Issue #111: October 22, 2023
Standard of review on procedural fairness, rights of appeal, reasonableness
Abrametz v Law Society of Saskatchewan, 2023 SKCA 114 (October 13, 2023)
Category: Standard of review for procedural fairness.
Context: Abrametz was subject to disciplinary action by the Law Society of Saskatchewan. In Law Society of Saskatchewan v Abrametz, 2022 SCC 29 (Issue #48), the Supreme Court allowed the Law Society’s appeal, overturning the SKCA decision, which found that there was delay requiring a stay of proceedings [3]. The SCC decision in Abrametz disagreed, reasoning that the SKCA did not grant enough deference: “[d]eference should have been accorded to the Hearing Committee as to its findings of fact and of mixed fact and law” [105]. According to the SCC, the SKCA erroneously interfered with the fact and mixed fact and law findings of the Hearing Committee, parsing the investigatory evidence, and “characterizing each time period so as to determine the time it considered to be undue delay” [112]. On a palpable and overriding error standard, this is not appropriate.
This case deals with the outstanding issues left open by the SCC decision.
Issue: There are several issues in this case, but I will address the SKCA’s comments on the standard of review for issues of procedural fairness, and its comments on the palpable and overriding error standard.
Holding: “This judgment deals with the outstanding issues remitted to this Court by Abrametz SC. I have concluded that the Penalty Decision, including the Costs Award, should be set aside and that those matters should be remitted to the Hearing Committee” [4].
Analysis: For those who followed the Abrametz proceedings at the SCC, this case is a good read. The SKCA concludes that the penalty decision and costs award granted against Abrametz should be set aside. In reaching this result, the Court makes some interesting comments about the standard of review on procedural fairness issues and the palpable and overriding error standard.
On the adjournment decision, recall that the SCC Abrametz decision decided that issues of procedural fairness raised in a right of appeal attract fall to be dealt with under the appellate standards of review—correctness on issues of law, palpable and overriding error on issues of fact and mixed fact and law. The Court recognizes this, but tantalizingly tells us that this holding “raises interesting questions” [39]. As I explored in Issue #48, the questions are relevant because, typically, the standard of review on procedural fairness issues in applications for judicial review is correctness. Abrametz tells us, though, that when those issues arise in a right of appeal, courts will need to draw distinctions between mixed fact and law questions, for which deference is owed on a palpable and overriding standard, and questions of law, for which correctness remains the standard [39].
The SKCA here, though, suggests that the distinctions between fact/mixed-fact/law are different in the realm of procedural fairness. It says that procedural fairness issues—and the correctness standard on questions of law— “must mean something more than that the decision maker must correctly identify the legal test for procedural fairness. Rather, the ultimate question of whether the facts meet that legal test must also be reviewable on the correctness standard, rather than being treated as a mixed question of fact and law reviewable on the palpable and overriding error standard” [39]. Is this a way of getting around the holding in Abrametz, and instead applying the typical standard of correctness on procedural fairness issues all the way through? I would prefer to read Abrametz as it appears—categorical that statutory rights of appeal will sometimes invite deference on mixed questions of fact and law, as they are ordinarily identified. But perhaps there is something to the Court’s conclusion. The “ultimate question” here is whether the legal requirements of procedural fairness has been met, and is bound up with the facts, but is nonetheless fundamentally a question of law. In the end, this may be a bunch of metaphysical nonsense, and the result may not be different; the facts will be important no matter what. But in some cases we could imagine differences. The Court, though, only raises the issue, saying that it is unnecessary to decide “whether the line should be drawn between the ultimate question of whether the facts meet the legal test of fairness and other mixed questions of fact and law” [40].
In light of the SCC’s decision in Abrametz on the palpable and overriding error standard, the Court also seeks to clarify this area of the law. The SCC confirmed that the palpable and overriding error standard is a highly deferential standard which only invites judicial intervention where the evidence need not be reconsidered in order to identify the error (Abrametz, at para 113). The Court here, though, draws a distinction between reconsidering the evidence and reviewing it. For the Court, “reconsidering” involves looking at the evidence to “determine if it would have weighted it differently or made different findings of fact or mixed fact and law” [34]. “Reviewing” involves looking at the evidence “to the extent necessary to determine if the evidence could support the finding at issue on the appeal” which may, in some cases, “require it to review all of the evidence” [34]. Theoretically, these are two distinct judicial tasks, but they could easily blur in specific cases. It is reminiscent of the classic problem in the law of judicial review: a finding of “no evidence” was, typically, a jurisdictional question of law that permitted courts to bypass privative clauses. But this, in all reality, required courts to review the evidence nonetheless to determine if there is no evidence.
Akme Poultry, Butter & Eggs Distributors Inc v Canada (Public Safety and Emergency Preparedness), 2023 FC 1368 (October 13, 2023)
Category: Application of the reasonableness standard
Context: Akme sought judicial review of a decision of the Canada Border Services Agency (senior officer for trade compliance). The decision rejected Akme’s claim under the Duty Drawback Program [DDP] on the grounds that Akme failed to provide the books and requested by the CBSA [1]. The DDP provides that “when goods are imported into Canada and re‑exported, or where processed products made using substitute domestic or imported goods….that are of the same class as the imported Goods…are exported, the processor is eligible to obtain a refund of the duties paid on the imported Goods, provided that certain statutory requirements are met” [3]. Akme made two sets of drawback claims, and through multiple exchanges between the parties and decisions by the CBSA on some of the drawback claims (see paras 6-12), Akme resubmitted its unpaid drawback requests. The requests sought to clarify its claims after the CBSA sought more information and access to Akme’s “books and records” [9]. In response to this submission, the CBSA took the position that this submission did not contain any “new” documents [15]; Akme took the position that although the documents were not new, they presented the information required to assess the claims—the documents were in hand [21].
Issue: Is the decision reasonable?
Holding: The decision is unreasonable.
Analysis: The case underscores the importance of justification, even in cases where the decision-maker’s power is unquestionably broad. The Minister’s argument failed to draw an important distinction. There is the question of the breadth of a statutory power; and then there is the question of the conditions for its reasonable exercise. Both issues could be relevant in an application for judicial review, but here, only the latter was relevant. The Minister’s argument was properly rejected because it was not alive to this distinction.
The Minister’s argument here relied heavily on “his broad powers under the [Act] to require access to and to examine an importer’s records” which aligned with the purpose of the legislative scheme, which envisions a voluntary, self-reporting scheme, necessitating broad powers [26]. Akme (quite rightly, as I’ll point out), says that this is beside the point: the Minister’s statutory power is “subject to the parameters set out by the Supreme Court in Vavilov” [30]. Akme specifically points to its arguments that the CBSA already had the information it requested in order to assess Akme’s claims—arguments that were left unaddressed [30].
The Court agrees with Akme: “[i]n the end, the Decision is not reasonable because the Officer did not have the authority to request additional books and records—there is no issue that he did—but because the Decision did not meaningfully account for the central issues and concerns raised by Akme in relation to such a request” [58]. The breadth of the Minister’s powers is a red herring—rather, the requirement to deal with Akme’s submissions is a precondition of a reasonable exercise of this power. These two things, as the Court rightly says, “should not be conflated” [42]. Vavilov lists the constraints that condition the exercise of statutory power, and decision-makers must engage with those constraints through the reasons.
It is not enough for the decision-maker to simply state that it has broad power, and therefore its decision is reasonable: “ The Officer’s reasoning is simply that the CBSA requested documents, that Akme did not provide them, and that thus, the dismissal of the claim was justified. I find this approach untenable” [36]. This is fully consistent with the higher bar erected by Vavilov.
As we recently saw in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108), engagement with the submissions of the parties is a super-strong requirement on decision-makers. Decision-makers of all types should reflect in their reasons that they engaged with the parties’ submissions in the exercise of its statutory powers. Here, the Court expects more than boilerplate (ie) I have read the submissions [36]. Decision-makers should spend time in their reasons engaging with the parties’ submissions, integrating those submissions into its assessment of its legal authority according to the normal rules of interpretation. Again, this is a meaningfully higher bar for decision-makers.
Canada (Attorney General) v Pier 1 Imports (US) Inc, 2023 FCA 209 (October 13, 2023)
Category: Statutory rights of appeal/applications for judicial review
Context: This is an appeal and an application for judicial review brought by the Attorney General in relation with an order of the Canadian International Trade Tribunal.
Analysis: This is another entry in the ongoing saga on the constitutional guarantee of judicial review and the related issue of whether rights of appeal are “adequate alternatives” to an application for judicial review (see last week’s newsletter). Here, the Court, seized with both an application for judicial review and a statutory appeal under s.68(1) of the Customs Act. Readers will recall that this was the statutory provision at issue in Canada (Attorney General) v Best Buy, 2021 FCA 161 (Issue #4), which generally read the legislation to permit both the filing of an application for judicial review and a right of appeal in relation to the same matter. The Court was convinced, for constitutional reasons, that some issues of fact—which the right of appeal does not entertain—must nonetheless be subject to judicial review. The Court, here, is bound by Best Buy [29-30].
Nonetheless, one senses some reticence on the part of Boivin JA in relation to Best Buy, with the result that “…in the vast majority of cases, the statutory right of appeal will be sufficient to address the issue at hand…” [52]. Boivin JA notes that the concurrent appeal and judicial review raises issues of practicality: repetitive and overlapping arguments, incongruencies in timelines, etc [51]. In part because of this, Boivin JA notes that that the Ontario Court of Appeal’s decision in Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446, currently under appeal at the SCC, might be the best way to conceptualize the problem (see Issue #45). Yatar held that judicial review is always available as a matter of constitutional law, but that judges should ask whether engaging in judicial review—as a matter of discretion—is appropriate in cases involving a right of appeal [52].
I share Boivin JA’s practical concerns. The duplication of proceedings that the Best Buy model invites complicates judicial review, which should be a quick and efficient on-the-record review. The concerns raised by Boivin JA are additional reasons to prefer a model that sees rights of appeal as channeling the judicial review function.
And again, as I noted last week, I think it is useful to delineate the issues that attend the interaction between rights of appeal and applications for judical review—these issues were explained well by Slatter JA in Georgopoulous v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2023 ABCA 285. As a constitutional matter, and as I’ve argued, a right of appeal that couples with it a privative clause barring judicial review should be seen as constitutional because it preserves review over questions of law. There, though judicial review itself is ousted, the court’s constitutional review function is preserved. Where there is only a right of appeal (and no accompanying privative clause), Yatar and Boivin JA’s comments come into play: as in Yatar, while judicial review is not expressly ousted by a privative clause, the right of appeal will generally be an adequate remedy to deal with any issues that could be raised in the judicial review. Judicial review remains available because as a constitutional matter it must, but it will generally be unnecessary given the right of appeal. Nonetheless, in both of these cases (right of appeal + privative clause and just a right of appeal) an application for judicial review is either properly ousted or seen as duplicative.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.