R v Hodgson, 2024 SCC 25 (July 12, 2024)
Category: Appellate standards.
Context and Analysis: This is not an administrative law case, but rather a criminal case addressing the scope of the Crown’s limited right of appeal on questions of law alone when it seeks to overturn an acquittal. This case offers renewed guidance on identifying a question of law, an issue given the status of rights of appeal in Canadian administrative law that are sometimes limited to questions of law. Here are some takeaways from the majority decision per Martin and Moreau JJ (Rowe J concurring):
Identifying a legal question will “generally turn on the character of the alleged error, rather than its severity” [33]. Examples include “statutory interpretation, the scope of a constitutional right, and the definition of the essential elements of an offence."
Sometimes it may be that a party identifies a “legal error” in a “trial judge’s assessment of the evidence” [34]. Examples include:
Making a finding of fact for which there is no evidence
Assessment of the evidence based on a wrong legal principle.
The legal effect of findings of fact or of undisputed facts,
Some of this guidance is, of course, not new. However, for those labouring in administrative law, the identification of questions of law is ever-important. And the ability of courts to do so, I think, will tell the tale about whether rights of appeal over questions of law adequately preserve the constitutional minimum of judicial review.
Little Black Bear First Nation v Kawacatoose First Nation, 2024 FCA 119 (July 12, 2024)
Category: Application of the reasonableness standard.
Context: The Specific Claims Tribunal decided that the Applicants—two First Nations—were not beneficiaries of a reserve area. The Tribunal’s decision turned, in part, on the application of the principles of treaty interpretation and the Honour of the Crown.
Issue: Is the decision reasonable?
Holding: For a majority, Woods JA (joined by Heckman JA) found the decision reasonable. Gleason JA wrote a dissenting opinion.
Analysis: This is a long decision that repays careful reading, but for our purposes, I am most interested in the application of the reasonableness standard and the principles of treaty interpretation. The controversy surrounded the Tribunal’s statement that “principles of treaty interpretation and the honour of the Crown…have less useful application where, as here, the Indigenous beneficiaries of a Crown promise have conflicting perspectives and interests in the subject of the promise.” Woods JA takes this statement—assuming it is flawed—as immaterial to the overall reasonableness of the Tribunal decision [126].
Gleason JA, however, sees the matter quite differently. This statement, for her, “tainted [the Tribunal’s] approach to statutory interpretation” and for that reason could not be explained away as immaterial [143]. For her, the judicially-adopted and defined principles of statutory interpretation developed in the treaty context are “just as applicable in a case involving multiple Indigenous communities with conflicting perspectives and interests on the interpretation of a federal statute or Order in Council as they would be where an Indigenous community is pitted directly against the Crown” [149]. Here, given this judicial backdrop, Gleason JA finds a lack of explanation by the Tribunal, which is required for a departure from binding case law [151].
These are different approaches to reasonableness review. Gleason JA’s is more exacting. As I noted shortly after Vavilov, judges could deploy more or less rigorous versions of reasonableness review. In the general run, I think Vavilov erects a higher bar for administrators on questions of law—this seems to be implicit in the Supreme Court’s confirmation of Vavilov in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108).
Canadian Committee for a Sustainable Eel Fishery Inc v Canada (Fisheries, Oceans and Coast Guard), 2024 FC 683 (May 3, 2024).
**Thanks to a SEAR reader for sending this case**
Category: Preliminary objections (mootness)
Context: The underlying application for judicial review concerns the decision of the Minister of Fisheries to set the total allowable catch [TAC] for elvers (young eels). On this motion, the applicants request a series of interim relief measures to remain in place until the Court can adjudicate the underlying application. After the underlying application had been filed, the Minister announced the closure of the fishery for the season. Accordingly, the Minister also filed a motion to strike the application for mootness.
Issue: Should the application be struck?
Holding:
[5] For the reasons that follow, I am dismissing the applicants’ motion, with the exception that I am ordering that the underlying application proceed as a specially managed proceeding under Rule 384. As for the Attorney General’s motion, I am striking certain elements of the relief measures being sought by the applicants in their underlying application for judicial review, but not the application in its entirety.
Analysis: This case presents an interesting discussion of mootness in this particular regulatory context. The Court, per Pamel J, concludes that “[i]n any year in which the Minister closes the elver fishery pre-emptively, and I would add even when she does not, it is highly unlikely that any judicial review of a TAC decision will still be a live issue at the time of the hearing, probably well after the particular season has come to an end” [26]. In other words, because the particular challenge contemplated in this case would be unlikely to arise in certain years, the Minister’s control of the fisheries—while owed significant deference—will likely be evasive of review.
Brazeau (County) v Drayton Valley (Town), 2024 ABKB 445 (July 18, 2024)
Category: Preliminary objections: new arguments on JR.
Context: The County applied for judicial review of an arbitrator’s award under the Municipal Government Act. The County raised, for the first time on judicial review, the argument that the Arbitrator exceeded its jurisdiction.
Issue: Can the question of jurisdiction be raised for the first time on judicial review?
Holding: No.
Analysis: In many ways, this is an easy case: where, as here, a decision-maker has “broad authority to determine questions of law including jurisdictional questions,” it would run afoul of the legislative choice to permit the court to routinely decide questions not argued at first instance. But, interestingly, we get from the Court (per Davidson CJ), a useful reflection on the concept of “institutional design choices,” central to Vavilov. As I have previously noted, Vavilov only addressed the standard of review, but its overall template for administrative law has had—and will continue to have—influence beyond that narrow context. Here, Davidson CJ finds that hearing the issue for the first time on judicial review “would be intruding on the legislative institutional design for decision-making…” [27]. For him, Vavilov actually provides additional reasons to decline to hear issues raised on judicial review for the first time: “In my view, the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 has rendered the input of the original decision maker all the more important in the judicial review analysis. Accordingly, exceptions to the general rule not permitting matters to be raised for the first time on judicial review should be all the more rare” [27]. Because institutional design choices must be respected, there is good reason in this case to decline to hear the issue.
This is another example of how the concept of “institutional design choices” is carrying weight in Vavilov and beyond: see Dow Chemical Canada ULC v Canada, 2024 SCC 23, Issue #142.
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