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Judicial Review - Not for Advisory Roles (2). Empire Company Limited v. Canada (Attorney General)
In Empire Company Limited v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from the striking of a JR challenging the grant of a "decision of the Commissioner of Competition to commence an inquiry (the Inquiry) under the Competition Act".
Here the court considers to JR 'justiciability' of the challenge to the inquiry:[1] .... The Federal Court found that the decision to commence the Inquiry was not reviewable by the Court and, accordingly, was doomed to fail. ....
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[6] .... we find that the Federal Court made no reviewable error in concluding that the Commissioner’s decision to undertake the Inquiry does not in and of itself affect the appellants’ rights or impose legal obligations on them, and does not cause prejudicial effects (FC Decision at paras. 27, 48).
[7] Not all administrative conduct is subject to judicial review. No right of review arises where the conduct attacked "“fails to affect legal rights, impose legal obligations, or cause prejudicial effects” "(Toronto Port Authority at para. 29, citing Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, leave to appeal to SCC refused, 33208 (22 October 2009); Canada (Attorney General) v. Democracy Watch, 2020 FCA 69 at para. 19, leave to appeal to SCC refused, 39202 (15 October 2020) (Democracy Watch 2020); Sierra Club Canada Foundation v. Canada (Environment and Climate Change), 2024 FCA 86 at para. 46).
[8] This Court’s very recent decision in Çolakoğlu Metalurji A.S. v. Altasteel Inc., 2025 FCA 29 (Çolakoğlu), is instructive. As in the present case, at issue before the Court was an appeal of a Federal Court decision striking an application for judicial review. The Federal Court found that the results of a reinvestigation under the Special Import Measures Act, R.S.C. 1985, c. S-15, was akin to an advance ruling that did not affect legal rights, impose legal obligations or cause prejudice, and was not reviewable. This Court agreed.
[9] In rejecting the argument that the Federal Court erred because the reinvestigation caused prejudice in the form of loss of revenue and the legislation gave no right of redress, this Court characterized the reinvestigation as a preliminary or interim step and referred to similar steps taken by other agencies (Çolakoğlu at para. 10): "“For example,[…] a decision of the Competition Bureau to conduct an investigation against a business for misleading advertising, […]”".
[10] The same analysis applies in this case, which focusses not on an inquiry into misleading advertising (Part VII.I of the Act) but the commencement of an inquiry into possible restrictive trade practices by the appellants (Part VIII of the Act). Despite the appellants’ attempt to distinguish an "“investigation”" from an "“inquiry”", we note that the word "“inquiry”" is used in section 10 to refer to both Part VII.I and Part VIII.
[11] The appellants state that the very commencement of the Inquiry means that they have been impacted by the decision to do so. We do not agree.
[12] In our view, there is no palpable and overriding error in the Federal Court’s finding that the appellants have identified no legal consequence or prejudice to them from the decision to commence the Inquiry. An inquiry is required to be conducted in private (subsection 10(3)) and may be discontinued at any stage (section 22). It is a preliminary administrative step that gives the Commissioner access to the formal investigative powers in the Act and those powers are subject to judicial oversight. The fact that, here, the Commissioner has applied for and obtained an order under section 11 of the Act does not undermine the Federal Court’s finding that the decision to commence the Inquiry itself has no immediate, certain and final impact on legal rights or obligations or practical prejudice (Çolakoğlu at para 11).
[13] Finally, we are not persuaded by the appellants’ argument of reviewable errors in the Federal Court’s analysis of the jurisprudence on which they relied, namely: Moresby Explorers Ltd. v. Canada (Attorney General), 2006 FCA 144; Friends of the Canadian Wheat Board v. Canada (Attorney General), 2011 FCA 101; Cinémas Guzzo Inc. v. Canada (Attorney General), 2005 FC 691, aff’d 2006 FCA 160 (Guzzo), leave to appeal to SCC refused, 31548 (23 November 2006); Charette v. Commissioner of Competition, 2003 FCA 426 (Charette).
[14] There is no merit in the appellants’ assertion that the clear import of this Court’s decisions in Democracy Watch 2020, Guzzo and Charette is that a decision by the Commissioner to initiate a section 10 inquiry is judicially reviewable. Çolakoğlu Metalurji A.S. v. Altasteel Inc.
In Çolakoğlu Metalurji A.S. v. Altasteel Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal from a JR, here which "sought to quash the results of a Canada Border Services Agency reinvestigation under the Special Import Measures Act" here regarding "the normal values for future shipments of steel rebar from the Republic of Türkiye".
The basic of the denial of the JR was that it was not available for investigative (ie. 'advisory') actions, that do "not affect legal rights, impose legal obligations or cause prejudice to anyone":[3] The Federal Court held that Agency reinvestigations are not reviewable under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. In its view, reinvestigations are akin to advance rulings that do not affect legal rights, impose legal obligations or cause prejudice and, thus, are not reviewable under authorities such as Air Passenger Rights v. Canada (Transportation Agency), 2020 FCA 92 at para. 22, Canada (Attorney General) v. Democracy Watch, 2020 FCA 69, [2020] 3 F.C.R. 623 at para. 19 and Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 at paras. 28–29. Only when the goods are actually imported into Canada might anti-dumping duties be imposed. In other words, whether we are speaking of importers or exporters, the "“rubber does not hit the road”" until a decision is made at the time of importation.
[4] We are reviewing the Federal Court’s decision to strike the application for judicial review because of a preliminary defect or preliminary objection. We are not reviewing the decision of an administrative decision-maker. Thus, the normal appellate standard applies. See Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139, 473 N.R. 283 at paras. 37–39; Long Plain v. Canada, 2015 FCA 177, 475 N.R. 142 at paras. 88–91; Apotex v. Minister of Health, 2018 FCA 147, 157 C.P.R. (4th) 289 at paras. 57–61; Canada (Attorney General) v. Jodhan, 2012 FCA 161, [2014] 1 F.C.R. 185 at para. 75.
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[6] Prudential Steel Ltd. v. Bell Supply Company, 2016 FCA 282, [2017] 3 F.C.R. 165 at paras. 12–14, 22 and 29 fully supports the Federal Court’s judgment. There, this Court held that the Agency’s ruling (of the sort we have here) is akin to an advance ruling that does not affect legal rights, impose legal obligations or cause prejudice to anyone, whether importers or exporters. The Agency’s reinvestigation is "“nothing more than non-binding opinion”", essentially communicating ahead of time how the Agency intends to determine the normal values under paragraph 56(1)(b) of the Special Import Measures Act at the time of import: Prudential Steel at para. 26. The impact crystallizes only at the time of import when a formal decision under this legislative regime is made. And that formal decision does not have to follow the earlier non-binding opinion.
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[9] The appellants submit that the Federal Court failed to appreciate the effect of the normal values determined in an Agency reinvestigation. They argue that the reinvestigation prejudiced them by causing a loss of revenue and the Special Import Measures Act gives them no right of redress against this.
[10] The same can be said for many preliminary or interim steps taken by other agencies. For example, a decision by the Canada Revenue Agency to audit the tax return of a business, a decision of the Competition Bureau to conduct an investigation against a business for misleading advertising, or a decision by the Canadian Radio-television and Telecommunications Commission to investigate a broadcaster’s compliance with a broadcasting licence might cause some to worry about the possible financial impact on the business. In response to these, share prices might fall and lenders might worry.
[11] But absent the sort of exceptional circumstance (proven by admissible evidence) where the rare administrative law remedy of prohibition is available — and its availability in the face of the sort of comprehensive legislative regime we have here is unclear — none of these preliminary or interim steps create the sort of immediate, certain and final impact on legal rights, legal obligations or practical prejudice that triggers a right to dash off to a judicial review court: see the authorities in paragraph 3, above. This standpoint is also supported by all of the rationales supporting the near-absolute rule against judicial reviews of interlocutory or interim administrative decisions: C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332. As well, the evidence before us falls well short of the sort of specific and cogent evidence we need to justify the extraordinary and rare intervention of the Court by way of prohibition. The evidence goes no further than describing the general practices and routines of the Agency as set out in an Agency handbook. We have no evidence as to how these procedures actually operate in practice. . Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of two JRs, one which "challenged the validity of a report resulting from a regional assessment of offshore oil and gas exploratory drilling, conducted under the Impact Assessment Act" and the other to "quash a regulation made under the Act that exempts certain exploratory drilling activities from a number of impact assessment requirements".
Here the court considered in the first JR whether the issuance of the report was JR justiciable:[2] After our Court heard this appeal, the Supreme Court of Canada released its decision on the constitutionality of the Act: Reference re Impact Assessment Act, 2023 SCC 23 [IAA Reference]. The Supreme Court opined that the federal impact assessment scheme, consisting of the Act and its accompanying Physical Activities Regulations, S.O.R./2019-285 (Activities Regs), is unconstitutional in part.
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[49] Applying the Supreme Court’s analysis to the regional assessment mechanism, I find that the Regional Assessment (the assessment phase), while being an "“integral component of sound decision-making”" (Oldman River at 71), does not involve decision-making and carries no legal consequences.
[50] Thus, as determined by the Federal Court, this situation is no different from the ones previously reviewed by this Court and calls for the same conclusion: the Regional Assessment and the Report are not amenable to judicial review: FC Decision at paras. 29–30; Gitxaala Nation v. Canada, 2016 FCA 187 at para. 125 [Gitxaala]; Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 at para. 202 [Trans Mountain]; Taseko Mines Ltd. v. Canada (Environment), 2019 FCA 319 at para. 43 [Taseko #1]; Mikisew Cree First Nation v. Canadian Environmental Assessment Agency, 2023 FCA 191 at para. 107 [Mikisew].
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(1) The Right to Participate Meaningfully Argument
[52] The appellants allege that the public’s legal right to participate meaningfully in a regional assessment (paragraph 6(1)(h) and section 99) imposes a corresponding legal obligation on the Committee. If the right to participate meaningfully is denied, and the regional assessment is not subject to judicial review, then the wronged person or entity will have no remedy, a result contrary to the Act: Appellants’ Memorandum of Fact and Law at para. 110.
[53] I disagree.
[54] The record shows that the appellants participated in the process and had numerous opportunities to make submissions at in person meetings and in written form. While they may be dissatisfied with the regional assessment, they have not demonstrated that they were denied meaningful participation.
(2) The Purposes of the Act Argument
[55] The appellants argue that requiring affected parties to wait for a decision to challenge the regional assessment’s deficiencies would undermine the purposes of the Act, stated in paragraph 6(1)(b.1)—namely, fairness, efficiency, and the predictability of impact assessments: Appellants’ Memorandum of Fact and Law at para. 115.
[56] Again, I disagree.
[57] Allowing a party to challenge a regional assessment that may not result in any decision would be a waste a judicial resources and therefore inefficient. In addition, I fail to understand how challenging a regional assessment—a study which may not result in further action—would render the process fair or predictable.
(3) The Legislative Changes Argument
[58] Lastly, the appellants make an argument based on legislative changes. As I understand it, their argument is that the report issued under the Act’s predecessor, the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 (CEAA), was "“final and conclusive”" and insulated from judicial review. As such, a report made under the CEAA is different from a report made under the Act; the latter is not insulated from judicial review. The appellants say that the Federal Court’s failure to consider these differences led it to improperly rely on the decisions Gitxaala, Trans Mountain, and Taseko #1, which were rendered under the CEAA: Appellants’ Memorandum of Fact and Law at paras. 115–119.
[59] I must disagree. If a report issued under the CEAA was, as the appellants say, more akin to a "“final and conclusive”" decision, but was still found not to be amenable to judicial review, then it cannot be that a report made under the Act that is less akin to a "“final and conclusive”" decision could be amenable to judicial review.
(4) Conclusion on Amenability to Judicial Review
[60] The Report is not amenable to judicial review. The same is true for the Regional Assessment, an interim document that simply culminates in the Report. Accordingly, the Federal Court correctly dismissed the appellants’ application for judicial review of the Report.
[61] That said, just because a regional assessment, standing alone, is not amenable to judicial review, does not mean it is always immune from judicial review. If a regional assessment is materially deficient (unreasonable or procedurally unfair), the resulting regulation may be quashed on the basis that the Minister lacked the legal prerequisite set out in subsection 112(2) to make that regulation: FC Decision at paras. 26, 31, citing Trans Mountain at para. 201; Mikisew at paras. 108–109. . Segura Mosquera v. Child and Family Services Review Board
In Segura Mosquera v. Child and Family Services Review Board (Div Court, 2023) the Divisional Court considered a set aside motion against a R2.1 order that dismissed a JR by the applicant against a police board, here on grounds that no JR-justiciable decision was made:[14] Citing Currie v. Halton Regional Police Services Board (2003), 2003 CanLII 7815 (ON CA), 233 D.L.R. (4th) 657 (Ont. C.A.), at para. 14, the motion judge determined that the JRA was, on its face, frivolous, because it lacked a legal basis or merit and was not “reasonably purposeful”.
[15] In reaching the above conclusion, the motion judge noted that the jurisdiction of this court to hear an application for judicial review is found at s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), which jurisdiction rests on the existence of the exercise of a statutory power of decision. At para. 12 of her Endorsement, Ryan Bell J. notes that “[i]n order to be subject to judicial review, a statutory power of decision ‘must be a specific power or right to make the very decision in issue’”, referencing Paine v. University of Toronto et al. (1981), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 772, leave to appeal to S.C.C. refused, 35 O.R. (2d) 528.
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Analysis
[20] The heart of the motion judge’s findings is that, as pleaded, the relief sought as against the OPS lacks a legal basis or legal merit. On its face, the JRA refers to a decision made by the OPS, which was reviewed by the IPC. The motion judge observes that no reviewable OPS decision is identified in the JRA.
[21] I see no error in law or in fact in the reasons for the Dismissal Order, given by the motion judge. The motion judge properly directed herself on the law and, on the pleadings before her, her decision was neither clearly wrong, nor was there no, nor insufficient, weight given to relevant considerations.
[22] In addition, I conclude that the motion judge was correct in concluding that the relief apparently sought by Segura was not judicial review of a decision but, rather, a review or “audit” of the OPS’s policies and procedures. Such a review or audit is not within the purview of a judicial review application brought under the JRPA; as such, as to the relief sought as against the OPS, the motion judge properly exercised her discretion in concluding that the JRA had no merit and could be properly classified as “frivolous, vexatious or an abuse of process”.
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