Issue #4-August 8, 2021
Canada (Attorney General) v Best Buy, 2021 FCA 161 (August 5, 2021)
Context: This is a decision of the Canadian International Trade Tribunal (CITT) that classified TV stands imported by Best Buy as “parts” of televisions under the Customs Tariff. The Customs Act provides that an appeal can be brought against CITT decisions that raise questions of law (s. 68(1)). Any other questions decided by the CITT are facially protected by a privative clause (s.67(3)) which limits judicial intervention to the terms set out in s.68(1). Does the Federal Court of Appeal have jurisdiction to hear the appeal?
Holding: Near JA for himself held that “…factual issues and issues of mixed fact and law for which no legal question can be extracted must not be subject to review by this Court” [46]. Gleason JA filed a concurring opinion (concurred in by LeBlanc JA), agreeing with Near JA that the case at hand could not be heard but holding that an application for judicial review can be filed in respect of “a slightly broader range of factual determinations made by the CITT…than my colleague would permit” [71], supported by jurisdiction conferred by the Federal Courts Act under s.18.1(4) [129], and the case law [75].
Analysis: The case shows that there are deep divisions on the FCA about the interaction between privative clauses and rights of appeal, but Near JA’s opinion is on solid ground. For one thing, Gleason JA’s opinion probably went further than it needed to resolve the case: even if judicial review was available here, the question would not have rose to the standard proposed by Gleason JA. But on the substance, basic principles support Near JA’s approach. Vavilov centres legislative intent as one of the important principles of judicial review. Accordingly, rights of appeal, combined with privative clauses, should be respected within constitutional limits.
To get around this problem, Gleason JA must point out some other source of law that takes priority over Parliament’s expression in the combination of a privative clause and right of appeal. Two sources emerge: the Federal Courts Act and the Constitution. The Federal Courts Act at s.18.1(4) (d) enshrines a ground of review for erroneous findings of fact “made in a perverse or capricious manner or without regard for the material before it.” But s.18.5 of the Federal Courts Act draws out an exception where Parliament has provided a right of appeal in a separate statute. As such, the Federal Courts Act cannot do the work Gleason JA wants it to do in this case (see the opinion of Near JA at para 59).
A second source may be the Constitution: there is an argument that because Vavilovian reasonableness (at least) may be constitutionally protected, judicial review over questions of fact & mixed fact and law (subject to reasonableness) may similarly be protected, perhaps as a function of the Rule of Law (see Gleason JA opinion at para 100 et seq, and the endorsement of Prof. Daly’s view at para 118). I do not share this view because none of the seminal authorities suggest that judicial review on questions of fact is constitutionally protected. While privative clauses and rights of appeal may raise constitutional issues when they immunize administrative decisions from review for fundamental legality (see Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 at para 102 per Stratas JA) that limit is not relevant in this case. In other words, to say that Vavilovian reasonableness is constitutionally protected is too broad a conclusion: it may be on matters of legality, but not on the questions contemplated in this case.
Needless to say, this issue is not clearly decided yet. If you are in the Federal Courts, Gleason JA nominally has the majority opinion, but that opinion may be obiter, and stands at least somewhat inconsistently with other FCA jurisprudence: see the Canadian Council case, above, at para 102. For its part, Ont Div Ct cases tend to support Near JA’s view: Fratarcangeli v North Blenheim Mutual Insurance Company, 2021 ONSC 3997 at para 63; Yatar v TD Insurance Meloche Monnex, 2021 ONSC 2507 at paras 28-29 etc.
Canadian Federation of Students v Ontario (Colleges and Universities), 2021 ONCA 553 (August 4, 2021).
Context: Ontario conditioned operating grants to post-secondary institutions on compliance of an executive framework for ancillary fees. That framework required that ancillary fees for non-essential services be made optional. These fees included the fees levied by student associations. The Divisional Court quashed this framework, characterizing the framework as an exercise of prerogative power that was inconsistent with the relevant statutory framework [2].
Holding: The Court agreed with the Divisional Court, but characterized the power at hand as simply one of “executive authority” [26]. It concluded that the relevant statutes did not permit the executive to “fetter the exercise of the universities’ discretion concerning statudet associations” [60]. See also para 31 et seq for the discussion pertaining to colleges.
Analysis: A case with interesting facts that confirms a basic principle of administrative law: executive authority is ultimately subject to the law. For admin law nerds, however, there is an Easter egg: the Court’s discussion of the standard of review, where it adopts the framework set out in Housen v Nikolaisen, 2002 SCC 33. As some will be aware, the Supreme Court will soon decide the case of Horrocks, where it will revisit the appellate standard of review framework in judicial review matters. Nominally, that framework is governed by Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, where the Supreme Court held that appellate courts on judicial review matters “step into the shoes” of the reviewing court, conducting a completely de novo analysis on both the selection and application of the standard of review (Sharif v Canada (Attorney General), 2018 FCA 205 at para 4). However, the Federal Court of Appeal has set out on a different path, applying the typical appellate framework set out in Housen (see Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 at para 75). That approach permits deference on questions of fact and mixed fact and law (palpable and overriding error).
I think the ONCA’s adoption of the Housen framework is right for the reasons I outline here. It is consistent with principles of judicial economy; it grants appropriate deference to front-line reviewing courts that see the evidence and the way the administrator handled it; and formally, it is consistent with the role of intermediate appellate courts that do not directly review first-instance administrators. While the ONCA in this case seemed to hinge the application of Housen on the fact that the decision-maker was a Minister and not a “tribunal” [21], I hope the Court expands Housen to all instances of appellate review of judicial review matters (see Hupacasath, at para 76, per Stratas JA holding that an approach that defers to a first instance court’s appreciation of the evidence is to be preferred, “as is the case in all areas of appellate review”).
Laforme v The Corporation of the Town of Bruce Peninsula, 2021 ONSC 5287 (July 30, 2021).
Context: The Grey Sauble Conservation Authority granted a permit to the Town of South Bruce to build a retaining wall along Sauble Beach. Laforme challenged this decision and the decision of the Town to proceed with the project [15], and also sought orders preventing the Town from proceeding with the project because it has not obtained a permit under the Endangered Species Act, conducted an environmental assessment under the Environmental Assessment Act, and because the project does not comply with s.24 of the Planning Act.
Holding: The Court held (1) that the Conservation Authority failed to form an opinion on a statutory requirement, which forced it to “form an opinion that the development will have no negative impact on the Beach” [48]; (2) the Court held that the Town’s decision to undertake the project is not a statutory power amenable to review [68].
Analysis: Two interesting takeaways from this case
1) This is an interesting example of how courts are conducting judicial review in the absence of reasons. Here the Court concludes that, based on the underlying record, there was a failure to seriously consider the statutory condition precedent. It accordingly considered the important Vavilovian constraint of the relevant statutory framework, and found that the Authority in fact disregarded that framework, making a decision based on the Town’s “expressed needs” and the desirability of the project [48-49]. Harder cases will come where even the record does not disclose a consideration of the statutory framework, implicit or not. In such cases, and while the Court must enforce the statutory framework come what may, it is fair to ask what happens with the built-in deference that is supposed to come from a “reasons first” approach.
2) The case is another reminder about the importance of the statutory framework in confining discretion. In fact, the case raises what may have previously been known as a “jurisdictional fact”—-a fact that must be found in order for a statutory power to be exercised, a question on which no deference is owed. While the Supreme Court has rightly disregarded its preliminary/jurisdictional fact doctrine ( see e.g. Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 at para 34), this case shows how—even in absence of the “jurisdiction” language—the question of whether the Authority considered the statutory precedent is one on which there is only one right answer, even if deference is nominally owed [49]. This is contemplated by Vavilov, which centres legislative intent as a core principle of administrative law, and leaves the door open to the possibility that some legal questions will only have one right answer (Vavilov, at para 124).
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. Please complement the SEAR with your own research and study. Any mistakes are my own.
Quote of the Week: “The winds of change are blowing wild and free…” (“Make You Feel My Love,” Bob Dylan).