Issue #99: July 30, 2023
Open court principle, procedural fairness standard of review, Chinook and immigration
Canadian Broadcasting Corporation v Canada (Parole Board), 2023 FCA 166 (July 27, 2023)
Category: Selection of standard of review/open court principle
Context: The underlying judicial review concerns a decision of the Parole Board of Canada (PBC) that refused to provide the CBC with audio recordings from various parole hearings, including the 2018 hearing of Paul Bernardo. The PBC concluded that the “open court principle” invoked by the CBC did not apply “since the Parole Board is not a quasi-judicial body and that the public interest in the hearings did not outweigh the privacy interests of the Offenders” [2]. There was no question that the CBC has access to PBC hearings; rather, its request “is that it be given the same rights to the recordings as it enjoys with respect to exhibits filed in open court” [6].
Issues: (1) What is the standard of review?; (2) Is the Parole Board a “quasi-judicial body”?; (3) Should the audio recordings be released?
Holding: (1) The standard on review on the application of the open court principle is correctness [33]; (2) The classification of a tribunal as “quasi-judicial” is no longer a reliable indicator of the applicability of the open court principle [52]; rather, “the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle” [53]; (3) The PBC’s reasons are wanting, and so the matter should be returned to it for reconsideration [89].
Analysis: On the standard of review, the Court follows the decision in Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025. As it applies to the open court principle, Ferrier held that whether the principle applies is subject to the correctness standard (see also the discussion of Canada (Attorney General) v Robinson, 2022 FCA 59 in Issue #47). This, of course, appears to be a carveout from the general approach to review of administrative decisions for their constitutional propriety, under which the reasonableness standard applies. The Federal Court of Appeal in Robinson extended the logic of Ferrier to cases where a Charter right was raised and left unaddressed by a decision-maker; in such cases, there cannot be any deference (Robinson, at para 28).
The holding on the application of the open court principle is also really interesting, and sound. Typically, the question of whether the open court principle applies to adjudicative tribunals depends on whether it acts in a “judicial or quasi-judicial manner” [see Mooring v Canada (National Parole Board), [1996] 1 SCR 75, concluding that the PBC acts inquisitorially rather than judicially]. But the Mooring formulation depends on the old and unworkable distinction between judicial/quasi-judicial and administrative or ministerial acts, a distinction that is long-gone in the law of judicial review. The FCA here, for good reason, simplifies the indicator for the open court principle: “…the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle” [53]. As a result, here, the PBC is not subject to the open court principle, since it acts inquisitorially [56].
The balance of this case related to the issue whether the audio should be released under the Privacy Act. In a memorable passage, the Court notes that “…it does not require a prolonged stay on a Tibetan mountaintop to realize that whatever risk attaches to the discretionary release of an audio recording has already arisen when the information was disclosed to the public, including members of the media, in the hearing itself” [79]. This put the PBC’s argument that there would be a risk to the offenders’ reintegration as law-abiding members of society in perspective [82]. This worry, according to the Court, was “hollow in the context of the Offenders in question whose chances of parole are remote at best” [82], and whose information had already, effectively, been disclosed in a public hearing [78].
See also Fraser et al v Canada (Public Safety and Emergency Preparedness) et al, 2023 FCA 167 , which deals with applications brought by the families of the victims under the Access to Information Act for copies of the recordings.
Zunti v Saskatchewan Government Insurance, 2023 SKCA 82 (July 26, 2023)
**Thanks to a SEAR reader for sending in this case**
Category: Admissibility of new evidence.
Context: Zunti was part of a motor vehicle accident and was provided with no fault benefits by Saskatchewan Government Insurance [SGI]. SGI eventually denied him further benefits on the basis of a lack of medical evidence [2]. After mediation, SGI and Zunti agreed to a “multi-disciplinary assessment funded by SGI” [2]. This assessment provided recommendations that capped the benefits owed to Zunti [9]. Zunti disagreed with the recommendations, and appealed the letter of assessment to the Automobile Injury Commission—his appeal was denied. He brought a statutory appeal on the basis that the Commission lacked jurisdiction, erred in law by placing the onus on him to prove that he was entitled to further benefits, and made egregious errors of fact rising to errors of law [7]. He also sought to adduce new evidence on appeal.
Issue: There are several interesting issues here, but for our purposes (1) Should the new evidence be admitted?; (2) Did the Commission have jurisdiction?
Holding: (1) No; (2) Yes.
Analysis: The fresh evidence application here is intriguing. Zunti’s proposed evidence sought to “cast doubt on the credibility of Dr. Mireau” who was retained by SGI to offer an opinion on the recommendations set out in the assessment letter [16, 24]. Zunti’s evidence was directed towards an allegation that he did not get a fair hearing before the Commission, because Dr. Mireau “may have been subconsciously inclined to tailor his evidence to support SGI’s position in a way that would somehow lead to increased business from insurer” for a clinic in which Mireau is a partner [24, 25].
An allegation of bias is serious matter. Generally speaking, the test for establishing bias is high for good reason. Also for good reason, courts typically expect allegations of bias to be raised at the earliest practical opportunity (Taseko Mines Limited v Canada (Environment), 2019 FCA 320 at para 46). Sometimes it may be that evidence and arguments related to bias only come to the attention of an applicant after the completion of a hearing, and in that case, it may be permissible for an applicant to raise that allegation on judicial review (Access Copyright, 2012 FCA 22 at para 20). But here, it doesn’t seem like this was a case where something came to the attention of Zunti after the fact warranting a new argument on judicial review. It isn’t like a bribe that occurred at the original hearing and only came to Zunti’s attention after the fact (this example was used in Access Copyright). Here, “it was not until after the hearing and the release of the Commission Decision that he sought to build” his bias case [32]. The information Zunti sought to introduce existed at the time of the hearing [32]. In my view, the Court rightly accepted SGI’s argument. And even if this was proper evidence going to a bias allegation that arose after the hearing—a possibility that SGI wisely entertained—the evidence here simply did not demonstrate bias [34].
On jurisdiction, the Court sets out the scope to introduce questions of fact on a statutory right of appeal limited to questions of law. Sometimes errors of fact are so egregious that they can constitute errors of law and be amenable to resolution under a right of appeal limited to questions of law. But here, Zunti’s arguments essentially amounted to a re-assessment of the weight the Commission attached to evidence [73-74]. This is clearly not the sort of issue that can be addressed under a right of appeal limited to questions of law. The Court, rightly, rejected the effort to expand the Legislature’s clear direction as to how appeals from the Commission should be conducted.
Shirkavand v Canada (Citizenship and Immigration), 2023 FC 1022 (July 26, 2023)
Category: Chinook/procedural fairness
Context and Analysis: This is yet another case dealing with Chinook in a work permit application, which I flag for your interest. The Court here says the following:
[12] First, with respect to the use of the Chinook program, similar arguments have been raised and dismissed in other cases (see Haghshenas, Raja v Canada (Citizenship and Immigration), 2023 FC 719 [Raja], and Zargar v Canada (Citizenship and Immigration), 2023 FC 905 [Zargar]). That is not to say the use of the program will never raise procedural fairness issues. However, the mere use of the program, without evidence that the use of the program led to an unfair decision, is not sufficient.
The Court leaves open the possibility—quite rightly, in my view—that use of the program could raise procedural fairness issues in specific cases. As I have said before, a claim that Chinook raises procedural fairness issues will require evidence of a specific sort. Until then, I expect this result (see Issue #85, Issue #93).
Smit v Alberta (Director of SafeRoads), 2023 ABKB 435 (July 25, 2023)
Category: Selection of standard of review (procedural fairness)
Context: The applicant seeks judicial review of a SafeRoads Alberta Notice of Administrative Penalty [NAP], based on impaired driving. The NAP disqualified the applicant from driving in Alberta and imposed a $1000 fine. She challenged the NAP and also brought a Charter application, alleging that the police violated her right to counsel under s.10(b).
Issues: (1) What is the standard of review for the procedural fairness issues raised by the applicant? (2) does the SafeRoads legislation prohibit the applicant from seeking a Charter remedy?
Holding: (1) While acknowledging some confusion on the issue, the Court concludes that “…given that the Adjudicator rendered a decision on this procedural fairness issue based upon an interpretation of his home statute” the standard of review is reasonableness [59]; (2) the SafeRoads legislation indicates explicitly that the Adjudicator has no jurisdiction to determine questions of constitutional law” [150]. However, since the Applicant has exhausted the SafeRoads regime and raised the Charter issues before the Adjudicator “to the extent reasonably possible,” the Court stands as an available forum to receive an appropriate remedy under s.24(1) [180-181].
Analysis: On procedural fairness, the Court’s analysis here is worth reading. The Court notes that the Legislature has expressly stated that the standard of review is reasonableness on an application for judicial review [52]. But the question arises—if no standard of review is typically applicable on issues of procedural fairness, does reasonableness nonetheless apply? This is especially so where, as here, “the applicable legislation confers a discretion upon an administrative decision-maker respecting matters pertaining to procedural fairness” [54]. The issue in this case was one of disclosure of video evidence, and the law provides that the Director may provide records to the Applicant that, in his opinion, “relevant and necessary to determine the basis for issuing the notice of administrative penalty” [55]. Putting aside the stipulation of the standard of review, the Court applies reasonableness here because the issue fundamentally involves the interpretation of legislation—which typically attracts a reasonableness standard of review.
As the Court notes, especially on issues relating to interpretation of legislation, the line between substance and fairness blurs, creating what Côté J called an “untenable uncertainty plaguing the jurisprudence on procedural fairness review” in Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at paras 171-79 (see Issue #48). For that reason, I think—and this is my view only—that it was premature for the Federal Court of Appeal in Canada v Bowker, 2023 FCA 133 at para 16 to state that “any debate as to whether questions of procedural fairness are questions of law reviewable on the standard of correctness…has been put to rest” (see Issue #93). On principle, this cannot be true until a convincing case has been made that issues of legislative interpretation are fundamentally different when they involve a fairness problem in the post-Vavilov world. Côté J provided the outlines of this case in Abrametz, but as readers know, I ultimately prefer the reasonableness standard—at least for issues of legislative interpretation.
On the constitutional argument, one issue stands out: the extent to which new constitutional arguments can be raised on judicial review. Generally speaking, even constitutional arguments must be raised before a decision-maker. Here, the Adjudicator did not have jurisdiction to determine a question of constitutional law—this power with explicitly withdrawn from it by the relevant legislation [147]. However, the Court concludes that the Adjudicator may consider Charter values where it implicates issues of administrative fairness [152]. Since, here, the applicant raised the constitutional issues “to the extent reasonably possible,” the Court thought that it had jurisdiction over the Charter issues [181].
This seems justifiable on the current state of the law. But consider whether the appeal to Charter values actually subverts the legislative intent that the Adjudicator does not have the power to determine Charter issues. Though there is a difference in kind between the sorts of constitutional determinations mentioned in the legislation and a consideration of Charter values, I wonder whether the difference is more aesthetic than substantive.
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 own thoughts on the cases. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues, in my view, in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own, and any views expressed are my own.