R.R. v Vancouver Aboriginal Child and Family Services Society, 2025 BCCA 151 (May 8, 2025)
Category: General.
Context: This is an appeal of a judicial review centred around a decision of the BC Human Rights Tribunal. RR is an Afro-Indigenous woman who had her children removed—but eventually returned—by the Society. In the course of the process, RR felt that the Society discriminated against her, and filed a Tribunal complaint. In its decision, the Tribunal concluded that the Society had discriminated against RR and ordered it to pay RR $150 000 in compensation. On judicial review and appeal, one of the key issues centred around the jurisdiction of the Tribunal to hear the matter, considering the argument that the “essential character” of the dispute was one related to “custody and access.” So the argument goes, that characterization of the dispute would leave exclusive jurisdiction in the Provincial Court under the Child, Family and Community Service Act [CFCSA] [59].
Issue: For our purposes, the issue is whether the Society has jurisdiction to hear and decide the discrimination claim.
Holding: The Tribunal properly assumed jurisdiction and exercised its jurisdiction.
Analysis: In resolving the question at issue in this case, the Court (per Marchand CJ) explains and applies the different types of jurisdiction:
[62] The decision maker’s jurisdiction can be exclusive, concurrent or overlapping. Exclusive jurisdiction exists where only one statutory decision maker has the power to address a particular issue. Overlapping jurisdiction exists where statutory decision makers have the power to address different issues of law arising out of the same set of facts. Concurrent jurisdiction exists where two statutory decision makers are empowered to consider the same legal issues: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39 at paras. 8–11.
In this case, Marchand CJ notes that the jurisdiction of the Tribunal and the Provincial Court is overlapping. As he notes, in this case, a shared set of facts can give rise to two issues: (1) is the child in need of protection under the CFCSA? (2) is the parent/child’s right to be free of discrimination protected in the process? This is, to me anyway, a clear situation of overlapping jurisdiction. As such, it could not be said that the discrimination claim was a substantive challenge to the child protection proceedings; a collateral attack. Her complaint “did not challenge the initial removal of her children…thereby avoiding any collateral attack on existing court orders” [87].
This case is a useful primer on jurisdiction. You might think jurisdiction is a bad word since Vavilov. When it comes to the determination of the standard of review, and in one sense, it is: jurisdictional questions do not attract correctness review. But that holding does not displace the entire concept of jurisdiction in administrative law.
Copyright Collective of Canada v Bell Canada, 2025 FCA 92 (May 8, 2025)
Category: General.
Context: Several copyright collectives seek judicial review of a redetermination decision of the Copyright Board of Canada. The redetermination decision set royalty rate for the Tariff for the Retransmission of Distant Television Signals. The redetermination decision followed a decision of the Federal Court of Appeal granting in part an application for judicial review of an earlier decision of the Board setting the rate for the tariff.
Issue: As Locke JA says (for the Court), “[t]he dispute in this application concerns whether the Board exceeded its jurisdiction in the Redetermination Decision by going beyond what was contemplated in the [previous] JR Decision” [2].
Holding and Analysis: The Court granted the application, set aside the Decision and directed the Board to issue a new certified Tariff with rates specified in the reasons of the Court.
There are two interesting tidbits in this decision, separate from the substantive copyright issues. First, there is sometimes a question of how a judicial decision should impact a later administrative decision. This sometimes comes up on reasonableness review. For example, where a judicial decision appears to bear on a later administrative decision, the judicial decision is a Vavilovian constraint with which the decision-maker must grapple. Failure to do so could render the decision unreasonable.
Here, a related but slightly different problem arises, because the big question is whether the Board followed the precise directions of the previous FCA decision. The parties appear to have framed this issue as one of functus officio or stare decisis, but Locke JA usefully cuts through the noise to offer a useful framework: (1) What did the FCA direct on redetermination; (2) did the Board follow those directions? [24]. Where we can find simplicity, we should pursue it.
The problem, here, is that the Board went beyond the directions provided by the FCA on redetermination: “The Board clearly concluded that the text permitted redetermination of issues beyond those addressed in the JR decision” [28]. In this sense, this was a clearer case than many, where there could be room for disagreement about whether the decision-maker (a) grappled with the previous decision at all; or (b) if it did, whether it did so in an appropriate manner.
Smajlaj v Canada (Citizenship and Immigration), 2025 FC 821 (May 6, 2025)
Category: Reasonableness review.
Context and Analysis: This is a judicial review of a pre-removal risk assessment [PRRA] decision which found insufficient evidence that the applicant would face persecution if he were returned to Albania. The key question turned on the reasonableness of the officer’s decision.
This decision offers two important clarifications for the conduct of reasonableness review, particularly in immigration and refugee matters. First, it offers clarification on the rule contained in Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC). Often deployed in proceedings of this kind, Cepeda-Gutierrez basically has two parts: (1) it says that there is a presumption that the decision-maker considered all the evidence; (2) however, ignoring particularly relevant evidence will give rise to an inference that the decision is unreasonable. I have questioned whether the first part of Cepeda-Gutierrez can stick in the “culture of justification” post-Vavilov: see Issue #58, Canada (Citizenship and Immigration) v Montoya , 2022 FC 105 at paras 17-18. However, the second part of Cepeda-Gutierrez is arguably quite consistent with Vavilov, since Vavilov also contemplates that a failure to refer to central elements of evidence or statutory context could make a decision unreasonable.
Here, Gascon J offers clarification of this second aspect of Cepeda-Gutierrez. He rejects the contention that a failure to refer to evidence that squarely contradicts the officer’s conclusion means that the decision is per se unreasonable [21-22]. Rather: “Cepeda-Gutierrez states that it is only when the omitted evidence is critical and squarely contradicts the administrative decision maker’s conclusion on key elements of its reasons that the reviewing court may determine that the decision maker unreasonably disregarded material before it” (emphasis of Gascon J) [22]. In other words, for the 2nd part of Cepeda-Gutierrez to be relevant, the officer must ignore evidence that squarely contradicts her conclusions and is central to the case.
Second, Gascon J offers an important clarification for the conduct of reasonableness: review:
[26] Mr. Smajlaj attempts to fault the Officer for being too granular and having a fixation on details. I do not agree. An administrative decision maker’s analysis does not become unreasonable or overzealous because it happens to be exhaustive, focused, and comprehensive. Quite the contrary, such an approach reflects the rigour that applicants (and the reviewing courts) have the right to expect from a decision maker’s analysis. I would add that a decision maker must in fact demonstrate such rigour to satisfy the requirement for a “justified” decision established in Vavilov. A decision maker’s analysis only veers towards being too granular when it delves into peripheral issues and examines elements or contradictions that are insignificant or irrelevant to the purpose of a refugee claim or risk assessment. This is clearly not the situation here as the alleged blood feud was at the very heart of Mr. Smajlaj’s alleged risk of persecution, had been rejected by the RPD, and thus needed to be thoroughly assessed by the Officer when Mr. Smajlaj elected to rise it from its ashes in his PRRA application.
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