Issue #48: July 10, 2022
Standard of review for procedural fairness, delay, mootness, and more!
Category: Selection of standard of review, procedural fairness
Context: Abrametz was under investigation by the Law Society relating to trust account management and tax evasion. This investigation culminated in a formal complaint containing seven charges . The complaint was adjudicated by the Law Society Hearing Committee, which also heard applications from Abrametz requesting a stay of the proceedings until the resolution of his tax investigation , and a stay on the basis that delay in the process constituted an abuse of process . Both applications were dismissed , and the Hearing Committee also convicted Abrametz on four counts and ordered him “disbarred without a right to apply for readmission until January 1, 2021.” In all, the process from the beginning of investigation to conclusion of the process took from 2012-2019. The Court of Appeal concluded that a stay should have been granted.
Issues: (1) What is the standard of review on issues of procedural fairness on a right of appeal? (2) What is the test for delay leading to abuse of process (where the fairness of a hearing is not at issue)?; (3) Was there an abuse of process in this case?
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Holding: Appeal allowed.
Rowe J, for a majority, concluded: (1) Because Vavilov was “categorical” on the point that issues falling under statutory rights of appeal attract the appellate standards of review, questions of procedural fairness falling under a right of appeal are similarly reviewed on the appellate standards ; (2) The analysis from R v Jordan, 2016 SCC 27 does not apply in the context of administrative delay [45-49]. Instead, the test is: (a) inordinate delay; (b) significant prejudice; (c) a “final assessment” as to whether abuse of process is established, which will occur when delay is manifestly unfair to the party or in some other way brings the administration of justice into disrepute ; (3) The Court of Appeal erroneously interfered with the fact and mixed fact and law findings of the Hearing Committee, parsing the investigatory evidence, and “characterizing each time period so as to determine the time it considered to be undue delay” . Applying the palpable and overriding standard, the Court of Appeal was wrong to “[substitute] its own findings of fact, notably on the scale and complexity of the investigation” .
Côté J filed a dissent. In it, she articulated her disagreement with the majority on the relevant test for delay, reasoning that there is no additional requirement of “significant prejudice” in the test for inordinate delay leading to abuse of process, set out in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 . She also disagreed with the application of the appellate standards to procedural fairness issues, reasoning that because procedural fairness exists “independently of statutorily confined administrative regimes” , it cannot and does not fall within the scope of Vavilov [164-167].
Analysis: I have a few comments: (1) on the choice to tie procedural fairness to Vavilov’s holding on appellate standards; (2) what this choice may mean going forward; and (3) the test for administrative delay leading to abuse of process.
The majority and dissent diverged substantially on the issue of the appellate standards applying to issues of procedural fairness. Rowe J says that Vavilov was “categorical,” so procedural fairness does not apply. Côté J tells us that because the common law protections of procedural fairness exist independently of statute, they do not fit into the justifications underlying Vavilov, and so the standard of review should be decided separately. But for my part, and while the majority’s analysis was a bit underdeveloped, I can see the thinking underlying it. First, it is true that Vavilov’s holding on rights of appeal was categorical. It was premised on the idea that a legislative choice to create a right of appeal is explicit, important, and not subject to unstated exceptions (see Penney, below). It did not make distinctions. It only said that when a right of appeal is provided, it subjects “…the administrative regime to appellate oversight and [indicates] that it expects the court to scrutinize such administrative decisions on an appellate basis” (Vavilov, at para 28). So, and secondly, the only question is whether procedural fairness issues can be the bases of a “decision” made by an administrator. They plainly can. Procedural fairness issues are mostly raised before decision-makers, not decided for the first time by courts. Issues of procedure can involve a decision-maker’s interpretation of their own statute, or decisions pertaining to what “amount” of fairness is owed based on particular facts and a legislative scheme. These are all matters that, like issues of substance, are reviewed by courts. And I do not agree with the dissent that the appellate standard will diverge substantially from its approach , or that its application will underpower procedural fairness. As the dissent acknowledges, where an appeal mechanism is provided, whether an administrator complied with the duty of fairness is a question of law subject to a correctness standard . There may be differences when it comes to the selection of remedy, where the palpable and overriding error standard will apply. But the selection of remedy to repair an alleged procedural fairness defect is a highly discretionary and fact-intensive effort. Provided that the test for delay is set properly (see below), I see no issue with deferring to the selection of a remedy.
Going forward, the split continues between rights of appeal and judicial review. So if a procedural fairness issue is raised on judicial review, one assumes that the standard of review remains set out in Mission Institution v Khela, 2014 SCC 24 at para 79. But the tying of procedural fairness to Vavilov—at least on rights of appeal— raises a more radical question of whether all procedural fairness issues should be assimilated to the Vavilov framework, even on applications for judicial review (so that the “intensity of review” will depend on Vavilov’s constraints, since procedural fairness issues—generally— do not plausibly fall into any of the correctness categories). This is a step beyond limiting the draw of Vavilov to just rights of appeal.
I do not think this would be a bad thing, from the perspective of doctrinal simplicity (and as a supporter of clear rules). Despite its imperfections, Vavilov is turning out to be a remarkably resilient set of tools, deduced from fundamental, constitutional principles, to standardize previously disparate areas of administrative law. For example, in Portnov v Canada (Attorney General), 2021 FCA 171 at para 25, the Federal Court of Appeal concluded that because Vavilov was meant to be “sweeping and comprehensive” it swallowed the bespoke approach to regulatory review set out in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64. In mootness, as below, Vavilov is having an influence. Similarly, Vavilov explicitly assimilated “jurisdictional questions” to its framework. What's more, two judges on the SCC (including Rowe J) have indicated an interest in extending Vavilov to arbitral appeals (see Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 per Brown and Rowe JJ). Perhaps—and hopefully—this is where we are headed with procedural fairness, if we want to use Vavilov as a blueprint. At the end of the day, decisions are decisions are decisions. Whether they are based on procedural issues, jurisdictional issues, or substantive issues, an approach which limits divergences between these issues should be welcome as a clear rule. Of course, there should be clear exceptions for constitutional issues of all sorts. But putting those aside, the point stands.
While, on policy grounds, I share all of the dissent’s worries about some of the majority’s comments on delay, and also share the view that inordinate delay, in some cases, may alone rise to an abuse of process, I do not think the majority misapplied Blencoe. To be sure, Blencoe was somewhat opaque on whether significant prejudice was a requirement to find an abuse of process flowing from delay. But the dissent did not adequately address what I think is the key paragraph of Blencoe, per Bastarache J, at para 115: “I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process.” This does not appear to be related to a stay, specifically, but to the doctrine of abuse of process, generally. So, I think the majority read Blencoe correctly.
But because inordinate delay, in my view, rises to an abuse of process because it impacts the integrity of the justice system (for the reasons set out by the dissent at para 143), the problem is with Blencoe itself. As the case below (Ayangma) shows, delay can undermine the legislative delegation, affect confidence in the administrative justice system, and hamstring individual ability to seek relief. Delay is a systemic wrong, and it should be addressed—within their institutional capacity—by courts, even when there is no “significant prejudice.”
Incidentally, if the test were only whether certain periods rose to inordinate delay, there would be a good argument that “inordinate delay” should be a legal standard, subject to review for correctness on the appellate standards. Of course, there would be more play in the joints for the factual findings leading to such a conclusion.
Category: Procedural fairness
Context and Analysis: This is a judicial review of a decision of the Prince Edward Island Human Rights Commission, dismissing the complaint. Since the theme of this week appears to be delay, I want to highlight the Court’s comments on that issue. The complaint at issue was filed in 2017. The Court, apparently, pressed counsel as to why the delay occurred; counsel identified “staffing issues and limited resources” . The Court identifies (1) why delay undermines the legislative scheme and objectives enabling the commission; and (2) how there is “collective responsibility for this state of default” . See paragraphs 38-39.
The point specifically raised by this case shows why delay is a systemic wrong.
Category: Preliminary objections to judicial review (mootness)
Context: This is a judicial review of a decision of the Minister to issue a designation order under the federal Impact Assessment Order respecting coal mining projects in Alberta.
Issue: Is the appeal moot?
Analysis: Here, the Federal Court of Appeal continues its integration of Vavilov’s underlying principles into other areas of the law of judicial review—something implicitly at issue in Abrametz. While providing guidance in Vavilov about appropriate remedies, the Court highlighted the importance of declining to remit in cases where it would be a waste of resources to do so. The FCA has, in a previous case, merged these considerations into the question of whether a case is moot (see Canadian Union of Public Employees (Air Canada Component) v Air Canada, 2021 FCA 67 at para 14). The Court continues to do so here, concluding that these same values underlie the mootness analysis. For one, I think this is a welcome development. To the extent links can be drawn between various aspects of the law of judicial review, and animating values identified, it simplifies the exercise.
Category: Rights of appeal
Context: Via a stautory right of appeal, Penney appeals the decision of the Licence Appeal Tribunal which denied her motion to remove the lawyer of the respondent because of a conflict of interest.
Issue: Section 11 of the Licence Appeal Tribunal Act provides for an appeal to the Divisional Court on a “decision or order.” The decision under appeal is interlocutory . Does this provision allow the Court to hear an appeal from an interlocutory decision?
Holding: No. The Court diverged from other Divisional Court cases which have held that there exists a residual discretion to hear interlocutory appeals . Rejecting this approach because it erroneously imports concerns from the doctrine of prematurity in judicial review, the Court instead reasoned that because of Vavilov’s principle of respect for legislative design, it should respect the choice not to confer the right to seek interlocutory relief [25-26].
Analysis: The takeaway from this case is that the right to seek interlocutory relief must be conferred by the legislation, and cannot be found in any notion of “inherent” jurisdiction. The approach in Penney, accepted in other cases, diverges still from recent cases that have found a reserve of discretion in courts to hear interlocutory applications (see paras 10, 14, 15). As of now, it appears the position is split on this issue.
Nonetheless, I think the approach in this case makes sense, if only for reasons of basic principle—some of which weren’t explored in the case. As the Supreme Court said in Kourtessis v MNR,  2 SCR 53 at 69, “[a]ppeals are solely creatures of statute.” This means, as Stratas JA recently observed, that “[r]ights to appeal are never inherent or unwritten” though they can be authorized by legislation “impliedly” (see Ignace v Canada (Attorney General), 2019 FCA 239 at para 21; Chrysler Canada Ltd v Canada (Competition Tribunal),  2 SCR 394).
While the Court in Penney did not mention the ability for legislation to implicitly grant authority to hear and decide cases under a right of appeal, this was not relevant in this case, and would likely not be in the case of interlocutory relief. First, the authority found by courts to hear an appeal of interlocutory issues does appear to be imported from the law of judicial review. That authority is relevant in that context because of the constitutional aspects of the law of judicial review. The same concerns do not obtain in a right of appeal, where the courts’ power is derivative of statute, not any inherent, independent constitutional pool of authority (see, again, the comments in Ignace). Second, here, there was no indication in any of the statutory text or purpose that there was an implied conferral of power. It would be difficult to imagine such a implied conferral, since interlocutory relief is a special species of relief, usually treated differently in statute. This is for good reason. The decision to enact a right of appeal is a legislative signal that the right to seek judicial relief is circumscribed by the text, context, and purpose of the statute. Independent existing reserves of authority to “read-in” statutory exceptions, absent a constitutional warrant, are not relevant.
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.
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