Southern Railway of British Columbia Limited v Vancouver Port Authority, 2024 FCA 175 (October 25, 2024)
Category: Practice and procedure in the Federal Courts.
Context and Analysis: This appeal involves the scope of Rules 317 and 318 in the Federal Courts Rules. In particular, Rule 317 provides that “[a] party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party…” The issue, as recited by de Montigny CJ, is as follows: can “Rule 317 be used to compel the production of materials from an entity when the very jurisdiction of the Court over that entity and the decision being challenged is at the core of the debate” [2] ?
de Montigny CJ concludes that Rule 317 cannot be used in this manner— “[i]t cannot be relied upon if the jurisdiction of the Court is in doubt” [26]. Permitting this would allow “fishing expeditions” where parties access material from bodies that are not properly subject to judicial review in the Federal Courts, but which are merely named as respondents [26].
Importantly, de Montigny CJ reiterates the various methods available to litigants to ensure a complete record [32-33']. I encourage anyone practicing in the Federal Courts to keep in mind the following paragraphs:
[32] To avoid the use of Rule 317 as an indirect summary judgment tool, a party can avail itself of various alternative recourses. The most obvious way to obtain additional evidence derives from Rule 308, whereby a party may cross-examine on affidavits submitted by the opposing side and compel the production of documents by subpoena pursuant to Rule 41. Another potential avenue may be to bring a motion on notice to all affected parties requesting the production of evidence necessary to allow an application to be meaningfully heard and determined, when a party is of the view that there are serious deficiencies in the evidentiary record before the Court: see, by way of analogy, Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128, as cited in Canada (Health) v. Preventous Collaborative Health, 2022 FCA 153 [Preventous].
[33] The Court itself, of its own initiative or at the request of a party, can order that other material be filed if it considers that the application records of the parties are incomplete: see Rule 313. Apart from the authority granted by that rule, the Court could make use of its general supervisory power in administrative matters (Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, 157 D.L.R. (4th) 385) and its plenary jurisdiction to make orders necessary for the conduct of proceedings (Dugré v. Canada (Attorney General), 2021 FCA 8 ) to assist the parties, as recognized in Preventous (at para. 18). Finally, the Court could also rely on Rule 4, commonly referred to as the “gap rule”, to compel the production of evidence that is considered essential for the efficient resolution of an issue. Needless to say, a party could also invite the Court to draw an adverse inference from missing evidence.
de Montigny CJ closes by reaffirming what the FCA has now made clear multiple times: “At the end of the day, no decision of the executive branch should be immunized from careful and meaningful review by the courts, either as a result of an incomplete record or for any other illegitimate reason” [34]. For more on these issues, see the helpful order of Stratas JA in Canadian National Railway Company v Canada (Transportation Agency), 2023 FCA 245.
Canada Nuclear Laboratories Ltd v Adams, 2024 FC 1697 (October 24, 2024)
Category: Selection/application of the standard of review.
Context: The applicant filed a human rights complaint with the Canadian Human Rights Commission against her former employer, Canadian Nuclear Laboratories [CNL]. A preliminary investigation, conducted by an officer with the Commission, and referred the complaint to the Canadian Human Rights Tribunal. CNL sought judicial review of the Commission’s decision to refer the complaint.
The underlying issue involved reasonable notice and an intervening disability. CNL gave the applicant eight weeks’ written notice of the termination of her employment. In the intervening period, Adams took medical leave and sought disability benefits, but CNL’s third party disability management administrator concluded that the applicant was not eligible for medical leave benefits. The essence of the Complaint was to the effect that CNL ought to have suspended the period of notice during a time when she was too sick to work.
Issues: (1) What is the standard of review? (2) Does the decision meet the relevant standard?
Holding and Analysis: On the first issue of the standard of review, CNL argued that the Supreme Court’s decision in SOCAN v ESA, 2022 SCC 30 (Issue #49). In that decision, a majority of the Court (per Rowe J) held that where a tribunal and a court have concurrent jurisdiction, the rule of law and legislative intent suggest that the standard of review should be correctness. Specifically, the concurrent jurisdiction rule operates where a statute provides concurrent jurisdiction between a court and a tribunal; this is a legislative indication that the delegation to the administrative decision-maker is not “complete,” warranting a rebuttal of the presumption of reasonableness. As you will read in Issue #49, I thought this was an excellent decision, one rooted in Vavilov’s central commitments.
Here, CNL sought to deploy SOCAN to argue that the correctness standard should apply. The argument ran as follows: though the Commission has exclusive jurisdiction to deal with discrimination complaints, the question of reasonable notice and intervening disability is a matter over which s.96 common law courts have jurisdiction. Though the concurrency does not flow from a statute, there is still concurrency over a common law issue. At issue is whether concurrency over common law matters engages the same concerns supporting the SOCAN rule.
The Court (per Fothergill J) rejects the argument, concluding that while the common law employment “figured prominently” in the underlying Commission report, the decision “concerned human rights law, not employment law” [39]. Unfortunately, Fothergill J does not address the interesting and creative part of CNL’s argument: that concurrency could arise in these circumstances involving the common law.
On the merits, and applying reasonableness review, Fothergill J nonetheless finds the referral unreasonable. The problem was the human rights officer’s “misapprehension of the common law of dismissal” [56]. Courts in the post-Vavilov era, at least by my lights, are applying common law constraints on administrative decision-makers quite stringently, even under the reasonableness standard (see Issue #69 and cases therein).
A small piece of this case worth highlighting. The applicant argued that CNL’s application for judicial review was not timely. However, Fothergill J rejected this argument. This was because the Commission had ordered conciliation in the case, failing which the referral would take place. As a result, “[i]t was appropriate for CNL to refrain from seeking judicial review until the Commission formally referred the Complaint to the Tribunal…” [35]. In other words, the 30-day clock to seek judicial review in the Federal Court was paused by the conciliation.
Christie v Canada (Attorney General), 2024 FC 1722 (October 29, 2024)
Category: Application of the reasonableness standard.
Context: This is a judicial review of a reconsideration decision by the Veterans Review and Appeal Board [VRAB]. The Reconsideration Panel upheld an Appeal Panel’s conclusion that the applicant’s injury “did not arise out of or was not directly connected to the Applicant’s RCMP service” [25]. The core factual problem involved an incident in which the applicant was injured by a group of young males while off-duty [4-6]. This, for the VRAB appeal panel, meant that the applicant was not acting in an “official capacity” [8].
Issue: Is the decision unreasonable?
Holding and Analysis: The Court (per Ngo J) finds that the decision falls on Vavilov’s evidence and fact-based constraints. Specifically, there was a contemporaneous report by an RCMP sergeant about the matter, connecting the applicant’s duties to the incident. For Ngo J, “the Report would have been one of the best available pieces of evidence relating to the Assault” [30]. The Reconsideration Panel, however, cited the wrong date for the report, and discounted it because it was (apparently) prepared after the assault. This was an error—the report was contemporaneous.
One might say this error is immaterial, the sort of thing that Vavilov tells us will not undermine confidence in the ultimate decision. But Ngo J—for good reason—sees things differently. The report “formed an important part of the panel’s justification” [32] and would have acted as objective, contemporaneous evidence of the claim that the applicant was “off-duty” but nonetheless acting in an official capacity. Word to the wise—in some cases, small evidentiary errors can end up being quite significant, depending on the facts.
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