Issue #65: November 6, 2022
Concurrent jurisdiction with a vengeance, SoR on procedural fairness, boilerplate
Fairgrieve v British Columbia Review Board, 2022 BCSC 1882 (October 27, 2022)
Context: This is an application for prerogative relief in connection with a decision of the British Columbia Review Board. The substantive issue concerns whether the Review Board has the authority to make redactions to its “reasons for disposition” under s.672.52 (3) of the Criminal Code. In this case, that disposition was that Fairgrieve was unfit to stand trial on the charge of second degree murder.
Issue: What is the standard of review on the question of whether the Review Board had the power to make redactions to its Disposition Reasons?
Holding: The standard of review is correctness, to the extent the standard of review is relevant.
Analysis: By my lights, this is one of the first cases to apply the Supreme Court’s recent decision in SOCAN v ESA, 2022 SCC 30 (see Issue #49), which held that where courts and administrators share jurisdiction at first instance, the rule of law and legislative intent suggest that the standard of correctness should be applied. This was the first time the Court has recognized a new correctness category after Vavilov, though this category was live pre-Vavilov, and inexplicably unaddressed in that case.
Here, the Court applies the correctness standard because of the concurrent jurisdiction set up by the Criminal Code in this instance. The Court concludes that public access to dispositions are “in substance a matter of criminal law" governed by Part XXVI of the Criminal Code [77]. The parties, however, argued the case according to administrative law standards of review. The Court notes that it had “serious concerns about whether the [administrative law standard of review analysis] is instructive or helpful in the context of prerogative relief proceedings under Part XXVI of the Criminal Code” [96]. Nonetheless, because “criminal courts and Review Boards are reposed with reposed with concurrent jurisdiction over dispositions in respect of accused persons found not criminally responsible or unfit to stand trial,” ESA applies and the standard should be correctness [99].
One things of note: while the concurrent jurisdiction exception is legally narrow—it only applies in cases where there is the explicit provision of concurrency—there may be more cases of concurrency than we might think on first blush. When the SCC first recognized the concurrency exception in Rogers v SOCAN, 2012 SCC 35, it said that concurrency at first instance “seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts” (Rogers, at para 19). ESA quoted this statement. In this newsletter alone, we see the application of correctness to a Criminal Code matter, and a regulatory matter. It appears that concurrency is more widespread.
See also below, Cob Roller, for another case on the concurrency jurisdiction category.
Torkestani v Canada (Immigration, Refugees and Citizenship), 2022 FC 1469 (October 27, 2022)
Context: This is an application for a study visa that was rejected by an immigration Officer because there was a lack of evidence that the applicant would leave Canada at the end of the visa stay. However, the applicant argued that the “reasons” contained in the record for the refusal is identical to another decision that was recently judicially-reviewed in the Federal Court (see Soltaninejad v Canada (Minister of Citizenship and Immigration), 2022 FC 1343). The applicant generally argued that the decision was unreasonable.
Issue: Is the decision unreasonable?
Holding: Yes.
Analysis: I am increasingly concerned about boilerplate in IRCC decisions, specifically visa decisions. The Court here outlines, at para 5, how the decision under review here was basically identical to the decision in Soltaninejad. The Court says “[p]erhaps the same officer made both determinations, or perhaps the Respondent has provided officers with standard phraseology” [6]. While the Court does not specifically say that standard phraseology is a problem, it is probably no surprise that it concludes that the decision fails to track the evidence actually provided by the applicant [10-16]. This is probably more likely to happen when decision-makers copy and paste reasons for decision. And as the Court notes, respondent’s counsel on judicial review cannot supplement deficient reasons themselves [20].
Cob Roller Farms Ltd. v 9072-3636 Québec Inc. (Écocert Canada), 2022 FC 1487 (November 1, 2022)
Context: Ecocert suspended and then cancelled Cob Roller’s “organic certification” under the Safe Food for Canadians Regulations. Cob Roller challenges the suspension and cancellation on substantive and procedural grounds.
Issue: What is the standard of review for the issue of procedural fairness? What is the standard of review
Holding:
On procedural fairness: “The parties agree, as do I, that the fairness of the process leading to the decisions is to be reviewed on a standard that is akin to correctness but actually involves no standard of review” [6].
On concurrent jurisdiction: Following ESA, “An argument may therefore be made that SOCAN v ESA dictates that correctness is the appropriate standard on this issue. I need not decide this question, since I have concluded that Écocert Canada’s decisions cannot stand even if the deferential reasonableness standard is applied and even accepting its interpretation of section 15. I therefore did not seek further representations from the parties on the point, and simply raise this as a caveat in light of the intervening jurisprudence of the Supreme Court.”
Analysis: The standard of review on procedural fairness continues to be a live issue, particularly in the Federal Courts. Justice McHaffie, in this case, highlights his view in past cases that the standard is “akin” to correctness, that “this standard does not change simply because aspects of the process are defined by legislative provisions” and that Vavilov does not change this state of affairs [6, see also Iwekaeze v Canada (Citizenship and Immigration), 2022 FC 814 at paras 9-14]. Others in the Federal Court of Appeal disagree: see e.g. Maritime Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59. This issue will reach a head eventually. For my part, I tend to support the position expressed in Maritime Broadcasting (see Issue #50 and my commentary on Walker in that newsletter).
On the issue of concurrent jurisdiction, the core issue in the case was connected to s.15 of the Safe Food for Canadians Act. The provision prohibits a person for making a false or misleading statement to any person “exercising powers or perofrming duties or functions under this Act—or to provide him or her with false or misleading information—in connection with any matter under any provision of this Act or the regulations, including in respect of an application for a licence or a regulation.” This is a broad provision, which courts administer in relation to those charged with contravening s.15; but certain accreditation bodies accredited by the Canadian Food Inspection Agency also administer s.15 in cancelling licences like the organic one here. Those licences “must” be cancelled if its holder “was not in compliance with s.15 of the Act.” Therefore the licencing body must (1) identify the definition of false or misleading statements or information; and (2) determine if the facts satisfy the definition.
The Court raises the prospect that correctness applies, but nonetheless finds that it does not matter because the decision does not meet the reasonableness standard. It strikes me that, should ESA apply, the legal question here is one that would fall under the concurrency exception: the legal definition of “false or misleading” statements or information should not be different depending on the forum, on the theory of ESA, at paras 35-36. Of course, whether the facts satisfy the definition would be a question of mixed fact and law subject to the ordinary appellate standards.
One point of consideration. In concurrency cases, characterizing the legal question at issue will be important. It is important not to draw the question too broadly, so that the claim of concurrency is broader than it actually is. Close attention to the statutory scheme will be important.
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.