableness review. In the AA case, the public interest is littered throughout the statutory context—it does not just arise from the quasi-constitutional ether or academic work. Reasonableness review must walk a fine line. It is one thing—as in Mason and AA—to require a decision-maker to reason through statutory context and textually-recorded statutory purposes. That is a function of the higher bar erected by Vavilov. It is quite another to force a decision-maker to address unargued Charter values, or academic treatises. In this sense, AA walks the line well.

Remedies

One of the more curious aspects of the post-Vavilov landscape: in every post-Vavilov case, the Supreme Court has found only one reasonable result on the law and directed the proper result. This approach to remedies, of course, is entirely inconsistent with the premise and function of reasonableness review. As Rowe J shrewdly noted in his concurring opinion in Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 this approach takes reasonableness review far beyond where it should go.

Luckily, lower courts—as they sometimes do in Canadian administrative law—have limited the impact of the Supreme Court’s jurisprudence. Two recent Federal Court of Appeal cases are apposite.

In Canada (Attorney General) v 1230890 Ontario Ltd, 2026 FCA 4, Stratas JA declined an invitation to direct a particular result. The Attorney General—undoubtedly bolstered by the Supreme Court’s approach—sought this outcome. It is worth outlining Stratas JA’s reasons for rejecting the invitation:

[11] The Attorney General submits that, based on the evidence in this record, there is only one possible result in this case and so we should direct the Tribunal to confirm the notice of violation, including its imposition of penalty. We disagree. As the Supreme Court said, such a direction—in effect a mandamus order—is to happen only in “limited scenarios”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 142; and see the high threshold for mandamus discussed in, e.g., Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55 at para. 14. The Tribunal is the merits-decider under this legislative regime and departures from that should be rare: Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC) , [1991] 1 S.C.R. 326 at 361 ; Maple Lodge Farms at para. 52; Terra Reproductions Inc. v. Canada (Attorney General), 2023 FCA 214 at para. 8. The Attorney General has not persuaded us that the evidence unequivocally points to violation. It may also be that, given the clarification of the legal matters in this decision, if the matter is remitted to the Tribunal for redetermination the respondent might make submissions on liability and penalty that were not open to it before or that were not properly understood or considered before, with the effect that the result and supporting reasons might change. Thus, in our view, the high threshold for directing a verdict in this case has not been met.

Similarly, in Westjet v TH, 2026 FCA 20, Gleason JA similarly rejected such an invitation:

[35] I turn finally to the appropriate remedy. While this Court possesses discretion to direct a determination on the merits of a complaint such as this where it finds that the Board’s decision is unreasonable, this discretion should not be lightly exercised. As noted by the Supreme Court of Canada in Vavilov, “… it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons” (at para. 141). Here, there is no forgone conclusion as to what the appropriate outcome is since dismissal is not necessarily warranted in every instance of sexual harassment: Harris at § 5:60; Brown & Beatty at § 7:33. It is therefore for a Board adjudicator and not for this Court to redetermine the respondent’s complaint.

Both cases are important because they erect a high-bar for a directed outcome. Consider the language used in these cases: the discretion should not be “lightly exercised”; it requires a “high threshold”, with departures from the regular rule of remittal being “rare.” One can contrast this language with the best (though by no means satisfactory) explanation the Supreme Court has offered for its own practice in Pepa. There, Martin J seemed to strike a different chord, noting that “[i]t should not be a surprise that there are cases in which one reasonable interpretation may arise, given that when legislatures speak, they intend to speak with clarity and purpose” [125]. Given—in fact—that there is a presumption of consistent expression (legislatures speak consistently because they speak with clarity and purpose), a court following Pepa’s lead might be much more comfortable simply directing outcomes.

In terms of fundamental principle, the Federal Court of Appeal’s approach provides a better account of what courts should actually do on judicial review. One gets the impression that the Supreme Court’s direction of “one reasonable outcome” in cases like Pepa is driven by its appreciation of the equities of the particular case—a felt need, perhaps, to avoid absurdity or injustice in relation to particular claimants. But fundamental doctrine should never be derived from results-oriented reasoning. The law of judicial review is structured in a particular way: statutory delegates are granted the power, at first instance, to render decisions on the merits. That power remains even when the delegate exercises the power unreasonably. While there are exceptions to this rule, the Federal Court of Appeal is right to keep those exceptions narrow in order to preserve the fundamental structure of administrative law. Judges on judicial review are not free-roving institutions designed to vindicate rights in the abstract. Their powers are nested within a structure that cabins and channels the judicial review function in order to preserve delegated power.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

In the meantime, however, I wanted to update you on some exciting news.

Alongside the Honourable Guy Régimbald of the Federal Court and John J. Wilson of Gowling WLG, we are proud to announce that the 4th edition of LexisNexis Canadian Administrative Law is now available for pre-order.

It was a pleasure to contribute as an author to the 4th edition, along such esteemed co-authors. The new text covers several developments in the world of administrative law with which SEAR readers will be well-acquainted:

• A revised and revamped section on reasonableness review after Mason and Pepa;

• A new look at statutory interpretation given the recent SCC precedents, including CISSS A;

• A renewed discussion of Charter values after CSFTNO and York;

• A review of Auer and the post-Auer cases on review of subordinate legislation.

We are confident this text will be useful to the bench, bar, and academy. Indeed, that motivation is what inspired us (a judge, an academic, and a practicing lawyer) to bring our different perspectives to bear on an increasingly complex area of law.

Pre-order now, and stay tuned for next week!

As promised, when courts release cases of high interest to subscribers, I will release a special newsletter on those cases. The monthly edition of the newsletter will be released, as normal, on the last Sunday of January.

Canada (Attorney General) v. Canadian Civil Liberties Association, 2026 FCA 6

The Federal Court of Appeal has released its decision in the Emergencies Act case. By now, the “Freedom Convoy” saga in Ottawa, a child of the pandemic, seems like eons ago. The high-profile and sensationalist facts of that saga do not bear extensive repetition. In response, the federal Cabinet invoked the Emergencies Act which authorized “special temporary measures,” including a proclamation of a Public Order Emergency, a set of regulations prohibiting participation in certain public assemblies; and an economic order requiring banks and other financial institutions to freeze the assets and accounts of “designated persons.”

On judicial review of the measures, the Federal Court (per Mosley J) concluded that the Cabinet’s decision did not satisfy the requirements of the Emergencies Act, and additionally violated various provisions of the Charter.

On appeal, the Federal Court of Appeal (per curiam) upheld the Federal Court. What is remarkable about this case is—actually—how unremarkable it is. Generally speaking, the Court’s reasons reflect an orthodox application of administrative law principles, specifically those related to reasonableness review of subordinate instruments. The Court should be commended for its clean application of these principles in this highly contentious context. Such a decision bolsters public confidence in the courts.

That said, there are several key points in the decision that bear attention: (1) the selection of the standard of review; (2) the application of the reasonableness standard; and (3) a general point about the importance of judicial review in this context. I do not aim to cover the waterfront on all of the issues in the case.

1. Correctness Review

In the Federal Court, Mosley J held that the reasonableness standard applies. This is uncontroversial. However, before the Federal Court of Appeal, Saskatchewan (as an intervenor) argued that the standard of review of correctness should apply. The argument was that “the more exacting standard would be required because the failure by the GIC to meet the preconditions found in the Act would mean the GIC not only acted ultra vires the Act but also beyond the constitutional authority of Parliament to invoke the emergencies power” [156]. In other words, the question of compliance with the Emergencies Act is not an ordinary question of law; it is one that implicates the federal Parliament’s authority under the peace, order, and good government clause.

The Court—properly in my view—rejects the invitation to apply the correctness standard, if only because Saskatchewan was not a party to the case [157]. But as a matter of principle, the Court is right that matters of constitutional law are distinct from the simple “legality of an executive or administrative decision…” [157]. As we shall see, the Court rejects the absolutist proposition that “…constitutional law principles can have no bearing on the assessment of the reasonableness of the decision made by the GIC to invoke the Act” [157]. But this, the Court says, does not translate “into a full-fledged constitutional attack on the legislation under which that decision was made” [157]. As we shall see, though, constitutional considerations do bleed into the Court’s reasonableness analysis.

2. The Reasonableness Standard

In applying the reasonableness standard, I want to focus on three intriguing aspects of the Court’s decision. Some of these aspects amount to rejections of government arguments that—rightly, in my view—would emaciate judicial review in Cabinet decision-making, contrary to the principles announced in Vavilov and Auer.

What does the Emergencies Act require, and did the GIC meet these requirements? Section 16 of the statute defines two requirements: (1) there must be an emergency that “arises from threats to the security of Canada” and (2) the threat must be serious as to be a “national emergency.” It requires that the GIC have “reasonable grounds” that a public order emergency exists (s.17(1)). We can see the “reasonable grounds” standard as similar to other such standards with specified definitions in law: see Canada (Minister of Transport, Infrastructure and Communities) v Farwaha, 2014 FCA 56 at paras 95-97). Here, the standard requires more than a mere suspicion, and the belief must be reasonably founded.

First, as I noted in Issue #122, para 370 of Mosley J’s decision was contestable. There, he said the following:

[370] At the outset of these proceedings, while I had not reached a decision on any of the four applications, I was leaning to the view that the decision to invoke the EA was reasonable. I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order. I had and continue to have considerable sympathy for those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act. And I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law than that which was before the GIC.

As I predicted, the government glommed on to this passage on appeal, and argued that the Federal Court “acted as if it was the first instance decision-maker and, in so doing, applied for all intents and purposes a correctness standard of review” [163, 183]. On appeal, the Court admits that “[i]t may indeed appear curious to find such a candid admission at the very end of the Federal Court’s reasons” but goes on to conclude that “[i]t is not for us, however, to speculate as to what exactly the Federal Court had in mind and why it felt compelled to express sympathy for those who had to decide whether or not to issue the Proclamation” [183].

At the end of the day, the Court of Appeal appears to conclude that this passage is simply immaterial. That is because the focus, on appeal, is not necessarily what the Federal Court did. The question on appeal is whether the Federal Court properly selected the standard of review, and applied it properly. Determining the answers to those questions requires the appeal court to, essentially, re-conduct the judicial review, with a view to whether the Cabinet had met the sequenced preconditions of the Emergencies Act.

Secondly, the Court of Appeal properly rejected the government’s most extreme argument: that the decision is a discretionary one that demands a “highly deferential attitude towards the GIC, with respect both to its interpretation of the Act and to its assessment of the existence of a public order emergency” [165]. This argument was a stretch, in my view, because of the specific and objective legal thresholds embedded in the Emergencies Act (see my paper making this argument). As the Court notes, the “objective legal requirements” of the statute exist no matter who is interpreting the law. The Court properly recalls Vavilov’s advice: the breadth or narrowness of delegating power will constrain the degree of deference owed to the decision-maker.

When it comes to the first question—threats to the security of Canada— here, the wording of the statute was “quite circumscribed and cannot be interpreted as conferring unconstrained discretion” [171]. Parliament made the admittedly odd choice to define the term by incorporating by reference the same term in another statute, the CSIS Act, including its requirement that “threats to the security of Canada” requires “serious violence,” tantamount to bodily harm. By Parliament’s own explicit direction, these statutes must be interpreted in pari materia, which means that “threats to the security of Canada” in the Emergencies Act means the same as it does in the CSIS Act. The decision-making contexts are, of course, different—and the information decision-makers under these statutes will consider in these contexts will be different. But the Court ultimately believes that this choice was made deliberately [197]. And, because of the presumption of consistent expression, the term “threats to the security of Canada” should be interpreted steadily throughout the statute book, because “Parliament expressly chose to use the definition of “threats to the security of Canada” (and its embedded reference to ‘serious violence’) found in the CSIS Act to operationalize the Act” [204].

The Court’s conclusion in this regard is an exemplar of the modern approach to statutory interpretation, particularly the relationship between text and purpose. As readers know, this is a theme that the Supreme Court has sounded in its statutory interpretation jurisprudence. Consider the Court of Appeal’s analysis. First, it concludes that the definition incorporated in the Emergencies Act of “threats to the security of Canada” is a precise definition, carefully-chosen, that is “well-trodden and had received exhaustive scrutiny by Parliament in the recent past…” [192]. As the Court of Appeal says, simply but powerfully, “…words still matter” [190]. Here, the words do not admit of different meanings, nor is there some hidden meaning of the phrase “threats to the security of Canada” that would permit the Cabinet to deviate from the words in the name of deference.

The Court of Appeal then convincingly links the narrow and precise text to the reason for its adoption. The Emergencies Act was introduced to “avoid the excesses and abuses that occurred under the [War Measures Act, the predecessor legislation] and to prevent them from occurring again…” [226]. In other words, the purpose of the legislation was to enact a constitutionally-compliant set of standards for declarations of emergencies. That only supports an interpretation of the text offered by the Court of Appeal, and in fact, presents a convincing account of the modern approach to statutory interpretation.

Third, the Court had to determine whether there was a “national emergency” supporting the invocation of the statute. The concept of “national emergency” turns on whether the situation can be addressed by provinces or territories and additional legal resources. In assessing this question, we can return to the Court’s analysis of Saskatchewan’s standard of review argument. While no party challenged the Emergencies Act for its constitutionality, the Court notes that the interpretation of the “national emergency” concept “must still be informed by and consistent with the distribution of legislative powers as found in the Constitution Act, 1867” [247]. The Court goes on to explain that the Emergencies Act tracks the interpretation given to the peace, order, and good government clause, particularly the emergency branch and the meaning given to it by Ritchie and Beetz JJ in the Anti-Inflation Reference. The emergency power should be used sparingly, as a last resort option. That is reflected in the text of the statute, discussed above. But the narrow interpretation of the POGG power also provides a constitutional reason to ensure that the Emergencies Act is not easily invoked, except where there is true provincial incapacity or lack of authority [250].

As a result, the Court concluded that there was no reasonable basis on which Cabinet could come to the conclusion that existing provincial capacity and authority could not effectively address the situation.

It should be uncontested that reasonableness review takes its colour from the context. The relative precision of statutory language is an example: broad language will lead to a more flexible approach, narrow language the opposite. An interpretation that transcends constitutional boundaries also offers an additional reason to disfavour that interpretation: that is simply a function, as the Court notes, of the presumption of constitutionality [248]. In other words, where one interpretation would violate the distribution of powers and another would not, there is a good reason to favour the constitutionally-conforming interpretation.

As far as it goes, this is a valid interpretive tool, and it was deployed correctly here by the Court of Appeal. But I caution against taking this point—that reasonableness review can be endlessly “enriched” by the context—too far. As we have seen in recent Supreme Court jurisprudence, that Court has sometimes strengthened reasonableness review (under the guise of “robust reasonableness review”) where the context seems appropriate to do so. In the Cabinet Mandate Letters Case, 2024 SCC 4 (Issue #123) for example, the majority held that the Information and Privacy Commissioner erred by failing to consider a particular definition of Cabinet privilege. In the Charter values context, CSFTNO, 2023 SCC 31 (Issue #117), a unanimous court steeled reasonableness review by noting that where a Charter value is raised, a court can reweigh Charter values on judicial review. The gist appears to be this: where there is some important interest at stake, the Supreme Court appears to be boosting reasonableness review, bending the normal rules associated with the standard of review. This is why, in cases like Cabinet Mandate Letters, there are dissents/concurrences worrying about this approach to reasonableness review (see also the disagreements in Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 (Issue #185).

I do not take the Federal Court of Appeal’s approach in this case to be the same as the Supreme Court’s. An interpretive presumption that arises in distinct circumstances—particularly in regard to clear constitutional concerns—is a different technique than the Supreme Court’s ever-evolving approach to reasonableness review. But, by the same token, the Federal Court of Appeal’s approach should not be taken so far.

3. The Importance of Judicial Review

I would like to end on a general point. We live in a world where institutions—including courts—no longer command the automatic respect that they once did. Judges in robes, sitting in august courtrooms, no longer can expect that the public will respect their roles simply because of the aesthetics. The legitimacy of courts depends instead on a proper appreciation of their roles vis-a-vis the elected branches of government. If courts are viewed as politicians by a different name, they will command the respect that politicians command. However, if courts render their decisions according to precedent, orthodox legal method, humility, and a dose of courage, the judicial role can and will survive this populist moment.

Cases like this one, in which the Court renders a relatively boring opinion on the law, is a good thing. For one, the Court’s decision holds the government to account in a setting where one might expect a court to stay its hand. But judicial review exists for this very reason: to hold governments to the letter of the law, even when it might be politically insensitive to do so. When courts enforce Parliament’s law against the executive, they are not activists, nor are they exceeding their institutional capacity—they are simply saying that no one is above the law, not even the Prime Minister. This is a reminder that is more important than ever these days, especially when it comes to politically unpopular causes. Courts are not “knights errant,” as Cardozo said—a reminder sometimes forgotten in Charter law. But in this case, the Federal Court of Appeal’s reasoning is delightfully straightforward, and will bolster public confidence in the courts.

More importantly, the straightforwardness of the decision is a virtue in itself. We live in a world where innovation is often considered an automatic good. But courts are not innovators—at least, not in the administrative law context. Their role is time-honoured, constitutionally-central, but ancient—to provide redress against the abuse of state power. Whatever labels we assign to that function (jurisdiction, pragmatic and functional, yada yada yada), it has remained with us for time immemorial. There is nothing innovative about it. But that’s its very virtue. The Court’s deployment of orthodox rules of statutory interpretation and its rejection of heretofore unknown concepts of deference should be applauded as simple but timeless applications of ordinary judicial review. Again, this is not exciting stuff, but it is so centrally important, as we watch these ideas of fundamental accountability be tested the world over.

But nothing is perfect. And in 2025, we were treated to several important judicial decisions working with the Vavilov framework and leaning on its pillars. As it turns out, Vavilov is incredibly strong as a doctrinal framework. But there is potential trouble on the horizon, and it is worth keeping our wits about us for that reason.

In this year-end wrap-up, I focus on four topics that continue to percolate in the law of judicial review: (1) statutory interpretation; (2) impact on affected individuals; (3) remedies; (4) Charter values.

Statutory Interpretation: Pepa

Perhaps the Supreme Court’s biggest splash in administrative law this year was its decision in Pepa v Canada (Citizenship and Immigration), 2025 SCC 21. I covered Pepa in Issue #185. Pepa is the talisman for the Supreme Court’s split approach to statutory interpretation these days.

The problem in Pepa revolved around Section 63(2) of the Immigration and Refugee Protection Act which provides that: “A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them under subsection 44(2) or made at an admissibility hearing.” The case centers on Ms. Pepa, who faced a removal order after disclosing a surprise marriage upon her arrival in Canada. Despite holding a permanent resident visa, its expiration prior to her admissibility hearing led the Immigration Appeal Division (IAD) to conclude it lacked jurisdiction, relying on its interpretation of judicial and administrative precedents [68]. Both the Federal Court and Federal Court of Appeal found the IAD’s decision reasonable.

Martin J (for a majority) concluded that the IAD decision was unreasonable, and held that there was only one reasonable interpretation of the statute: that visa validity for appeal purposes is assessed at the time of arrival in Canada [129]. As a result, she would “remit the matter to the IAD for determination, with Ms. Pepa’s right of appeal now established” [131]. She gets to this conclusion after considering that all other plausible interpretations of the provision would lead to absurd consequences, denying the force of the ordinary meaning/tense of the word “holds,” which would deny Pepa the right of appeal. Côté and O’Bonsawin JJ disagreed. They would have found the IAD’s treatment of the relevant precedents reasonable, and they disagree that there is only one reasonable result in this case. They accuse the majority of disguised correctness review [142].

Pepa raises an interesting dispute. On one hand, some members of the Court are clearly interested in honing the modern approach to statutory interpretation, by stipulating that the text is the anchor of the interpretive exercise in several cases (see e.g. Quebec v Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43). The Court unanimously just reaffirmed this line of cases (R v Carignan, 2025 SCC 43). Pepa can be seen as supportive of these cases, because the majority faulted the IAD for failing to even turn its attention to statutory text in its interpretation of the provision at issue in that case. And the lower courts have run with this line of cases, as well (see Reference re iGaming Ontario, 2025 ONCA 770; Canada (National Revenue) v Shopify, 2025 FC 968; R v Allison, 2025 CMAC 3; Re Vincent Estate; Vincent v Vincent et al., 2025 MBKB 134; Canada v DAC Investment Holdings Inc, 2025 FCA 37; Toronto Revolver Club v Chief Firearms Officer, 2025 ONSC 4833 at para 12; Animal Justice Canada v Canada (Attorney General), 2025 FC 1703 at para 96; Vancouver (City) v Canada (Attorney General), 2025 FC 1456 at para 105).

On the other hand, some members of the Court seem to resist the idea that the text is the anchor of the interpretive exercise. In R v Wilson, 2025 SCC 32, the 6 judge majority did not even reference the “text as anchor” line of cases, over a dissent by Jamal J which did just that. And in absence of a further definition of what it even means for a text to be an anchor, there is lots of room for members of the court to resile from the line in the sand drawn in CISSS A. Pepa itself might be an example of this. There, in dissent, Côté and O’Bonsawin JJ started from the proposition that the text is the anchor of the interpretive exercise [186, a proposition uncited by the majority]. The majority, on the other hand, put rather inordinate weight on the doctrine of absurdity to reject the plain meaning of the provision at issue.

Standing at the precipice of 2026, I can offer several comments about the Supreme Court’s inconsistency in this area, using Pepa as a foil.

First, and most importantly, the Supreme Court is sending mixed signals about statutory interpretation. Those mixed signals are not helpful, especially when they are unexplained. This makes the decision in Wilson all the harder to understand. It is questionable practice for the Supreme Court to lay down a marker—text is the anchor—and then simply not mention it when it stands in the way of a preferred result. This gives the impression that statutory interpretation is simply a matter of choosing the methodology that gets to a certain result, rather than applying a pre-determined and consistent methodology.

This is not a new problem in the Supreme Court. As Justice L’Heureux-Dubé mentioned in the Regie case, speaking of the Court’s inconsistent approach in 1996

“If the courts randomly choose one of the two interpretation methods depending on the desired result, then the activity of legal interpretation is reduced to an arbitrary exercise whose result is unpredictable.”

Her warning is an apt one, and it applies with greater force in 2025.

It is no answer—or, maybe differently, a lazy one—to say that statutory interpretation is inevitably pragmatic and cannot be reduced to rules. To a certain extent, there is a creative element to the interpretation of statutes under the modern approach—for example, there is no “strict order” of the tools of interpretation, and in any particular case, it might be better to look at purpose before context, for example (for a recent example, see Carignan, at para 101). But this is quite different from saying that there is no way in which statutory interpretation could be coherently structured across multiple shared, fixed points. Indeed, this is what I take the “text as anchor” point to be: a line in the sand that the Court drew to prevent certain combinations of reasoning.

As I have written before, there are good reasons supporting the text-as-anchor line of cases. As CISSS A mentioned, the text is the best evidence of how the legislature wanted to achieve its purposes. The written word is the medium through which the legislature makes clear its “institutional design choices”: for example, a broad and general statutory term might support an interpretive move to specify that term with contextual and purposive considerations. As the Supreme Court has said, this will be less possible in cases where statutory terms are precise (see Kosicki v Toronto (City), 2025 SCC 28 at para 37). The text as anchor jurisprudence pays attention to a key aspect of the legislature’s intent—not just what it wanted to accomplish in broad strokes, but how the text demonstrates the goals should be accomplished. It would be nice to see the Court flesh out this justification more in future cases.

Second, Pepa is only proof-positive of these mixed signals. Martin J’s statutory interpretation analysis does not refer to any of the Supreme Court’s recent guidance on interpretation, emphasizing the text as the “anchor” of the interpretive exercise. Instead, Martin J puts inordinate focus on the alleged “absurdities” created by the IAD’s interpretation and the impact on Pepa. But as I have argued before, the doctrine of absurdity is a fickle thing. What might be one person’s absurdity is another person’s reasoned legislative design choice. There should be a high bar for the absurdity doctrine, and the reasons for reliance on it should be spelled out clearly. Pepa is lacking in this regard.

For their part, however, and emphasizing the recent text-as-anchor cases, Côté and O’Bonsawin JJ note (as did de Montigny J in a relevant decision that the IAD considered) that the text of s.63(2) is written in the present tense, requiring a valid and subsisting visa [197]. This could have been dispositive of the claim. de Montigny J also noted that the purpose of the provision was to provide a right of appeal for those with valid visas. Granted, Martin J concludes that the text does not answer the question, and that the modern approach “does not end with consideration of the text of the provision alone” [91]. This is because, to her, the provision does not stipulate when the valid visa must be held. But the tense issue does provide a signal in one direction because the present tense is used coupled with the existence of a removal order. This means, as Côté and O’Bonsawin JJ explain, that “Accordingly, foreign nationals who once ‘held’ a visa do not fall within the ambit of the provision” unless they hold the valid visa at the same time as the removal order [197] . Martin J’s opinion could have explained why this argument was not dispositive in light of the recent SCC precedents and the design of s.63(2), as Côté and O’Bonsawin JJ did (see para 186).

Finally, and from the perspective of positive law—what the Supreme Court is requiring of decision-makers—Pepa is a mystery wrapped in a riddle. The IAD’s problem here was its apparent inability to consider the statute afresh, after relying on its own precedents that it justified as dispositive. Then, because of this apparent failure, Martin J faulted the IAD for failing to consider the consequences to Ms. Pepa, which included separation from her family and a lack of support in her native Albania.

The question we are left with: what must decision-makers actually do to survive Vavilovian reasonableness review? Here, Côté and O’Bonsawin JJ found that the IAD’s reliance on past administrative and judicial precedents was reasonable. But Martin J carries the majority, and decision-makers are left wondering when they can—for reasons of good decision-making practice and administrative economy—rely on precedents, and when they must attack a statute afresh. There may be easy cases: for example, when a contested issue of statutory interpretation arises for the first time on a new statutory provision. But most cases are not this. Surely, the takeaway from Pepa cannot be that every time a decision-maker is faced with a question of statutory interpretation, they must conduct a text, context, and purpose analysis, even when that analysis has been satisfactorily done in a previous administrative or judicial precedent.

If the price of reasonableness review is that every tribunal member must act as a mini-judge, constructing a bespoke statutory interpretation from scratch despite years of settled practice, the efficiency gains of the administrative state are lost.

For now, Pepa is only an example of the disputes on questions of statutory interpretation arising in the Supreme Court.

Impact on the Affected Individual

Pepa raises another question that got a great deal of treatment in the courts in 2025: the “impact on the affected individual” constraint from Vavilov.

As noted above, the IAD’s apparent failure in the case was its inability to recognize that it needed to interpret the scope of the right of appeal itself. In turn, that led to another failure: “…the IAD’s failure to address key factors of statutory interpretation at all in its reasons shows it did not explain why its decision respects Parliament’s intention, let alone ‘best reflects’ Parliament’s intention” [119].

As far as it goes, and following the reasoning of the majority in Pepa, this is not a tough ask. Where there are impacts on an individual arising from an interpretation of a statute, we will expect the decision-maker to explain why those consequences are authorized by the legislation.

In a recent case that I analyzed in Issue #198, Kimotho v Canada (Citizenship and Immigration), 2025 FC 1719, Battista J provided the most comprehensive summary yet of what this constraint requires in the context of a “no credible basis” finding in a refugee case:

· The decision maker’s duty of explanation is not discretionary: an explanation “must” be given;

· The decision must reasonably identify the legislative intention leading to the consequences;

· The decision must reasonably identify the consequences of the decision on the affected individual;

· The decision maker is obligated not simply to explain why the decision is consistent with legislative intention, but why the decision best reflects legislative intention. This means that if there is an option that is respectful of other constraints but carries less harsh consequences, a decision maker should explain why that option was not pursued. Applied to determinations pursuant to subsection 107(2), decision makers are required to explain why, in the particular circumstances of the claim and in view of the consequences, it best reflects legislative intention to make a finding of no credible basis rather than simply refuse the claim on the basis of adverse credibility findings.

I think Battista J’s remarks offer important and useful insights about the scope and breadth of this constraint from Vavilov.

On one hand, the comments in Pepa on individual impact, like the comments in Pepa on precedent, do raise important questions for decision-makers. Notably, must decision-makers articulate why the statute authorizes consequential individual impacts even in cases where the statute is clear about those impacts? Take an expropriation statute. There, it might be perfectly clear that Parliament authorized consequential impacts upon certain triggering events. In such a case, where statutory language is relatively less general and admits of only one meaning, it would be duplicative and pointless to expect a decision-maker to “reason through” obviously authorized statutory consequences.

But the situation in Kimotho provides a good example of where the individual impact constraint is most useful: when, as Battista J says, “…there is an option that is respectful of other constraints but carries less harsh consequences…” Put differently, this becomes an ordinary rule of statutory interpretation applicable in the administrative law context. It is reminiscent of the old—and still subsisting—rule about statutory purpose: where we have two competing interpretations, we should choose the one most consistent with statutory purpose (see McBratney v McBratney, 1919 59 SCR 550 at 561; more recently, see Williams v Canada (Public Safety and Emergency Preparedness), 2017 FCA 252 at para 52).

We can contrast this with a situation where individual impacts are clearly authorized by legislation. There, the only interpretive question is simple: are those consequences actually authorized? If so, no further reasoning should be required.

Remedy and Reasonableness Review

One of the most interesting trends that crystallized in 2025 involves the approach to remedies in judicial review: or, more particularly, the Supreme Court’s own approach to remedies. A fun fact: since Vavilov, the Supreme Court in its major administrative law cases— Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108); the Cabinet Mandate Letters Case, 2024 SCC 4 (Issue #123); and Pepa—has generally declared that there is only one reasonable result in the cases and has declined to remit (or, in Pepa, remitted with the right of appeal established and the question of law decided). In each case, other judges on the Court raised concerns about disguised correctness review.

They are right to do so. The Supreme Court’s post-Vavilov approach to remedies can be pithily described: “do as we say, not as we do.” Lower courts do not appear to be taking the bait, which is a good thing. But the Supreme Court’s approach risks blurring the lines between reasonableness and correctness review.

To steelman the Court majority’s position, we should look to Pepa, which provides the most holistic justification yet for the Supreme Court’s approach. The choice in Pepa to remit to the decision-maker with the right of appeal decided is motivated by Martin J’s conclusion that there is only one reasonable result in the case (as in Mason and Cabinet Mandate Letters). Martin J begins the analysis by noting that because legislatures generally speak with “clarity and purpose,” it “should not be a surprise that there are cases in which one reasonable interpretation may arise…” [125]. This, for Martin J, will be “more plausible when the question is interpretation is narrow, the statutory language is highly precise, and there are functionally very few options to choose from” [125]. So far, so good.

But is Pepa the best example of such a case? Not quite. For one, the question of interpretation was not uncontroversial. Martin J begins her statutory interpretation analysis by stating that the text is “open-ended.” [91], and the resolution of the question of interpretation turns on considerations of absurd consequences. For the reasons I’ve mentioned above, this is a thin reed on which to declare only one reasonable result, and there may be good reasons for the court to stay its hand—again, this is reasonableness review. This may mean that Martin J used alleged absurdities to create ambiguity where none existed. The logical tension is that Martin J uses the ambiguity to open the door to “absurdity” arguments, but then uses those arguments to close the door on any other interpretation. It suggests that “absurdity” is being used not just to resolve ambiguity, but to override the text—after all, doesn’t holds mean holds?

This is especially so in a case where Côté and O’Bonsawin JJ take a very different approach to the interpretation of the provision—one shared by both the Federal Court and the Federal Court of Appeal. And that reality motivates their statement of the rule: declining to remit (or declaring one result and remitting on that basis) should only occur “in the clearest of cases” [216].

It did not have to be this way. The Court could have simply said the decision was unreasonable, and left it at that. For his part, in a concurring opinion, Rowe J provided a powerful set of reasons for questioning the Pepa majority’s remedial choice. For him, the majority “…takes reasonableness analysis further than it need go; in so doing, this Court runs an unnecessary risk of creating its own absurdities” [150]. Consider, as Rowe J does, that the immigration and refugee statutes and regulations contain multiple provisions that mirror the provision at issue in Pepa. As a result, “[i]f this Court itself interprets the relevant provision, there may well be consequences for the legislative scheme which we cannot contemplate…” Rowe J provides a refreshing dose of judicial humility, on a Court that sometimes lacks it.

At stake in this debate is the conceptual distinction between reasonableness and correctness review. The worry I have—shared by Rowe J—is that the Court will select a stronger, more “robust” form of reasonableness review when reviewing “decisions with which they disagree,” while upholding “decisions with which they agree” [149]. As he says, that would ruin Vavilov’s achievement: a neutral set of rules and standards, agnostic about the administrative state, that discipline the interpretation and justification of decisions arising under statutory authority.

When the normal rules of reasonableness review are bent without sufficient explanation, the old worry that the standard of review is just a shell game emerges. It is one thing to insist upon reasoned justification, as Martin J does at several points of Pepa. It is another to, under the guise of “robustness,” create a heretofore unknown definition of reasonableness review that bares its teeth when the Supreme Court says so.

Charter Values

Finally, it is worthwhile to explore the perennial fly-in-the-ointment of Canadian administrative law—Charter values.

In 2024, judges and lawyers were busy dealing with the implications of the Supreme Court’s decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31. In that decision, the Supreme Court held that even where an individual does not have the benefit of a Charter right, there may still be a duty imposed on decision-makers to consider whether a particular decision is respectful of Charter values. The Court held that this duty could arise in three circumstances: (1) where the governing statutory scheme contemplates it; (2) where the parties raised the value before the decision-maker, or (3) where there is a link between the value and the matter under consideration. All of this falls to the reasonableness standard.

This left many of us in a tizzy. What is a Charter value? Does Commission scolaire mean that even where values are not argued, a decision-maker must, at least in some cases, ask whether a decision is consistent with some abstract value? Are Charter rights the same as Charter values?

The story became more complicated with the Supreme Court’s 2024 decision in York Region, 2024 SCC 22 (Issue #141). York dealt with a different Charter problem in administrative law. Where a claimant clearly has a benefit of a Charter right, what is the standard of review for decisions impacting that right? In that case, Rowe J—properly, I should say—held that the correctness standard also applies to the arbitrator’s decision itself, since “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis” is a constitutional question as contemplated in Vavilov [63]. Therefore, the standard of review on that issue is correctness.

2025 has provided some fodder for ongoing discussion of Charter values.

First, the relationship between York and Commission scolaire is an open question. On one hand, both deal with different situations: Commission scolaire with a situation where an individual does not have the benefit of a Charter right; York with a situation where an individual does have the benefit of a Charter right. This is a question on which the Supreme Court will need to weigh in. And they may do so: the Court just granted leave in Vabuolas v British Columbia (Information and Privacy Commissioner), 2025 BCCA 83 (Issue #172), in which Horsman JA offered several excellent comments about ongoing confusion in the Charter framework in administrative law. One of those comments was apt for this issue: “[i]t is difficult to assess the full implications of York Region for the standard of review analysis under the Doré/Loyola framework…” [96]. Perhaps Vabuolas will provide us an answer.

For now, lower courts have helped us out by offering two clarifications. First, in cases where a York-style situation arises, courts have concluded that the correctness standard applies to the issue of whether the Charter arises on the facts, but then have concluded that the proportionate balancing of Charter rights and values falls to the reasonableness standard (see e.g. Toth v Canada (Mental Health and Addictions), 2025 FCA 119 (Issue #184). This might be an attempt to reconcile the language of values and reasonableness in Commission scolaire with the language of rights in York.

Second, lower courts have largely put the concept of Charter values in a little box, rarely to be opened. Perhaps the best example of this in 2025 was the New Brunswick Court of Appeal’s decision in Minister of Justice and Public Safety v Forum des maires de Péninsule acadienne Inc (Issue #191). This was an application for judicial review challenging a decision of the Minister of Justice and Public Safety making changes to “court services in the Judicial District of Bathurst, namely the closure of the Caraquet courthouse, the conversion of the Tracadie courthouse into a satellite court and the transfer of two judges to Bathurst and Miramichi…” [1]. The applicant suggested that closing a courthouse in a mainly Francophone region is “contrary to the rights guaranteed under the Charter as well as to the quasi-constitutional rights protected under [New Brunswick legislation]” [32]. The applicant argued that the Minister “should have considered the impact of his decision on the Francophone community, not in terms of access to services in French, but rather in terms of fulfilling his obligation to promote the cultural, economic, educational, and social development of the Francophone minority” [18].

The lower court held that Minister’s decision was unreasonable for failing to consider relevant Charter values, which it defined as “collective remedial rights, taking into account past injustices in order to preserve and promote the cultural development of the Francophone minority.”

However, the NBCA—properly in my view—corrected this muscular application of Charter values. LeBlanc JA suggests that Charter values are a nothingburger, and no different from Charter rights. In a particularly important passage, relying on Stratas JA’s excellent decision in Singh Brar v Canada (Public Safety and Emergency Preparedness), 2024 FCA 114, LeBlanc JA concludes that “[e]xtending the scope of s.16.1 by way of values that exceed those expressed therein would constitute an inadmissible change to this provision.”

We will wait for Vabuolas to see how this shakes out. But for now, Charter values remain on the menu for 2026.

Conclusion

As I mentioned, it has been a quiet year for administrative law in Canada. Yet in these four areas—statutory interpretation, impact on the individual, remedies, and Charter values—the story remains tricky, especially for administrative decision-makers. This is all the more reason to pay attention to what the Supreme Court and lower courts do in administrative law in 2026.

I wish you and your family the best for the holiday season—sincerely. The next edition of SEAR will appear on the last Sunday of January.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

Welcome to the New SEAR: How to Use the Monthly Newsletter

The monthly edition of the newsletter is arranged in themes, rather than case-by-case. To use the newsletter best for your needs, consider scanning the entire document and highlighting themes in a particular month that might interest you. This month, for example, contains three themes. You can then dive deeper into those themes by reading the case analyses I provide.

At the end of each newsletter, I will also include links to recent issues of administrative law in the news.

I will also be providing a year-end “Administrative Law Wrapped.” While the monthly newsletter will come on the last Sunday of each month, the December edition of the newsletter will come on Dec 14 to account for the holiday season.

Statutory Interpretation Galore

The Supreme Court’s recent statutory interpretation jurisprudence centres around a key concept: the text is the “anchor” under the modern approach (see CISSS A, 2024 SCC 43, at para 24). As Wagner CJC explained in that case, the text is the anchor because it demonstrates the precise way in which Parliament wanted to achieve its goals. This is a concept that has now gained some legs in Supreme Court cases (see Kosicki v Toronto (City), 2025 SCC 28 at para 37), and in the lower courts (see Reference re iGaming Ontario, 2025 ONCA 770, below). But not so fast: the Supreme Court’s recent decision in R v Wilson appears to be an ugly duckling.

My bottom line is simple. The Supreme Court can no longer rely on the repetition of Rizzo and Rizzo Shoes and call it a day. The Court should explicitly clarify the proper approach to interpretation of statutes to avoid the whiplash that we see in the movement from cases like CISSS A to Wilson. And it should be ready to simply let Parliament deal with its own mistakes, such as they are. For their part, and as we will see, lower courts are taking the “text as anchor” jurisprudence seriously.

R v Wilson, 2025 SCC 32

Wilson involves the Good Samaritan Drug Overdose Act, which added s.4.1(2) to the Controlled Drugs and Substances Act. The provision reads as follows:

(2) No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency is to be charged or convicted of an offence under subsection 4(1) if the evidence in support of that offence was obtained or discovered as a result of that person having sought assist­ance or having remained at the scene.

Parliament’s point in enacting this provision was to confer an immunity on those who call in an overdose. The immunity, according to the plain text of the provision, relates to a charge and conviction. The facts of Wilson, however, raised an important interpretive question. Wilson was arrested at the scene of an overdose and searched incident to that arrest.

Does the immunity in s.4.1(2) apply to arrests?

For a majority, Karakatsanis J concluded that it did. She advanced several arguments for her conclusion, but it is notable that she does not once cite the “text as anchor” jurisprudence—none of the cases the SCC has released on statutory interpretation in the last year make even an appearance. Instead, the lynchpin of her opinion is a through-and-through purposive argument. She begins by noting that though the word “arrest” is not present in the provision, “…the words of a statutory provision can never be interpreted in isolation” [34]. She goes on to say, as a result, that permitting arrest would “greatly undermine Parliament’s intent to save lives by promoting resort to emergency services following a drug overdose” [5, 37, 41]. For her, this law is all about “saving lives.” Even though the word arrest is not present, Parliament’s assumed purpose takes a front seat in Karakatsanis J’s analysis.

To be sure, Karakatsanis J takes an eclectic approach, supporting her purposive argument with a plausible view of the text. For her, it would be nonsensical to argue that Parliament did not intend arrest to be covered by the immunity—it is included “by necessary implication” [71]. This is because, in the broader context of the Criminal Code, the power of arrest is (1) limited, precluding the use of arrest to gather other evidence [57-60]; and (2) importantly, is part of a larger scheme “intimately related to bringing persons before justice to answer criminal charges” [62]. In this way, and for her, to speak of “charge” and “conviction” separately from “arrest” simply does not jibe with the rest of the law.

Jamal J dissented. Unlike Karakatsanis J, he spends quite a bit of time emphasizing the “text as anchor” jurisprudence [130, 164, 183]. With that in mind, he starts by noting that the term “arrest” is completely missing from the CDSA provisions, and that the use of specific terms of art—“charged and convicted”—excludes arrest [153]. The context of the provision supports this textual argument for Jamal J. Unlike Karakatsanis J, he viewed arrest as a separate, standalone step in the criminal process; immunity from charge and conviction does not logically necessitate immunity from the investigative step of arrest. Indeed, as he notes, arrest does not require a “prima facie” case for conviction—it only requires reasonable grounds that an offence has been or may be committed in the future.

Finally, Jamal J spends some time reiterating the recent guidance the Supreme Court has offered on the derivation and use of statutory purpose (see para 182). As he notes, legislation does not pursue an objective—such as saving lives—at all costs. As Jamal J notes:

[183] Even an appropriately formulated statement of statutory objectives cannot justify an outright rejection of the text, since the text must remain “the anchor of the interpretive exercise” (CISSS A, at para. 24). The text may “tell an interpreter just how far a legislature wanted to go in achieving some more abstract goal” (para. 24, quoting Mancini, at p. 927).

Jamal J notes that the CDSA amendments were designed not just to save lives, but to protect and balance both public health and public safety. It seems self-evidently true that s.4.1(2) “does not seek to promote public health at all costs”—no law does [188]. Accordingly, preserving the power of arrest would be plausible in pursuit of the public safety purpose. Though evidence seized in the situation described in s.4.1(2) cannot be used to charge or convict, the power of arrest (and search incident to arrest) can be used for purposes of officer/public safety. And he is right to note the ultimate effect of Karakatsanis J’s analysis: it requires the addition of the word “arrest” in the provision which Parliament may, for good reasons, have excluded [196].

Karakatsanis J and Jamal J, analytically, start in different places, end in different places, and take different approaches to get there. While there was a way, in my view, for Karakatsanis J to reach the result she did in this case, the reasoning she used diverges from the Supreme Court’s recent statutory interpretation caselaw. For the sake of sound reasoning, then, Jamal J’s approach is preferable. It does not revolve around the abstract and ultimately slippery purpose of “saving lives”; it gives plausible meaning to the text; and it properly balances Parliament’s competing purposes against each other. And—this is a big deal—it has the virtue of being consistent with the precedents.

Analysis

First, Karakatsanis J’s opinion is lacking because of a failure to at least engage with the Supreme Court’s recent case law. The Supreme Court’s “textual turn” in statutory interpretation is exemplified by cases like CISSS A and Kosicki. Lower courts have taken the ball and run with it (see, for example, this non exhaustive list: Canada v DAC investment Holdings, 2025 FCA 37 at para 17; Toronto Revolver Club v Chief Firearms Officer, 2025 ONSC 4833 at para 12; Animal Justice Canada v Canada (Attorney General), 2025 FC 1703 at para 96; Vancouver (City) v Canada (Attorney General), 2025 FC 1456 at para 105; Canada (National Revenue) v Shopify, 2025 FC 968; R v Allison, 2025 CMAC 3 at para 11). It sends the wrong message for the Court to disappear its own precedents—a frequent problem in administrative law.

Second, consistency with precedent did not have to come at the price of a result that Karakatsanis J, obviously, found inappropriate. A text as anchor approach would not necessarily change the result for Karakatsanis J, though it would bring the reasoning in line with the Supreme Court’s own precedents. As Wagner CJC mentioned in CISSS A (and as noted in the cases below), the level of generality of the text-to-be-interpreted is the quality that courts should ascertain when viewing the text as the anchor (see CISSS A, at paras 30, 33). The level of generality of the text has implications for how purpose can be used in interpretation. Where the text is pitched at a high level of generality (in CISSS A, for example, the terms under interpretation were “correct” and “situation”), purpose and context can be used to specify the meaning of a broad and general term. Where, however, the term is less general (as in Kosicki), purpose and context should only be used as a ”double-check” that the court’s adopted interpretation bears a rational connection to stated statutory purposes.

Karakatsanis J’s opinion could stand while discarding the interpretive approach that she invokes in relation to purpose. Rather than simply asserting that Parliament’s purpose was “to save lives”—and then adopt an interpretation that better achieves that purpose—she could have explained further why arrest is, by necessary implication, included in the immunity. The test of necessary implication is strict, especially where Parliament uses less general and more narrow words as here. It requires, as Jamal J explains, that the omitted aspect—here arrest—is necessarily incidental to the conferred power—here immunity from charge and conviction.

Karakatsanis J’s analysis of the inextricability of arrest and charging might meet it. This argument treats the text as the anchor, and then asks how it promotes Parliament’s stated purposes. But this is not what Karakatsanis J does. Rather, the connection between arrest and charge/conviction is justified by an appeal to “saving lives,” rather than showing how the preservation of arrest does not sufficiently connect to all of Parliament’s stated purposes. This is what I, and some courts, have described as a “purpose error.” It did not have to be this way.

Third, Jamal J’s view of the relationship between text, context, and purpose allows him to render a more plausible interpretation of the provision because he follows the SCC’s own precedent. The heart of his opinion is the simple idea that because Parliament always compromises multiple objectives against each other—here public safety and public health—it supplies a valid reason to preserve arrest as a live power in the teeth of the CDSA immunity. Karakatsanis J’s opinion revolves around what appears to be a common sense intuition: why would Parliament confer an immunity for prosecution but then allow an arrest to unfold? Jamal J’s opinion provides an answer: because preserving the power of arrest would have an important rational connection to public safety, one of the recognized purposes of search incident to arrest [197]. If a purposive approach to interpretation means anything, it cannot maximize one of Parliament’s purposes at the expense of another. Now, one might still maintain that Karakatsanis J’s view better takes account of Parliament’s main purpose. But this begs the question: at the end of the day, we do not know what Parliament intended to do with the arrest power.

Finally, as noted above, I get the impression that Karakatsanis J was driven by the apparent ill-fit of a conclusion that an immunity, like the one in the CDSA, should be limited to arrest. Jamal J offers plausible reasons why this might be so. But even if we do not accept those reasons, and instead accept that the CDSA immunity suffers from an omission or drafting error, it does not mean the Court should step in to correct that error. If Parliament failed to include arrest in the immunity, why should the court do a clean-up job of Parliament’s mess? Our law should encourage democratic responsibility over issues that clearly fall within Parliament’s exclusive jurisdiction. Parliament should suffer the consequences if the court is forced to render an interpretation that might not be ideal. That’s democracy.

The Supreme Court’s recent statutory interpretation cases—up until Wilson—were remarkable for their clarity and consistency, especially on a Court sometimes not known for those qualities. They all emphasized the importance of the statutory text, and the important reasons why the text carries weight: it explains the goods the legislature wanted to achieve, and how it wanted them balanced. That balance is best reflected through the statutory text.

Reference re iGaming Ontario, 2025 ONCA 770

As noted in the discussion of Wilson, the “level of generality” of a law is a central feature grounding the “text-as-anchor” approach. Disputes over the level of generality arose in Reference re iGaming.

In iGaming, linked above, the interpretation centred around s.207(1)(a) of the Criminal Code:

Notwithstanding any of the provisions of this Part relating to gaming and betting, it is lawful for the government of a province, either alone or in conjunction with the government of another province, to conduct and manage a lottery scheme in that province, or in that and the other province, in accordance with any law enacted by the legislature of that province[.]

The question: is Ontario still operating a lottery scheme for the purposes of this section if it permits players in Ontario to play with others in other countries?

The Court majority begins its analysis by noting that there is debate—as there often is in these cases—between a narrow and broad interpretation of s.207(1)(a). This is a question pertaining to the level of generality. On one hand, the phrase in s.207(1)(a)—“in that province”— “is capable of being read narrowly to mean ‘within that province’s geographical boundaries’” [149]. That is one plausible view of the text. However, context—as it often does—helped to shed light on whether this narrow meaning was correct. The Court implicitly concluded that because the level of generality of the text was pitched highly, the context helped to confirm that this meaning was intended by the legislature. For one, the framing of s.207(1)(a) demonstrates that Parliament contemplated interprovincial lotteries: “…it had no objection to provincial government-run lottery schemes extending into other provinces, as long as the scheme does not interfere with the sovereignty of the other provinces” [151]. From this, the Court jumped to its conclusion: as a result, “[i]t can be inferred that Parliament similarly had no objection to provincially-run lottery schemes being linked with other countries…” [151].

The lynchpin of the decision, however, is that because this text is stated at a high level of generality, it permits a dynamic interpretation according to the purpose of the provision [184-185]. The gaming law at issue in the case should, the Court concludes, apply to regulate provincial players who game with players outside Canada. It does so because it “advances public safety by bringing such gaming under protective regulation, thereby reducing such risks as fraud and addiction” [184]. In a close case, consideration of purpose can act as a “tie-breaker” or “double-check,” as here.

There was a dissent, however, filed by van Rensburg JA. One of the points of departure between the dissent and the rest of the Court concerned the precise question that the “text as anchor” jurisprudence invites: a consideration of the level of generality. For her, this was an easy case—the plain meaning of “in that province” means within the territorial boundaries of the province [268]. While s.207(1)(a) does contemplate interprovincial cooperation, it is another thing altogether to contemplate international play [270].

This is a tough case, and there are two comments to consider about it. First, the judges in this case are disagreeing about what really matters if, indeed, the text is the anchor of the interpretive exercise: the level of generality of s.207(1)(a). This is a productive debate because it focuses on the meaning of the text.

Second, and despite this debate, its very existence shows that the “text as anchor” jurisprudence will not resolve all interpretive questions. The promise of a more textually-grounded modern approach is not that it will lead to an easy resolution of all interpretive disputes. It is, instead, justified because it provides structure to the modern approach, imposing a grounded starting point. More discussion and work on the level of generality will help to flesh out the contours of this approach.

R v Allison, 2025 CMAC 3

In this excellent decision, the CMAC rejects an attempt to rely on an old case to corrupt the “text as anchor” methodology:

[10] Mr. Allison invokes this Court’s decision in R. v. Wehmeier, 2014 CMAC 5 [Wehmeier] and submits that as a civilian he should only be tried in a military tribunal in “very exceptional circumstances” and only when “absolutely essential” (appellant’s memorandum, at paras. 1 and 3).

[11] We reject this submission. It amounts to a rewriting of the above provisions of the National Defence Act. They clearly provide that Canadian law can be applied to Mr. Allison. They do not restrict their application to “very exceptional circumstances” or only when “absolutely essential”. The language of statutory provisions, seen in light of their context and purpose, is the anchor in the statutory interpretation process: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 , 498 D.L.R. (4th) 316 at para. 24. CISSS A postdates this Court’s decision in Wehmeier and, thus, binds us. There is nothing in the language of the relevant provisions of the National Defence Act or in their text and context that would support limiting their application in this case, as Mr. Allison urges us to do.

Re Vincent Estate; Vincent v Vincent et al., 2025 MBKB 134

In this case, Rempel J articulately explains the relevance of the “level of generality” in the text as anchor approach:

[82] Further guidance as to the modern approach to statutory interpretation is provided by the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Director of Youth Protection of CISSS A, 2024 SCC 43 […]

[83] The object of the Act and the intention of the legislature was clearly to modernize the limitations legislation by removing a plethora of limitation periods that varied depending on the legal principles or doctrines they arose from. Only a select few kinds of claims were carved out of the limitation framework and none of them speak to will challenges. Since the text of the Act is to serve as an interpretive anchor, I am obliged to pay attention to the relative generality of the language of the Act which uses broad and expansive terms. It flies in the face of the modern approach to statutory interpretation to narrowly interpret the purpose of the Act to exclude claims that arose only in probate courts at the time Manitoba joined confederation.

Impact in Reasonableness Review

Kimotho v Canada (Citizenship and Immigration), 2025 FC 1719

Since Mason and Pepa, the Supreme Court and lower courts have emphasized the importance of the “impact to the affected individual” constraint from Vavilov. In Pepa, for example, Martin J faulted the IAD for failing to engage properly with the consequences of its interpretation for Ms. Pepa. In total, the bar that this constraint erects is somewhat high.

This was confirmed in the recent case of Kimotho. At issue: the Refugee Protection Division’s “no credible basis” finding. In refugee law, a “no credible basis” finding is significant: it includes “the elimination of the Applicant’s access to an appeal to the Refugee Appeal Division, the loss of her protection from removal pending that appeal, and the loss of a stay attached to this application for judicial review” [7].

In this case, Battista J concludes that the RPD’s finding did not properly engage with the individual impact constraint. In fact, in this case, he concludes that “…there is no mention at all in the RPD decision of the harsh impact of its no credible basis finding on the Applicant” [42]. This was particularly fatal in this case, because the RPD actually could have decided the case “solely based on the adverse credibility findings it made…” rather than jumping to a “no credible basis” finding [43]. That jump had to be explained in relation to the impact on the individual.

In making this point, Battista J summarizes what the “individual impact” constraint in Vavilov requires [35]:

· The decision maker’s duty of explanation is not discretionary: an explanation “must” be given;

· The decision must reasonably identify the legislative intention leading to the consequences;

· The decision must reasonably identify the consequences of the decision on the affected individual;

· The decision maker is obligated not simply to explain why the decision is consistent with legislative intention, but why the decision best reflects legislative intention. This means that if there is an option that is respectful of other constraints but carries less harsh consequences, a decision maker should explain why that option was not pursued. Applied to determinations pursuant to subsection 107(2), decision makers are required to explain why, in the particular circumstances of the claim and in view of the consequences, it best reflects legislative intention to make a finding of no credible basis rather than simply refuse the claim on the basis of adverse credibility findings.

In my view, Battista J’s remarks clarify the use of this constraint, but raise further questions.

First, it might be that the RPD decision in this case fails on the individual impact constraint because it fails to explain why the “no credibility” finding is a better conclusion than one based on adverse credibility findings. That is a plausible use of the constraint: forcing a decision-maker to explain why the more individually-impactful decision was taken, in comparison to other potential options.

As Battista J says, when the individual impact constraint is triggered, an explanation is not discretionary. But Mason and Pepa might leave the wrong impression: where legislation clearly authorizes severe individual impacts—an expropriation law, for example—it would be duplicative and corrosive to the hierarchy of laws to expect an explanation for clear legislative authorizations. But where the legislature confers a discretion—as in Kimotho—it does make sense to expect heightened justification about potentially extensive impacts.

This is, actually, just simple statutory interpretation—the duty to reason about consequences arises in the same circumstances where courts look at other unwritten principles of law. For example, where there are two rival interpretations—and the statutory term is broad enough to plausibly justify both—the interpretation better connects to statutory purpose should be preferred (see Williams v Canada, 2017 FCA 52). The same is true for consequences in administrative law.

I hesitate to complicate this constraint. Vavilov’s great success is that it does not rely on law office metaphysics and abstract debate about the standard of review. It is qualitative, not quantitative, and it is impossible to reduce judicial review entirely to precise rules. Nonetheless, the clarification here is fundamental, based on the hierarchy of laws.

Remedies and Back-Door Correctness

The signal sent by Mason and Pepa on remedies is intriguing. In both cases, the Supreme Court declared that there was only one reasonable result available in the cases. In Pepa, the majority remitted to the decision-maker—stipulating this one result. In Mason, the Court did not remit and simply decided the matter itself.

For the most part, lower courts have not picked up the invitation from the Supreme Court. And for good reason: both Mason and Pepa, in substance and on remedy, blur the lines between reasonableness and correctness review quite significantly (see Cote J’s opinion in Mason). At first blush, this appears to be yet another example of the Supreme Court’s pre-Vavilov organizing methodology in administrative law: “do as we say, not as we do.” But the consequences are potentially significant: not remitting means, along the way, the court likely conducted something like correctness review rather than reasonableness review. That brings us back to the bad old days of pre-Vavilov, when, as Justice John Evans once said, the organizing theory of the law was disguised correctness review.

But the lower courts have, apparently, started to take notice. Take two lower court decisions rendered this past month. Both of these cases provide good examples of the situations where the judicial review court might properly not remit a decision. Compare these to Mason and Pepa.

Harding v Portugal Cove-St. Philip’s (Town), 2025 NLSC 163

In Harding, the Court concluded that a penalty levied against a municipal councillor did not satisfy the palpable and overriding error standard in the context of a statutory right of appeal. This is a rare finding in itself. But it suggests that the circumstances in which the extraordinary remedial power noted in Mason and Pepa should be limited.

The case involved a rather complex factual history, where the Council first found that a councillor did not have a conflict of interest, and then later determined that he did, in fact, have a conflict. That situation is governed by the Municipal Conduct Act, s.6(8), which says explicitly that in this circumstance (where a conflict was initially cleared but later found), council can invalidate the underlying decision, but “shall not impose any other penalties under this Act against the councillor.” The Council, here, chose to impose a penalty.

This is as close to a black and white error as one can get in the law. It is a palpable and overriding error. And so it does make sense, to use Martin J’s language in Pepa, that:

[125] […] it is natural that this process may incidentally eliminate other options that suffer from the same defects as the one under review, and may even narrow the field to only one possible interpretation. It should not be a surprise that there are cases in which one reasonable interpretation may arise, given that when legislatures speak, they intend to speak with clarity and purpose. This outcome will be more plausible when the question of interpretation is narrow, the statutory language is highly precise, and there are functionally very few options to choose from.

But we should be careful not to take this too far. Harding—involving a clear contradiction of a mandatory statutory rule—is a case where there truly is only one clear result. Martin J said Pepa was such a case. But I am not so sure—especially when, as I explored in Issue #185—there is legitimate debate about the meaning of the provision in that case. Here, there was no such debate, and so it was properly a case where the Court could simply reinstate the councillor.

Le v Card, 2025 BCSC 2204

A similar example arose in this case. There, the petitioner was a landlord who entered into a 1-year residential tenancy agreement with the respondent regarding a suite in a house in Maple Ridge. The landlord’s agent served the tenant a two-month notice to end tenancy for landlord’s use of property. The notice indicated that the reason to terminate the tenancy was that the rental unit will be occupied by the landlord or the landlord’s close family member. The tenant filed a notice of dispute against the landlord arguing that the landlord failed to occupy the property in accordance with s. 49(5) of the Residential Tenancy Act and sought compensation representing 12 times the monthly rent she paid for the property. The arbitrator found in favour of the tenant and ordered the landlord to pay $22,800.

The Court (per Baker J) concludes that this decision is patently unreasonable. At issue was the decision-maker’s totally flawed treatment of evidence. The arbitrator’s decision was premised on the rejection of evidence from the landlord’s agent, but the Court concluded that “the basis for doing so is patently unreasonable. At no time was Mr. Davies’ [the agent] evidence challenged as to its veracity, the source of his knowledge, or any of the other faults expressed by the arbitrator in his reasons” [27].

This is a classic arbitrary evidence error. It rises to the level of an error of law—a clear one. So, one can see the analogy to Harding. Where errors in law or evidence are clear, one can remit. But where you have to dig a bit, or where there is legitimate debate—as there clearly was in both Mason and Pepa—choosing not to remit or declaring one reasonable result is a back-door entry to correctness review.

The Supreme Court frequently calls this “robust reasonableness review.” I do not know what that term means. But whatever it means, reasonableness is not correctness review.

In the News

• Universal Ostrich Farms Inc v Canada (Food Inspection Agency) (SCC): The ostrich cull saga has reached its legal conclusion. On November 6, 2025, the Supreme Court of Canada dismissed the application for leave to appeal from the FCA’s decision upholding the CFIA’s culling order. The case serves as a stark reminder that while administrative policies must be reasonable, courts will rarely second-guess technical/scientific determinations made by expert regulators under broad statutory grants of discretion—even when the outcome (depopulation of healthy birds) feels intuitively harsh.

• Alberta’s Regulated Professions Neutrality Act: On November 20, the Alberta government announced new legislation that will significantly alter the landscape of professional self-regulation in the province. The Act aims to limit the ability of professional regulators to discipline members for “off-duty” expressive conduct (with exceptions for violence or sexual misconduct) and restricts mandatory training to matters of professional competence. Notably for administrative lawyers, the Act purports to impose a standard of correctness review on decisions involving these new protections—a direct legislative intervention into the standard of review framework in the post-Vavilov world. This, of course, is contemplated by Vavilov.

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  Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

When I started SEAR 4.5 years ago, I assumed only a small group of administrative law hyper-nerds would care about developments in the field. Over 2,200 subscribers later, I have been happily proven wrong—or maybe, better yet, we are all administrative law hyper-nerds.

SEAR was born in the aftermath of the Supreme Court’s significant decision in Vavilov, with the initial goal of tracking developments in those early days. Thanks to all of you, it has been a pleasure to do this as we’ve tracked this landscape together, almost every Sunday.

Several years on, the landscape has changed. Vavilov is now solidly entrenched in the fabric of Canadian law. There are fewer cases turning on the standard of review and more on substance—interpretive questions, procedural disputes, or evidentiary arguments. As Justice Stratas noted in this newsletter, in shifting the terrain of administrative law, the Supreme Court succeeded mightily.

This success has naturally changed my task. There are simply fewer weekly cases dedicated to fleshing out the Vavilov framework. In light of this, it is time for SEAR to take a new approach, one better attuned to the current state of administrative law.

The New Approach

Going forward, the newsletter will move from a weekly to a monthly schedule, published on the last Sunday of each month. In addition to the monthly newsletter, I will also release additional special editions of the newsletter as warranted during a particular month with key SCC and appellate cases.

The substantive focus will remain on the law of judicial review, broadly construed. While this will still include Vavilov developments, I will also cover cases and issues related to:

• Statutory and constitutional interpretation, and other public law issues;

• Procedural fairness; and

• Practical issues pertaining to administrative adjudication.

In addition to this roundup, you can expect links to helpful analysis, my own commentary on current issues in the news and in the law, and other materials to assist judges, lawyers, and practitioners.

This new model will allow me more time to present the best possible roundup and analysis, take a broader, more thematic view of the field, and deliver a newsletter that is better attuned to the nature of administrative law today in the post-Vavilov world. It will, as always, remain free of charge.

I hope you will stick around for the next iteration of SEAR. I firmly believe that, as a legal academic, it is my responsibility to contribute to the bar and bench. More and more, we need scholars to clearly articulate our “value-add”—to the profession and the public more generally. For that reason, this newsletter is not about politics or philosophy; it is about law and legal adjudication for legal professionals.

Next Steps

I will be taking the rest of October to re-calibrate the newsletter. The first edition of the new SEAR will arrive in your inboxes on Sunday, November 30.

I have always appreciated your support and hope to see you for the next chapter. Thank you, as always, for subscribing and making administrative law fun.

Mark

Langlois v Canada, 2025 FC 1531 (October 15, 2025)

• Category: Statutory interpretation

Context: The applicant is a Canadian Armed Forces (CAF) regular force veteran with 22+ years of service. He was deployed to Haiti but came back to Canada and was honourably released from the CAF in 2012. In 2015, the applicant began a training program. It took him 7 years to complete the program and in late December 2022, the applicant became aware that Veterans Affairs Canada (VAC) administers an education and training funding program for veterans. He applicant submitted an application to VAC, but the VAC denied it. VAC denied his application because the applicant completed his training before he submitted his training plan to the Minister of VAC for approval, which made him ineligible for the benefits. It did so based on its interpretation of s.5.3(2) of the VWA, which permits the Minister to make payments in relation to “upcoming” programs of study.

The applicant argues that s. 78.1 of the VWA expressly allows the Minister and his agents to waive the requirement.

Issue: Is VAC’s interpretation of the relevant provision of the VWA reasonable?

Holding: Yes.

Analysis: This is a fascinating case in which the Court (per Duchesne J) discusses some of the recent trends in statutory interpretation. Good for everyone to save.

I want to highlight Duchesne J’s description of the applicable interpretive principles, to start. Noting, first, that the “actual language of the statute must be taken into account” in reasonableness review [72], Duchesne J cites the relevant passages from the Supreme Court’s decision in CISSS A, 2024 SCC 43. Further noting that there was a “recent trilogy of decisions on statutory interpretation from the Supreme Court of Canada (Piekut v Canada, 2025 SCC 13; Telus Communications v FCM, 2025 SCC 15; and Pepa, 2025 SCC 21), Duchesne J concludes that none of these decisions have changed the modern approach to statutory interpretation [74].

As far as this goes, this is true—none of these decisions purport to change the modern approach, and all purport to apply it. And yet this case is proof-positive of at least a change in emphasis—a focus on the text that eliminates the chances of success of certain arguments under the modern approach. These are arguments that might have achieved some success before cases like CISSS A.

Here, for example, the applicant tried to challenge the prospective nature of s.5.3(2) of the VWA by arguing that the VAC’s decision “does not align with the purpose of the VWA,” “is not consistent with the principle of coherence,” and “produces absurd legal and practical consequences.” These sorts of arguments are less likely to succeed under the re-articulation of the modern approach. While it is true that “plain meaning is not determinative,” this does not mean that reliance on “coherence” or “purpose” can extend the meaning of statutory terms. Here, “the applicant puts forward an interpretation that distorts the words in the VWA setting out the conditions for eligibility and receipt of a statutory benefit, such that the choices and means selected by Parliament are disregarded” [100]. Here, Parliament’s choice of means was reflected in the use of a “limiting time qualifier in the wording of subsection 5.3(2) of the VWA”—the use of the word “upcoming.”

This is a good case that summarizes much of the recent statutory interpretation jurisprudence.

Besler v Summerland (District), 2025 BCSC 1978 (October 9, 2025)

• Category: Reasonableness review.

Context: The petitioner seeks judicial review of two loan authorization bylaws. Bylaw 035 allowed the District to borrow up to $2.6 million to finance road upgrades to Victoria Road South. Bylaw 036 allowed the District to borrow up to $3.3 million to finance road upgrades to Wharton Street. For the bylaws to be approved, it needed to get the approval of the electors. The elector forms informed the voters that if they opposed the bylaws, then they could sign and return the form by February 25, 2025. The bylaws were adopted [10-11]. Meanwhile, the District was addressing a different project – expenditures on a sewage treatment plant.

The petitioner argued that by failing to inform voters of the increased costs from the sewage project, the District deliberately withheld significant financial information from voters on Bylaws 035 and 036

Issue: Is the bylaw substantively reasonable? Was there a duty of fairness owed in relation to the bylaws?

Holding: Yes; and no.

Analysis: Under the Community Charter, loan authorization bylaws may generally only be adopted with the approval of electors. The key argument: the sewage project meaningfully contributed to costs that the electors should know about. In an interesting application of Auer v Auer, 2024 SCC 36, Giaschi J notes that the nature of the bylaw in this case should inform the sort of review the court undertakes.

Giaschi J rejects the applicant’s arguments on substantive review for several reasons—most notably that “…there is nothing in the Community Charter that suggests the District must notify or inform voters of budget deficits or other general financial considerations when seeking approval for a loan authorization bylaw [35]. Given that “the governing statutory scheme, is the most salient aspect of the legal context relevant to a particular decision” this should be fatal [35].

But, interestingly, Giaschi J also notes that the nature of the bylaw—here a loan authorization bylaw—means that review should be chastened. This is particularly so where there are no mandatory legal considerations for a court to apply [36]. Loan authorization bylaws “engage the public interest and a wide array of political, economic and social factors” [36].

Giaschi J’s conclusion in this case reinforces the general trend of Auer review. Where the promulgation of a legal instrument involves mandatory and precise legal considerations, the scope of power conferred to the promulgator will be restricted by those considerations. However, courts should otherwise defer when the promulgation of an instrument is unfettered by precise legal constraints.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

• Category: Statutory interpretation.

Context and Issue: At issue in this case is a narrow issue of statutory interpretation. Under s.112 of the Canada Transportation Act, “[a] rate…established by the Agency” in Division IV of the law “must be commercially fair and reasonable to all parties.” In this case, the Canadian Transportation Agency was setting interswitching rates under a provision of Division IV.

Canadian National Railway (CN) argued that the Agency erred in law. Specifically, the Agency didn’t consider evidence concerning relevant commercial markets including any interswitching rates in other markets and commercial market prices.

The Agency argued that commercial market factors are irrelevant under the Canada Transportation Act when it sets interswitching rates. Relying on its own line of decisions, the Agency’s pricing methodology seems to have excluded commercial market factors [10]. But the Agency did not base this conclusion on any statutory interpretation but rather its own view of “practicality” and “reliability” [8]. It seemed to conclude that reliance on commercial factors is always irrelevant under the relevant statutory provisions [22, 32].

Analysis and Conclusion: The Federal Court of Appeal (per Stratas JA) concludes that the Agency’s implied interpretation of the relevant provisions was incorrect. In so doing, it offers some guidance on statutory interpretation—how to do it. It also shows what it means for the text to be the anchor of the modern approach.

First, one senses that the Agency’s apparent failure to—in any of its previous decisions—explicitly engage with the text, context, and purpose of the provisions moved the Court. Stratas JA pointedly noted that that “…the Agency did not identify any of its earlier decisions where it has conducted a complete and adequate statutory interpretation analysis. It could not, because there haven’t been any” [48]. And: “[c]utting corners and conclusory statements, without more, are not how the Agency should roll” [44]. Stratas JA encapsulates three reasons underpinning the value of administrative interpretations of law, demonstrated through reasons.

1. Reasons “require careful and rigorous work that often exposes faulty reasoning before the decision is released” [46].

2. Related to procedural fairness, adequate reasons “tell the parties that their key arguments were taken on board and considered…” [46].

3. Reasons help to further the accountability of administrative decision-makers to the parties, reviewing courts, and the public— “something needed more than ever in these days of widespread skepticism, cynicism, and mistrust of government” [46].

On the issue of interpretation, Stratas JA deepens the Supreme Court’s recent textual turn, signified by cases like CISSS A, 2024 SCC 43 (Issue #162). Stratas JA begins with the text of the relevant provisions, focusing specifically on s.112, breaking it down into three parts: “fair and reasonable”; “commercially” and “to all parties.”

Dealing with the first part, Stratas JA pays close attention to the relative generality of the phrase. He notes that “ ‘fair and reasonable’ is one of the broadest phrases in the statute book” [21]. In this context, that denotes a permissive approach— “…words of such breadth empower administrative decision-makers” to rely on statutory purposes, enrich decisions with practical experience and subjective judgment, and weigh competing considerations [21]. Here, words of such breadth could encompass commercial market factors. This makes the Agency’s view that market factors are always irrelevant unjustified by the statutory text—such a restrictive view of the text is belied by its semantic meaning.

The other parts of the statutory terms reinforced this conclusion. A rate that is fair and reasonable to all parties must consider market factors, because otherwise the concerns that make a rate fair and reasonable to CN would be excised from consideration. The word “commercially” merely adds to this conclusion [27].

The textual provisions, taken together, show that it is unjustified for the Agency to completely exclude commercial market factors in every case. That perspective is inconsistent with the statutory language.

Besides a sound approach to the text, Stratas JA also weighs in with a discussion of the relationship between text and purpose under the modern approach, and specifically its connection to the text-as-anchor. It is well-regarded that purpose may be relied upon—especially in cases where the text is broad and open-ended—in order to test competing interpretations: see Williams v Canada (Public Safety and Emergency Preparedness), 2017 FCA 252. Relatedly, purpose can also, sometimes, be used to narrow the broad meaning of a term amenable to multiple interpretations if taken literally: see Keatley v Teranet, 2019 SCC 43.

Here, Stratas JA explains why purpose can be used to show why the broad meaning of the statutory terms encompassing market factors should be accepted, and the Agency’s perspective rejected. Here, relevant statutory purposes emphasized the importance of competition and market forces [31]. As a result, these purposes merely reinforced the breadth of the statutory language, and supplied a reason to reject the Agency’s narrow interpretation: “[g]iven these purposes, how can the Agency say that commercial market factors are always irrelevant as a matter of law to the setting of interswitching rates under section 127.1 of the Act?” [32].

I’ve highlighted this case because it provides one of the best examples yet of what the Supreme Court likely meant when it said the text is the anchor of interpretation. We must pay attention to the relative generality of the statutory terms. Here, the term was broad, inviting recourse to purposive considerations. If the terms were narrower, different methodological choices would have been appropriate.

I also think this case is a good rebuke to an old red herring: that a text-as-anchor approach is akin to “plain meaning” or “literal interpretation.” This case provides a sound example as to why this is a sloppy accusation. First, plain meaning interpretation eschewed resort to purpose if the terms were clear upon plain meaning. One will notice that Stratas JA clearly says that interpretation does not stop at the text—even though the text was decisive here [29]. He resorts to purpose to confirm the meaning of the text. Second, the plain meaning approach provides no guidance to determine whether and how a text is “clear.” The “text-as-anchor” approach does—it looks to the generality of statutory language, a known linguistic phenomenon.

Looking to the text first to consider the extent to which it invites consideration of purpose or policy consequences (as with market conditions here) is not plain meaning interpretation. It merely uses it as an improtant signal as to how the rest of the interpretation exercise should unfold in given statutory contexts. As Driedger noted in the 2nd edition of his text, this approach is quite rooted in our history.

ANH v Saskatchewan (Justice), 2025 SKCA 95 (September 30, 2025)

• Category: Preliminary objections (adequate alternative remedy).

Context: Dr. H and Ms. B lived in BC and have two children. 15 years ago, they started a family law dispute regarding parenting, support, and other issues. Ms. B was granted primary residency of the children and was permitted to move to Saskatchewan. In 2022, she applied to the Director under the Change of Name Act to change her two children’s names. She didn’t give Dr. H any notice of that application and didn’t seek his consent. She only told him after the application was granted. Dr. H sought to declare the change of names invalid on the basis that they were obtained by fraud and misrepresentation

Issue: The main issue I will address pertains to adequate alternative remedy.

Holding: Dr. H failed to exhaust an available adequate alternative remedy.

Analysis: This case is a good reminder of some fundamentals. First, Dr. H argued “that it was mandatory for the Chambers judge to hear and determine his judicial review application…” [21]. That proposition is flat-out wrong. It is the most fundamental rule of judicial review that it is discretionary—both whether a judicial review should be heard, and if the application is successful, whether a remedy should be granted.

On the facts, an adequate remedy clearly existed. The relevant statute provided the Director to annul a change of name if obtained by fraud or misrepresentation. Dr. H’s’ claims clearly fell into the contemplation of the statute. Following the now-orthodox view stated by the Federal Court of Appeal in CB Powell, 2010 FCA 61, Tholl JA was right not to exercise discretion to hear the judicial review, given the adequate remedy [23].

Habibi v. Canada (Citizenship and Immigration), 2025 FC 1675 (October 9, 2025)

• Category: Mandamus.

Context: The applicant is a 39-year-old Iranian national and permanent resident of Canada. He first came to Canada in 2014 as a student, became a permanent resident in 2020 and applied for Canadian citizenship in 2022. The applicant argued that it has taken too long (over 36 months since he applied) to process his citizenship application and the delay has detrimental effect on his professional life as many advanced positions in his profession are reserved for Canadian citizens. The IRCC advised the applicant that they were waiting for his security screening process to complete. But other than this, the IRCC gave no explanation for the delay or a timeline for finalization.

Issues: Is the delay in processing the application unreasonable, warranting mandamus? If so, should costs be awarded?

Holding: Yes, and yes.

Analysis: Here, Azumdeh J brings out a point made in other FC cases: merely relying on “security screenings” as a reason for a delay will not provide an adequate justification for a delay, especially where the delay is substantial. In this case, “the only concern appeared to be the Applicant’s security check, for which there was no end in sight—until the day of the hearing this Court heard that the security check had been passed” [14].

It might have been argued that the respondent’s placing of a “Bring Forward” note in the applicant’s file every six months is an indication that the file is being processed, perhaps undermining the claim of delay. But a “BF” on the file every six months merely “…create an infinite loop…” [16], and is in effect “…a blanket statement that security checks are pending” [18]. That provides no explanation for the delay, which is relevant in assessing the reasonableness of the delay.

Another case where costs were awarded against IRCC.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

Heitner v Dowling, 2025 BCCA 339 (October 1, 2025)

• Category: Application of (patent) unreasonableness standard.

Context: A tenant was renting a condo, but her landlord decided to sell it to a purchaser. The landlord gave the tenant 2-months’ notice. Under the Residential Tenancy Act, a tenant can get 12 months’ rent compensation if the landlord asks the tenant to move out but does not use the unit for the stated purpose (here, moving into the unit within a “reasonable period.”) The condo needed renovations, but it took longer than originally thought, and purchaser did not move in until 6 months after the notice to end tenancy. Before the RTB, the tenant argued entitlement to the 12 months’ rent because the new buyer did not move into the unit within a “reasonable period.”

An RTB arbitrator found the time taken to complete the renovations was unreasonable because the cost and the work that needed to be done didn’t justify the delay. An internal application to the RTB to review this decision was denied.

Issue: Was the arbitrator’s decision to grant the tenant compensation patently unreasonable?

Holding: Yes.

Analysis: I have highlighted this appellate case for two reasons.

First, this is an example of a patently unreasonable decision—a phenomenon, I gather, that has been cropping up more regularly than one might think in BC tribunals.

The arbitrator’s error, here, was one of fact and evidence—and this is fertile ground on which to find a patently unreasonable decision. As the Court (per DeWitt-Van Oosten JA) says, “…it is readily apparent from the arbitrator’s decision that they thought the total amount of the renovations was $25 000 less than the actual cost” [33]. This is the sort of factual error that will undermine the overall conclusion that the buyer did not move in a reasonable period. Adding insult to injury, the arbitrator misapprehended the evidence because “…the renovations were much broader in scope than detailed by the arbitrator” [34].

As it happens, this point also relates to new evidence (before tribunals and on judicial review). The tenant argued that the RTB decision, even if patently unreasonable, could be sustained because in the internal review, the purchaser tried to raise new evidence [38]. She argued that this attempt justified the RTB’s denial of the review application. However, that evidence was designed to demonstrate the arbitrator’s factual errors. Though this case concerns an internal review, it is well-established that on judicial review, new evidence can be adduced to demonstrate the fundamental lack of evidence supporting an aspect of an administrative decision (Association of Colleges, 2012 FCA 22 at para 20). In this case, the evidence the landlord tried to enter would fall clearly in this exception—as DeWitt-Van Oosten JA says, “[t]he application to adduce new evidence and the arbitrator’s factual errors were inextricably linked” [39].

Finally, this is a good case to save on remedies. Here, the dispute between the tenant, purchaser, and landlord began 4 1/2 years ago [47]. Taking account of this fact, DeWitt-Van Oosten JA notes that “[t]he fact of delay (past and future) is an appropriate consideration in declining to remit” [47]. That is a point worth considering: it is not only how the delay might have impacted the case up until the judicial review, but also how the case might be delayed going forward.

Onay v Canada (Citizenship and Immigration), 2025 FC 1596 (October 1, 2025)

• Category: Application of the reasonableness standard (judicial precedent)

Context: This is a judicial review of a decision of the RPD rejecting the applicant’s claim for refugee protection. Accepting the Minister of Public Safety and Emergency Preparedness’ argument, the RPD found that the applicant had reavailed himself of Turkey’s protection because he had returned to Turkey in 2017. The Immigration and Refugee Protection Act [IRPA], which denies refugee status if an individual voluntarily reavails themselves “of the protection of their country of nationality” (s. 108(1)(a), s.108(2)).

Issue: The applicant’s argument on judicial review centred on one issue. He argued that the RPD failed to properly integrate the Federal Court of Appeal’s decision in Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 under the reasonableness standard [3].

Holding: The decision is reasonable.

Analysis: This case presents a good test run of the guidance offered by the Supreme Court on the integration of judicial precedents into administrative reasoning. Most recently affirmed in Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 (Issue #185). That case affirmed that where a decision-maker deviates from a binding judicial precedent, it must offer cogent reasons and justifications for doing so. Moreover, to be extra-careful, Pepa instructs decision-makers to conduct a fresh statutory interpretation analysis. In Pepa, the decision-maker—because of an erroneous reliance on precedent—failed to do so. The takeaway from Pepa is that, on judicial review, a court will look carefully at whether a decision-maker (a) properly engaged with a precedent; (b) properly distinguished it with cogent reasons; and (c) at any rate, rendered a decision that is consistent with the text, context, and purpose of the enabling statute.

Here, Duchesne J concludes that the RPD dealt with Camayo properly and rendered a decision consistent with the relevant statutory provisions. Here, the RPD was arguably on easier ground because it was not attempting to distinguish the facts of Camayo, as the decision-maker in Pepa tried to do with relevant judicial precedents. Rather, this case called upon the RPD to merely apply the three-part test from Camayo. According to Duchesne J, the RPD addressed both the text, context, and purpose of s.108(1) of the IRPA and the factors set out in Camayo. By doing both of these things, the RPD arguably insulated itself from the conclusions that rendered the decision in Pepa unreasonable. A good takeaway for decision-makers.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

• Category: Practice and procedure.

Context: The university cancelled a guest lecturer who intended to critique “woke-ism.” The speaker and an attendee sought judicial review, alleging the cancellation violated Charter rights to freedom of expression and peaceful assembly [4-11]. Before a judge of the ABKB, the applicants’ requested to amend their application for judicial review to include a constitutional challenge to provisions of the Occupational Health and Safety Act. The applicants argued that the constitutionality of the legislation was implicated in the University’s decision-making process, since the University stipulated that it was required to consider the statute in making its decision about the event [12]. At the ABKB, Feasby J rejected this argument and dismissed the application to amend.

Issue: Was Feasby J’s decision to not permit the amendment did not display an error of law and was not unreasonable.

Analysis: I think the Court properly rejects the invitation to find fault with Feasby J’s conclusion. It is true, of course, that the Occupational Health and Safety Act may have played a role in constraining and informing the University’s decision. But given the structure of judicial review of administrative decisions implicating the Constitution, the applicants will be able to raise that argument in challenging the reasonableness of the University’s decision.

More fundamentally, the request to amend the proceedings in this case arguably rests on a misapprehension of the purported object of the constitutional challenge. Here, the applicants argued that the University’s decision was unreasonable. It is not a challenge to the Occupational Health and Safety Act, except to the extent that it informed the ultimate decision. Roping in the Occupational Health and Safety Act as a standalone challenge would arguably expand the case far beyond its limits [27].

R v Arapakota, 2025 ONCA 660 (September 23, 2025)

• Category: Statutory interpretation.

Context and Analysis: This is a criminal law case, but it provides a very good description of the developing approach to the interpretation of statutes in Canada. From the majority (per Gomery JA):

[75] This brings us back to where we started. Legislative intent as disclosed by the text, context and purpose of the law is at the centre of the modern approach to statutory interpretation. The principles I have reviewed are relevant to assist in discerning that intent where the words of a statute are ambiguous or capable of bearing competing interpretations. All of this is in service to the interpretation of the words used in a statute. Interpretive principles cannot be used to rewrite statutory language. As Lebel J. observed in Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20 , [2006] 1 S.C.R. 715, at para. 23: “Reference to the purpose of the provision “cannot be used to create an unexpressed exception to clear language”. Where, as in this case, the provision admits of more than one reasonable interpretation, greater emphasis must be placed on the context, scheme and purpose of the Act. Thus, legislative purpose may not be used to supplant clear statutory language, but to arrive at the most plausible interpretation of an ambiguous statutory provision. [Citations omitted.]

[76] As pithily stated in MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 39, “the goal of the interpretative exercise is to find harmony between the words of the statute and the intended objective, not to achieve the objective ‘at all costs’”.

Talwar v. Law Enforcement Complaints Agency, 2025 ONSC 5136 (September 19, 2025)

• Category: Procedural fairness.

Context: The applicant argues that two police officers’ conduct in handling his complaint was not professional. The applicant went to the Ottawa Police Service and made a complaint, but the OPS didn’t find the officers’ conduct was unreasonable. The applicant disagreed with the conclusion and then requested a review by the Law Enforcement Complaints Agency [the LECA]. The LECA “concluded that the investigation adequately addressed the allegations in the complaint and that it was reasonable for the OPS to conclude that there was insufficient evidence to establish, based on reasonable grounds, that misconduct had occurred” [1].

Issue: Is the decision unfair?

Holding: No.

Analysis: I highlight this case because of interesting—and sometimes forgotten—points about procedural fairness. Among other things, the applicant argued that the process was unfair because he did not receive certain responses he was allegedly promised by police, nor was he given promised audio recordings of the phone calls giving rise to the complaint [26]. Two points on this. First, the Court properly finds that this argument fails because “…the applicant does not have an adequate factual foundation to advance his arguments” [28]. There was simply no evidence in the record that the applicant was promised anything [28]. A word to the wise: procedural fairness allegations must be supported by the record.

Secondly, it is important to keep in mind the principles at the heart of procedural fairness. In this case, disclosure of the information sought by the applicant would, in his view, vindicate his procedural rights. But the doctrine of procedural fairness does not ask whether the applicant was owed specific information. Instead, it asks whether the information provided allowed him to know the case to meet. In this case, the “applicant received a detailed summary of the police officer responses to his complaint in the investigation report” [28]. Since the applicant knew the substance of the evidence, there was no need to disclose information that, as it happens, was non-existent.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

Song v. The Law Society of Alberta (LSA) 2025 ABKB 525 (September 12, 2025)

• Category: Subordinate legislation/rules

This is a judicial review about the scope of LSA’s authority under the Legal Profession Act (LPA). The applicant, Song, is an active member of the LSA and filed an application for judicial review to challenge the validity of certain actions taken by the LSA in developing a continuing professional development program and amending its Code of Conduct. Among other things, the Benchers of the Law Society enacted new rules adopting a one-time course of mandatory Indigenous cultural competency training, and set out a timeline for completion of the program and exemptions from it. The Benchers also amended the a portion of the Code of Conduct related to discrimination, harassment, and sexual harassment. Song sought judicial review of these actions.

Issue: Are the impugned rules beyond the powers of the LSA’s enabling statute?

Holding: No.

Analysis: In rejecting the applicant’s arguments, the Court (per Kachur J) makes some interesting observations. While this case is politically sensitive, the legal fundamentals are somewhat clear.

First, Kachur J rejects the argument that the correctness standard applies to this issue based on the argument that “…the LSA has encroached on the Alberta bar’s independence in a way that ‘tends to erode loyalty to Canada’s constitution’ and negatively impacts a lawyer’s duty to their clients” [41]. This argument sounds in the Constitution, and so one may think it constitutes a central question of general importance to the legal system as a whole. Not so: this is a humdrum case of legislative interpretation in which the court must determine whether the impugned rules fall within the enabling statute.

Second, Kachur J makes several comments about the breadth of the LSA’s power under its constating statute. The applicant argued that the LPA did not have a “public interest clause,” meaning that the its objectives must be “discerned from ‘the narrower duties and powers it grants’” [72]. While such a purpose clause might be informative, I agree with Kachur J that it is not decisive. She begins in the right place: by noting that the generality of the rule-making authorities in the LPA are broad, rather than tightly constrained [79-82]. The LPA’s general rule-making powers permit it to enact certain standards for lawyers as a matter of basic competency. In this way, there is a rational connection between the adopted rules and the enabling statute—and under Auer review, this is enough.

The presence or absence of a purpose clause is never definitive in interpretation. A purpose clause, where included, can provide useful information about the motivating aim of a statute. But best drafting practice might caution against the regular inclusion of purpose clauses, because they never can replace a complete textual, contextual, and purposive analysis of the “text-to-be-interpreted.” In absence of a purpose clause, the applicant was onto something—we must interpret the text of the law as it reads. But, conversely, this does not mean that the absence of a purpose clause is itself definitive against a broad public interest mandate.

Sidhu v. Canada (Citizenship and Immigration) 2025 FC 1510 (September 12, 2025)

• Category: Procedural fairness.

Context: The applicant seeks judicial review of the decision of an Immigration Officer who denied her application for permanent residence because she has not established that she met the criteria as an overage dependent. To meet the requirement of an overage dependent, she needed to show: (1) 22 years or older and has depended substantially on the financial support of the parent before age 22, (2) dependence went beyond age 22, and (3) dependence was due to a physical or mental condition She submitted documents that contradicted the requirement, and the Immigration Officer denied her application based on the “credibility” of the report.

Issue: The applicant argued that she was owed notice and an opportunity to respond because the Officer questioned her credibility.

Holding and Analysis: The Court (per Pentney J) rejects this argument. As we know, the line between credibility and sufficiency findings is murky at best. Courts must look to the substance of the finding. Here, Pentney J concludes that the Officer “was careless in using the word ‘credibility’ to describe why the Report was given minimal weight” [20]. But the Officer’s concerns were really about the sufficiency of evidence. In that sense, the Officer’s mere use of the word “credibility” is not fatal, because in practice, the Officer was simply saying that the applicant needed more evidence to meet the qualification of an overage dependent. This is a good case to save because it presents a core principle: mere use of the word “credibility” is not, on its own, a reviewable error.

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.