Simon's Megalomaniacal Legal Resources

Judicial Review - SOR - Privative Clauses

'Privative clauses' are statutory provisions that purport to bar judicial review on the 'public' matters that we normally expect them for. Vavilov has held that privative issues - when themselves on judicial review - are not an exception to the 'reasonableness' standard of review.

. Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375)

In Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375) (Fed CA, 2023) the Federal Court of Appeal considered the range of fact errors in a judicial review, in light of Vavilov's treatment of privative clauses:

[115] As held in Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170, and Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, [2021] F.C.J. No. 848 [Best Buy], in light of the development in administrative law over the past several years, paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7 allows intervention in factual determinations even in the face of a privative clause such as section 22 of the Code.

[116] "However, the scope for intervention is very narrow. Paragraph 18.1(4)(d) of the Federal Courts Act provides that erroneous factual findings may provide the basis for intervention only if a decision was based on them and if they were "“… made in a perverse or capricious manner or without regard for the material before [the decision-maker]”". The statutory formulation of the test before the Federal Courts for unreasonable factual determinations is akin to what the Supreme Court said about the nature of unreasonable factual findings in Vavilov, where the majority noted at paragraph 126 that unreasonable factual determinations arise where the "“… decision maker has fundamentally misapprehended or failed to account for the evidence before it.”"" "

[117] A finding is perverse if it is made wilfully contrary to the evidence. Findings that are capricious or made without regard to the material before an administrative decision-maker include most notably circumstances where there is no evidence to rationally support a finding or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its finding (Best Buy at para. 123).

[118] Here, none of the factual matters that the applicants raise rise to such a level. The applicants seek to have us instead set aside the CIRB’s findings and accept the conclusions advanced by their experts by calling on us to sift through all the evidence and reach a different conclusion. Indeed, they devoted the bulk of their written and oral arguments to a minute review of the evidence and urged this Court to re-evaluate it.

[119] We cannot do so. The CIRB was entitled to reject the conclusions advanced by the witnesses the MEA called for the reasons it gave. Contrary to what the applicants assert, the Board provided ample reasons for rejecting these conclusions, as the detailed review of the Board’s decision, set out above, demonstrates.

. Todde v. Workplace Safety and Insurance Appeals Tribunal

In Todde v. Workplace Safety and Insurance Appeals Tribunal (Div Ct, 2022) the Divisional Court faced a 'robust privative clause' and, along with the parties, ignored it:

[6] Decisions of the WSIAT are subject to a robust privative clause, contained in s. 123(4) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., which provides:

Finality of decision

(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.

[7] The parties agree that the WSIAT decisions should be reviewed on a reasonableness standard.

. Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks)

In Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2021) the Divisional Court considered the standard of review where there was a statutory privative clause:

[18] The Ministers’ determinations about the application of s. 15 of the EBR are subject to review on a standard of reasonableness, in accordance with the presumption that reasonableness is the standard of review in applications for judicial review, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] S.C.J. No. 65, at para. 23.

[19] Counsel for Ontario submitted that the presence of the privative clause in s. 118 of the EBR limits judicial oversight to review for unlawfulness. Subsection 118(1) provides that

Except as provided in section 84 and subsection (2) of this section, no action, decision, failure to take action or failure to make a decision by a minister or his or her delegate under this Act shall be reviewed in any court.

Subsection 118(2) provides,

Any person resident in Ontario may make an application for judicial review under the Judicial Review Procedure Act on the grounds that a minister or his or her delegate failed in a fundamental way to comply with the requirements of Part II respecting a proposal for an instrument.

“Instrument” is a defined term, and there are no instruments in issue in these applications.

[20] I disagree with Ontario’s submission. Vavilov makes it clear that reasonableness is the presumptive standard of judicial review of an administrative decision unless the Legislature has provided otherwise – for example, by conferring a statutory right of appeal (at para. 24). As well, Vavilov states that privative clauses “serve no independent or additional function in identifying the standard of review” (at para. 49).

[21] Ontario relies on Greenpeace v. Ontario, 2019 ONSC 5629, 148 O.R. (3d) 191 (Div. Ct.), at para. 35 (“Greenpeace # 1”) and Hanna v. Ontario (Attorney General), 2011 ONSC 609, 105 O.R. (3d) 111 (Div. Ct.), at para. 31 as supporting a more limited standard of review. Hanna is distinguishable from the present case, because it dealt with the court’s restrained scope of review when the validity of regulations is in issue. In Hanna, the Divisional Court held that the substance of the Minister’s decision to recommend a regulation respecting setbacks for wind energy facilities could not be reviewed by the courts so long as the minister complied with the process mandated by s. 11 of the EBR.

[22] Greenpeace #1 was released prior to Vavilov. The dissent states at para. 35, “Where a statutory precondition requires that an opinion be reached or a determination made, it is beyond the scope of judicial review to assess whether the determination was objectively correct or reasonable.” The footnote cites Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741, a case that was also dealing with the validity of regulations, where the judicial role on review is limited. Vavilov is clear that the presumptive standard of review is reasonableness, and that presumption puts this issue to rest. Prior dictum from this Court to the contrary should not be followed: the standard of review is reasonableness.