NCA Mentor 2023

CANADIAN ADMINISTRATIVE LAW

Practice Sample Question

QUESTION (30 Marks in Total)

Approximately 54 minutes including reading time.

The Toronto Police were called to a domestic event which involved the complainant and his

brother who claimed that the complainant assaulted him by pushing him against a wall and

holding his neck up against the wall. The offers noticed bruising on the brother’s neck. They

arrested and handcuffed the complainant. The complainant was not cooperative. Whilst trying

to escort the complainant to the car, the complainant refused to walk. Instead, he kept his body

stiff and did not move. The police officers asked the complainant to cooperate and the

complainant in response lay on the ground. The officers had to drag him into the police vehicle.

At the Arresting Unit, the complainant did not adhere to requests to remain still. At one point, he

attempted to run away. The officers had to restrain and hold him using force to keep him in

place. The events took place on camera at the Arresting Unit and on the body-worn camera of the

officers. All the explained actions were documented.

Though the complainant admits he assaulted his brother, he alleges that the police officers

inappropriately applied force in arresting him, that they were aggressive with handcuffing and

that the officers applied more force than necessary to get him into the police vehicle. He further

alleges that they bruised him whilst trying to keep him still at the Arresting Unit. However, he

has failed to produce any evidence of the bruising or medical documentation. The Toronto

Police Commission has dismissed the complainant’s complaint. The Commission based its

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reasons on the evidence of the domestic event and the behaviour (noncooperation) of the

complainant, as per the camera recordings, both the body-worn officer cameras and the cameras

as the station (i.e., Arresting Unit). The reasons were put into a written report which reiterate the

events and focus on the complainant’s non-compliance and the need for the officers to apply

force in order to escort him to the Arresting Unit and complete the necessary procedure for

domestic abuse and assault.

The Complainant seeks judicial review of the decision to dismiss his complaint on the basis that

the decision is unreasonable. Is the court likely to provide the remedy that the complainant is

seeking?

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IRAC APPROACH – ISSUE, RULES, ANLYSIS, CONCLUSION

ISSUE

The main issue is whether the decision to dismiss the complainant’s complaint was unreasonable.

If determined to be unreasonable, then the court will likely set aside the dismissal of the

complaint.

RULES

Standard of Review

• The Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, (2019) SCC

65 (CanLII) adopted a revised framework for determining the standard of review where a

court reviews the merits of an administrative decision (para 10).

• “The analysis begins with a presumption that reasonableness is the applicable standard in

all cases. Reviewing courts should derogate from this presumption only where required

by a clear indication of legislative intent or by the rule of law” (para 10).

• The situations wherein the standard of correctness would be applicable do not apply in

the case at hand; this includes when “the legislature explicitly prescribes the

applicable standard of review” and “where the legislature has provided a statutory appeal

mechanism from an administrative decision to a court” (para 17). The second situation

where the presumption of reasonableness review will be rebutted is when the

rule of law mandates the standard of correctness be applied: “certain

categories of questions, namely constitutional questions, general questions of

law of central importance to the legal system as a whole and questions related to the

jurisdictional boundaries between two or more administrative bodies” (para. 17).

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• As stated in Vavilov, “Reasonableness review is an approach meant to ensure that courts

intervene in administrative matters only where it is truly necessary to do so in order to

safeguard the legality, rationality and fairness of the administrative process” (para. 13).

• The standard of review in this case is reasonableness; this default standard is not rebutted

in the circumstances at hand (i.e., none of the correctness categories apply).

The Standard of Reasonableness

• The role of courts when applying the standard of reasonableness is to review.

• As a general rule, the courts are to refrain from deciding the issue themselves.

• Accordingly, a court applying the reasonableness standard does not ask what decision it

would have made in place of that of the administrative decision maker, attempt to

ascertain the “range” of possible conclusions that would have been open to the decision

maker, conduct a de novo analysis or seek to determine the “correct” solution to the

problem…(Vavilov, para. 83).

ANAYSIS

Reasonableness: Was the decision to dismiss the complainant’s complaint reasonable?

• The Commission dismissed the complainant’s complaint; we must consider whether this

was a reasonable or unreasonable decision. Whether there are other reasonable outcomes

or possible conclusions is not relevant.

• In considering the reasonableness of the Commission’s decision, a court will not

substitute one reasonable outcome for another (Newton v. Law Enforcement Review

Board, 2010 ABCA 399)

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• The focus of a reasonableness review must be on the decision itself; this includes “both

the reasoning process and the outcome. A reasonable decision is one that is based on an

internally coherent and rational chain of analysis that is transparent, intelligible and

justifiable” (Fong v Calgary (Police Commission), 2022 ABLERB 19 (CanLII), para 12).

• Where written reasons have been provided, analysis of those reasons is where a

reviewing court must commence its inquiry (Vavilov, para 84). In the case at bar, the

reasons were based on the evidence of the events that transpired; these events were all

captured on camera footage during the arrest (body-worn officer cameras) and attendance

at the Arresting Unit (cameras at the Arresting Unit). These reasons were documented in

writing. We have an account and record of the events and behaviour of both the officers

and complainant. Thus, the reasons can be inferred in this situation.

• Based on the evidence of what occurred during the event, it appears the Commission’s

decision was reasonable. The officers went to the scene and arrested the complainant due

to his brother’s allegations. Note: the issue is not about whether the officers should or

should not have arrested the complainant. The officer’s had body-worn cameras which

tapped the footage. The complainant every step of the way made the duties of the

officers difficult. He did not cooperate on multiple occasions, including during the arrest

procedure and at the Arresting Unit.

• Whilst trying to escort the complainant to the car, the complainant refused to walk. The

complainant kept his body stiff and did not move. Thus, the officers would have needed

to pull/drag/apply force to the complainant to lead him into the police vehicle. This force

was not arbitrarily applied or unreasonable. Sufficient force would be mandated to place

a resistant grown man into a police vehicle.

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• At the Arresting Unit, the complainant did not adhere to requests to remain still. The

officers had to restrain and hold him using force to keep him in place. These actions, once

again, were necessary to maintain compliancy and order. The actions of the officers were

not unreasonable; they were appropriate and necessary given the circumstances.

• The complainant alleges bruising due to the force of the police officers; however, he has

not produced any evidence to support this allegation. Without evidence of injury or

bruising it would be difficult to support a claim that the force applied was more than

necessary, particularly given the actions of the complainant during the arrest.

• It is important to note “where reasons are provided but they fail to provide a transparent

and intelligible justification…the decision will be unreasonable. In many cases, however,

neither the duty of procedural fairness nor the statutory scheme will require that

formal reasons be given at all: Baker, at para. 43” (Vavilov, para. 136).

• It is clear that if the written report of the Commission was founded on the events which

occurred and focused on the need of the officers to apply force in order to escort the non-

compliant and disobedient complainant to the Arresting Unit, then these reasons provide

transparent and intelligible justification. The reasons themselves are grounded in facts

and evidence – this is intelligible and justifiable (Delta).

• The complainant’s main concern and issue was that the officers applied more force than

necessary. "The principles of justification and transparency require that an administrative

decision maker’s reasons meaningfully account for the central issues and concerns raised

by the parties” (Vavilov, para. 127).

• The Commission concentrated on why the force was necessary. Based on the strongly

non-compliant behaviour of the complainant, it would appear that dragging the

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complainant into the vehicle would have been necessary, if he stood still and then lay on

the floor to resist being escorted to the police vehicle. Moreover, if the complainant

refused to remain still at the Arresting Unit and even tried to escape, then the officers

would have had no other choice but to restrain him.

CONCLUSON

The decision made by the Commission to dismiss the complainant’s complaint was a reasonable

one. The Commission’s decision was transparent (relied on clear direct evidence), intelligible,

and justifiable (force applied by the officers was rational and justified given the behaviour and

non-compliance of the complainant). There is no absence of logic or reason, and the Commission

did not fail to justify its decision in light of the relevant factual and legal constraints. As such, a

court will not set aside the decision made by the Commission to dismiss the complaint.