BCE Inc v Quebecor Media Inc, 2022 FCA 152 (September 7, 2022)
Category: Scope of rights of appeal
Context: This is a judicial review of a CRTC decision which found that “Bell had given an undue preference to its French-language discretionary sports service...” subjecting TVA Sports to “an undue disadvantage” [1]. Bell’s argument was heavily tied to Vavilov, and it grouped its submissions under the two “categories” of errors identified in Vavilov—logical coherence and “legal and factual constraints.” Specifically, Bell argued that because its sports packaging service was addressed in an arbitration involving the CRTC in 2018, the CRTC could not then decide that the sports packaging was unfair. It framed its submission in the terms of issue estoppel, abuse of process, and collateral attack [54].
Issue: Is Bell entitled to seek judicial review of this decision? Is the decision reasonable?
Holding: Yes and yes.
Analysis: There are two main issues in this case:
(1) The FCA here applies its decision in Canada (Attorney General) v Best Buy Canada Ltd, 2021 FCA 161 to hold that Bell could seek judicial review (see my analysis of Best Buy in Issue #4). In this case, Bell applied for leave to appeal under the Broadcasting Act, which provides that an appeal from a CRTC decision lies to the FCA on a question of law or jurisdiction (for the significance of this phrase, see CNR v Emerson Milling Inc, 2017 FCA 79). Bell’s motion was dismissed [54]. Concurrently—and this is probably good practice, where possible—Bell also brought an application for judicial review.
The question was whether Bell’s arguments on issue estoppel could still be advanced on judicial review, acknowledging that it could not advance arguments on law or jurisdiction, which are covered by the right of appeal. The Court applies Best Buy to conclude that, on rule of law grounds, questions of fact and mixed fact and law cannot be immunized from review. For now, this is the law: but as I noted in Issue #4, I think Best Buy is questionable, and it is arguably inconsistent with other FCA authority as well as authority in Ontario (see Issue #45 and Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446).
On the reasonableness of the decision, the Court presents two important insights. The first is that, though the reasons offered by a decision-maker are central, not “all relevant considerations must be addressed within the four corners of the decision itself” [63]. Courts can take a full look at the proceedings and determine what the reasons should or must encompass. For example, where there is a well-accepted, unchallenged line of cases, decision-makers may need not to explain that line of cases [63]. Nonetheless, I caution that this should not be taken too far. It is acceptable for courts to look to the record to shed light on omissions or gaps in the reasons; but in some cases, perhaps where the record is thin or the stakes are particularly high, a failure to address relevant considerations in the reasons is and should be fatal. Second, the Court provides some guidance on Vavilov’s “categories” of errors. Though Bell hewed very closely to Vavilov’s typology of errors, the Court concludes that “a tribunal can make an unreasonable decision without necessarily falling into one of the types of errors listed by the Supreme Court” and “[t]he categories of reasonableness are not closed” [48]. I believe this is basically correct—as the Court says, while Vavilov does not provide a “mandatory template” for identifying unreasonableness[48], it will provide a useful and often decisive starting point. I take this statement to mean that, sometimes, different types of errors can feed into one another. In this case, it was the allegation of illogical errors that fed into the question of whether there were legal or factual errors [50]. Similarly, in Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157, it was the adoption of boilerplate reasoning that led to the unreasonable interpretation of law (see Issue #3).
Rowe v Alberta (Director of SafeRoads), 2022 ABQB 560 (August 19, 2022)
**This case was sent by a SEAR reader**
Category: Remedy
Context: This is an application for judicial review of a decision of an adjudicator to confirm a notice of administrative penalty against Rowe because of impaired driving [7, 13]. However, on judicial review, the Director conceded that the adjudicator made unreasonable findings of fact in relation to its conclusion that Rowe posed a realistic danger to persons or property—the only alleged time Rowe was in “care and control” of a vehicle was when it was parked in a garage bay, at a time when he did not have a key to the vehicle [26, 29]. The sole question on judicial review was whether the matter should be remitted [25].
Issue: Should the matter be remitted?
Holding: No.
Analysis: The Court concludes that since there is no evidence available that Rowe posed any danger, and that there is no evidence available to support a finding that Rowe had care and control of the vehicle, there was no useful purpose in remitting [30]. So, the matter should not be remitted.
The case contains a lesson: counsel for administrators who seek to earn a second kick at the can (a remittal) should “identify any evidence that would support” a different assessment of the evidence [28]. That is, counsel should be able to paint a picture for the court: what evidence in the record shows that there is not just one reasonable outcome, such that a remittal would be pointless? Counsel for the Director of SafeRoads, here, declined to take this step in oral argument because it would “[infringe] upon the role of the Adjudicator” [28]. While I am alive to this concern—as is the Court—I do not find it decisive here. That is because the Court is not accepting new evidence on judicial review (which would raise concerns about the proper kens of administrator and court) or pre-judging what an adjudicator may decide on a remittal. Instead, submissions from counsel on this score can provide a court with the necessary context to either (a) decide to remit because the result on the evidence is still an open question; (b) decide to remit with conditions and stipulations that will assist the adjudicator on remittal. This is all within the proper function of a judicial review court fashioning a remedy. In absence of these submissions, judicial economy considerations come to the fore and courts can rightly decline to remit.
On this front, the Court addresses an alternative point: what if the matter should be remitted for a hearing? The Court says here that the sole issue on which a remittal would be appropriate is on the question of care and control, because this is the main issue on which the applicant sought judicial review. Additionally, this was a major problem for the adjudicator on review—he/she failed entirely to justify the care and control finding in relation to the governing law [40]. The lesson: where remittal is appropriate, it should ideally be focused on issues actually argued on judicial review and on which the reasonableness of the decision turns.
Canadian Constitution Foundation v Canada (Attorney General), 2022 FC 1233 (August 26, 2022)
Category: Record on judicial review
Context: This is a motion by the Canadian Constitution Foundation (CCF) in relation to its application for judicial review of the Emergency Proclamation issued by Cabinet, under the Emergencies Act, concerning the Ottawa trucker protests. After the initial delivery of a record, the CCF requested production of further documents under Rule 317 of the Federal Courts Rules. Canada voluntarily disclosed some records in conjunction with this request, but portions of these records are redacted, under assertions of privilege [3]. The CCF “seeks an Order from the Court for the delivery of unredacted copies…on a counsel-only basis and subject to a confidentiality undertaking” [33]. The CCF framed its arguments according to the Federal Court of Appeal’s “immunization” jurisprudence, as well as Vavilov, which prioritizes the reasoning process of a decision-maker.
Issue: Should the addditional requested records be disclosed?
Holding: No; “I do not accept that the decision to declare a public safety emergency…is immunized from judicial review by the claims of privilege over portions of the record of Cabinet’s deliberations before it invoked the Emergencies Act” [124].
Analysis: In one sense, the Court’s decision here is unsurprising. Though the declaration of a public order emergency is one of the most concerning decisions a government can take, and should be subject to intense public scrutiny, concerns about immunization of administrative decision-making lose some power in relation to Cabinet decision-making, because the bar “that has been set by case law for the sufficiency of the record of GIC decisions is quite low” (see para 121; and Portnov v Canada, 2021 FCA 171 at para 53, Issue #7). This bar, coupled with Canada’s voluntary disclosure of certain information, probably put the nail in the coffin of the CCF’s application (in this sense the CCF’s analogy to municipal councils was misplaced. There are special concerns attending Cabinet disclosures, as the Court points out at para 99).
That said, the CCF’s arguments do show the potential power of the immunization jurisprudence, in conjunction with Vavilov, in terms of encouraging open government; either through the courts or as a matter of encouraging the government to be more open in its disclosure practices, where appropriate. Recall that the immunization cases prevent a decision-maker from “immunizing” a decision from review, either through a sparse record, insufficient reasons, or improper legislative insulation on questions of fundamental legality (see e.g. Portnov, at para 54; Leahy v Canada (Citizenship and Immigration), 2012 FCA 227 at para 137; Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 at paras 102, 106 (CCR)). Vavilov supports this jurisprudence by mandating responsive justification, even in settings like Cabinet decision-making. Nonetheless, when privileges are asserted in this context, courts must balance the assertion of privilege with the requirement that decisions not be immunized from review (CCR, at para 101). Perhaps in light of this jurisprudence, Canada disclosed more information than what would have been in the strict record before Cabinet [44, 47]. This appears to have been a wise move: in absence of this disclosure, the immunization argument becomes stronger, and perhaps decisive.
In my view, the immunization jurisprudence is important, even if here—for good reason—it wasn’t decisive. It does raise the bar for Cabinet decision-making in a meaningful way, fostering open government and responsive justification in this context. As far as it goes, this line of cases may have encouraged Canada to disclose more information in order to bolster its defense on the motion. If so, this is a good thing; and it shows how Vavilov and the immunization cases, working together, might better subject Cabinet to review in the ordinary courts. But as the case shows, this cannot be taken too far. Where disclosure is appropriate, no line of cases justifies the imposition of additional reasoning requirements on Cabinet, like we might expect in other contexts. This is a tough balancing act, but to the extent the immunization cases and Vavilov have pushed the line towards more openness, I believe it is a good thing: not only from a rule of law perspective, but from the perspective of public scrutiny, as well.
Ynzon v Canada (Citizenship and Immigration), 2022 FC 1265 (September 7, 2022)
Category: Application of the reasonableness standard
Context: This is a judicial review of a decision by an immigration officer to refuse the applicant’s request to apply for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds. The core of Ynzon’s argument and evidence concerned her treatment as a live-in-caregiver in Canada by her employers, and how this treatment supported her relief on H&C grounds [27]. The officer, however
Issue: Is the decision reasonable?
Holding: No.
Analysis: Every now and again, I like to profile these “routine” cases which show how judicial review doctrine is working on the ground of a setting like H&C applications. These cases, however, are far from routine. They often involve difficult, life-changing (or life/death) circumstances for those subject to the discretion of one immigration official. It’s important that we monitor how the doctrine is working in these cases.
As I have said, I sense that—happily—these decisions are subject to stricter review after Vavilov. This case shows why. First, the officer in this case seemed to ignore the claims of mistreatment as relevant to the H&C application [27]. Since this was the applicant’s central argument, it was unreasonable for the officer not to address it [27]. This requirement to consider arguments that form the core of an applicant’s case is a hard line: I would say that where such failures are material—as they necessarily will be when a decision-maker fails to address a main argument—the decision will be unreasonable. A number of cases have now adopted this reasoning, as I have outlined in this newsletter before.
Second, the officer’s conclusions on other grounds were speculative. The officer concluded that there would be “little objective and corroborative evidence” that the applicant would face poverty and discrimination on return to the Philippines [28]. The officer speculated as to the support that might be available upon return. This speculation is questionable because it was not supported by any evidence on the record (and in fact, was contradicted by it) [32]. Informed speculation is, perhaps, an element of H&C decision-making. But I would say there is less room for this now post-Vavilov, where logical leaps must be justified by the reasons and the record, ideally in combination.
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.
