Bilodeau v Her Majesty The Queen in the Right of Ontario, 2022 ONSC 1742 (March 23, 2022)
Context: Under the Oil, Gas and Salt Resources Act, Bilodeau was subject to a so-called “plugging order,” issued by the Minister, which instructed him to plug 11 wells that were drilled on private farm land under licences issued by the Ministry. Bilodeau defended on the basis that such an order can only be issued against the “operator” of a well, and in this case, neither he nor his corporation had control or management of the wells in question. On internal appeal, the Minister’s Designee rejected these arguments. The Designee, among other things, specifically found that the plugging order applied even in the face of a bankruptcy proceeding that had been concluded respecting Bilodeau’s company. On this issue, Bilodeau implicitly argued that the standard of review should be correctness because “it involves a question concerning the jurisdictional boundaries between two or more administrative bodies” [37].
Issue: What is the standard of review on the bankruptcy issue?
Holding: The standard of review is reasonableness.
Analysis: A clever attempt to get a correctness standard, here, but it was ultimately ill-fated. The Court rightly concluded that there “is no true operational conflict between any of the orders made in the various bankruptcy proceedings and the Designee’s findings that the 2019 Plugging Order was not a provable claim in bankruptcy…” [38]. This conclusion formed the basis of the Designee’s decision that the plugging order can survive despite the bankruptcy. Since the bankruptcy had already been processed and the plugging order was a separate matter, there was no conflict between different orders or regimes.
Château d’Ivoire Stores Inc. v. Canada (Attorney General), 2022 FC 405 (March 24, 2022)
Context: In the underlying decision, the Director of the Financial Transactions and Reports Analysis Centre of Canada [FINTRAC] issued a Notice of Decision against the appellant, imposing administrative monetary penalties under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. The appellant sought a statutory appeal to the Federal Court of this decision on the basis, among other things, that there was a breach of procedural fairness owing to lack of disclosure and a lack of consideration of evidence and arguments [3]. In preparing this appeal, the appellant sought the certified tribunal record underlying the Director’s decision. The Director, taking confidentiality concerns into account, produced the record that was before the decision-maker. The appellant, unsatisfied, made a supplemental request for disclosure under the Federal Courts Rules, for all documents “related to or involving” the decision [7]. The appellant argued that, since the decision-making chain ended at the Director, there were others involved in actually preparing the decision, and all documents and materials before those individuals should also be disclosed [20]. The Attorney General argued that to disclose this information would broaden the record to include documents that were not before the actual decision-maker—the Director.
Issue: Should the appellant’s motion for disclosure be granted?
Holding: No.
Analysis: The Court begins its analysis here with a very interesting passage:
[23] I must confess to being somewhat intrigued by Château d’Ivoire’s argument. It would be rather Kafkaesque for an administrative decision-maker to be able to shield the material relevant to an application for judicial review or a statutory appeal by delegating decision-making authority to staff who would then simply place limited material before the decision-maker with a draft decision, ready to be signed without question. But there is no evidence to suggest that that is what happened in this case, and suggesting it does not make it so.
So, because the appellant failed to identify any actual missing documents, and because there was no evidence that “FINTRAC was given carte blanche to avoid an effective review of the Decision by isolating the sign-off from the substantive work required to render the Decision,” the motion to disclose should be dismissed [25].
I think the Court strikes the right balance here. It is obvious that decision-makers can and do rely on staff and subordinates to prepare decisions, compile and filter information, and prepare a record under the Federal Courts’ Rules: see, generally, The Queen v Harrison, [1977] 1 SCR 238. Any additional documents sought under the Rules, s.317 must be relevant and before the decision-maker [26]. But we could imagine the sort of Kafkaesque situation envisioned by the Court here—the intentional or unintentional “filtering out” of information that otherwise could form part of the record. The problem for the appellants here is that their Rule 317 request was not particularized [27-28]. In other cases, the Court appears open to a successful motion for disclosure where documents can be identified that were inappropriately filtered out in a decision-making process.
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: “It was one of those March days when the sun shines hot and the wind blows cold: when it is summer in the light, and winter in the shade.”
― Charles Dickens, Great Expectations