COURT OF APPEAL FOR ONTARIO

CITATION: Sarnia (City) v. River City Vineyard Christian
    Fellowship of Sarnia, 2015 ONCA 494

DATE: 20150703

DOCKET: C58676

Doherty, Epstein and Tulloch JJ.A.

BETWEEN

The Corporation of the City of Sarnia

Respondent (Applicant)

and

Trustees of River City Vineyard Christian
    Fellowship of Sarnia

Appellant (Respondent)

Murray Klippenstein and Kent Elson, for the appellant

Joseph J. Hoffer and Laura M. McKeen, for the respondent

Reema Khawja and Cathy Pike, for the intervener, Ontario
    Human Rights Commission

Heard: October 28, 2014

On appeal from the judgment of Justice Thomas J. Carey of
    the Superior Court of Justice, dated March 13, 2014, with reasons reported at 2014
    ONSC 1572, 22 M.P.L.R. (5th) 35.

Tulloch J.A.:

A.

Overview

[1]

The River City Vineyard Christian Fellowship of Sarnia (River City) is
    a church located in the Urban Residential Zone 1-27 in the City of Sarnia.
    River City has operated a mens homeless shelter known as the Harbour Inn Mission
    in its church basement since 2006. The City of Sarnia opposed its operation on
    the basis that it breached Sarnias zoning by-law, By-law No. 85 of 2002 (the
    By-law).  River City disagreed and continued operating the shelter.

[2]

In response, Sarnia applied to the Superior Court for an injunction to
    stop River Citys operation of the shelter.  River City brought a
    counter-application seeking a declaration it was not contravening the By-law,
    or in the alternative, to the extent the By-law prohibited the shelter, the
    By-law unjustifiably infringed its freedom of religion as protected by the
Canadian
    Charter of Rights and Freedoms
. In 2014, the applications judge issued an
    injunction against River City, prohibiting it from operating the shelter
    because it was in contravention of the By-law.

[3]

River City appeals on two main grounds, arguing:

1.       The By-law, properly
    interpreted, permits the shelter; and

2.       In the alternative, if the
    By-law prohibits the shelter, the application or enforcement of the By-          law
    infringes s. 2(a) of the
Charter
, and the infringement is not
    justified under s. 1.

[4]

For the reasons that follow, I would dispose of the appeal on the first
    ground.  In my view, the applications judge erred in his interpretation of the
    By-law, and as such, incorrectly found that it did not permit River City to
    operate the shelter.

B.

Background

[5]

River City is located in Urban Residential Zone 1-27 (UR1-27) in the
    City of Sarnia. The By-law lists the permitted uses in UR1-27 as Church,
    school and parking only. Church is defined as follows:

"CHURCH (PLACE OF WORSHIP)" means a building used by
    a religious organization for public worship and church-sponsored community
    activities and projects, and may include as accessory uses a rectory or manse,
    church hall, day nursery or religious school, offices, but shall not include a
    soup kitchen or food bank, unless otherwise permitted by this By-law.

[6]

River City has operated the Harbour Inn Mission, a small mens homeless
    shelter, out of its church basement since 2006. The City of Sarnia informed River
    City very shortly after the Harbour Inn Mission opened that the By-law
    prohibits homeless shelters in UR1-27.

[7]

After some discussion, the City of Sarnia passed a temporary use by-law
    that eventually permitted River City to operate its shelter until one year
    after a permanent mens homeless shelter opened in the community. During the
    term of the temporary use by-law, River City renovated its basement to bring
    the shelter space up to acceptable standards. River City spent about $100,000
    on the renovations. In September 2010, the Inn of the Good Shepherd Lodge, a
    permanent homeless shelter, began accommodating homeless men, setting in motion
    the termination of the Harbour Inn Missions authorization, effective September
    2011.

[8]

In September 2011, River City applied to the City of Sarnia to
    permanently re-zone its property to allow the shelter. City council denied the
    application, spurring an appeal to the Ontario Municipal Board. River City
    later abandoned that appeal because it believed it was entitled to operate the
    shelter as part of the church. The City brought an application for an
    injunction to prohibit River Citys operation of the shelter based on its
    violation of the By-law. River City submitted a counter-application for a
    declaration that the Harbour Inn Mission does not violate the By-law, and if it
    does, that the By-law, to the extent it prohibits River City from sheltering
    the homeless, violates s. 2(a) of the
Charter
and is not saved by s.
    1.

C.

Decision Below

[9]

The applications judge concluded that the By-law forbids operation of a
    homeless shelter on River Citys lot, dismissed River Citys
Charter
claim
    and granted an injunction prohibiting the shelters operation.

[10]

The
    applications judge first reasoned that the shelter was not a church-sponsored
    community activity given the prohibition on soup kitchens and food banks. He
    held that these specific prohibitions indicated intent to narrowly prescribe
    the range of activities which constitute church use.

[11]

Second,
    the applications judge held that because River City had renovated the basement to
    use as a shelter, the shelter did not constitute a use as defined by the
    By-law, which is the purpose for which a lot, building or structure, or any
    combination thereof is designed, arranged, occupied or maintained.

[12]

Third,
    he reasoned that the shelter could not qualify as an accessory use because
    the shelter was not incidental and exclusively devoted to the main use of the
    building as a church.

[13]

Finally,
    the applications judge observed that while River City regarded the shelter as
    part of its spiritual mission, legally, it fell into the By-laws definition of
    emergency shelter. He seems to have impliedly held that for this reason, it
    could not also come within the definition of church.

D.

Analysis

[14]

River
    City appeals to this court and contends that the applications judge erred in
    his interpretation of the By-law, as well as his interpretation and application
    of s. 2(a) of the
Charter
.

[15]

The
    City of Sarnia submits that the applications judge committed no legal errors,
    and as such, the appeal should be dismissed and the injunction enforced.

[16]

As
    stated earlier, I would dispose of this appeal on the first ground, and as a
    result, it is not necessary to address whether the applications judge erred in
    dismissing River Citys
Charter
claim.

[17]

The
    main issue on this appeal is therefore whether the By-law prohibits or permits
    River Citys operation of a homeless shelter in its church basement. Whether
    the By-law prohibits or permits River Citys shelter turns on the
    interpretation of the By-laws definition of church. That definition is as
    follows:

"CHURCH (PLACE OF WORSHIP)" means a building used by
    a religious organization for public worship and
church-sponsored community
    activities and projects
, and may include as
accessory uses
a
    rectory or manse, church hall, day nursery or religious school, offices, but
    shall not include a soup kitchen or food bank, unless otherwise permitted by
    this By-law. [Emphasis added.]

[18]

This
    issue may be divided into two questions:

1.       Does River Citys homeless
    shelter constitute church-sponsored community activities and projects within
    the meaning of the By-law?

2.       Is the shelter permitted as an
    accessory use to the church?

[19]

River
    City argues that a homeless shelter is permitted both under church-sponsored
    community activities and projects and as an accessory use. If either is the
    case, the shelter would fall within the meaning of church, a use permitted in
    UR1-27.

[20]

In
    my view, River Citys homeless shelter falls within the meaning of
    church-sponsored community activities and projects. For the reasons that
    follow, I conclude that the applications judge erred in his interpretation of
    the By-law. Below, I set out the standard of review for the applications
    judges decision and the approach to statutory interpretation. I then explain
    the legal errors made by the applications judge and, finally, I outline why it
    is my view that upon reading the words church-sponsored community activities
    and projects in their entire context and according to their grammatical and
    ordinary meaning, this part of the By-law permits River City to operate the
    Harbour Inn Mission out of its basement.

[21]

I
    would decline to deal with the second aspect of River Citys statutory
    interpretation argument, namely that the shelter also constitutes an accessory
    use. Under s. 3.1(1) of the By-law, accessory uses cannot include accessory
    dwelling units, unless the By-law provides otherwise. The parties did not
    address whether the shelter qualifies as a dwelling unit. Accordingly, it is not
    appropriate for this court to decide the point, and in any event, it is not
    necessary.

Standard of review

[22]

The
    proper interpretation of the By-law is a question of law, reviewable on a
    correctness standard:
Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R.
    235,

at para. 8. Whether River Citys shelter falls within the
    By-laws definition of church, properly interpreted, is a question of mixed
    fact and law, and the applications judges conclusion is therefore entitled to
    some deference absent an extricable error in principle or palpable and
    overriding error: see
Donnell v. Joseph
, 2012 ONCA 240, 94 M.P.L.R.
    (4th) 169, at paras. 10-11.

Principles of statutory interpretation

[23]

The
    general approach to statutory interpretation requires the words of the provision
    here to be read in their entire context and according to their grammatical and
    ordinary meaning, harmoniously with the scheme and object of the By-law as a
    whole and the intention of the drafters:
John Doe v. Ontario (Finance)
,
    2014 SCC 36, [2014] 2 S.C.R. 3, at para. 18.

[24]

Additionally,
    legislative provisions are presumed to be consistent with constitutional norms,
    including the values enshrined in the
Charter
. However, this
    presumption comes into play as an interpretive principle only if a provision is
    genuinely ambiguous, in that it is subject to differing, but equally
    plausible, interpretations:
Bell ExpressVu Limited Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62.

Legal errors made by the applications judge

[25]

In
    my view, the applications judge made three fatal errors in his reasons for
    determining that the Harbour Inn Mission is not a church-sponsored community activity
    or project.

[26]

First,
    the applications judge erred in concluding that the express prohibition on soup
    kitchens and food banks indicates an intention to narrowly prescribe the range
    of activities that constitute church use. While the express prohibition on soup
    kitchens and food banks in churches narrows the range of activities that constitute
    church use to some extent, it does not follow that the intent of the By-law was
    to prohibit other activities of a similar nature.

[27]

According
    to the principle of implied exclusion, [w]hen a provision specifically
    mentions one or more items but is silent with respect to other items that are
    comparable, it is presumed that the silence is deliberate and reflects an
    intention to exclude the items that are not mentioned: Ruth Sullivan,
Sullivan
    on the Construction of Statutes
, 6th ed. (Markham: LexisNexis Canada,
    2014), at § 8.92.

[28]

The
    specificity of the words shall not include a soup kitchen or food bank
    implies that the express prohibitions were intended to be exhaustive. If the
    drafters had intended to prohibit uses analogous to soup kitchens and food
    banks, they could have either expressly prohibited these analogous uses or used
    words in the nature of shall not include accessory uses such as a soup kitchen
    or food bank.

There is no indication that analogous activities are to
    be read in. Therefore, the presumption is that the list of prohibitions was
    intentionally limited to the items specifically mentioned.

[29]

Further, in my view, given the structure of the definition
    of church, the prohibition on soup kitchens and food banks relates to
    accessory uses, and not church-sponsored community activities or projects. It appears
    that the applications judge relied on the prohibition to conclude the shelter
    was not a church-sponsored community activity or project. As it relates to
    accessory uses, the prohibition on soup kitchens and food banks is not helpful
    in deciding whether homeless shelters are church-sponsored community
    activities and projects
.

[30]

Second,
    the applications judge erred by concluding that the renovations to the church basement
    took the shelter outside of the word use, as defined in the By-law. The word
    use is defined in the By-law as follows:

"USE" where it appears as a noun, means the purpose
    for which a lot, building or structure, or any combination thereof is designed,
    arranged, occupied or maintained.

[31]

I
    would note that other than with respect to accessory uses, the definition of
    church in the By-law does not include the word use as a noun. The relevance
    of the definition of use is therefore questionable.

[32]

Assuming
    some relevance, there is no indication in the By-law that the definition of
    use is limited to purposes that existed when the building was first
    constructed. To the contrary, the word is in the definition of use indicates
    a present purpose, rather than the original purpose. Even if the purpose for
    which a building is designed or arranged is interpreted to refer to its
    original design or arrangement, such an interpretation cannot apply to the
    words occupied or maintained. When given their ordinary and grammatical
    meaning, occupy and maintain refer to an ongoing state or action. If the
    church building is currently occupied or maintained as a homeless shelter,
    it qualifies as a use.

[33]

The
    By-law does not expressly provide or imply that church-sponsored community
    activities and projects are restricted to activities or projects that can be
    accommodated without renovations. The applications judge erred by reading in
    such a restriction.

[34]

Third,
    the applications judge erred by attaching relevance to the fact that the
    homeless shelter fits under the By-laws definition of emergency shelter. There
    is no indication in the By-law that church-sponsored community activities and
    projects may not include uses that are defined elsewhere in the By-law. To the
    contrary, there are several examples of uses that fall under two separate
    definitions in the By-law. For example, day nurseries are permitted as
    accessory uses under the definition of church and are specifically included
    under the definition of Day-care Centre.

[35]

Further,
    as River City points out, s. 1.2(3) of the By-law permits uses lawfully in
    existence prior to the passing of the By-law. Because the definition of
    emergency shelter was added to the By-law in 2008, two years after the
    Harbour Inn began operating, the definition of emergency shelter cannot
    prevent the use of the church basement as a shelter. If River City was in compliance
    with the By-law before the definition of emergency shelter was added, the
    addition of that definition could not make it non-compliant.

[36]

The
    City of Sarnia points to
1121472 Ontario Inc. v. Toronto (City)
(1998), 39 O.R. (3d) 535 (C.A.), at p. 540, in which this court held that an
    establishment that met the definition of entertainment facility could not
    also be a restaurant. In my view,
1121472
is distinguishable. It
    turned on whether an entertainment facility may be an accessory use to a restaurant.
    The definition of restaurant did not include an open-ended category analogous
    to church-sponsored community activities and projects. The definition of
    entertainment facility pre-dated the permit issued for the establishment in
    question, and it was also conceded from the outset that if the establishment met
    the definition of entertainment facility, it was not permitted in the area:
    see
1121472 Ontario Inc. v. Toronto (City)
(1995), 26 O.R. (3d) 25
    (S.C.).

[37]

For
    these reasons, the definition of emergency shelter is irrelevant.

[38]

In
    my view, the applications judges conclusion that River Citys shelter does not
    come within the meaning of church-sponsored community activities and projects
    was based on flawed reasoning and is not entitled to deference.

The By-law permits River City
    to operate the Harbour Inn Mission

[39]

In my opinion, River Citys homeless shelter falls within the scope of the
    words church-sponsored community activities and projects, when these words
    are properly interpreted. I begin by outlining the scheme and object of the
    By-law. I then assess the grammatical and ordinary sense of the words church-sponsored
    community activities and projects and the intention of the drafters in
    choosing these words. Finally, I conclude that these words are broad enough to
    permit River City to operate the Harbour Inn Mission without contravening the
    By-law.

[40]

In
    my view, the scheme and object of the By-law is to regulate the use of lands in
    the City of Sarnia with a certain degree of specificity. This intention is
    reflected in the long title of the By-law, which refers to the By-laws purpose
    as to regulate the use of lands and the character, location and use of
    buildings and structures within the City of Sarnia. The preamble to the By-law
    similarly describes it as intended to ensure proper and orderly development
    within the corporate limits of the City of Sarnia. This intention is also
    reflected in the detail with which permitted land uses are set out in the
    By-law as a whole.

[41]

The
    scope of church-sponsored community activities and projects

must be
    interpreted in a manner consistent with the object of the By-law, which is to
    circumscribe the use of land in Sarnia. In other words, these words must have
    an internal limit and are not a license for a church to undertake whatever
    activities or projects it wishes. At the same time, the drafters chose fairly
    broad and permissive language to describe the uses churches were entitled to
    make of their premises.

[42]

I
    turn now to the grammatical and ordinary sense of the words church-sponsored
    community activities and projects and the intention of the drafters of the
    By-law in including these words. The words may be divided into three components
    for ease of analysis: activities and projects, church-sponsored and
    community.

[43]

The
    words activities and projects are, on their own, fairly broad. An activity is
    simply a particular occupation or pursuit:
The Canadian Oxford Dictionary
,
    2d ed.,
sub verbo
activity. A project is variously defined as a
    plan, a scheme, an undertaking that is carefully planned and designed to
    achieve a particular aim, any planned activity or an individual or
    collaborative enterprise undertaken [usually] for industrial or scientific
    research, or having a social purpose:
The Canadian Oxford Dictionary
,
    2d ed.,
sub verbo
project.

[44]

The
    words church-sponsored limit the activities and projects churches may
    undertake on their premises. The ordinary sense of the words church-sponsored
    suggests that the church in question must at least agree with the aims of or
    support the activity or project. What this entails may vary from case to case.

[45]

The
    word community, in its ordinary and grammatical meaning, also limits the
    qualifying activities or projects. The word community connotes a socially
    beneficial use intended to assist or engage the public or some sub-group within
    the general public. In my view, the inclusion of the words community
    activities and projects reveals an intention on the part of the drafters of
    the By-law to allow churches to engage in socially beneficial conduct and
    respond to the needs of the community.

[46]

Although
    the definition of church provides no examples of community activities and
    projects, the words community activities are used elsewhere in the By-law,
    namely in the definition community centre:

"COMMUNITY CENTRE" means land, buildings or
    structures used for community activities, including recreational, cultural,
    educational and institutional uses.

This list of types of community activities suggests
    that a community activity is one that people engage in as a group for a
    socially beneficial purpose.

[47]

The
    use of the word community to modify activities and projects excludes certain
    activities and projects. For example, purely commercial or industrial
    activities or projects would fall outside the meaning of community activities
    and projects because these activities or projects do not serve a community
    purpose. Activities of a private residential nature would also likely fall
    outside the meaning of community activities and projects. Based on the above
    examples of excluded activities, an interpretation of church-sponsored
    community activities and projects that includes homeless shelters is
    sufficiently restrictive to be consistent with the object of the By-law to
    regulate land use to ensure proper and orderly development in Sarnia.

[48]

In
    my view, the Harbour Inn Mission is a church-sponsored community activity or
    project. There is no real dispute that the Harbour Inn Mission is
    church-sponsored, as it is both funded and operated by River City. It
    qualifies as a community project and involves community activities for several
    reasons. The establishment and operation of the shelter has involved
    significant planning and is directed toward a specific aim: to serve the needs
    of a particular part of the community, those who find themselves homeless. The
    shelter runs on the power of the River City community. It is staffed largely by
    volunteers from the church. In other words, the church members work together as
    a group for a socially beneficial purpose: providing shelter for members of the
    community in need. The day-to-day acts involved in both running and living in the
    shelter encompass community activities as the members of the church interact
    with the residents of the shelter.

[49]

I
    would note that this court addressed the question of whether a homeless shelter
    constitutes a community activity in
Lighthouse Niagara Resource Centre v.
    Niagara Falls (City)
(2003), 177 O.A.C. 34. In that case, Lighthouse Niagara
    Resource Centre, a registered charity, decided to establish an emergency youth
    shelter in the City of Niagara Falls. The application judge decided that the
    emergency youth shelter was a permitted use because it fell within the
    definition of Community Building, which was defined as follows in the Niagara
    Falls Zoning By-law:

"COMMUNITY BUILDING" means a building used for
    community activities including, but not so as to restrict the generality of the
    foregoing, arts, crafts, physical, social, charitable and educational
    facilities and not used for any commercial purpose.

[50]

Armstrong
    J.A., writing for the court, agreed that the emergency youth shelter was a
    community building, in part because the words community activities include
    sleeping. He stated that [t]o suggest that sleeping is not a community
    activity is to emasculate the intent of the Zoning By-law:
Lighthouse
    Niagara,
at para. 16.

[51]

The
    City of Sarnia would distinguish
Lighthouse Niagara
on the basis that
    it did not involve a church and that the definition in question included a
    non-exhaustive list of examples of community activities. In my view, these
    are not relevant distinctions. Both cases turn on an interpretation of the
    words community activities; neither interpretation turns on analogies to
    listed examples. Nor does the fact that the present appeal involves a church,
    rather than a community building, necessarily affect the meaning of
    community activities.

[52]

The
    words church-sponsored community activities and projects are therefore at
    least broad enough to include River Citys homeless shelter.

[53]

Finally,
    I would note that I have reached this conclusion without resort to the
    principle that legislation must be interpreted in compliance with
Charter
values. The applications judge did not err by failing to apply this principle,
    as suggested by the intervener.

[54]

The
    Supreme Court has emphasized that
Charter
values are to be used as an
    interpretive principle only when a provision is genuinely ambiguous, and its meaning
    cannot be determined using a contextual analysis: see
Bell ExpressVu
,
    at para.
62;
Pharmascience Inc. v. Binet
, 2006 SCC
    48, [2006] 2 S.C.R. 513, at para.
29. Because the meaning of
    church-sponsored community activities and projects can be determined using a
    contextual analysis, this interpretive principle is unnecessary.

E.

DISPOSITION

[55]

For
    the reasons outlined above, I am of the view that the applications judge erred
    in his interpretation of the By-law. The Harbour Inn Mission constitutes a
    church-sponsored community activity or project, and therefore River Citys
    operation of it does not contravene the By-law.

[56]

I
    would therefore allow the appeal and dismiss the City of Sarnias application
    for an injunction.

F.

COSTS

[57]

The
    parties may make written submissions on the costs of the appeal within 20 days
    of the release of these reasons.

Released:

JUL -3 2015                                     M.
    Tulloch J.A.

DD                                                  I
    agree Doherty J.A.

I
    agree Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Smith v.
    Loblaw Companies Limited (Real Canadian Superstore), 2015 ONCA 504

DATE: 20150703

DOCKET: C58386

Doherty, Pepall and Huscroft JJ.A.

BETWEEN

Makenzie Smith, a minor, by
    her Litigation Guardian, Sandra Smith and Sandra Smith

Plaintiffs (
Respondents
)

and

Loblaw Companies Limited
    carrying on business as The Real Canadian Superstore

Defendant (
Appellant
)

Daniel J. Fife and Maple Anne Cameron, for the defendant
    (appellant)

Joseph Dallal and Lesley Parsons, for the plaintiff
    (respondent) Makenzie Smith

Heard:  July 2, 2015

On appeal from the judgment of Justice Ramsay of the Superior
    Court of Justice, dated January 14, 2014, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

We do not agree that the jurys verdict is unreasonable.  The appellant
    acknowledged a duty of care to the respondent.  In our view, the failure to
    provide any training in the proper supervision of the children provided a basis
    upon which the jury could conclude that the appellant breached its duty.

[2]

Finally, on the causation instruction (agreed upon by the parties), it
    was open to the jury to find that the failure to provide adequate training of
    its staff was causative of the respondents injuries.

[3]

On the second issue, we do not agree that the jurys response to
    Question 2 warrants our intervention.  The jurys answer must be given a full
    and liberal reading in light of the evidence.  Taking that approach, we read
    the word may in the second sentence of the answer as speaking to the material
    contribution requirement in causation as put to the jury and not to the burden
    of proof on factual issues.  Viewed in this way, there is no ambiguity in the
    jurys answers.

[4]

The appeal is dismissed.  Costs are awarded to the respondent in the
    amount of $10,000, inclusive of disbursements and all taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Taylor-Baptiste v. Ontario Public Service Employees
    Union,

2015 ONCA 495

DATE: 20150703

DOCKET: C59529 & C59543

Hoy A.C.J.O., Watt and Brown JJ.A.

BETWEEN

Mariann Taylor-Baptiste

Applicant

(Appellant)

and

Attorney General of Ontario

Intervener

(Appellant)

and

Ontario Public Service Employees Union, Jeff
    Dvorak and Human Rights Tribunal of Ontario

Respondents

(Respondents)

Ranjan K. Agarwal and Amanda C. McLachlan, for the
    appellant Mariann Taylor-Baptiste

Matthew Horner and Padraic Ryan, for the appellant Attorney
    General of Ontario

Caroline Jones and Jodi Martin, for the respondents Ontario
    Public Service Employees Union and Jeff Dvorak

Margaret Leighton and Linda Chen, for the respondent Human
    Rights Tribunal of Ontario

Cara Zwibel, for the intervener Canadian Civil Liberties
    Association

Reema Khawja and Sunil Gurmukh, for the intervener Ontario
    Human Rights Commission

Heard: April 16, 2015

On appeal from the order of the
    Divisional Court (Justices Frances P. Kiteley, David Aston and Kevin W.
    Whitaker), dated May 28, 2014, with reasons reported at 2014 ONSC 2169, 323
    O.A.C. 376, dismissing an application for judicial review from the decisions of
    the Human Rights Tribunal of Ontario, dated July 16, 2012, and February 1, 2013,
    with reasons reported at 2012 HRTO 1393,
1 C.C.E.L.
    (4th) 104
, and 2013 HRTO 180.

Brown J.A.:

I.

INTRODUCTION

[1]

The appellant, Mariann Taylor-Baptiste, and the respondent, Jeff Dvorak,
    both worked at the Toronto Jail. In late 2008 and early 2009, when the events
    at issue took place, Ms. Taylor-Baptiste was Mr. Dvoraks manager. Mr. Dvorak was
    president of the jails local branch of the respondent union, the Ontario
    Public Service Employees Union (OPSEU).

[2]

In early 2009, during a period of labour unrest and intense collective
    bargaining, Mr. Dvorak operated a blog about union matters on which he authored
    a blog post, and permitted the posting of a comment written by someone else, both
    accusing Ms. Taylor-Baptiste of nepotism and incompetence. She complained to
    the Human Rights Commission, alleging discrimination with respect to
    employment contrary to s. 5(1) and harassment in the workplace contrary to
    s. 5(2) of the
Human Rights Code
, R.S.O. 1990, c. H.19.

[3]

The Human Rights Tribunals decision did not turn on whether the
    offending blog posts constituted discrimination or harassment; the Tribunal
    was satisfied that the comments were sexist and offensive. Instead, the
    Tribunal focused its analysis on whether the blog posts constituted conduct
    with respect to employment or in the workplace  in other words, whether
    the conduct complained of fell within the areas of social activity regulated by
    the
Code
.

[4]

The Tribunal found they were not, ruling that the scope of s. 5(1) of
    the
Code
was ambiguous on the facts, and had to be interpreted in a
    way that took into account Mr. Dvoraks
Charter
rights of freedom of
    expression and association. The Tribunal concluded that, in the particular
    circumstances of the case, the claim for discrimination with respect to
    employment was not made out. The Tribunal also held that, on the facts, the
    harassment was not in the workplace.

[5]

The Divisional Court unanimously dismissed Ms. Taylor-Baptistes
    subsequent application for judicial review, holding that the Tribunals
    decision was reasonable.

[6]

Ms. Taylor-Baptiste now appeals, with leave, to this court. She has
    abandoned her appeal regarding a breach of s. 5(2) of the
Code
, but
    maintains that the Tribunal erred in dismissing her s. 5(1) claim. In
    particular, she argues that the Tribunal erred by holding that the words with
    respect to employment were ambiguous, thus necessitating a consideration of
Charter
values and a balancing of Mr. Dvoraks free speech and associational rights
    against her
Code
right to be free from discrimination.

[7]

The Attorney General of Ontario (AGO) was joined as a party to the
    appeal in this court and supports Ms. Taylor-Baptistes position.

[8]

For the reasons set out below, I conclude that the Tribunals decision
    was reasonable and I would not interfere with it.

II.

THE FACTS

The parties

[9]

In October 2008, Ms. Taylor-Baptiste became the Deputy Superintendent of
    Programs at the Toronto Jail for the Ontario Ministry of Community Safety and
    Correctional Services (the Ministry). Her common law spouse is Scott Gray,
    who is the Deputy Superintendent, Administration, at the Toronto West Detention
    Centre. Her former husband is Alan Taylor-Baptiste, who is the president of the
    OPSEU local at the Ontario Correctional Institute, a different jail.

[10]

Mr.
    Dvorak is a correctional officer and was President of OPSEU Local 530 at the
    Toronto Jail from February 2008 to November 2009.

[11]

In
    the fall of 2008, as collective bargaining between OPSEU members and the
    Province was underway, Mr. Dvorak started a blog about issues in the workplace.
    The Tribunal accepted that the blogs purpose was to communicate with the Local
    530 membership, especially about the ongoing collective agreement negotiations.

[12]

Blog
    entries by Mr. Dvorak and others strongly criticized the Ministry as the
    employer, and also took aim at individual managers, politicians and
    journalists. The blog was widely read by people both in and out of the bargaining
    unit. Many posts used strong language; some used profanity. This reflected the difficult
    state of collective bargaining at that time, which Mr. Dvorak described before
    the Tribunal as off the charts in terms of hostility.

The blog entries

[13]

The
    two blog entries that became the subject of Ms. Taylor-Baptistes complaint
    were posted on January 16 and 21, 2009. Mr. Dvorak wrote the first post. It was
    prompted by a work refusal under the
Occupational Health and Safety Act
,
    R.S.O. 1990, c. O.1, related to the failure to remove ice in the jails parking
    lot. Mr. Dvorak thought that Ms. Taylor-Baptiste had not properly dealt with
    this issue as a manager. He posted the following comment:

ROS STEP Up

Yesterday our annex staff had a valid concern regarding the
    conditions they HAVE TO walk through to get to there [
sic
] work
    stations. Yet there [
sic
] deputy waited hours to call someone else to
    ask what she should do. First of all if you dont know the answers to something
    this simple Ms. Baptiste maybe you should call your boyfriend over at his
    office after all he is the only reason you got the job. Clearly all you have
    shown is an inability to handle even the easiest of situations or staff
    relations. Perhaps our senior administration should reconsider there [
sic
]
    hiring practices for deputys [
sic
] and change the qualifications from
    having intimate knowledge off [
sic
] another deputy to something like maybe
    some experience doing the job, like Mr. Puntillo. Oh yeah I forgot doing the
    job for three years doesnt even get you an interview. Anyways congratulations
    to the annex staff well done and keep showing this employer they cant forget
    about you. I am out of town in Ottawa actually to tell some mps and senators
    just what kind of conditions we are working in but will be back tomorrow until
    then keep up the good fight!!!!!!!!!

[14]

The
    second blog entry was a comment made by an anonymous poster on January 21, 2009,
    in response to Mr. Dvoraks posting. Mr. Dvorak approved any comments before
    they were placed on the blog for public review. The anonymous comment read as
    follows (the capitals appeared in the original):

EXCELLENT WEBSITE GUYS AND GREAT COMMENTS/EDITORIALS BY YOUR
    PRESIDENT. GOOD TO SEE THAT THE MINISTRY IS A PROUD SUPPORTER OF THE PETER
    PRINCIPLE  ONES LEVEL OF INCOMPETANCE [
sic
] REACHED AND EXCEDED [
sic
]
    (could apply to all managers). AS A FELLOW C.O. I WOULD LIKE TO POINT OUT THAT
    MR. TAYLOR-BAPTISTE, IS NOTHING LIKE HIS X AND SHE COULD ACTUALLY TAKE
    GUIDANCE FROM HIS WORK ETHIC. HE IS THE UNION SCHEDULING ASSISTANT HERE AT
    O.C.I. AND PERFORMS HIS DUTIES WITH EXCEPTIONAL COMPITANCE [
sic
]. HE
    IS ALL ABOUT FAIRNESS AND DOING THE RIGHT THING FOR THE STAFF. IN HIS PRESENT
    CAPACITY HE HAS TO RELATE TO MANAGERS AND ALWAYS CHAMPIONS STAFF ISSUES AND
    CONCERNS. HE HAS THE FULL SUPPORT OF ALL THE UNCLASSIFIED STAFF, AS WELL AS THE
    CLASSIFIED. T.B. AS HES KNOWN, IS VERY DIPLOMATIC WITH ALL THE STAFF HERE,
    AND I BELIEVE HAS MANAGEMENTS RESPECT. IMAGINE THAT; A C.O. EARNING RESPECT!
    KEEP UP THE GOOD WORK AND LET MS. BAPTISTE KNOW THAT IF SHE NEEDS ANY HELP
    MAKING A DECISION IN THE FUTURE, IM SURE HE WOULD HELP HER. MAYBE SHE SHOULD
    GO BACK TO HER MAIDEN NAME, OR GRAY, SO AS NOT TO BESMERCH [
sic
] THE
    GOOD UNION NAME OF TAYLOR-BAPTISTE.

local 229, O.C.I. C.O.

The aftermath

[15]

Ms.
    Taylor-Baptiste alleged that the two posts belittled her on the basis of sex
    and marital status because they relied on stereotypical views about women
    obtaining positions of power through sexual relations. She alleged that the
    posts suggested she only got her managerial job because of her husband and
    exposed her personal relationships with others working at the Ministry. She
    also contended that the posts painted her as an incompetent woman, in contrast
    to competent men such as her current partner, her ex-husband, and Mr. Puntillo.

[16]

For
    his part, Mr. Dvorak explained he had wanted to voice his belief that Ms.
    Taylor-Baptiste had obtained her position through nepotism because of her
    relationship with Mr. Gray. Mr. Dvorak asserted that nepotism is rampant in the
    Ministry, even acknowledging that he had been the beneficiary of the practice.

[17]

On
    several occasions management raised concerns with Mr. Dvorak about the blog and
    asked him to remove the blogs references to managers. Mr. Dvorak initially
    resisted those requests but, in mid-February 2009, he stopped making new
    postings. Several days later he made the blog inaccessible without a password,
    which he did not share with anyone else.

Complaint to the Human Rights Commission

[18]

Management
    did not discipline Mr. Dvorak for his blog. After the collective agreement was
    concluded, the union and employer agreed that no discipline would be meted out
    to employees who had made blog postings during negotiations and who had not
    already been disciplined. Ms. Taylor-Baptiste filed a Workplace Discrimination
    and Harassment Prevention Policy complaint against Mr. Dvorak, but it was not
    pursued because of the agreement reached between the Ministry and the union.

[19]

That
    led Ms. Taylor-Baptiste to file her complaint against the respondents alleging
    that the blog posts violated ss. 5(1) and 5(2) of the
Code
. Section
    5(1) of the
Code
protects equal treatment with respect to employment
    without discrimination on enumerated grounds including sex and marital status.
    Section 5(2) of the
Code
provides employees with a right to freedom
    from harassment in the workplace by the employer or by another employee because
    of marital status, among other grounds.

[20]

Before
    the Tribunal, Ms. Taylor-Baptiste testified that the two postings had upset her
    and she had felt under extreme stress following their publication, particularly
    because Mr. Dvorak was working in an office very close to hers. She thought
    people in the workplace knew who she was because of the blog posting and
    associated her primarily with that posting. Ms. Taylor-Baptiste sought
    assistance from the Employee Assistance Plan and was treated for pain in her
    jaw from grinding her teeth, a condition directly attributable to stress.

[21]

Before
    the Tribunal, Mr. Dvorak testified that he felt regrets about the blog and its
    effect on Ms. Taylor-Baptiste, but he stated that one had to understand what was
    going on and what was going on with me personally as well.

III.

DECISIONS OF THE HUMAN RIGHTS TRIBUNAL

[22]

The
    Tribunal issued two decisions in respect of Ms. Taylor-Baptistes complaint:
    its initial decision dated July 16, 2012 (the Initial Decision) and its
    February 1, 2013, decision dealing with Ms. Taylor-Baptistes request for a
    reconsideration (the Reconsideration Decision).

The Initial Decision

[23]

In
    its Initial Decision, the Tribunal acknowledged that postings on blogs and
    other electronic media can form part of or an extension of the workplace, but
    concluded that in the circumstances of this case the postings on Mr. Dvoraks
    blog did not amount to harassment in the workplace because:

[t]hey were made on a blog identified with the union that,
    although open to the public, was directed at communication between union
    members and their leadership. There is no evidence that Mr. Dvorak made the
    postings while at work for the employer. There may be circumstances in which
    postings in cyberspace are sufficiently connected that they are in the
    workplace. However, even giving them a broad interpretation, the words of s.
    5(2) cannot apply to this blog, given the context.
[1]

As I mentioned, this holding is not challenged on
    appeal.

[24]

As
    to Ms. Taylor-Baptistes complaint under s. 5(1) of the
Code
, the
    Tribunal acknowledged that the conduct of an employee which does not constitute
    harassment in the workplace under s. 5(2) of the
Code
, nevertheless
    could fall within s. 5(1). At para. 27 of  its Initial Decision, the Tribunal
    framed the issue in the following terms:

The determination of whether actions constitute discrimination
    under s. 5(1) involves a consideration of all the relevant circumstances,
    including the seriousness of the conduct, their significance, their effect on
    the workplace, the role of the person making them, the effect on the applicant,
    and the reaction of the respondent to any concerns raised.

[25]

One
    circumstance considered by the Tribunal was the nature of the expression at
    issue. The Tribunal found that Mr. Dvorak made or authorized the comments in
    the course of his duties as a  union president, as a result of which his
    comments enjoyed the protection of the rights of freedom of expression and
    freedom of association guaranteed by ss. 2(b) and (d) of the
Canadian
    Charter of Rights and Freedoms
.

[26]

After
    taking into account several factors, including the
Charter
rights
    engaged, the Tribunal concluded that Mr. Dvorak had not discriminated against
    Ms. Taylor-Baptiste with respect to employment. The Tribunal stated, at para.
    42 of its Initial Decision:

Most significant to my decision in this case are that the
    postings were tied to communication to the membership on issues of
    labour-management relations and the absence of
Code
-related effects in
    the workplace.

The Reconsideration Decision

[27]

In
    its Reconsideration Decision, the Tribunal not only dealt with new
Charter
arguments advanced by Ms. Taylor-Baptiste, but also described, at para. 32, the
    analytical exercise it had undertaken in considering Ms. Taylor-Baptistes
    complaint:

The boundaries of what falls under the social areas of
    services, accommodation, contracts, membership in a vocational association and
    employment are not always clear. An adjudicator must undertake an interpretation
    of the broad words in the
Code
to determine, in a contested case,
    whether this is the type of activity that it regulates. In doing so, the
    Tribunal must interpret rights broadly, and also undertake a purposive and
    contextual interpretation of the legislation. The need for a large and liberal
    approach to the rights in the
Code
does not relieve those applying it
    from the difficult task of interpreting its boundaries.

[28]

The
    Tribunal stated that where the issue was whether the activities in question fell
    within a social area regulated by the
Code
, it has favoured an
    interpretation under which in cases of ambiguity the
Code
would not
    restrict activities at the core of the fundamental freedoms protected by s. 2
    of the
Charter
: Reconsideration Decision, at para. 33. The Tribunal was
    of the view that the direction given by the Supreme Court of Canada in
Doré
    v. Barreau du Québec
that administrative decisions are always required to
    consider fundamental [i.e.
Charter
] values confirmed the approach it
    had taken.
[2]

IV.

DECISION OF THE DIVISIONAL COURT

[29]

The
    Divisional Court dismissed Ms. Taylor-Baptistes application for judicial
    review of the Initial Decision and the Reconsideration Decision.
[3]

[30]

The
    Divisional Court concluded that whether the blog posts were in the workplace
    within the meaning of s. 5(2) of the
Code
was a question of mixed fact
    and law lying at the heart of the Tribunals expertise. The court deferred to
    the Tribunals decision on the point, holding that the Tribunals decision that
    the blog posts were outside the scope of s. 5(2) was reasonable.

[31]

The
    Divisional Court went on to hold that the Tribunals decision that the blog
    posts fell outside of s. 5(1) of the
Code
also was reasonable. On that
    question of mixed fact and law, the Divisional Court concluded that the
    Tribunal was entitled to delve deeply into the specific facts of the case,
    including that Mr. Dvoraks comments on management were protected by ss. 2(b)
    and 2(d) of the
Charter
. I will consider the Divisional Courts
    reasons in more detail below.

V.

THE PARTIES POSITIONS ON THE ISSUE ON APPEAL

[32]

On
    this appeal, Ms. Taylor-Baptiste does not challenge the Tribunals finding that
    the blog posts were not made in the workplace within the meaning of s. 5(2)
    of the
Code
.

[33]

Although
    the parties used different language to frame the main issue, in essence they
    agreed that the question before this court is whether the Divisional Court
    properly applied the reasonableness standard to the Tribunals decision that
    the blog posts did not infringe Ms. Taylor-Baptistes right to equal treatment
    with respect to employment without discrimination under s. 5(1) of the
Code
.

[34]

The
    appellants submit that the Divisional Court did not properly apply the
    reasonableness standard. In their view, the Tribunal improperly took account of
    Mr. Dvoraks
Charter
rights of freedom of expression and association
    in determining that the blog posts did not infringe Ms. Taylor-Baptistes right
    to equal treatment with respect to employment. They argue that the Tribunals
    approach, and the Divisional Courts endorsement of that approach, is
    inconsistent with Supreme Court of Canada jurisprudence on when an
    administrative decision-maker may resort to
Charter
values to decide a
    case before it.

[35]

In
    the alternative, the appellants submit that even if the Tribunal was entitled
    to take
Charter
values into account in its s. 5(1) analysis, it failed
    to balance reasonably the
Charter
values with the statutory objectives
    of the
Code
.

[36]

The
    intervener, the Ontario Human Rights Commission, supports these arguments.

[37]

For
    their part, the respondents submit that the Tribunal reasonably concluded that the
    impugned blog posts, on the specific facts of the case, were not with respect
    to employment within the meaning of s. 5(1) of the
Code,
and that the
    Tribunal properly used
Charter
values as an interpretive aid in
    reaching that conclusion.

[38]

The
respondent, the Human Rights Tribunal of Ontario, submits that the Supreme Court of Canada’s decision in Doré compels administrative decision-makers to consider and integrate Charter values into their adjudicative work. To this, the Canadian Civil Liberties Association adds that the Tribunal must consider and reconcile the fundamental Charter right of freedom of expression with a broad and purposive reading of the
Code
.

VI.

THE STANDARD OF APPELLATE REVIEW

[39]

On
    an appeal from a decision disposing of an application for judicial review, the
    appellate court must decide whether the court below identified the appropriate
    standard of review and applied it correctly. The appellate court steps into the
    shoes of the lower court, with its focus on the administrative decision.
[4]

[40]

Before
    the Divisional Court, the parties agreed that the standard of review on
    questions respecting the scope of s. 5 of the
Code
was reasonableness,
    and the Divisional Court identified reasonableness as the applicable standard
    of review. In so doing, the Divisional Court followed the jurisprudence of this
    court that under the reasonableness standard, the decisions of the Tribunal on
    determinations of fact and the interpretation and application of human rights
    law are entitled to the highest degree of deference having regard to the
    Tribunals expertise and specialization.
[5]

VII.

ANALYSIS

[41]

Did
    the Divisional Court properly apply the reasonableness standard to the
    Tribunals decision that the blog posts did not infringe Ms. Taylor-Baptistes
    right to equal treatment with respect to employment without discrimination
    under s. 5(1) of the
Code
?

A.

The
    general principles that guide the review

[42]

The
    reasonableness standard of review recognizes that certain questions coming
    before administrative tribunals do not lend themselves to only one particular
    result.
[6]
Consequently, reasonableness is concerned with both the existence of
    justification, transparency and intelligibility of the decision-making process,
    as well as with whether the decision falls within a range of possible,
    acceptable outcomes which are defensible in respect of the facts and law.
[7]
Where the reasonableness standard applies to an issue, the person seeking
    judicial review must show that the tribunal could not reasonably have arrived
    at the decision it reached.
[8]

B.

The Divisional Courts approach to the Tribunals reasons

[43]

In
    the present case, the Divisional Court properly examined the Tribunals reasons
    as a whole, reading the Initial Decision together with the Reconsideration
    Decision. In so doing, the Divisional Court considered the Tribunals reasons
    in their totality, rather than parsing them: at para. 38.

C.

The
    Divisional Courts treatment of the ambiguity issue

[44]

Ms.
    Taylor-Baptiste and the AGO submit that the Tribunal unreasonably concluded
    that an ambiguity existed in the language of s. 5(1) of the
Code
which
    then permitted the Tribunal to consider
Charter
values in analyzing
    whether the respondents conduct had violated the section.

[45]

I
    agree with the Divisional Court that it was difficult to see any ambiguity on
    the face of the language of s. 5(1) of the
Code
and that the issue the
    Tribunal faced more accurately should be characterized as deciding as a
    question of mixed fact and law in the particular circumstances of this case,
    whether the blog posts were within or outside of s. 5(1) of the
Code
:
    at paras. 29 and 38. That issue did not require the Tribunal to resolve an
    ambiguity in the statutory language, but rather to interpret and apply the
Code
to the specific circumstances of the case.

[46]

Since
    the Tribunal had concluded that s. 5(1) of the
Code
contained an ambiguity,
    the Divisional Court reviewed the Tribunals decision on the point in depth to
    understand what the Tribunal meant by that conclusion. In the course of its
    review, the Divisional Court observed that the parties had presented the
    Tribunal with stark and extreme perspectives about how to apply s. 5(1) of
    the
Code
to the facts of the case: at para. 36. Whereas Ms.
    Taylor-Baptiste focused on her position as a woman entitled to a workplace free
    of sexism, the respondents focused on Mr. Dvoraks right to union speech and
    his subordinate position vis-à-vis his manager, Ms. Taylor-Baptiste.

[47]

The
    Divisional Court reproduced paras. 40-42 of the Reconsideration Decision in
    which the Tribunal had tried to take a more nuanced approach to the issue of
    whether the respondents conduct was with respect to employment under s. 5(1)
    of the
Code
. There the Tribunal repeated the factors it had taken into
    account and, at para. 41, summarized how it had balanced them:

Although I found it a difficult decision, in the end I
    concluded that the facts in this case tipped in favour of the public expressive
    nature of the comments. Central to the tipping of the balance in favour of this
    union expression were:

(1) The connection of the comments to a matter of union
    concern, made during bargaining, and made on a blog focused on union-management
    relationships, by the President of the union local.

(2) The impact of the comments on the applicant was her concern
    they had brought her personal life into the workplace, not the sexist stereotypes.
    As she described it, her concern and upset would have been the largely the same
    whether the point about her relationship with Mr. Gray was made using sexist
    language or not.

(3) The absence of any evidence of
Code
-based effects
    in the workplace. The only impact described was people commenting on the fact
    they had read about her.

(4) The applicant was mentioned twice among voluminous numbers
    of posts that were accessible for a period of only about a month.

[48]

I
    agree with the Divisional Courts conclusion, at para. 37 of its reasons, that
    the Tribunal was entitled to delve deeply into the facts of the case in order
    to determine the key question of mixed fact and law  i.e. whether, in the
    particular circumstances of this case, the blog posts fell within or outside s.
    5(1) of the
Code
. Indeed, the parties agreed that any determination
    about whether conduct violates s. 5(1) of the
Code
requires an
    examination of all relevant facts.

D.

Whether the Tribunal could consider
Charter
values as part of
    its analysis under s. 5(1) of the
Code

[49]

That
    brings us to the main point in dispute between the parties: what were the
    relevant facts or factors that the Tribunal was entitled to take into account
    in making its decision? The appellants submit that the Tribunal was not
    entitled to consider
Charter
values as factors in its analysis; the
    respondents contend it was. More specifically, the appellants submit that the
    Tribunal and Divisional Court erred in giving any consideration to
Charter
values
    because an administrative tribunal can only take such values into account if
    its home statute contains an ambiguity or if the tribunal is exercising a
    discretionary power. By contrast, the respondents argue that the Supreme Courts
Doré
decision authorized the Tribunal to take into account the relevant
Charter
values, in particular, the
Charter
rights of freedom
    of expression and association.

[50]

The
    Divisional Court observed, at para. 38 of its reasons, that the
Charter
rights
    of Dvorak and OPSEU are ultimately just a factor that was considered, amongst
    others, in deciding as a question of mixed fact and law in the particular
    circumstances of this case, whether the blog posts were within or outside of s.
    5(1) of the
Code
. That court then addressed the appellants
    submission about the Tribunals ability to take into account
Charter
rights,
    concluding, at para. 40, that the
Doré
case stands for the broad
    principle that administrative bodies are empowered, and indeed required, to
    consider
Charter
values within their scope of expertise. The
    Divisional Court observed that interpreting the meaning of the words with
    respect to employment in s. 5(1) of the
Code
engaged the core of the
    Tribunals expertise: Divisional Court Reasons, at para. 40.

[51]

I
    agree with that analysis. In
Doré
, the Supreme Court considered the
    reasonableness of a decision by the Disciplinary Council of the Barreau du
    Québec. The Council found that Doré, a lawyer, had violated art. 2.03 of the
Code
    of ethics of advocates
, R.R.Q. 1981, c. B-1, r.1, which requires that the conduct
    of an advocate must bear the stamp of objectivity, moderation and dignity. The
    Council suspended Doré for 21 days from the practice of law. By the time the
    case reached the Supreme Court, Doré had served the suspension and was not
    appealing the penalty. His appeal was limited to the Councils finding that he
    had breached the
Code of ethics
.

[52]

The
    Court re-considered the appropriate framework to apply when reviewing
    administrative decisions for compliance with the
Charter
. At para. 24
    of its reasons, the Court stated: It goes without saying that administrative
    decision-makers must act consistently with the values underlying the grant of
    discretion, including
Charter
values. The Supreme Court replaced the
R.
    v. Oakes
[9]
s. 1 framework previously used to measure whether an administrative decision
    complied with the
Charter
with an approach under which a
    decision-maker is required to balance the
Charter
values at issue with
    the statutory objectives engaged.
[10]
If the reviewing court can conclude that the administrative decision-maker has
    properly balanced the relevant
Charter
value with the statutory
    objectives in exercising its statutory discretion, the decision will be found
    to be reasonable.
[11]

[53]

The
    appellants argue that the Tribunal acted unreasonably in taking
Charter
values into account in its analysis. They make two points.

[54]

Their
    first submission is that an administrative tribunal can only consider
Charter
values in its decision-making if an ambiguity exists in the provision of
    its home or enabling statute at issue in a case. In support of their
    submission, they rely on the statement in
Bell ExpressVu
that to the
    extent this Court has recognized a
Charter
values interpretive
    principle, such principle can
only
receive application in
    circumstances of genuine ambiguity.
[12]

[55]

Binding
    authority prevents the acceptance of the appellants submission.  Slightly more
    than a decade after deciding
Bell ExpressVu
, the Supreme Court
    rejected an argument similar to the appellants when, in
R. v. Clarke
[13]
,
    it stated, at para. 16:

Only in the administrative law context is ambiguity not the
    divining rod that attracts
Charter
values. Instead, administrative law
    decision-makers must act consistently with the values underlying the grant of
    discretion, including
Charter
values (
Doré
, at para. 24).
    The issue in the administrative context therefore, is not whether the statutory
    language is so ambiguous as to engage
Charter
values, it is whether
    the exercise of discretion by the administrative decision-maker unreasonably
    limits the
Charter
protections in light of the legislative objective
    of the statutory scheme.

[56]

The
    appellants second submission is that the
Charter
values interpretive
    principle articulated in
Doré
only applies to instances where an
    administrative decision-maker exercises a discretionary power, such as crafting
    a remedy. They say it does not apply to the kind of adjudicative decision made
    by the Tribunal in this case  i.e. whether the respondents conduct violated
    s. 5(1) of the
Code
.

[57]

While
    I take the appellants point that in both
Doré
and
Loyola High
    School
the Supreme Court frequently referred to the exercise of a
    discretionary power under a home statute, in my view the decision in
Doré
,
    when read as a whole, prevents the acceptance of the appellants submission.
    First, in
Doré
the Court stated that administrative decisions are
always
required to consider fundamental values
[14]
(emphasis in original). Second, the context which framed the courts discussion
    in
Doré
was analogous to the present case  i.e. the determination by
    an administrative tribunal about whether a persons conduct had violated the
    strictures of a statutory or regulatory rule.

[58]

Consequently,
    I do not interpret the binding jurisprudence as permitting this court to interfere
    with the Tribunals decision simply because it considered
Charter
values
    in the course of determining whether the respondents conduct violated s. 5(1)
    of the
Code
.

E.

Whether
    the Tribunal properly balanced relevant
Charter
values with the
    objective of the
Code

[59]

As
    an alternative argument, the appellants submit that if the Tribunal was
    entitled to take into account
Charter
values in deciding whether the
    respondents conduct violated s. 5(1) of the
Code
, the Tribunal failed
    to strike a reasonable balance between
Charter
values and the
    statutory objectives of the
Code
.

[60]

In
Doré
, the Supreme Court of Canada described the approach an
    administrative decision-maker should follow when applying
Charter
values:
    first, the decision-maker should consider the statutory objectives at play, and
    then ask how the
Charter
value at issue will best be protected in view
    of the statutory objectives by balancing the severity of the interference of
    the
Charter
protection with the statutory objectives.
[15]
The resulting decision is entitled to a measure of deference so long as it
    falls within a range of possible, acceptable outcomes.
[16]
As put by the Supreme Court of Canada at para. 58 of
Doré
: If, in
    exercising its statutory discretion, the decision-maker has properly balanced
    the relevant
Charter
value with the statutory objectives, the decision
    will be found to be reasonable.

[61]

Let
    me turn, then, to the Tribunals identification of the relevant statutory
    objective, its selection of the relevant
Charter
values, and its
    balancing of both.

The statutory objective

[62]

Although
    the Divisional Court did not conduct this part of its judicial review in the
    precise sequence described in
Doré
, it performed the substantive
    equivalent. As to the applicable statutory objective, in para. 42 of its
    reasons the Divisional Court stated that in the original decision the Tribunal
    pinpoints the
Code
s objective as protecting Ms. Taylor-Baptiste from
    a poisoned work environment. Indeed, in its Initial Decision (paras. 27, 31-35)
    and Reconsideration Decision (paras. 37-38, 40, 48-51, 56-57), the Tribunal thoroughly
    considered the objective of s. 5(1) of the
Code
and the evidence that
    related to that objective.

The
Charter
rights selected by the Tribunal

[63]

At
    paras. 42 and 43 of its reasons the Divisional Court reviewed the
Charter
rights selected by the Tribunal  freedom of expression and freedom of
    association  writing that:

I agree with the statement in paragraph 29 of the original
    decision that an analysis of the nature of the expression at issue which was
    made by Mr. Dvorak in the course of his duties as a local union president
    necessitated consideration of the fact that his comments on management are
    protected by s. 2(b) and (d) of the
Charter
.

The broader consideration the Tribunal engaged in in this case
    could include the
Charter
rights of Dvorak and OPSEU as a factor to
    take into account in determining whether or not there was discrimination with
    respect to employment within the meaning of the
Code
.

[64]

I
    agree with the Divisional Courts analysis on this point. The Tribunal properly
    identified freedom of expression and freedom of association enshrined in ss.
    2(b) and 2(d) of the
Charter
as the relevant
Charter
rights
    in the circumstances of this case.

[65]

The
    appellants submit that the Tribunals selection of those
Charter
rights was unreasonable for two reasons: first, the discriminatory and
    offensive content of the blog postings do not lie at the core of
    constitutionally-protected speech; and, second, the protection afforded by s.
    5(1) of the
Code
does not infringe associational freedom. I do not
    agree.

[66]

Regarding
    the appellants submission about freedom of expression, the Tribunal wrote, in
    para. 44 of its Reconsideration Decision:

[The applicant] suggests that the blog posts, because they drew
    on sexist stereotypes to make their point, were not protected under ss. 2(b) or
    2(d) of the
Charter
. She argues that the Tribunal failed to
    distinguish between legitimate speech and illegitimate expression that runs
    counter to the equality rights values in the
Charter
and the
Code
.
    This argument is not consistent with the principle that expression is protected
    under s. 2(b) of the
Charter
regardless of its content if it conveys
    meaning. See, for example,
Ross v. New Brunswick School District No. 15
,
    [1996] 1 SCR 825. The nature of the expression is a factor in the balancing of
    rights, and the Decision explicitly analyzed this issue at paras. 27 and 33-35.
    The applicants submission that the speech is illegitimate or not worthy of
    protection because it drew on a sexist stereotype runs counter to established
    jurisprudence on freedom of expression.

[67]

I
    see nothing unreasonable in this conclusion. Section 2(b) of the
Charter
protects
    a broad range of expressive activity, including distasteful expression.
[17]
By the same token, it does not protect violent expression,
[18]
and some expression, such as hate speech, does not enjoy equal treatment in
    determining an appropriate balancing of competing values under a s. 1 analysis.
[19]
The Tribunal understood these legal principles, stating that the nature of the
    expression is a factor in the balancing of rights. But, the blog postings in
    this case were not hate speech. They contained rude, distasteful, and sexist
    remarks which even Mr. Dvorak acknowledged, upon reflection, appeared to him to
    have been written by an asshole: Initial Decision, at para. 19.

[68]

As
    to the appellants submission about the Tribunals selection of freedom of
    association as a relevant
Charter
right, the Tribunal enumerated, in
    para. 37 of its Initial Decision, the facts which engaged the respondents
    associational rights: the comments were made by Mr. Dvorak in his role as a
    local union president on a union blog, rather than in his role as a fellow
    employee; they dealt with union-management relations; Ms. Taylor-Baptiste was a
    manager who had the power in the workplace that came with that role; the
    comments were directed at the union membership; and, the posts expressed to the
    union members opinions on how Ms. Taylor-Baptiste had handled the work refusal
    by union members. That led the Tribunal, in para. 40 of its Initial Decision,
    to conclude:

His postings were made on issues of union-management concern,
    and while they relied upon sexist language, they were not gratuitous attacks
    unrelated to union business. Most important, union comments on workplace
    issues are constitutionally protected expression of opinion and exercise of
    freedom of association, and close to the core of those rights.

[69]

Again,
    I see nothing unreasonable in the Tribunals conclusion on this point. As the
    Supreme Court has held, expressive activity in the labour context is directly related
    to the
Charter
-protected right of workers to associate to further
    workplace goals under s. 2(d) of the
Charter
. Such expressive activity
    can play a significant role in redressing or alleviating the presumptive
    imbalance between the employers economic power and the relative vulnerability
    of the individual worker.
[20]

[70]

In
    these portions of its decisions, the Tribunal explained, in a transparent and
    intelligible way, how the
Charter
rights it was selecting arose on the
    specific facts of the case. The two
Charter
rights it selected were
    logically related to the facts of the case, thereby satisfying the requirements
    of
Doré
that the administrative tribunal select relevant
Charter
values.
[21]

The proportionality of the Tribunals balancing exercise

[71]

As
    to the whether the Tribunals balancing of the
Charter
rights with the
    objectives of the
Code
was proper in the circumstances, one must
    recall the key principle that drives the presently prevailing approach to
    judicial review analysis.  As stated by the Supreme Court, at para. 47 of
Dunsmuir
:

[C]ertain questions that come before administrative tribunals
    do not lend themselves to one specific, particular result. Instead, they may
    give rise to a number of possible, reasonable conclusions. Tribunals have a margin
    of appreciation within the range of acceptable and rational solutions.

[72]

In
    the present case, the Tribunal gave detailed, intelligible and transparent
    reasons for its decision that the respondents conduct did not constitute
    discrimination with respect to employment in violation of s. 5(1) of the
Code
.
    The Tribunal engaged in a proportionate balancing of the statutory objective of
    s. 5(1) of the
Code
with the
Charter
rights of expressive and
    associational freedom  engaged by the specific facts of this case.

[73]

The
    Tribunals reasons disclosed that it was alive to the various interests at play
    in determining whether, as a question of mixed fact and law, the respondents
    conduct fell within or without the reach of s. 5(1) of the
Code
. Facts
    such as those raised by this case can well give rise to a number of possible,
    reasonable conclusions. In light of the deference that the prevailing, binding
    reasonableness standard of review accords to the Tribunals findings of fact
    and determinations of questions of mixed fact and law, including the balancing
    of
Charter
rights with the
Code
s objective, I cannot
    conclude that the Tribunals conclusion fell outside the range of possible,
    acceptable outcomes defensible in respect of the facts and law.
[22]

[74]

I
    would make one final observation. Ms. Taylor-Baptiste and the AGO submit that
    the Tribunals decision effectively creates a blanket exemption protecting
    all forms of union speech from the requirements of s. 5 of the
Code
.
    In my view, their concern is misplaced. The Tribunal expressly stated that its
    analysis was confined to the facts before it and that the result might be
    different in another case. As the Divisional Court emphasized at para. 28 of
    its reasons: The Associate-Chair took pains to say more than once that the
    outcome here is based on the particular constellation of facts in this case. I
    agree with that statement.

VIII.

DISPOSITION

[75]

For
    the reasons set out above, I would dismiss the appeal.

[76]

At
    the hearing of the appeal, the parties were not able to agree on costs. The
    respondents advised they would seek costs if successful; the Tribunal was not
    seeking costs. I would permit the parties to make written cost submissions, of
    up to five pages, on the following schedule: (i) the respondents are to deliver
    their cost submissions within ten days of the date of these reasons; and (ii)
    any party against whom the respondents seek costs may deliver responding cost
    submissions within ten days thereafter.

Released: July 3, 2015 (A.H.)                       David
    Brown J.A.

I agree Alexandra
    Hoy A.C.J.O.

I
    agree David Watt J.A.

[1]

Taylor-Baptiste v. Ontario Public Service
    Employees Union
, 2012 HRTO 1393 (the Initial Decision), at para. 26. See
    also, 2013 HRTO 180 (the Reconsideration Decision), at paras. 22 and 53.

[2]
2012 SCC 12, [2012] 1 S.C.R. 395, at para. 35.

[3]
2014 ONSC 2169, 323 O.A.C. 376 (hereafter the Divisional Court Reasons).

[4]

Agraira v. Canada (Public Safety and
    Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45
    and 46.

[5]
Divisional Court Reasons, at para. 20, citing
Shaw v. Phipps
, 2012 ONCA 155, 347 D.L.R.
    (4th) 616, at para. 10.

[6]

Dunsmuir v. New Brunswick
, 2008 SCC
    9, [2008] 1 S.C.R. 190, at para. 47.

[7]

Dunsmuir
, at para. 47.

[8]

Pieters v. Peel Law Association
, 2013 ONCA 396, 116 O.R. (3d) 81, at
    para. 132.

[9]
[1986] 1 S.C.R. 103.

[10]

Doré
, at paras. 55 and 56.

[11]

Doré
, at para. 58.

[12]

Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R.
    559, at para. 62 (emphasis in original).

[13]
2014 SCC 28, [2014] 1 S.C.R. 612.

[14]

Doré
, at para. 35. See also
Loyola High School v. Quebec (Attorney
    General)
, 2015 SCC 12, at paras. 3 and 4.

[15]

Doré
, at paras. 55 and 56.

[16]

Doré
, at para. 56.

[17]

R. v. Keegstra
, [1990] 3 S.C.R. 697, at p. 729. See also,
    Reconsideration Decision, at para. 44.

[18]

Saskatchewan Human Rights Commission v. Whatcott
, 2013 SCC 11, [2013] 1
    S.C.R. 467, at para. 112.

[19]

Whatcott
, at para. 114.

[20]

Alberta (Information and Privacy Commissioner) v. United Food and Commercial
    Workers, Local 401
, 2013 SCC 62, [2013] 3 S.C.R. 733, at paras. 30 and 32;
Mounted
    Police Association of Ontario v. Canada (Attorney General)
, 2015 SCC 1, at
    paras. 66, 69 and 70;
Saskatchewan
    Federation of Labour v. Saskatchewan
, 2015 SCC 4, at para. 58.

[21]

Doré
, at para. 58.

[22]

Dunsmuir
, at para. 47.


COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Pakulski, 2015 ONCA 539

DATE: 20150721

DOCKET: C57319

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the
    United States of America and the Minister of Justice

Respondents

and

Joanna Pakulski

Applicant

Joanna Pakulski, in person

Daniel Sheppard, duty counsel for the applicant

Heather J. Graham, for the respondents

Heard: April 8, 2015

On application for judicial review of the reconsideration
    decision of Minister of Justice dated January 27, 2015, maintaining the
    surrender order dated June 13, 2013.

By the Court:

[1]

The applicant seeks judicial review of the
    reconsideration decision of the Minister of Justice dated January 27, 2015. In
    that decision, the Minister concluded that an order dated June 13, 2013
    surrendering the applicant for extradition to the United States should be
    maintained.

[2]

If surrendered, the applicant will face a charge in New
    York of engaging in a conspiracy to distribute and possess with intent to
    distribute 100 kilograms or more of marijuana. It is alleged that between 2003
    and 2007, she participated in a cross-border conspiracy with others to traffic hundreds
    of kilograms of marijuana from Canada into the United States and that her role
    was to collect the cash proceeds from drug sales and transport them back into
    Canada. On March 15, 2008, Canadian border authorities located US$59,540 concealed
    in the paneling of her car.

[3]

The applicant was committed for extradition on
    July 31, 2012. On January 29, 2014, this court dismissed her appeal from the
    committal order and referred her application for judicial review of the June
    13, 2013 surrender order back to the Minister for reconsideration. This court
    made the referral for reconsideration in light of a change in the appellants personal
    circumstances: she gave birth to a child on March 18, 2013.

[4]

In his reconsideration decision, the Minister rejected
    the applicants arguments that a surrender order would violate the s. 7
Charter
rights of her and her child and be unjust or oppressive under s.
    44(1)(a) of the
Extradition Act
,

S.C.
    1999, c. 18. He also rejected her argument that, particularly in light of her
    role as the sole caregiver to a young child, a proper
Cotroni
analysis makes clear that surrender would violate the s. 6(1)
Charter
rights of both the applicant and her child and would not
    be saved under s. 1 of the
Charter
.

[5]

On her application for judicial review to this
    court, the applicant contends that, having regard to the interests of her
    child, the Ministers decision was unreasonable in three respects.

[6]

First, she says that in reaching his conclusion
    under s. 7 of the
Charter
and s. 44(1)(a) of
    the
Extradition Act
,
the Minister failed to
    adequately consider her role as the sole caregiver to her young child and the
    significant impact her surrender would therefore have on her child  as
    demonstrated by an expert assessment she had obtained. She contends that the
    Ministers decision rested on generalizations and failed to adequately consider
    the case-specific information that was presented in this case. Further, she
    says the Minister made a palpable and overriding error in concluding that the
    applicants surrender would not leave [the child] without the support and care
    of a family member.

[7]

We do not accept these submissions. In the
    assessment report the applicant obtained, the assessor noted that the applicant
    rents a one-bedroom apartment from her mother in a Toronto home and that the
    applicant had stated she was well supported by her mother  and several
    siblings. Having regard to these statements it was open to the Minister to
    conclude that the applicants surrender would not leave her child without the
    support and care of a family member.

[8]

Further, the Ministers reconsideration decision
    demonstrates that he was fully aware of the applicants role as the sole
    caregiver of her child and the assessment report she had obtained. Nonetheless,
    after reviewing the relevant principles, the Minister concluded that the
    applicants personal circumstances and the potential impact of her surrender on
    her child do not warrant refusing to honour Canadas obligations to the United
    States and that her surrender would not be shocking to the Canadian conscience
     or unjust or oppressive.

[9]

In our view, the Minister took account of the
    relevant considerations, and the applicant has failed to demonstrate that his
    conclusion was unreasonable.

[10]

Second, the applicant argues that the Ministers decision is
    unreasonable because he failed to properly consider the impact of the differing
    sentencing regimes that exist in Canada and the United States and, in particular,
    the likelihood that the applicant would qualify for the Mother-Child Program if
    prosecuted, convicted, and sentenced to imprisonment in Canada. This program
    would allow the applicants child to live with her if she were incarcerated in
    the federal system. The Minister also failed to properly consider other
    differences in the manner in which any sentence might be served (
e.g.
conditional sentence) that could impact the childs security of the person.

[11]

We do not accept these submissions. The Minister specifically
    adverted to the applicants submissions concerning the differences in the
    sentencing regimes in Canada and the United States and to the potential impact
    on her son of her incarceration in the United States as compared to her
    incarceration in Canada if she were prosecuted and convicted in Canada. In
    doing so, he referred explicitly to the existence of the Mother-Child Program in
    Canada, to the absence of a similar program in the United States, and to the
    evidence filed by the applicant concerning the possibility of a conditional
    sentence.

[12]

We see nothing unreasonable in the Ministers
    consideration of these issues or in his decision. In particular, we observe
    that t
he fact that the Mother-Child Program exists in Canada does not
    mean that it would be available to the applicant in the place where she was
    incarcerated if she were prosecuted and incarcerated in Canada. Nor would the
    availability of the program at a particular institution mean that the applicant
    and her child would qualify for it. In any event, as the Minister noted, the
    Supreme Court of Canada has repeatedly upheld surrender decisions where the
    person sought for extradition was potentially facing a lengthy mandatory jail
    sentence upon conviction in the requesting state:
United States of American
    v. Jamieson
,

[1996] 1 S.C.R. 465;
United States of American v.
    Whitley
, [1996] 1 S.C.R. 467;
United States of America v. Ross
,
    [1996] 1 S.C.R. 469.

[13]

Finally, the applicant argued that the
    Ministers decision is unreasonable because he rejected submissions that his
    decision should be guided by UK Supreme Court and European Court of Human
    Rights decisions concerning Article 8 of the
Convention for the
    Protection of Human Rights and Fundamental Freedoms
, 4
    November 1950, 213 U.N.T.S. 221, Eur. T.S. 5 (
European Convention on
    Human Rights
)

as Article 8 does not correspond to
    s. 6(1) or s. 7 of the
Charter
. The applicant
    claims that this conclusion is inconsistent with the position the Minister took
    before the Supreme Court of Canada in
M.M. v. Minister of Justice
    Canada on behalf of the United States of America
,
Court File No. 35838, appeal heard and reserved on March 17, 2015
[1]
, that Article 8
    jurisprudence is informative of issues that arise at the surrender phase of
    extradition proceedings.

[14]

We do not accept this argument. The Ministers
    statements in this case concerning Article 8 were in response to the
    applicants submissions concerning s. 6(1) of the
Charter
and, in particular, her reliance on
BH & Anor v. The
    Lord Advocate & Anor (Scotland)
,
[2012] UKSC 24. In
    that case, the UK Supreme Court considered the best interests of six children
    of two parents sought for extradition on drug charges as an aspect of the
    Article 8 right to respect for private and family life, and held that only in
    exceptional circumstances would private or family life outweigh the legitimate
    goal of extradition.

[15]

The Minister noted that the s. 6(1) rights of
    the child are not engaged in this case as the child is not the person sought
    for extradition and that extradition of the appellant would not result in
    removal of her child from Canada. The Minister went on to note that Article 8
    does not correspond to s. 6(1) or s. 7 of the
Charter
and

the UK decision
    has no direct application to the applicants case.

[16]

In his factum in
M.M.
,
the Minister makes the same observation, noting  that the
Charter
does not have any provision identical to Article 8. Nonetheless, he
    adds that judicial consideration of the best interests of the child in the
    article 8 context can be informative, and goes on to explain why his decision
    in that case is consistent with principles of international law as contained in
    the
European Convention on Human Rights and the Convention on the
    Rights of the Child
,
Can.
    T.S. 1992 No. 3.

[17]

We fail to see any material inconsistency
    between the Ministers position as articulated in this case and his position as
    set out in his factum in
M.M.

[18]

The application for judicial review is therefore
    dismissed.

Released :                      Janet
    Simmons J.A.

MT                               M.
    Tulloch J.A.

JUL 21 2015                 Grant
    Huscroft

[1]
On appeal from
Canada (Attorney General) (United States) v. M.M.
,

2012
    QCCA 1142, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 252 and
M.M.
    v. Canada (Minister of Justice)(United States of America)
, 2014 QCCA 681,
    leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 252.


COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Qumsyeh, 2015 ONCA 551

DATE: 20150724

DOCKET: C56517 and C59621

Doherty, Gillese and Brown JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant to
    s. 49 of the
Extradition Act
, S.C. 1999, c. 18

AND IN THE MATTER OF an application for judicial review
    pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada on behalf of the
    United States of America and the Minister of Justice

Respondent

and

Jeries Yacob Qumsyeh

Appellant

Anthony Moustacalis and D. Goldbloom, for the appellant

Moiz Rahman, for the respondent

Heard: July 22, 2015

On appeal from the committal order of Justice Kenneth L.
    Campbell of the Superior Court of Justice, dated December 4, 2012, and on
    application for judicial review of the surrender order of the Minister of
    Justice, dated October 20, 2014.

By the Court:

[1]

This appeal and application for judicial review concern the extradition
    of Jeries Yacob Qumsyeh to the United States.

[2]

Mr. Qumsyeh is wanted in the United States for the 1982 murder of his
    ex-wife, Salwa Isaac. Mr. Qumsyeh is a citizen of the Kingdom of Jordan. He
    returned to his homeland before he was charged by United States authorities with
    Ms. Isaacs murder.

[3]

In Jordan, Mr. Qumsyeh was prosecuted and convicted for the murder of
    Ms. Isaac, and sentenced to fifteen years in prison. As part of a general
    amnesty, Mr. Qumsyeh was released from prison after serving six and a half
    years of his sentence.

[4]

After Mr. Qumsyeh came to Canada in 2011, the United States requested
    his extradition so that he could be tried in Michigan for Ms. Issacs murder.

[5]

The extradition judge ordered Mr. Qumsyehs committal. He found that he
    had no jurisdiction to consider Mr. Qumsyehs claim of abuse of process, which
    was based on an allegation of double jeopardy, and that such a claim was a
    matter for the Minister to consider during the surrender phase.

[6]

The Minister ordered that Mr. Qumsyeh be surrendered, despite his prior
    trial and conviction for the same murder in Jordan.

[7]

Mr. Qumsyeh appeals against the committal order and brings a judicial review
    application in respect of the surrender decision. Both the appeal and the
    judicial review application are based on the fact that Mr. Qumsyeh has already
    been convicted and sentenced in Jordan for the same offence for which the
    United States seeks extradition.

[8]

For the reasons that follow, both the appeal and the judicial review
    application are dismissed.

ANALYSIS

The Appeal

[9]

Mr. Qumsyeh submits that his appeal against committal should be granted
    because the committal judge erred in failing to stay the extradition procedure
    as an abuse of process. A principle of fundamental justice is that a person
    should not be placed in double jeopardy by being twice tried for the same
    offence. As he has already been tried and convicted of the murder, and served
    his sentence in Jordan, he says that it is an abuse of process for the United
    States to now seek to retry him for the same murder.

[10]

We
    reject this submission. In our view, the committal judge correctly found that
    the double jeopardy claim was not within his limited
Charter
jurisdiction.

[11]

The
    role of the committal judge under the
Extradition Act
, S.C. 1999, c.
    18 is limited: he or she is to determine whether the foreign authority has put
    forward sufficient admissible evidence to make out a
prima facie
case
    against the fugitive.

[12]

The
    source of the committal judges jurisdiction to consider
Charter
issues
    is not inherent; it flows from s. 25 of the
Extradition Act
. Section
    25 gives the committal judge jurisdiction to consider
Charter

issues
    that pertain directly to the circumscribed issues relevant at the committal
    stage of the extradition process:
United States of America v. Kwok
,
    2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57.

[13]

The
    double jeopardy claim is not closely connected to the committal process. The
    committal judge properly saw that double jeopardy was a matter for the
    Minister: see
United States of America v. J. H. K.

(2002), 165
    C.C.C. (3d) 449 (C.A.), at para. 24. Contrary to the appellants submission,
    this case is not like
United States of America v. Khadr
, 2011 ONCA
    358, 106 O.R. (3d) 449, at para. 45, leave to appeal refused, [2011] S.C.C.A.
    No. 316, in which the requesting state obtained the evidence used at the
    committal hearing through its own misconduct.

The Judicial Review Application

[14]

Mr.
    Qumsyeh submits that the Ministers decision is unreasonable because:

1.

He made erroneous findings of fact;

2.

It resulted in him being forced to endure double jeopardy;

3.

Extradition would constitute an abuse of process; and

4.

Deporting someone to face life imprisonment without the possibility     of
    parole would shock the conscience of the court.

[15]

We
    do not accept these submissions.

[16]

Before
    turning to these various grounds of appeal, we note that the standard of review
    of the Ministers surrender decision is reasonableness and interference with
    that decision is limited to exceptional cases of real substance:
Lake v.
    Canada (Minister of Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 34.

Alleged Erroneous Findings of Fact

[17]

The
    applicant submits that the Minister erroneously found that the United States
    did not materially assist the prosecution in Jordan or acquiesce in it.

[18]

In
    our view, the Ministers conclusion about the lack of United States
    involvement in Mr. Qumsyehs trial in Jordan was reasonable. The Minister was
    entitled to rely on the information provided by the United States, which
    indicated that the American authorities did not request that Jordan prosecute
    Mr. Qumsyeh. Indeed, the record shows that the United States only learned of
    the prosecution after Mr. Qumsyeh had been tried, convicted and begun serving
    his sentence.

[19]

As
    for the suggestion that the Minister erred in finding that the applicant would
    be able to raise double jeopardy issues in the United States trial, we
    disagree. The Minister did not ignore the applicants evidence on American law
    nor did he treat it unreasonably. He said that it was not his role to attempt
    to anticipate whether that defence would succeed. Instead, the Ministers focus
    was on whether the applicant would receive a fair trial in the United States. In
    our view, the Minister did not act unreasonably.

The Double Jeopardy Submissions

[20]

Both
    the second and the third submissions relate to the applicants double jeopardy
    claim.

[21]

The
    Minister concluded that the availability of the
autrefois convict/acquit
defence
    in the American proceedings was not determinative. He was of the view that the
    American judicial system would provide the applicant with due process, even if
    the particular defences and procedural protections available to him in the
    United States were different than those available to him in Canada.

[22]

Were
    this a domestic prosecution, it is an open question whether the foreign
    conviction for murder would bar a Canadian prosecution for that murder. However,
    even if the foreign conviction would bar a subsequent Canadian prosecution, we
    do not see the Ministers conclusion as unreasonable. In
Canada v. Schmidt
,

[1987] 1 S.C.R. 500, LaForest J. explained that a foreign justice system is
    not fundamentally unjust simply because its procedural or evidentiary
    safeguards differ from those of Canada. He held that surrender should only be
    refused where it offends against the basic demands of justice. The Minister
    acted reasonably in following the principles set out in
Schmidt
.

[23]

Furthermore,
    contrary to the appellants submission, the Minister did consider all of the
    relevant factors pertaining to this issue. This includes the applicants
    personal circumstances and his treatment while in custody in Jordan. At p. 10
    of his surrender decision, the Minister states that for the purposes of his
    decision, he accepted as true Mr. Qumsyehs evidence that he was tortured and
    subject to deplorable prison conditions while in Jordanian custody.  We note
    that there is no suggestion whatsoever that the United States was implicated in
    or even aware of this.

Would surrender shock the conscience?

[24]

If
    the applicant is convicted of first-degree murder in Michigan, he will receive
    a mandatory life sentence without the possibility of parole. He says that this
    harsh punishment would shock the conscience of the Canadian public and,
    consequently, that the Ministers decision to surrender him is unreasonable.

[25]

Extradition
    to face the possibility of life imprisonment without the possibility of parole
    is not unreasonable:
United States of America
v. Burns
, 2001
    SCC 7, [2001] 1 S.C.R. 283. In
Burns
, the Supreme Court refused to
    allow extradition where the accused would face the death penalty. However, at
    para. 71 of
Burns
,
the Court states that although a sentence of
    life imprisonment without parole is not a sentence available in Canada, the
    Ministers surrender decision would not sufficiently shock the conscience of
    Canadians so as to make surrender unjust or oppressive where that is the
    sentence facing the accused in the foreign jurisdiction.

[26]

In
    light of
Burns
,
it cannot be said that the Ministers decision
    is unreasonable.

DISPOSITION

[27]

Accordingly,
    the appeal and application are both dismissed.

Released: July 24, 2015 (E.E.G.)

Doherty J.A.

E.E. Gillese J.A.

David Brown J.A.