Decision to conduct inquiry subject to judicial review only in the narrowest of circumstances: Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756 no longer good law

Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10 deals with a judicial review of an early determination of a human rights commission to conduct an inquiry.  The Court held that such was subject to judicial review only in the narrowest of circumstances and ruled Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756 is no longer good law. 

 

A case summary follows:

 

The complainant, a francophone Acadian parent who had children enrolled in one of the French first language schools in Halifax, filed complaints alleging that the funding arrangements for the schools discriminated against him and his children on the basis of their Acadian ethnic origin.  Following municipal amalgamation and the consequent amalgamation of the affected school boards, Halifax imposed a tax to allow it to satisfy the statutory requirement that it maintain supplementary funding to schools that had received such funding prior to amalgamation.  However, Halifax schools that formed part of the newly created Conseil scolaire acadien provincial, a province wide public school board that administers French first language schools, did not receive supplementary funding.  Legislation did not require Halifax to provide it to these schools.

 

After investigating the complaints, the Commission requested that a board of inquiry be appointed.  Shortly thereafter, a Charter challenge brought by other parents led to a statutory amendment providing for supplementary funding for Conseil schools in Halifax.  The Charter challenge was dismissed on consent.  Halifax applied for judicial review of the Commission’s decision to refer the complaint against it to a board of inquiry.  A judge of the Nova Scotia Supreme Court set the referral decision aside and prohibited the board from proceeding.  The Nova Scotia Court of Appeal reversed and cleared the way for the board of inquiry to go ahead.

 

 Held:  The appeal should be dismissed.

 

Judicial intervention is not justified at this preliminary stage of the Commission’s work.  The Commission did not decide that the complaint fell within the purview of the Act.  Instead, the Commission made a discretionary decision that an inquiry was warranted in all of the circumstances.  That decision should be reviewed for reasonableness.  The decision was reasonable in the circumstances of this case.  Whether judicial intervention is justified at this preliminary stage of the Commission’s work turns mainly on the ongoing authority of this Court’s decision in Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756 (“Bell (1971)”).  It remains good authority for the proposition that referral decisions are subject to judicial review, but, beyond that, it should no longer be followed and courts should exercise great restraint in intervening at this early stage of the process.  Under the contemporary Canadian law of judicial review, questions that would have been considered jurisdictional under Bell (1971) would not be so quickly labelled as such.  Moreover, the notion of “preliminary questions”, which permeates the reasoning in Bell (1971), has long since been abandoned.  Even more fundamentally, contemporary courts would not so quickly accept that questions such as the one dealt with in Bell (1971) can be answered by an abstract interpretive exercise conducted without regard to the statutory context.  Early judicial intervention also risks depriving the reviewing court of a full record bearing on the issue; allows for judicial imposition of a “correctness” standard with respect to legal questions that, had they been decided by the tribunal, might be entitled to deference; encourages an inefficient multiplicity of proceedings in tribunals and courts; and may compromise carefully crafted, comprehensive legislative regimes.  Moreover, contemporary administrative law accords more value to the considered opinion of the tribunal on legal questions, whether the tribunal’s ruling is ultimately reviewable in the courts for correctness or reasonableness.

 

Given the breadth of the Commission’s discretion and the preliminary nature of its referral decision, a reviewing court should intervene in such a decision only if there is no reasonable basis in law or on the evidence to support it.  This standard of review ensures that the reviewing court gives due deference to both the administrative decision and the administrative process.  Whatever the ultimate merit of the complaints in this case might be, the information before the Commission provided it with a reasonable basis for referring the novel and complex complaints to a board of inquiry.  The report of the Commission’s investigator, along with the surrounding circumstances, provided a reasonable basis in law and on the evidence for the Commission’s decision and it made no reviewable error.