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JR - SOR - Exceptions to Exceptions - Fact Issues. Biogenie Canada Inc. c. Canada (Food Inspection Agency)
In Biogenie Canada Inc. c. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from an order "dismissing the appellant’s application for judicial review of the seizure and detention of two soil products (Englobe Environment Inc. v. Canada (Canadian Food Inspection Agency)".
The court considers a JR SOR 'reasonableness' 'exception to an exception' (ie. 'reasonableness' to 'correctness', and back again), here for constitutional issues that turn on fact findings:[25] The trial judge did not make a specific finding regarding the standards of review applicable to the issues in this case. There nevertheless seems little doubt that the first three issues must be reviewed on the standard of correctness. In Vavilov, the Supreme Court clearly established that matters relating to the division of powers between Parliament and the provinces, and constitutional questions more generally, require a "“determinate and final”" answer. This is an exception to the reasonableness review presumption.
[26] However, the Supreme Court of Canada teaches that this rule is subject to an exception. To the extent that the constitutional analysis is driven by findings of pure fact that can be isolated from the constitutional issues, those findings are owed deference: Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14 at para. 19; Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53 at para. 26; Société des casinos du Québec inc. v. Association des cadres de la corporation des casinos du Québec, 2024 SCC 13 at para. 97.
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