McCargar v Metis Settlements General Council, 2025 ABCA 33 (February 4, 2025)
Category: Reasonableness review.
Context: This is a permission to appeal proceeding from a disposition on costs by the Metis Settlements Appeal Tribunal. The applicant was unsuccessful in an original application to appeal a decision by the Tribunal.
The applicant argued that the Tribunal misapplied the Metis Settlement Act in the costs order.
Holding and Analysis: Watson JA concludes that the application for permission to appeal should be dismissed.
In passing over the issue of the legality of the costs order, Watson JA offers an interesting turn of phrase. He says that, when applying reasonableness review on questions of law—in this case, what it means for the Tribunal to have power to issue costs at its discretion—we are really talking about a standard “which might more precisely be expressed as ‘reasonableness within legal constraints’…[8]. He says this is the ssence of the standard adopted in Vavilov, and later affirmed in Auer v Auer, 2024 SCC 36.
Watson JA is onto something important. As I explored in my commentary on the Emergencies Act case (now on appeal), reasonableness review under Vavilov is not a freestanding policy inquiry into the generic “reasonableness” of a decision. Rather, it is what Watson JA describes: an exercise disciplined by the rules and principles of statutory interpretation. Where the enabling authority is broad and open-ended, there is a lot of room for a decision-maker to choose options within the ambit of the language. Not so in other cases, such as this one, where “costs” is a term of legal art, connoting a certain definition that the legislature is taken to know [10]. This is all about the terms of the statute, nothing more or less.
Metalurji v Altasteel Inc., 2025 FCA 29 (February 5, 2025)
Category: Preliminary objections.
Context: In the underlying proceeding, the appellants sought to quash the results of a Canada Border Services Agency reinvestigation under the Special Import Measures Act. The Federal Court struck the application on the basis that re-investigations do not, on their own, impose legal obligations or cause prejudice.
Issue: Should the application have been struck?
Holding: For the panel, Stratas JA concludes that review of the re-investigation is premature.
Two interesting nuggests in this decision. First, Stratas JA re-affirms the high bar, particularly in the Federal Courts, to bypass internal administrative processes or seek review of interlocutory proceedings. To do this, applicants must raise admissible evidence that the “rare administrative law remedy of prohibition” might be available [11]. On these facts, the evidence fell well short of demonstrating the relevance of the writ. Stratas JA mentions that, to issue the writ, the Court would need “specific and cogent evidence” about “how these procedures actually operate in practice” [11]. That evidence would be needed to demonstrate if the interlocutory proceedings raise the stakes to the affected party, such that prohibition might be relevant.
Second, Stratas JA re-emphasizes the importance of the statutory scheme—Parliament’s institutional design choices—in orchestrating the review. Stratas JA notes that the appellants’ arguments “would undermine this orderly and escalating series of reviews” that lead to a final disposition by the Canadian International Trade Tribunal and an appeal [14].
In a powerful final paragraph, Stratas JA says:
[15] That we cannot permit. Parliament passed this legislative scheme. Parliament’s legislative intent is the “polar star” of judicial review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 4 S.C.R. 653 at para. 33. This reflects an elementary but very important point. Courts are in no different position from the public they serve: they too must follow the law.
Westerlaken v Yukon Residential Tenancies Office, 2025 YKSC 7 (February 4, 2025)
Category: Selection of the standard of review.
Context: This is a judicial review of a decision of the Director of Residential Tenancies. The case involves a question of legal authority:
This issue turns on a question of statutory interpretation: whether a tenant who charges an amount to another person to occupy a room in a rental unit where the tenant also resides is a landlord under the Act. If so, the Director has authority over the dispute. If not, considering the amount at issue, the Small Claims Court has jurisdiction over the dispute.
Issue: What is the standard of review?
Holding: The standard of review is correctness because this matter raises a question about the “jurisdictional boundaries between the Director and the courts of civil jurisdiction—and more particularly the Small Claims Court considering the amount at issue…” [12].
Analysis: It is true, of course, that the jurisdictional lines between two or more tribunals requires settlement by the ordinary courts under the correctness standard. Here, the Court (per Campbell J) concludes that this is such an issue, because the case concerns the relative jurisdictions of the Small Claims Court and the Director.
This conclusion requires an assumption—unstated here—that the Small Claims Court is an “administrative decision-maker” in the sense used in Vavilov. Strictly speaking, it is. The Small Claims Court is an inferior decision-maker, enabled by statute, and like any other decision-maker in this respect. In Ontario, the courts have reached a similar conclusion: see Imperatore v Fetesko, 2023 ONSC 1340 (Issue #80).
One wonders whether this was the intention behind this correctness category. The Small Claims Court is an inferior body, but its members hold judicial independence, and one might legitimately think of it as a court. If it is, then this correctness category cannot apply: see Morningstar v WSIAT, 2021 ONSC 5576 (Issue #6).
No matter what, I think Campbell J is right—under normal rules of statutory interpretation—that the Director’s authority is limited in this case. The authority of the Director “is limited to disputes that arise between residential landlords and tenants over their respective rights, obligations and prohibitions under the Act or a tenancy agreement…and any matters related to these specific disputes” [23].
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