The Space Between: Dunsmuir Complications in Grace Johnston v Director of Vital Statistics for the Province of Alberta
An application has been filed for leave to appeal to the Supreme Court of Canada (“SCC”) in the matter of Grace Johnston v Director of Vital Statistics for the Province of Alberta, et. al [Johnston]. If the SCC choose to hear Johnston, it will have the opportunity to provide much needed clarity to administrative law in the aftermath of Dunsmuir v New Brunswick,  1 SCR 190 [Dunsmuir].
Leo Johnston, an RCMP officer, was killed in the line of duty. His parents and widow Kelly Johnston, agreed that his remains would be interred in an Alberta cemetery. However, Kelly Johnston later learned that under RCMP policies, her husband was entitled to burial in an RCMP cemetery, located in Saskatchewan. In light of this information, she applied to the Director of Vital Statistics for Alberta for a disinterment permit. The Director granted the permit, and more than two months after this decision, Kelly informed Leo’s mother, Grace Johnston, that Leo’s remains would be moved. Grace Johnston sent the Director a letter objecting to the disinterment, but the Director did not rescind the permit.
Grace Johnston then applied for judicial review of the Director’s decision to grant the permit under the Cemeteries Act, RSA 2000, c C-3 [Act]. In Johnston v Alberta (Director of Vital Statistics), 2007 ABQB 597, the reviewing judge utilized the factors set out in Vo v Alberta (Workers’ Compensation Board Appeals Commission), 2006 ABQB 899 to determine the appropriate standard of review for the Director’s decision. The Vo factors address the presence of a privative clause, the expertise of the Director, the purpose of the Act, and the nature of the decision. While the Act did not contain a privative clause, (an absence that suggests less deference to a Director’s decisions), the Director in this case was entitled to more deference as a result of her presumed level of expertise, her decision-making power granted under the Act, and the discretionary nature of that decision-making power.
In light of the increased level of deference awarded to the Director, the reviewing judge arrived at the standard of reasonableness. In order to establish unreasonableness in a judicial review, the applicant must demonstrate that there is no analysis that would lead the Director to issue the permit. According to the reviewing judge, the applicant did not meet this requirement.
In an argument that was subsequently expanded upon in the Alberta Court of Appeal (“ABCA”), the applicant also asserted that the Director’s breach of a policy respecting objections to disinterment constituted a legal error. The reviewing judge disagreed, holding that the policy had no legal effect in the circumstances of this case, as the policy was more likely geared towards situations where the initial burial of human remains has not yet occurred, not when the permit has already been issued. He also noted that the application did not make out any procedural errors that would amount to a lack of fairness. As a result, Grace Johnston’s judicial review application was dismissed. She consequently appealed the decision to the ABCA.
The plot thickened, however, when, shortly after factums submitted to the ABCA, the SCC rendered its decision in Dunsmuir. Several posts on TheCourt.ca have summarized and opined on Dunsmuir, (see, for example contributions by Lorne Sossin and Gus Van Harten). As a result of Dunsmuir, patent unreasonableness was eliminated from the lexicon of judicial review. The impact of Dunsmuir on subsequent administrative law decisions prompted the ABCA to invite all parties to submit additional arguments prior to judgment, addressing how this new legal framework would affect the proceedings.
In her appeal, (Johnston v Alberta (Director of Vital Statistics), 2008 ABCA 188) of the reviewing judge’s decision, Grace Johnston argued that the judge erred in three ways: (1), in selecting the reasonableness standard as opposed to that of correctness, (2), in failing to give legal effect to the policy on objections, and (3) in failing to find that the Director’s conduct violated the applicant’s right to procedural fairness.
Following Dunsmuir, the ABCA laid out the new procedures to be followed by the reviewing court. The court reasoned that if there is existing case law regarding the applicable standard, the reviewing court should defer to precedent, rather than undergoing an unnecessary analysis to identify which standard should apply. The court should only conduct such a contextual analysis when no standard of review is identified in the case law. According to Dunsmuir, this analysis should include a consideration of such factors as the existence of a privative clause, the tribunal’s purpose as laid out in its enabling legislation, the nature of the question(s) at issue, and the tribunal’s expertise.
The appellate decision did not explicitly address the first ground of appeal related to the appropriate standard of review. Though it is difficult to locate in the written decision, it appears that the question became moot in light of Dunsmuir, for two reasons. Firstly, the Dunsmuir case itself introduced a new standard of review analysis, so the reviewing judge’s method was no longer relevant. The appellate court was therefore required to reassess the judicial review decision on a correctness standard. Secondly, the first step in the Dunsmuir analysis is to determine whether there is a binding authority on the issue. The ABCA believed this to be the first time in Alberta that a decision made by this decision-maker, within this context, has ever been judicially reviewed. As such, the appellate court was required to use Dunsmuir’s contextual approach for unprecedented cases. Thus, the standard used in the appellate court’s analysis was correctness, even though this was not specified in relation to the first ground of appeal.
On the second ground of appeal, the appellant argued that the impugned policy issue involved a question of law, and was therefore outside of the expertise of the Director. The appellate court agreed that the issue of the legal effect of the guidelines was one of law, and therefore reviewable on a standard of correctness.
Despite identifying correctness as the appropriate standard of review, the ABCA nevertheless dismissed Ms. Johnston’s second ground of appeal. The general rule governing this issue is that regulations, rules, by-laws and orders are legally binding, whereas policy statements and guidelines are not. However, an exception exists if, on a functional and purposive approach to the nature of the guidelines, it becomes clear that the policies are a form of law akin to regulations. The court held that the policy at issue in this case was neither specifically referred to in the underlying legislation nor could it be inferred from the text of the Cemeteries Act. The policy was thus held to not have force of law.
The court determined that the third ground of appeal, dealing with procedural fairness, was also reviewable on the correctness standard. However, the ABCA did not use the Dunsmuir analysis, finding that it was not a controlling precedent on issues of procedural fairness. Instead, the court relied on Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817, which held that issues of procedural fairness or natural justice were reviewable on a standard of correctness.
The appellant argued that the Director breached the rules of natural justice, since her failure to provide timely notice of the disinterment application cost the appellant an opportunity to object and provide input into the decision. The court determined that the policy was not legally binding and thus did not disclose any right of notice. The court went on to note that in circumstances characterized by competing parties, the Director will sometimes have to resolve conflicts. However, in the case at bar, the policy set out a priority list of those entitled to control human remains, with spouses outranking parents. Therefore, in this case, the officer’s widow had first priority, both under the common law and the policy rankings. Accordingly, Ms. Johnston’s argument was dismissed.
Ms. Johnston has applied for leave to appeal to the SCC. In light of the uncertain status of judicial review in the aftermath of Dunsmuir, the SCC is likely to seize the opportunity provided by Johnston to settle the dust.