Heiser v Bowden Institution, 2022 ABCA 300 (September 22, 2022)
Category: Habeas corpus
Context: The appellant appealed the striking of his application for habeas corpus. His parole was revoked when he was charged with new offences. He did not file an appeal to the Parole Board of Canada Appeal Division on the revocation [32]. Though those charges were stayed, the Parole Board denied his application to restore his parole [1]. The appellant brought an application for habeas corpus of the original decision to revoke his parole [10]. The application was struck because it was, apparently, a “hopeless proceeding and abuse of the Court” as a collateral attack [9]. Specifically, the Court was convinced, among other things, that (1) that it lacked jurisdiction to review parole decisions of the Parole Board, and the appellant should have appealed to the Parole Board of Canada Appeal Division; and (2) commencing habeas corpus proceedings before exhausting administrative remedies was an “abuse of court processes.”
Issues: Does the Court have jurisdiction? Is it an “abuse of process” for the appellant to seek the writ of habeas corpus when he failed to exhaust parole appeal procedures under the Correctional and Conditional Release Act?
Holding: Yes, the Court has jurisdiction; while the appellant failed to show why administrative remedies in this case were inadequate, the lower Court should not have struck the application for habeas corpus on the basis of abuse of process.
Analysis: On the jurisdictional point, the Court rightly concludes that because habeas corpus is a constitutional writ, it “cannot be taken away by court decision or practice direction” [17]. Questions of alternative remedies cannot be a reason to deny the existence of jurisdiction, since habeas corpus is not a discretionary remedy [19]. The basis of this jurisdiction is constitutional, and so cannot be completely removed by elaborate statutory schemes. This is a simple but constitutionally sound conclusion.
That said, adequate alternative remedies in the parole context do provide a basis for a court to decline a habeas corpus remedy (see Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 at para 18). This is only so where the legislature has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (R v Bird, 2019 SCC 7 at para 65). Whether this is true or not in a given case will depend on the facts and the way the applicant argues the case [21]. This makes the lower Court’s choice to strike the application as an abuse of process or collateral attack downright bizarre. This decision was apparently made on the basis of the rules of courts and practice directions. But the upshot of the lower Court’s conclusion is that where an applicant fails to exhaust a remedy, an application for habeas corpus is automatically an abuse of process or collateral attack. This removes any accepted exception to the rule requiring exhaustion of remedies; a disturbing prospect, especially in the case of habeas corpus, which is a constitutionally-protected writ. Accordingly, the ABCA’s guidance here is welcome, in that it recognizes that superior courts have jurisdiction to issue a writ of habeas corpus, but can decline to do so based on the facts of a particular case. In the province of Alberta, the effect of this case will be to broaden the circumstances in which a habeas corpus application may be acceptable.
Winnipeg (City of) v Manitoba (Director, Contaminated Sites Remediation Act) et al, 2022 MBCA 72 (September 20, 2022)
Category: Preliminary objection (prematurity/adequate alternative remedy).
Context: The City of Winnipeg sought leave to appeal a decision of the Clean Environment Commission [the CEC]. The CEC upheld the Director’s designation of the City as a “potentially responsible person” under the relevant statute “for remediation of an impacted site” [2]. The Director argued that the leave to appeal request is premature—that there were adequate alternative remedies under the statute— because the administrative process concerning remediation “consists of several stages,” with designation as a “potentially responsible person” as only one such stage [41].
Issue: Is the leave to appeal application premature?
Holding: Yes.
Analysis: Less interesting than the conclusion, here, is the method of analysis. The MBCA follows its own decisions in concluding that there are several factors to consider in determining whether there are exceptional circumstances warranting a bypass of the ordinary rule: litigants must exhaust internal administrative remedies before seeking judicial intervention (see e.g. Thielemann v The Association of Professional Engineers and Geoscientists of the Province of Manitoba, 2020 MBCA 8). The Court here weighs a number of factors, outlined in Thielemann, to determine whether exceptional circumstances exist. These include, among others, hardship/prejudice, waste of resources, strength of the case, the statutory context, etc (Thielemann, at para 50; Winnipeg (City), at para 44).
This approach can be contrasted with the one in the Federal Courts (see Issue #32 and see especially Dugré v. Canada (Attorney General), 2021 FCA 8 at para 37). There, the “exceptional circumstances” rider is very narrow, and the bar is “next to absolute” (Dugré, at para 37). “Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue…are not exceptional circumstances allowing the parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted” (Canada (Border Services Agency) v CB Powell, 2010 FCA 61 at para 33). There are therefore two approaches: a “multi-factored approach” in Manitoba, and a harder and faster rule in the Federal Courts.
Sibbald v Canada (Attorney General), 2022 FCA 157 (September 16, 2022)
Category: Application of the reasonableness standard
Context: This is a decision of the Social Security Tribunal Appeal Division, overturning a General Division decision. The Appeal Division assigned the “disabled contributor’s child benefit (Canada Pension Plan) to Sibbald’s former spouse [1]. This is a “flat-rate monthly benefit paid to a child of a person receiving CPP disability benefits,” but which cannot be paid to a child under 18 [2]. The question was, once Sibbald’s spouse (the disabled contributor) left the family home, who should receive the benefit on the child’s behalf—a question which is answered by which parent has “custody and control” of the child, a term undefined in the Canada Pension Plan.
Issue: Is the Appeal Division’s decision reasonable?
Holding: No.
Analysis: There are a few issues in this case, including involving the admission of new evidence before the Appeal Division and the standard of review as between the Appeal Division and the General Division. But I want to focus on only one: the role of a policy. The “Policy Direction for Payment of the Canada Pension Plan’s Disabled Contributor’s Child Benefit” says that the benefit should be payable to the disabled contributor—Sibbald’s spouse, because she is the disabled contributor. The Policy requires this payment no matter how “minimal” the disabled contributor’s contact is with the child. The Court finds here that the General Division was right to conclude that “it was not bound by the departmental policies of the Minister” because “[t]he Policy cannot supersede the [Canada Pension Plan]” [48]. This is an important point. The Policy purported to pre-judge who should receive the benefit even though “custody and control” is a term left undefined in the legislation. This means that the decision-maker, in each case, will need to “conduct an enquiry as to which person has custody and control of the child” and wil need to make factual findings based on oral and documentary evidence [50]. As always, a decision-maker cannot fasten onto a non-binding guideline.
Georgopoulos v Alberta (Workers’ Compensation Board, Appeals Commission), 2022 ABKB 633 (September 21, 2022)
Category: Scope of right of appeal/application of the reasonableness standard
Context: This is a decision of the Workers’ Compensation Board, Appeals Commission. The Workers’ Compensation Board had already accepted coverage for Georgopoulous’ workplace injury (post-traumatic stress disorder) [1], and in so doing, “determined his appropriate compensation rate, permanent clinical impairment rating, and disability status” [2]. Georgopoulous specifically contested findings that “his permanent clinical impairment rating is only 40%” with a resulting non-economic loss payment” [8]. He argued that the hearing was procedurally unfair and that the substantive decision was incorrect/unreasonable [9]. He framed his case as “either a statutory appeal” under the Workers’ Compensation Act or an application for judicial review [8].
Issues: (1) What can be brought under the right of appeal?; (2) Is the decision reasonable?
Holding: Only the issue of procedural fairness can be raised under the right of appeal; aspects of the decision that can be judicially reviewed are reasonable.
Analysis: On the first issue, the statutory right of appeal in this case only lies on questions of law or jurisdiction [15]. The Court here reaches a similar conclusion reached by the Federal Court of Appeal in its helpful case, CNR v Emerson Milling, 2017 FCA 79. Faced with a right of appeal on questions of law and jurisdiction in that case, the FCA concluded that in the context of the statute, “jurisdiction” also covers issues of procedural fairness: the original meaning of the term “jurisdiction,” in the relevant statute, covered issues of procedural fairness (Emerson Milling, at para 18). Relying on Alberta precedents, the Court in Georgopoulous concludes that the issue of procedural fairness is a question of law [24]. This does not matter much, since as the Court noted in Emerson Milling, most of the time questions of jurisdiction are just a subspecies of questions of law (Emerson Milling, at para 16-18). Whether procedural fairness issues can be heard under a right of appeal will turn on the individual statute; terms like “law and jurisdiction” can be conditioned by the relevant statute and its legislative history.
The way the case was argued also presents interesting issues for counsel. Here, Georgopoulous framed many of his arguments so that they could be characterized as questions of mixed fact and law [26, 29, 31]. This allowed the Court to exclude these issues from the right of appeal. Emerson Milling warned us about this possibility when drafting notices of appeal, in a passage I would mark down:
[55] Drafters of notices of appeal are now on notice. When the grounds of appeal are drafted in the form of questions of mixed fact and law, the Court may well conclude that there is no question of law or jurisdiction in the appeal and dismiss it. This is especially so where the questions of mixed fact and law are presented in a heavily fact-laden way. Instead, drafters should identify with clarity and precision the questions of law or of jurisdiction, including any extricable questions of law or legal principle, and explain how these emerge from the decision below. While the Court may look to the appellant’s memorandum of fact and law to construe the notice of appeal, the notice of appeal, as the originating document, remains the primary focus of the Court and must be carefully drawn.
On the merits of the remaining issues on judicial review, the Court finds that the decision is reasonable. Because Georgopoulous framed much of his case on mixed fact and law lines, he was stuck arguing that the decision-maker improperly weighed the evidence. But this line of attack will not be promising on judicial review [62].
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.