Safe Food Matters Inc v Canada (Attorney General), 2022 FCA 19 (February 2, 2022)
Context: The Appellant, Safe Food Matters Inc., is a non-profit organization “dedicated to promoting public health and protecting the environment by educating Canadians about the safety of food production technologies” (at para 2). The Appellant brought a notice of objection to the Pest Management Regulatory Agency (the “PMRA”) regarding its decision to permit the continued registration of glyphosate products (a pest control product) for use in Canada. In written reasons, the PMRA dismissed the objections raised in the Appellant’s notice of objection, and exercised its discretion not to establish a review panel pursuant to s 4 of the Review Panel Regulations, S.O.R./2008-22 [Regulations]. The Appellant sought judicial review of this decision on the basis that the PMRO failed to interpret the statutory scheme governing the criteria for assessing the notice of objection; that it did not comply with the statutory scheme as properly interpreted; that it failed to address the impact on individuals; and it failed to address the Appellant’s evidence and submissions (at para 30). The Federal Court determined that the PMRA decision not to establish a review panel was reasonable. In response the issue was appealed to the Federal Court of Appeal.
Issue: Is the PMRA’s decision not establishing a review panel in response to the appellant’s notice of objection unreasonable?
Holding: The appeal is allowed. The PMRA Decision is quashed, and the matter is remitted back to the PMRA for reconsideration.
Analysis: This decision shows how, in the developing doctrine of judicial review, the enabling statute of the decision-maker is taking on rather central importance. It also shows how the concept of “expertise” is relegated to a secondary position post-Vavilov.
It is often said that the grants of power to administrative decision-makers are broad, but less often is it said that every delegation—even broad ones—are cabined. This is the situation here. Under the Regulations, the PMRA was bound to consider two factors: (1) whether the information in the notice of objection raises scientifically founded doubt as to the validity of the evaluations, on which the decision was based, of the health and environmental risks and the value of the pest control product; and (2) whether the advice of expert scientists would assist” [46]. It is also bound by the statute under which it operates. Here, though, among other things, the failure to substantively address the Regulations is fatal [53]. Note that even though the PMRA “provided a conclusory statement that the NOO did not meet either factor set out in…the Regulations” [54], this was far from enough. For the Court, “[w]e simply cannot discern from the PMRA Decision why the PMRA concluded that the objections raised in the NOO did not meet either of those factors” [54]. Here, again, is yet another example of a decision-maker failing on Vavilovian grounds because of the use of boilerplate.
The fact that the determination here involves scientific considerations is, of course, not enough to simply grant deference and be done with it. As the Court says, the record here “contains no more than a smattering of references to ‘concerns,’ ‘scientifically founded doubt[s]’ and ‘scientific grounds’” [59]. This sort of hand-waving is clearly not enough.
I think this case, as well as Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157, are the exemplars of how Vavilov is working in the Federal Courts. The features I can discern are the following: (1) a laser-focus on statutory text and purpose as the key factors that should drive administrative statutory interpretation; (2) boilerplate will not suffice. This is turning out, in my view, to be a meaningful change from pre-Vavilov practice.
Lempiala Sand v HMQ, 2022 ONSC 248 (February 2, 2022)
Context/Facts: Lempiala Sand and Gravel Limited (“Lempiala”) and Milne Aggregates Inc. (“Milne”) are companies that operate pits and quarries in Northwestern Ontario. In 2018, both companies sought permits from the Ministry of Natural Resource and Forestry (the “Ministry”) to extract aggregate from Crown Land in an area near Thunder Bay. Lempiala made the first inquiry regarding a permit for the site, and Milne made an application a few months later. In May 2018, the Ministry deemed Milne’s application complete, giving them exclusive opportunity to secure a permit to extract aggregate. The Ministry then advised Lempiala that it would not consider its application further. Lempiala brings an application seeking judicial review of the Ministry’s decision deeming Milne’s application complete on the baisis that certain Ministry policies that govern the application process were not respected.
Issue: Was Milne’s application reviewed according to Ministry policy and procedures? Was the Ministry’s decision to not consider Lempiala’s application unreasonable?
Holding: The decision to deny the permit was unreasonable. There is no basis to suggest that the information provided by Milne satisfies the Cultural Heritage Policy, and a failure to file such evidence is not superficial or peripheral to the merits of the Decision, but rather is central to the Decision so as to render the Decision unreasonable (at para 118).
Analysis: This case cites Alexion for the idea that decision-makers cannot fasten onto non-binding guidelines or policy documents to the exclusion of the governing law [90-91]. The problem here was similar. The Ministry mostly determined the issue in front of it with reference to its policies; and this led it astray. As the Court says, the relevant governing law “does not necessitate that every report submitted with a complete application contain every piece of evidence or analysis as specified by the Ministry Policies” [99]. The Ministry erred in insisting so.
British Columbia (Environmental Management Act) v Canadian National Railway Company, 2022 BCSC 135 (January 28, 2022)
Context: This case concerned three decisions of the Environmental Appeal Board (EAB). The decisions generally concerned the constitutionality of provisions of the Environmental Management Act, which is a statute of British Columbia. The EAB decided that the statute and associated regulations regulate interprovincial railways and, for that reasons, are unconstitutional to the extent they do so. Prior to rendering the impugned decision, the EAB also sided with the railways and granted a confidentiality order and an order for in camera proceedings.
The parties differ, to some extent, over the standard of review on the confidentiality order. The railways argue that the confidentiality order does not fall within one of the exceptions to the reasonableness standard in Vavilov, and that since Doré is still good law, the confidentality decision is one of discretion attracting reasonableness review.
Issue: What is the standard of review?
Holding: On the confidentiality order, the standard of review is reasonableness.
Analysis: This is an interesting case that reveals some of the different standard of review problems involved in decisions implicating Charter rights, particularly in the “open tribunal” context.
The Court here views the EAB’s task on the confidentiality issue as one of legislative interpretation: para 73. And for that reason, all that is involved is “an exercise of discretion by applying facts to a particular statutory scheme and in light of the Charter values at issue” [85]. Therefore, reasonableness is the standard of review [86].
This case is different from one where there is a “threshold” question as to whether a Charter right is engaged on the facts (see CBC v Ferrier, 2019 ONCA 1025, leave to appeal ref’d; see also my analysis of Ferrier here). The Court distinguishes Ferrier. In Ferrier, the issue was whether the decision-maker properly decided not to consider a Charter right. The ONCA held that this decision was reviewable, on a threshold matter, for correctness. Here, we did not need to deal with this problem because the EAB apparently considered itself bound to consider the constitutional issues implicated by the confidentiality order [84].
Maybe it doesn’t matter. Here, the Court found the EAB’s confidentiality decisions unreasonable [146]. Centrally, the EAB purported to subject the petitioners to a requirement of demonstrating how the “public may actually benefit from access” [112]. And yet this reverses the legislative onus: under the Administrative Tribunals Act—and consistent with the Charter and the common law—proceedings are presumed open. There is no requirement of proof of public benefit, since it is the presumed position. We see here a repeated error with which readers of the newsletter will be familiar: the imposition, by an administrator, of some extra-legal requirement that surreptiously has the effect of amending the legislation (see e.g. Issue #27, Mercer Estate v Moose Jaw Board of Police Commissioners, 2022 SKQB 8).
Canada (Public Safety and Emergency Preparedness) v Ahmed, 2022 FCA 18 (February 1, 2022)
Context: The Federal Court set aside a decision of the Refugee Protection Division [RPD] that, under s.109 of the Immigration and Refugee Protection Act, vacated a positive refugee determination. The RPD concluded that the respondents, a family from Yemen, allegedly obtained refugee protection as a result of withholding their connections to another country, Kenya. This, for the RPD, was a misrepresentation under the statute. The Federal Court concluded that “there was no evidence on record establishing that this information, if disclosed, would have been material to the actual granting of refugee status” [4]. For that reason, the RPD’s decision was unreasonable—it failed to address the issue of materiality.
Issue: Is the RPD decision reasonable?
Holding: No.
Analysis: This case concerned the particular test to be applied when the RPD vacates a refugee determination as a result of misrepresentation. The Federal Court’s errors here were of two kinds, and the case provides an example for advocates of what to look out for on judicial review and appeal:
The RPD here misapprehended its statutory grant of authority under s.109. The RPD was confronted with “some evidence”of Kenyan citizenship, but it did not direct itself to this evidence and ultimately acted as if “it was not within the purview of its authority…to determine whether the respondents, based on all the evidence that was before it, had any right to Kenyan citizenship” [38]. But once the RPD decided not to pursue this line of inquiry, it did not consider the materiality of these omissions, which is required under s.109.
The FCA took the position that the Federal Court, though coming to the right conclusion on the reasonableness of the RPD decision, decided the issue of materiality de novo. Of course, this is not permissible on reasonableness review [52].
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.
Quote of the Week: “Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives”—James Madison