Wednesday 12 February 2014

Deference outside a Decision-Maker's 'Home' Statute: Bernard v. Canada (Attorney General), 2014 SCC 13

There is another aspect of Bernard v. Canada (Attorney General), 2014 SCC 13 (discussed here) that is of general interest. When the matter was remitted to it, the Public Service Labour Relations Board had to address whether its order that an employer had to disclose home contact information of non-union employees was compatible with privacy legislation. In particular, it had to ask whether disclosure to the union would be consistent with "the purpose for which the information was obtained" as per s. 8(2)(a) of the Privacy Act. But the Privacy Act is not something that the Board encounters on a regular basis. Was its interpretation nonetheless entitled to deference?

At the Federal Court of Appeal Evans J.A. explained the problem (2012 FCA 92 at para. 34):
The interpretation of the Privacy Act is thus not within the scope of the Board’s expertise, and the presumption of judicial deference applicable to the Board’s interpretation of its enabling statute, or one closely connected to it, does not apply here.
And he justified a deferential approach by noting that the issue was not one of "general application" of the Privacy Act and turned on findings of fact made in the labour relations context in which the Board is undoubtedly expert:
[36]           To be precise, the Board had to make findings of fact about the CRA’s purposes in collecting the home contact information and about the use that PIPSC proposed to make of it. In addition, it had to define the scope of the duties imposed by the PSLRA (the Board’s “home statute”) on PIPSC as the bargaining agent of all members of the AFS bargaining unit, including Ms Bernard. On findings of fact and the interpretation of the PSLRA, the Board is entitled to deference.
[37]           Moreover, whether PIPSC’s proposed use of the information and the CRA’s purpose in obtaining it are “consistent” is a question of mixed fact and law that does not involve any readily extricable question of more general application that would elevate it to one of statutory interpretation. That the question in dispute does not involve the interpretation of the Privacy Act weakens the case for reviewing the decision for correctness, especially since the Board was applying a provision of that Act to a labour relations context, its undisputed area of expertise. 

[38]           On the basis of all these considerations, the decision of the Board in this case should be reviewed on a standard of reasonableness.
In addition, the Privacy Commissioner had prepared an opinion for the employer on whether the Board's order would be a consistent use, an opinion that was put before the Board.

But even though the issue was teed up perfectly for it, the Supreme Court skipped over it almost entirely, saying only:
[33]                          In our view, the Board made a reasonable determination in identifying the union’s proposed use as being consistent with the purpose of contacting employees about terms and conditions of employment and in concluding that the union needed this home contact information to carry out its representational obligations “quickly and effectively”: para. 167.
Thus no principled basis whatever was advanced for deferring to the Board's decision, even though it involved interpreting the Privacy Act. This is very disappointing (though in line with the minimalistic approach the Court has recently taken to doctrinal questions about the standard of review) especially given that this sort of issue was recently addressed by the Quebec Court of Appeal in Courses automobiles Mont-Tremblant inc. c. Iredale, 2013 QCCA 1348 (discussed here) and of course by Evans J.A. in the Federal Court of Appeal.

In the absence of a statement of principle it is difficult to know if anything of general application can be taken from the Court's decision in Bernard. In recent times the Court has consistently reviewed decisions for reasonableness and has eschewed the interventionist correctness standard. But without a principled basis for deference offered from on high, reviewing courts around the country are more likely to succumb to the temptation to meddle in regulatory domains.


  1. I think I disagree with the general thrust of your point here.

    Specifically, you write that Evans JA identified a 'problem' and that the SCC failed to resolve it or offer any principled basis for deference. I do not think that Evans JA identified any 'problem', so there was nothing needing resolution at the SCC. It simply proceeded on the 'principled basis for deference' already advanced in the judgment under appeal.

    The Privacy Act being a 'non-home-statute' was just one factor in the standard of review analysis, and not in itself a free-standing obstacle to deference. In addressing this factor, Evans JA (on my reading) was only observing that the standard of review analysis yielded a result less than utterly unequivocal, though still with a plenty-principled basis for deference. (I note here: does not a "strong preclusive clause" provide an amply principled basis for deference on its own, regardless of the Board's expertise in the Privacy Act?)

    In other words, in Evans JA's standard of review analysis, the particular factor of 'home statute' alone did not generate a presumption of deference. But other factors did. (And nothing rebutted the presumption, though perhaps this is precisely the point you would take issue with or call unresolved with regard to the 'home statute problem'.) So there was no 'problem' for the SCC to address; there was no reason to doubt that the Board was entitled to deference.

    In sum, I cannot agree with your conclusion: that "without a principled basis for deference offered from on high, reviewing courts around the country are more likely to succumb to the temptation to meddle in regulatory domains." We have seen (almost?) nothing but reasonableness review emanate from on high as of late, and nothing but admonitions to lower courts to toe the party line on that point. I don't see any absence of principled reasons for this position.

    1. If they "simply proceeded on the 'principled basis for deference' already advanced in the judgment under appeal", they might have had the good grace to say so! Perhaps there are good reasons for deference here. But they need to be stated, not asserted. If the court continues to fail to identify criteria for "jurisdictional" or "legal" questions where the standard is correctness then its admonitions will fall on deaf ears.

    2. None of these comments mention that the Privacy Commissioner of Canada - who was an intervener in this SCC case and whose home-statute is indisputably the Privacy Act – has opined for more than 20 years that the disclosure of home contact to unions without the employees’ consent is a violation of the Privacy Act. If deference is owed to any of the parties in these proceedings, it seems clear that deference belongs to the Privacy Commissioner of Canada whose mandate is to ensure compliance with the Privacy Act.

  2. (One more bit to add to my parenthetical question on preclusive clauses: I suppose one could say that the presence of a preclusive clause, even a strong one, would not be a 'principled' reason for deference as it is a formal and not substantive reason for deference. I am hesitant about how firm this distinction can be drawn, and in any event, whether it is accurate to say that 'principled' reasons for deference reside only in the latter category.)