First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2024 YKCA 5 (April 9, 2024).
Category: Reasonableness review//duty to consult.
Context and Holding: From the Court’s summary:
This is an appeal from an order made on judicial review setting aside a decision made by the Director of the Mineral Resources Branch of the Government of Yukon. The impugned decision permitted a mineral exploration project in the respondent First Nation’s traditional territory to proceed to the regulatory approval and permitting stage. The reviewing judge’s decision was made on the basis that Yukon had breached the duty to consult, and on several alternative bases. The reviewing judge also issued three declarations sought by the First Nation. The appellant, the Government of Yukon, contends the reviewing judge erred, including in her application of the standard of review. It seeks to have the reviewing judge’s order, including the declarations, set aside: Held: Appeal allowed in part. The reviewing judge did not err in her duty to consult analysis; in particular, she did not err in identifying or applying the appropriate standard of review.
Issue and Analysis: A core issue, among others, in this case concerned the adequacy of the consultation, evaluated on Vavilov’s reasonableness standard. In the Supreme Court’s recent decision in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108), the Court (per Jamal J for the majority) fleshed out just how “robust” Vavilovian reasonableness is. One of the core precepts emerging out of this case holds that the submissions of the parties on central issues carry great weight; failure to address these submissions directly will, in essence, render a decision per se unreasonable.
This case is proof-positive of Mason’s core point. Administrators of all types must be sure to respond to important submissions (query this “importance” threshold), and courts appear freely able to find unreasonable decisions that fail to do so. Here, the Court agrees with the first-instance judicial review judge that the consultation was inadequate: “…it is clear that the root of the inadequacy identified by the reviewing judge was Yukon’s failure to engage with the First Nation on an issue of central importance” [127]. The First Nation argued that exploration authorizations should not be issued until certain land use planning processes were complete [128]. For the Court, this submission was not addressed. As a result, it is not possible for the decision—which “does not respect the First Nation’s right to meaningful participation in land and resource management”—to be reasonable [132].
Knezevic v British Columbia (Assessor of Area #01-Capital), 2024 BCSC 561 (April 8, 2024)
Category: Statutory interpretation.
Context: This is an appeal, in the form of a stated case, of a decision of the Property Assessment Appeal Board. The case concerns a property, the majority of which is treed land used for privately managed forestland operations. However, on the property is a cabin, and the Board ultimately confirmed an assessor’s view that the land underneath this cabin is “residential.” The applicant disagreed, arguing that the entire property—including the cabin land—should be classified as “managed forest land.”
Issue: One of the legal issues raised in the case concerns a regulation that, for the purposes of classification, measures “distance” (see paras 51-54) from a sawmill, log dump, or potential log dump site. The question was whether the term “distance” in the regulation concerns “transportation distances over land or water” or “straight-line” distances [54].
Holding: The Court ultimately finds fault with the Board’s application of the principles of interpretation.
Analysis: I have written often about a frequent problem in Canadian statutory interpretation: the tendency for courts and administrators to abstract away from the text of statutes in order to render interpretations consistent with some high-level “purpose.” But, sometimes, the opposite approach rears its ugly head: a literalist approach divorced from the context of the statute.
The Court (rightly, in my view) finds this flaw in the Board’s reasons. Here, “[t]he Board did not engage with the broader statutory context at all…” [65]. It did not consider purpose, nor did it “reference the modern principles of statutory interpretation in the reasons” [65]. These flaws, in this case, were fatal. Because the measurement of distance is related to accessibility for the transport of timber on privately-managed forest lands, “[r]oad and water distances would better reflect accessibility for the transport of timber than would straight-line distances” [66]. This is not the imposition of a judicial policy preference. Rather, it is an acknowledgement of the reasons why the regulation prescribes a certain form of distance measurement, as a means to ensure that “we are not mistaken in our understanding of the meaning of the legislative text” (see e.g. Hillier v Canada (Attorney General), 2019 FCA 44 at para 24). This is perfectly consistent with an approach that pays close attention to the text, as required under the modern approach.
A word to the wise in writing and evaluating administrator reasons.
Bedard v Canada (Attorney General), 2024 FC 570 (April 10, 2024)
Category: Mandamus.
Context: From the Court’s decision:
[1] The Applicants are members of the Royal Canadian Mounted Police [RCMP] who filed appeals of internal harassment complaint decisions or disciplinary decisions to the RCMP External Review Committee [ERC] and have yet to receive any resolution despite having made demands for performance, years after the filing of their respective appeals.
[…]
[3] The Applicants seek two orders of mandamus to compel the ERC to: (1) complete its review of their respective appeals within 30 calendar days of the Court’s decision and (2) publish and report on its service standards applicable to every file before the ERC. The Applicants also seek costs for this writ of mandamus application. The Attorney General of Canada [AG] represents the RCMP.
Issue: The general issue is whether mandamus should issue in this case, but more specifically, there is a dispute about whether the applicants are required to show that any delay caused them “significant prejudice.” This is an issue that has arisen in other Federal Court cases: see Administrative Law Wrapped, 2023: “The Changing World of Immigration & Refugee Law.”
Holding: The application for judicial review is dismissed.
Analysis: The Court (per Go J) seems to put an end to any debate about whether applicants must establish significant prejudice in launching an argument for mandamus. As I noted in Administrative Law Wrapped, 2023, at least one case in the Federal Court did not mention a demonstration of significant prejudice as a requirement for mandamus: see Ghaddar v Canada (Citizenship and Immigration), 2023 FC 946 (Issue #98). Others have suggested that significant prejudice is a requirement, as it is when an argument is made that inordinate delay leads to abuse of process: see Chen v Canada (Citizenship and Immigration), 2023 FC 885 (Issue #96) But as Will Tao argues in the immigration context, the imposition of a “significant prejudice” test in mandamus cases might mix together considerations relevant to the abuse of process doctrine with those pertinent to mandamus. To be sure, delay could be relevant to both the writ of mandamus and abuse of process, but there is at least some question whether, as Tao argues, the higher bar for abuse of process should have been imported into mandamus.
Here, Go J relies on the Supreme Court’s recent decision in Law Society of Saskatchewan v Abrametz, 2022 SCC 29 (Issue #48). There, the same debate appeared between the majority and dissenting opinions: whether there is a requirement of significant prejudice in the “delay” context, related to abuse of process, evident in the Supreme Court’s previous case of Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44. Neither Abrametz nor Blencoe were mandamus cases. Nonetheless, Abrametz is central to Go J’s analysis, specifically when she concludes that “…the SCC’s instructions with respect to prejudice in Blencoe has been applied to mandamus proceedings” [84]. This is true, as mentioned above, in at least some cases. As a result, “[t]he Applicants’ claim that delay per se amounts to prejudice must, therefore, be rejected” [79].
On the current state of the law—which is somewhat fixed by the Abrametz majority’s reading of Blencoe, alongside its adoption in at least some mandamus cases—Go J’s conclusion appears open to her. Whether, as a matter of first principles, mandamus should be so closely tied to abuse of process is another question.
Ulrich v Ontario (CEO of FSRA), 2024 CanLII 30557 (ONFST)
Category: Administrative precedents.
Context and Analysis: This is a decision of the Financial Services Tribunal of Ontario, adjudicating whether Ulrich supplied fraudulent documents and false information, and assessing penalty. I usually do not feature tribunal decisions—there are just too many—but I’ve highlighted this case because of how it dealt with an argument about previous administrative precedents, and the extent to which they are binding in the current case.
The applicant argued, interestingly, that the tribunal was obligated to consider “established internal authority,” which included matters that went to settlement by the regulatory body but were not actually adjudicated [104]. The suggestion appeared to be that these settlements constituted “internal authority” that the tribunal was bound to follow, or otherwise distinguish. But here, the ONFST concludes that it is not bound by settlements as “internal authority.” Instead, the tribunal reads Vavilov to only require attention to actual past decisions [102].
I think this is exactly right. It is true that “established internal authority” can mean different things in different contexts—perhaps a policy-oriented decision-maker might rely on different forms of established authority than an adjudicative tribunal. But for sake of clarity, I think decisions, the bread and butter of adjudicative tribunals, constitute the most relevant “internal authority.”
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