Simon's Megalomaniacal Legal Resources

JR - SOR - Exception - 'First-Instance Decision-Maker'

. Dempsey v. Canada (Attorney General)

In Dempsey v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR, this brought against an earlier decision "of the Public Sector Integrity Commissioner of Canada (the Commissioner) not to investigate his disclosure of wrongdoing made pursuant to the Public Servants Disclosure Protection Act".

The court considers the JR SOR exception, this where the JR court is the first decision-maker:

[11] Where the Federal Court acts as decision maker of first instance, such as when it fixes a costs award, this Court applies the appellate standards of review: determinations of law are reviewed for correctness, while findings of fact and mixed fact and law (absent an extricable question of law) are subject to review on the deferential standard of palpable and overriding error (Gordillo at para. 59, citing Housen v. Nikolaisen, 2002 SCC 33).

. Benison v. Canada (Royal Canadian Mounted Police External Review Committee)

In Benison v. Canada (Royal Canadian Mounted Police External Review Committee) (Fed CA, 2026) the Federal Court of Appeal considered an appeal, here brought against the dismissal of a JR seeking "orders of mandamus to (1) compel the RCMP External Review Committee [ERC] to complete its review of the appeals they had filed of certain internal RCMP decisions within 30 calendar days of the Decision and (2) to publish and report on the service standards that apply to the review of every appeal file before it".

In this appeal from the dismissal of a JR seeking mandamus, the court holds that the SOR is not 'reasonableness' but rather the appellate SOR of Housen v. Nikolaisen (SCC, 2002) (more commonly referred to as 'correctness'), this since the earlier JR was "brought to remedy an alleged implied refusal by the ERC to perform its public legal duty and is thus grounded in the absence of an administrative decision" - making the current court the 'first-instance decision-maker':

[42] Reasonableness is the presumptive standard of review that applies when a court reviews the merits of an administrative decision (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 16 [Vavilov]). However, the appellants’ application for writs of mandamus is brought to remedy an alleged implied refusal by the ERC to perform its public legal duty and is thus grounded in the absence of an administrative decision. Accordingly, on this appeal, this Court is reviewing a decision of the Federal Court regarding whether, under the Apotex framework, the appellants have made out the requirements governing the issuance of a writ of mandamus. Therefore, the applicable standard of review is the appellate standard of review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, not the standard of review that governs appeals from judicial reviews of administrative decision-making described in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. at paras. 45–47 (see Budlakoti v. Canada (Minister of Citizenship and Immigration), 2015 FCA 139, leave to appeal to SCC refused, 36591 (28 January 2016) at paras. 37–38; Winning Combination Inc. v. Canada (Minister of Health), 2017 FCA 101 at para. 57, leave to appeal to SCC refused, 37697 (12 April 2018); Hong v. Canada (Attorney General), 2019 FCA 241 at para. 12).

[43] Under the appellate standard of review, this Court may interfere with the Federal Court’s decision to deny the writs of mandamus requested by the appellants if it is satisfied that the Federal Court (1) erred on questions of law or legal principle or on questions of mixed fact and law that raise extricable questions of law or legal principle, or (2) made palpable and overriding errors on other issues, such as findings and inferences of fact and questions of mixed fact and law, including exercises of discretion (Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at paras. 57, 60, 62 and 72, leave to appeal to SCC refused, 37793 (17 May 2018)). This Court may also reverse a discretionary decision of the Federal Court, including the exercise of its discretion to refuse prerogative relief, where the Court gives no or insufficient weight to relevant considerations (Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3 at pp. 76-77 [Oldman River]; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125 at para. 27).

. Tan v. Canada (Citizenship and Immigration)

In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act, by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".

Here the court considers a JR SOR exception, that where the application court is acting as the "decision maker of first instance":

[30] On appeal of a decision of the Federal Court sitting in judicial review, this Court typically determines whether the Federal Court identified the proper standard of review and correctly applied that standard. In effect, we step into the shoes of the Federal Court and focus on the administrative decision under review, in this case the Minister’s Decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45‐47 (Agraira); Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at paras. 10-12 (Horrocks). This approach accords no deference to the reviewing judge’s application of the standard of review: Horrocks at para. 12.

[31] However, the Federal Court acted as a decision maker of first instance when considering its jurisdiction to examine Ms. Tan’s constitutional arguments and interpreting section 10 of the Citizenship Act, and when addressing whether the revocation process mandated in section 10 of the Citizenship Act violates paragraph 2(e) of the Bill of Rights and section 7 of the Charter (Issues A-D above). Accordingly, the Federal Court’s analysis and findings regarding those issues are subject to the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33 (Housen): Horrocks at para. 12; Aracil-Morin v. Enoch Cree Nation, 2025 FCA 21 at paras. 20-22; Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at paras. 45-46, leave to appeal to SCC refused, 41628 (May 29, 2025). Where the appellate standards apply, questions of law are reviewed on a correctness standard and questions of fact or mixed fact and law are reviewable for palpable and overriding error: Housen at paras. 8, 10; Prairies Tubulars (2015) Inc. v. Canada (Border Services Agency), 2022 FCA 92 at para. 7, leave to appeal to SCC refused, 40334 (March 16, 2023).

. Canada (Attorney General) v. Canadian Civil Liberties Association

In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order made under the federal Emergencies Act.

Here the court considers another exception to JR SOR 'reasonableness', this where the court is the "first instance decision-maker" (this can occur when there was no prior tribunal decision, or where the reasons are non-existent or weak):

[101] When the Federal Court’s decision that is being challenged was not made by that Court sitting in its judicial review capacity, but rather as a first instance decision-maker, it is uncontroversial that the applicable standard of review is that set out in Housen v. Nikolaisen, 2002 SCC 33: see, for example, Laurentian Pilotage Authority v. Corporation des Pilotes de Saint-Laurent Central Inc., 2019 FCA 83 [Laurentian Pilotage] at paras. 28-29; Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 at paras. 37-39; Canada v. Long Plain First Nation, 2015 FCA 177 at para. 88; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 at paras. 25-26. Accordingly, the standard of correctness will apply on questions of law, whereas questions of fact and mixed fact and law from which no question of law is extricable will be reviewed on the palpable and overriding error standard.