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Judicial Review - Adequate Alternative Remedy (3)

. BCE Inc. v. Québecor Média Inc.

In BCE Inc. v. Québecor Média Inc. (Fed CA, 2022) the Federal Court of Appeal considered a federal JR application from a CRTC 'undue preference' ruling, which was largely based on grounds that the matter had been already dealt with by arbitration. The JR application was made after the applicant has been denied leave to appeal the CRTC decision "on a question of law or jurisdiction" [Broadcasting Act, s.31(2)]. An issue was whether a JR could be brought in those circumstances:
A. Is Bell entitled to bring an application for judicial review after having been denied leave to appeal the Decision?

[53] This issue arises because of the combined effects of subsection 31(2) of the Broadcasting Act and sections 18.5 and 28 of the Federal Courts Act, R.S.C. 1985, c. F-7.

[54] Bell applied for leave to appeal the Decision pursuant to subsection 31(2) of the Broadcasting Act, which provides that an appeal from a Commission decision lies to this Court, with leave, upon a question of law or jurisdiction. In its motion for leave, Bell indicated that the Commission erred in law in failing to apply the doctrine of issue estoppel arising from the 2018 FOA in which, Bell argued, the same issue between the same parties was finally determined. Bell also argued that the Decision encourages a multiplicity of proceedings and was an abuse of process by litigation. Bell’s final argument was that the Commission failed to consider whether Québecor’s complaint of undue preference was a collateral attack on the 2018 FOA Decision. Bell’s motion for leave to appeal was dismissed. In keeping with this Court’s usual practice, no reasons were given for the dismissal.

[55] Bell candidly disclosed in its application for leave that it was also bringing an application for judicial review in the event that its motion for leave was dismissed or, if leave was granted, that its subsequent appeal was dismissed. Given that its application for leave to appeal was dismissed, Bell is now pursuing its application for judicial review.

[56] In bringing its application, Bell relies upon paragraph 28(1)(c) of the Federal Courts Act, which provides that this Court has jurisdiction to hear and determine applications for judicial review "“made in respect of … the Canadian Radio-television and Telecommunications Commission”". Bell acknowledges that its right to judicial review is limited by section 18.5 of the Federal Courts Act, reproduced below, which is made applicable to this Court by subsection 28(2) of the same Act:
"18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. (my emphasis)"

"18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi. (Je souligne)"
[57] Bell concedes that it cannot plead that the Commission’s decision is unreasonable on questions of law or jurisdiction. Those questions can be appealed to this Court and so, an application for judicial review on those grounds is precluded by section 18.5 of the Federal Courts Act. While the distinction between questions of law and questions of mixed fact and law is easily stated, it is not as easily applied: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 35.

[58] The issue of the scope of the right to judicial review in these circumstances was addressed by this Court in Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 [Best Buy], a case in which an application for judicial review was brought notwithstanding the right of appeal on questions of law under section 68 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). The Court was unanimous on the disposition of the appeal but split on the question of whether the section 18.5 limitation excluded applications for judicial review on questions of fact. The minority reasons argued that there was no such right because the exclusion of questions of fact from the scope of an appeal signaled that Parliament intended to protect findings of fact from appeal or review. The majority (on this issue) held that a complete bar of judicial review would not be consistent with the rule of law, citing the Supreme Court’s decisions in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Vavilov (see Best Buy at para. 112). As a result, the question of Bell’s ability to bring its application for judicial review, though on limited grounds, has been settled in its favour.
. Minnow Lake Restoration Group Inc. v. Sudbury (City) 30-

In Minnow Lake Restoration Group Inc. v. Sudbury (City) (Div Court, 2022) the Divisional Court considered a combined 'judicial review-municipal quashing' application attacking a municipal resolution endorsing a particular arena/event development. The court, plainly concerned that the numerous statutory and municipal steps that the proponents had to surmount (any of which may have attracted JR or appeals), and likely annoyed by the perceived questionable quality of the applicant's case, dismissed it.

A central issue was the combination of the JR (which normally precedes in Divisional Court) and the Superior Court [MA 273(1)] municipal quashing application (which proceeds in Superior Court), something similar to which was recently considered in the Yatar v TD Insurance (Ont CA, 2022) case by recommending that separate, simultaneous applications be brought (though in Yatar they were both in the Divisional Court, a JR and an appeal). There the JR doctrine of adequate alternative remedy was central:
The nature of the application (the concern)

[30] I begin this review by observing that the nature of the application being made is not clear. The originating document is titled: “Notice of Application for Judicial Review”. It relies on the Judicial Review Procedure Act[23] and the Rules of Civil Procedure. The factum filed on behalf of the Applicant refers to quashing the by-law but, in doing so relies on s. 273 of the Municipal Act, 2001[24]:
273 (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.
[31] The principal submission made in furtherance of quashing the by-law is that the procedure adopted by council was unfair. The allegation of unfairness permeates each of the errors alleged to have been made by the council in the process that led to the adoption of the impugned resolution. While it is difficult to perceive the possibility of a procedure being unfair but the result, nonetheless legal, and thus not susceptible to being quashed pursuant to s. 273 of the Municipal Act, procedural unfairness is a concept generally understood in the context of judicial review. It is possible, in the presence of an available statutory process, for a party to maintain a right to seek judicial review. The difficulty is that a judicial review is heard by the Divisional Court (a panel of three judges) whereas an application brought under s. 273 of the Municipal Act is heard by the Superior Court of Justice (a single judge). This matter proceeded as a judicial review. For the moment, I observe only that judicial review is a discretionary remedy and that this court can and often does exercise that discretion by deciding not to grant judicial review where an alternative remedy remains available. It is important to recognize, as the Court of Appeal has recently observed, that the discretion applies not just to the granting of the relief but also to its decision to undertake a review. I will return to this issue and the decision of the Court of Appeal later in these reasons.


[44] If considering whether the decision made on July 14, 2021 to move forward with the arena/event centre in the Kingsway Entertainment District was made in bad faith, that is, that council in passing the resolution acted unreasonably and arbitrarily, one has to look at the process as a whole and not just the last step, that is the updating of the material and the resulting review. As it is, it remains the case that the Superior Court found the process to be “a careful study of the potential effects of locating it [in the Kingsway Entertainment District], as part of a robust democratic process” and the Ontario Land Tribunal determined the proposed development represented good planning. Moreover, the proposal for the Update Report was the subject of discussion at the meeting of February 9, 2021. The Report and the accompanying memorandum were considered, by a vote of council, to be sufficient to allow the closure of discussion of the proposal. Nonetheless, the issue was subject to debate and the two motions brought forward at the meeting of June 29, 2021 that further work be undertaken. Both of those motions were defeated. Finally, the issue of allowing the project to move forward was voted on and passed by council in the resolution of July 14, 2021. It cannot be said that the decision to move on was arbitrary or that council acted arbitrarily in passing the resolution the Minnow Lake Restoration Group Inc. now seeks to quash. It is worth remembering that in Grosvenor v. East Luther Grand Valley (Township) the finding of bad faith arose from a circumstance that the declaration of the trailway as a highway was done without notice to anyone, with the three readings of the by-law occurring at one sitting at the end of a council meeting and then being passed.[33] There is nothing like that here.


The nature of the application (the explanation)

[51] I return to the concern as to the nature of this application: should it be dealt with as a judicial review and considered by this court or as an application to quash a by-law and the court’s discretion exercised to refuse the application on the basis that such a motion was an available, adequate alternative remedy and, as such, is properly heard by the Superior Court. In the time since this case was argued, but prior to the preparation of these reasons, the Court of Appeal released its decision in Yatar v. TD Insurance Meloche Monnex.[36] The Licence Appeal Tribunal had determined that an application that had been made pursuant to the Statutory Accident Benefits Schedule (commonly “SABS”)[37] was outside the two-year limitation set for its commencement. The appellant asked for a reconsideration of that decision. The decision was confirmed. The Divisional Court had considered both an appeal and an application for judicial review of the decision of the Licence Appeal Tribunal. Pursuant to s. 11(6) of the Licence Appeal Tribunal Act[38] appeals were to the Divisional Court and were limited to questions of law. The Divisional Court concluded that the decision of the Tribunal disclosed no such error and dismissed the appeal. This was not questioned. However, the Divisional Court went on to consider the application for judicial review. It determined that where there was an adequate alternative remedy (in that case, the statutory appeal that had been dismissed) particularly where that remedy limited access to the courts (i.e. only as to a question of law), it was only in “exceptional circumstances” that the court should exercise its discretion to consider a judicial review. There being no exceptional circumstances it dismissed the application. It was this determination that was taken up by the Court of Appeal.

[52] The Court of Appeal was concerned with the use of the phrase “only in exceptional circumstances” as the determinant of when a judicial review should proceed in the presence of an adequate alternative remedy. The Court recognized that in the circumstances the appellant still had the remedy of an application for judicial review available to her. In particular, the Court of Appeal referred to s. 2(1) of the Judicial Review Procedure Act which provides that “‘a court may, despite any right of appeal, by order grant any relief’ by way of judicial review”. The court noted that “the case law also makes it clear that legislatures cannot shield administrative decision making from curial scrutiny entirely”. In the result, the Court of Appeal “agreed with the Divisional Court’s approach, which essentially concluded that judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular circumstances of a given case. What constitutes such a rare case is for the Divisional Court to determine on a case-by-case basis”.[39] It will be immediately evident that the case does not directly apply to the situation in this case. There is no right of appeal that accompanies this application for judicial review. An application made pursuant to s. 273 of the Municipal Act is an “originating process” and pursuant to s. 272 the ability to quash a by-law limited. Nonetheless, the principle is the same. The discretion in this court to consider a judicial review in the face of an adequate, alternative remedy remains, albeit to be exercised in rare circumstances.

[53] In this case, the court has exercised its discretion to hear the judicial review. To explain why, I return to the first paragraph of these reasons. The planning process can be long and complicated; in some cases, to the point where its efficacy becomes open to question. The effort to locate the arena/event centre began in 2010. In time, it was absorbed into the identification of “large projects” to be incorporated into the City of Greater Sudbury’s overall planning and as part of the consideration and planning for the Kingsway Entertainment District. It took until 2017 for the council to resolve if, and where, the arena/event centre should go. This decision was not accepted. Rather it was the subject of both an application to quash on the basis that it was the result of a flawed process, by a biased council and a review of the planning by the Ontario Land Tribunal. It took until, respectively, September 4, 2020 and December 23, 2020 (or to put it differently, in excess of another three years) for these processes to be completed. The Superior Court sustained the actions of the Council and the Tribunal recognized the quality of the planning. Almost immediately, at the meetings of January 21, 2021 and February 9, 2021, the council moved to update the available information, review and, as it has turned out, confirm the decision to locate a new arena/event centre in the Kingsway Entertainment District. Not surprisingly, the councillors who remain concerned with this decision, have continued to bring the downtown option forward to be considered by their colleagues. These motions have all been defeated. Now, by this application, a group opposed to the decision seeks to start again with a review by the courts based upon allegations of a flawed process. It is of note to point out that, in his submissions, counsel for the Applicant, said that the issue being raised was only with what began on January 21, 2021 and February 9, 2021, as if what happened before was of no import. To have exercised the court’s discretion to refuse to hear this application and send the matter back for another application to quash the by-law would have resulted in more delay, perhaps, another three years. As it is, no objection was taken by the City of Greater Sudbury to this application proceeding. The court has found that there was no substance to the allegations being made. To allow this to go on would have accomplished nothing other than further delay. There is a point where delay makes the process not just too long, but meaningless, in that it requires more review. Circumstances can change. Whether, if the Court of Appeal decision in Yatar v. TD Insurance Meloche Monnex had been released before this matter was heard, the Court’s discretion would have been dealt with differently is a matter of speculation but I believe not.

[54] I end by pointing out again that the basis for the application was the allegation that the process was unfair. No other issue of illegality was raised. Accordingly, there would be no basis upon which an application to quash the by-law could now be pursued. For whatever reason, and to whatever result, this application for judicial review, as brought on before the Divisional Court, referred to and relied on s. 273 of the Municipal Act. As noted by the Court of Appeal in Yatar v. TD Insurance Meloche Monnex:
…if a party intends to utilize both their right of appeal and their right to seek judicial review, then those proceedings must be brought together. Put simply, a party cannot first exercise their right of appeal and then, if unsuccessful, bring a judicial review application. “Litigation is not to be conducted by instalment.”[40]
. Michalski v. McMaster University

In Michalski v. McMaster University (Div Ct, 2022) the Divisional Court held that they had discretion to deny a judicial review on the basis that there was an adequate alternative remedy:
[73] Although this Court has jurisdiction to review the impugned decisions, this is not the appropriate forum to rule on the Applicants’ concerns. One of the discretionary grounds for refusing to undertake judicial view is that there is an adequate alternative forum: Strickland, at para. 40. In this case, the alternative is the Human Rights Tribunal of Ontario (HRTO). Several factors support the conclusion that the HRTO is a more appropriate forum for the Applicants’ claims to be adjudicated. These factors include: the nature of the errors alleged by the Applicants (i.e., a misinterpretation of the meaning of “creed” in the Code); the relative expertise of the HRTO in matters of religious freedom and discrimination based on creed; the capacity of the HRTO to render a remedy comparable to that which the Applicants are seeking (having abandoned their requests for declaratory relief); and the economical use of judicial resources. Perhaps the most significant factor is that the HRTO would be able to receive and consider the voluminous expert evidence that had to be excised from the Application Record. The suitability and appropriateness of judicial review in this forum is undermined by the comparatively limited evidentiary record before this Court.


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