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JR - Justiciability (2). Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from the earlier denial of a JR of "a report by the Conflict of Interest Ethics Commissioner".
Here the court considers the effect on justiciability of a 'partial privative clause' - while in the course of it's discussion considering the 'rule of law' and the constitutional role of the s.96 courts:[10] The discrete issue to be decided in this application for judicial review can be stated as follows:Under the COIA, does the partial privative clause limiting judicial review only on questions of jurisdiction, procedural fairness, and fraud or perjured evidence prevent the judicial review of questions of law or questions of fact arising from the Commissioner’s findings in the “Trudeau III Report”? ....
V. Analysis
A. Does section 66 of the Conflict of Interest Act bar this application for judicial review?
[28] Privative clauses have had a chequered history in Canadian jurisprudence. Ever since the rise of the administrative state, courts and legislatures have tried to find equilibrium in their relationships. The reconciliation between the cardinal values of legislative supremacy and the rule of law has led to some confusion, and at times even to some tension. Nowhere has this tension been better expressed than in Dunsmuir v. New Brunswick, 2008 SCC 9, where Justices Bastarache and Lebel starkly contrasted the rule of law and the democratic principle, and strove to reconcile the two by inviting courts to be sensitive "“not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions”" (at para. 27).
[29] As a constitutional matter, Parliament and the legislatures undoubtedly have the power to delegate power to subordinate decision-makers, within the confines of the distribution of powers set out in sections 91 to 95 of the Constitution Act, 1867¸ and to the extent that the legislature does not abdicate its legislative role: see Hodge v. The Queen, [1883] 9 A.C. 117; In re George Edwin Gray (1918), 1918 CanLII 533 (SCC), 57 S.C.R. 150, 42 D.L.R. 1; Reference as to the Validity of the Regulations in relation to chemicals, 1943 CanLII 1 (SCC), [1943] S.C.R. 1, [1943] 1 D.L.R. 248; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11. One of the constitutional constraints Parliament and the provincial legislatures must adhere to when delegating power to decision-makers is the Judicature section of the Constitution Act, 1867, and in particular sections 96 to 101 of that constitutional document. These provisions, which seemingly relate to the appointment of superior court judges, their tenure and salary, have been interpreted as a safeguard of the core jurisdiction of these courts. This much was made clear by Chief Justice Laskin in Crevier, where he stated (at 237):... given that s. 96 is in the [Constitution Act, 1867] and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. [30] Justices Bastarache and LeBel picked up on this interpretation of a "“safeguard”" in Dunsmuir. Before quoting from Crevier, they wrote (at para. 31):... The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz in U.E.S. Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p. 1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. ... [31] On this interpretation, what is constitutionally protected is not only the inherent jurisdiction of the superior courts, but maybe more importantly, the notion that these courts are the guardians of the rule of law. At its most basic, the rule of law ensures individuals are regulated by law and not the whim of government officials (Toronto (City) v. Ontario (Attorney General), 2021 SCC 34 at para. 55; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 at paras. 58-59; Reference re Code of Civil Procedure (Que), art 35, 2021 SCC 27 at paras. 50-51). And, in a constitutional democracy like ours, it means both that Parliament and the legislatures are constrained by the distribution of powers found in sections 91 to 95 of the Constitution Act, 1867, and that the executive branch must also act within the confines of their delegated authority. Indeed, it would make no sense for Parliament to delegate circumscribed decision-making powers to administrative and executive bodies if these same bodies could override the limits on their powers and act outside the range of their delegated authority. To that extent, judicial review by courts of superior jurisdiction becomes the essential companion to parliamentary sovereignty
[32] Two points need to be made before going any further. First, sections 96 to 101 bind Parliament as much as the legislatures. In other words, Parliament is no more able to transfer a Superior Court jurisdiction to a provincial court than a provincial legislature would be: McEvoy v. Attorney General for New Brunswick et al., 1983 CanLII 149 (SCC), [1983] 1 S.C.R. 704, 148 D.L.R. (3d) 25. Second, it is beyond dispute that Parliament cannot completely oust judicial review in the Federal Courts. Despite the fact that these courts have been created by statute pursuant to section 101 of the Constitution Act, 1867 and are not endowed with inherent jurisdiction like the section 96 courts, it is clear that Parliament’s intention was to grant them (and codify) the judicial review function over federal decision-makers as courts of superior jurisdiction. An interpretation that would nullify that power and bring the clock back to the situation pre-1971, when judicial review of federal boards and tribunals was within the purview of provincial superior courts, would run against Parliament’s intention (Quebec North Shore Paper v. C.P. Ltd. (1976), 1976 CanLII 10 (SCC), [1977] 2 S.C.R. 1054, 71 D.L.R. (3d) 111 at 1065-66).
[33] With the rise of the administrative state and the proliferation of administrative and quasi-judicial bodies, however, Parliament and the legislatures have sought in different ways to limit the availability of judicial review for all sorts of reasons (for example expediency, judicial economy, finality of the administrative process). Since very early on, courts have been called upon to define more precisely what it is exactly that is constitutionally protected in terms of judicial review. Or, to look at it from the opposite angle, how far can legislatures oust judicial review of the decisions made by decision-makers of their own making?
[34] In the early days, which was later dubbed the "“jurisdictional era”", courts would only intervene when a decision-maker had exceeded its jurisdiction. If a decision was purportedly within the jurisdiction of an administrative board or agency, courts would refrain from reviewing it even if of the view that there was an error. This form of judicial deference, which reflected an attitude of reverence to parliamentary sovereignty, is evidenced in a number of cases that spans a period of more than 30 years (see, for example, Labour Relations Board v. Traders’ Service Ltd., 1958 CanLII 28 (SCC), [1958] S.C.R. 672, 15 D.L.R. (2d) 305; Bakery and Confectionery Workers International Union of America, Local No. 468 v. White Lunch Ltd., 1966 CanLII 84 (SCC), [1966] S.C.R. 282, 56 D.L.R. (2d) 193; Commission des relations ouvrières du Québec v. Burlington Mills Hosiery Co. of Canada, 1964 CanLII 73 (SCC), [1964] S.C.R. 342, 45 D.L.R. (2d) 730; Labour Relations Board of Saskatchewan v. The Queen et al., 1969 CanLII 104 (SCC), [1969] S.C.R. 898, 7 D.L.R. (3d) 1; see also, more generally, on that period: Paul Daly, "“The Struggle for Deference in Canada”" in Mark Elliott & Hanna Wilberg, eds., The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (London: Hart Publishing, 2015) 297 at 300-09; Mark P. Mancini, "“Foxes, Henhouses, and the Constitutional Guarantee of Judicial Review: Re-Evaluating Crevier”" (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4589547) (Forthcoming, Canadian Bar Review); Dean Knight, Vigilance and Restraint in the Common Law of Judicial Review (Cambridge: Cambridge University Press, 2018).
[35] During that period, the role played by privative clauses was tightly related to jurisdiction. If the administrative decision-maker’s error was committed within the exercise of its jurisdiction conferred by statute, a privative clause would be effective to insulate it from review: see, as an illustration, Farrell v. Workmen’s Compensation Board, 1961 CanLII 46 (SCC), [1962] S.C.R. 48, 31 D.L.R. (2d) 177 (Farrell). If, on the other hand, an error went to the jurisdiction of the decision-maker exercising delegated authority, courts were justified to intervene, even in the face of a seemingly tightly worded privative clause, to ensure executive actors did not exceed the power delegated to them by Parliament.
[36] The decisions of the Supreme Court in Attorney General (Quebec) et al. v. Farrah, 1978 CanLII 195 (SCC), [1978] 2 S.C.R. 638, 86 D.L.R. (3d) 161 (Farrah) and Crevier illustrate that trend. At issue in Farrah was the establishment of a Transport Tribunal, comprised of provincial judges, that was granted an exclusive appellate jurisdiction from any decision of the Transport Commission. The Tribunal’s decisions were protected from the reviewing power of the Superior Court. Writing for the majority, Justice Pratte found that such a scheme was problematic because it encroached on the supervisory jurisdiction of superior courts, a power that is entrenched by section 96 of the Constitution Act, 1867. Relying on a number of cases (including Farrell and Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, 27 D.L.R. (3d) 608), Justice Pratte wrote (at 655) that "“while [privative clauses] are ineffective to oust the supervisory power of superior courts in cases of want or excess of jurisdiction of inferior tribunals, they are nevertheless effective to preclude interference by the courts in cases of “illegalities” committed by such tribunals in the exercise of their jurisdiction and for which, barring a privative clause, certiorari would otherwise lie.”"
[37] Crevier similarly harks back to the notion of jurisdiction. Pursuant to the Québec Professional Code of the time, the Professions Tribunal, composed of judges of the Provincial Court, was granted the power to hear appeals of disciplinary decisions made by the various professional orders’ Disciplinary Committees. Section 194 of the Professional Code prevented any recourse to the Superior Court of decisions made by the Professions Tribunal. Once again, the Supreme Court struck down that provision on the basis that a legislature cannot oust judicial review on questions of jurisdiction. Writing for the Court, Chief Justice Laskin wrote (at 236-237):It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the [Constitution Act, 1867] and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. [38] Behind this facade of apparent simplicity, however, the distinction between jurisdictional and non-jurisdictional error became increasingly muddy over time. The Supreme Court of Canada contributed to make that distinction ever more uncertain in a number of cases, much like the House of Lords did in the wake of Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, [1969] 1 All E.R. 208. For a comprehensive and illuminating history of judicial review and the impact thereon of "“ouster” "clauses in England, see R. (on the application of Privacy International) v. Investigatory Powers Tribunal and others, [2019] UKSC 22, [2019] 4 All E.R. 1. In both countries, what started as a timid expansion of non-jurisdictional errors to cover egregious errors of law against which a privative clause would be of no effect gradually expanded, thereby allowing courts to review not only legal errors but also factual and evidentiary issues.
[39] It is in the landmark decision of Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417 (New Brunswick Liquor), that our highest Court started to move away from the preliminary question doctrine. Under this doctrine, a reviewing court would inquire into whether a tribunal erred in determining the scope of its jurisdiction. However, New Brunswick Liquor focused instead on a substantive review of the determinations made by the administrative body. This new approach, which was meant to be more respectful of administrative decision-making, has frequently been characterized as "“the beginning of the modern era of Canadian administrative law”" (Dunsmuir at para. 35). Instead of applying an all or nothing approach, whereby the focus was whether a tribunal had erred in determining the scope of its jurisdiction, courts adopted a more nuanced approach and started to develop various standards of review through a "“pragmatic and functional approach”", with a concomitant multi-level degree of deference.
[40] At issue in New Brunswick Liquor was the interpretation of a statutory provision which provided that "“the employer shall not replace the striking employees or fill their position with any other employee”". The Public Service Labour Relations Board concluded that replacing striking employees with management personnel was not permissible, and rejected the employer’s argument that they could assign management personnel the duties otherwise performed by the striking employees because the intent of the section was to ensure that the jobs remained open for the employees after the strike was over. This decision was overturned by the Appeal Division of the Supreme Court of New Brunswick, which held that management was not prevented from performing the duties of striking employees.
[41] At the very beginning of his reasons, Justice Dickson, as he then was, writing for the Court, acknowledged that jurisdictional error will sometimes justify judicial intervention, but cautioned in the same breath that courts "“should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so”" (at 233). This is so not only because the question of what is or is not jurisdictional is often very difficult to determine, but also because in that case, a privative clause protected the decisions of the Board and reinforced the deference traditionally shown to specialized tribunals in the field of labour relations.
[42] That would have been sufficient to dispose of the appeal. But Justice Dickson went further and addressed the argument that the interpretation given by the Board to the provision barring employers to replace the striking employees was so patently unreasonable that it took the Board beyond the protection of the privative clause. After having stressed the ambiguity of that provision and its many possible interpretations, and having turned his mind to its purpose, Justice Dickson found it difficult to brand as "“patently unreasonable”" the interpretation arrived at by the Board. As he stated: "“[a]t a minimum the Board’s interpretation would seem at least as reasonable as the alternative interpretations suggested in the Court of Appeal”" (at 242).
[43] That seminal decision was significant for at least two reasons. First, it clearly signaled that courts should adopt a deferential attitude towards specialized tribunals, and therefore resist the temptation to label an issue as jurisdictional "“that which may be doubtfully so”" (New Brunswick Liquor at 233). Second, it opened the door to a judicial review of intrajurisdictional errors of law, even in the face of privative clauses. For all intents and purposes, an error of law that rose to the level of patent unreasonableness would be assimilated to a jurisdictional error (Bibeault v. McCaffrey, 1984 CanLII 133 (SCC), [1984] 1 S.C.R. 176, 7 D.L.R. (4th) 1 at 184).
[44] Because there has never been a clear line of demarcation between an intrajurisdictional and extrajurisdictional error, however, the Supreme Court itself did not keep to its caution and steadily expanded the concept of jurisdictional error. Indeed, it characterized as jurisdictional an ever-broader category of questions of fact, capturing not only those cases where there is no evidence at all, but also cases where the evidence was incapable of supporting the decision-maker’s findings of fact (see, for example, Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644, 76 D.L.R. (4th) 389 at 669; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385).
[45] Of more significance for our purposes is the shift from a system based on jurisdictional error to an approach focused on variable intensity of review, expressed through different standards. It was not about completely shielding some decisions from review as an expression of deference for Parliament’s choice to delegate decision-making authority to the executive branch writ large any more. Instead, this new approach (later referred to as the "“pragmatic and functional approach”") focused on such contextual factors as the presence or absence of a privative clause, the expertise of the administrative decision-maker as compared to that of a court with respect to the issue to be decided, the purpose of the statute conferring jurisdiction on the decision-maker and the reason for its existence, and the nature of the problem to be solved (see U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, 95 N.R. 161 (Bibeault 1988); Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 787 (SCC), [1998] 1 S.C.R. 1222, 60 D.L.R. (4th) 193).
[46] This evolution, which took place over the course of 30 years and culminated with the landmark decision of Dunsmuir, marked a significant departure from the jurisdictional era and also signaled, most importantly for our purposes, a radically different approach to privative clauses. Instead of attempting to give effect to privative clauses by delineating as off-limit for judicial review an area of exclusive jurisdiction for administrative decision-makers, courts were sought to show deference for parliamentary sovereignty by reviewing a broader set of decisions but according to different intensities of review. In this new paradigm, privative clauses were no longer the polar star of judicial review, but rather one indicia among others in determining how stringently judicial review should be exercised. As Justice Rothstein aptly put it in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (Khosa), "“[r]ather than being viewed as the express manifestation of legislative intent regarding deference, the privative clause was now treated simply as one of several factors in the calibration of deference (standard of review)”" (at para. 92).
[47] With the increasing complexity of the analytical process to determine which of the then three standards of review applied in a given situation, the Supreme Court felt the need to reconsider both the number and definitions of these standards. The Court prefaced its discussion with the acknowledgment that it had "“moved from a highly formalistic, artificial “jurisdiction” test that could easily be manipulated, to a highly contextual “functional” test that provide[d] great flexibility but little real on-the-ground guidance, and offer[ed] too many standards of review”" (Dunsmuir at para. 43). Hence, the need for a test that was neither formalistic nor artificial, and allowed for review when justice so required. As a result, the Court did away with the distinction between the patent unreasonableness standard and the reasonableness simpliciter standard introduced in Canada (Director and Investigation and Research) and Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, and collapsed the standards of review into two: reasonableness and correctness. In doing so, it also endeavoured to simplify the application of the correctness and reasonableness standard. Most notably, it clarified that the presence of a privative clause no longer limited the scope of the Court’s review to patent unreasonableness, but was merely a "“strong indication”" that the reasonableness standard applied. This view was premised on the notion that the court’s power to review the actions and decisions of administrative bodies is constitutionally protected.
[48] Expanding on their views as to the relationship between the rule of law, judicial review and legislative sovereignty, Justices Bastarache and LeBel wrote:[27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.
[28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.
[29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21.
[30] In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy. As noted by Justice Thomas Cromwell, “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (“Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent.
[31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p. 1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier:Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the [Constitution Act, 1867] and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38] [49] While one may query, as did Justice Rothstein in Khosa, whether the tension between the rule of law and legislative sovereignty stems from the delegation of decision-making authority to administrative bodies per se or from the insertion of privative clauses to put their decisions beyond the reach of courts of superior jurisdiction, the above passage is nevertheless the most expansive and articulate rationale one will find in the jurisprudence of the Supreme Court for any constitutional protection of judicial review. It falls short, however, of providing the contours of that constitutional protection and delineating what are the core judicial review functions of section 96 courts and, where established, section 101 courts that legislatures or Parliament cannot interfere with. Are privative clauses to be read down only to preserve the judicial review power of courts of superior jurisdiction when an administrative body exceeds its jurisdiction, as the early case law seems to imply? Or are we to read more into it and infer a constitutional guarantee that would also protect reviewability on questions of law, on mixed questions of law and fact, and even on pure questions of fact?
[50] Unfortunately, the most recent comprehensive decision of the Supreme Court on judicial review does not provide much guidance on this thorny issue. In Vavilov, the Court set out to re-examine its approach to judicial review, while insisting that its revised framework continues to be guided by the principles articulated in Dunsmuir, namely "“that judicial review functions to maintain the rule of law while giving effect to legislative intent”" (at para. 2).
[51] One of the important clarifications brought about by Vavilov is that it did away with the contextual approach. No longer do courts have to look at context to determine which standard of review applies; reasonableness is presumptively the applicable standard whenever a court reviews administrative decisions, with two general exceptions. Under Vavilov, the presumption of reasonableness is rebutted when the legislature had indicated that a different standard should apply (either by prescribing a specific standard or by providing for a statutory appeal mechanism), or when the rule of law requires that the standard of correctness be applied. Relying on Dunsmuir, Crevier and Bibeault 1988, the Court reiterated that legislatures cannot shield administrative decision-making entirely from curial scrutiny because of section 96 of the Constitution Act, 1867 (Vavilov at para. 24).
[52] As a result of this current approach, privative clauses play no role in identifying the applicable standard of review. They merely inform the reasonableness analysis and are part of the context that will constrain what will be reasonable for a decision maker to decide in any given case. This is as far as the Court went with respect to the impact of privative clauses.
[53] There are, however, a few dicta in the reasons of the majority that are instructive. After having reiterated that "“respect for legislative intent is the ‘polar star’ of judicial review”" (at para. 33, quoting CU.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 at para. 149) and having reaffirmed that the standard of review analysis "“requires courts to give effect to the legislature’s institutional design choices to delegate authority through statute”" (at para. 36), the Court draws the conclusion that the choice of a legislature to opt for an appeal process to challenge an administrative decision should no longer be ignored. As such, the court hearing an appeal will apply the appellate standards of review (or the specific standards set out in the statute), and not the judicial review principles.
[54] The Court went on to add that a limited right of appeal will not preclude a court from considering other aspects of a decision in an application for judicial review (at para. 45). The Court elaborated further on that issue at paragraph 52:... statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. [55] Even on a careful reading of Vavilov, there is little to be gained as to how reviewing courts should deal with privative clauses and, more particularly, as to whether such provisions can effectively oust judicial review and, if so, to what extent. The applicant himself recognizes as much in his memorandum. This uncertainty has indeed been confirmed in a most recent case handed down by the Supreme Court after the hearing of the case at bar.
[56] In Yatar, the Supreme Court had to deal with the scenario anticipated in Vavilov. Pursuant to the Ontario’s License Appeal Tribunal Act, 1999, a litigant’s right of appeal from a decision of the Licence Appeal Tribunal was restricted to questions of law. The appellant in this case therefore pursued an appeal on questions of law, and also sought judicial review on questions of fact and or mixed fact and law. Relying on its decision in Vavilov, the Supreme Court reiterated that a statutory right of appeal on certain questions does not bar judicial review for other types of questions. While the court before which judicial review is sought retains the discretion to refuse to grant a remedy because it is not appropriate (if there are alternative remedies, for example), it cannot bar judicial review on the basis that a limited right of appeal evinced an intention to restrict recourse to the courts on other questions arising from an administrative decision.
[57] That decision is entirely consistent with paragraph 52 of Vavilov, quoted above, where the Supreme Court stated that the existence of a circumscribed right of appeal does not, on its own, preclude applications for judicial review. Most significantly, however, the Supreme Court took note of the recent jurisprudence of this Court dealing with the availability of judicial review where there is a privative clause: Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209; Best Buy; Democracy Watch 2023; Democracy Watch 2022. It explicitly declined to rule on that issue, leaving it for another day and therefore acknowledging that this question is still unresolved. Note that paras 58-78, which continues this discussion, were expressly held to be obiter (ie. non-stare decisis binding) by two (of three) concurring judges [at paras 94-96]. As such, the statement at para 57 seems to be the status of the issue.
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