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Judicial Review - Limitation - Continuous Course of Conduct. Key First Nation v. Stephanie C. Lavallee, Donald Worme, Rodney Brass, Angela Desjarlais, Sidney Keshane and Glen O'Soup
In Key First Nation v. Stephanie C. Lavallee, Donald Worme, Rodney Brass, Angela Desjarlais, Sidney Keshane and Glen O'Soup (Fed CA, 2021) the Federal Court of Appeal considered a useful 'continuous course of conduct' aspect in the context of a judicial review limitation:[35] Nor is the fact that the impugned acts might be administrative in nature a bar to judicial review. Administrative acts are not excluded from the scope of review under subsection 18.1(1). Rather, they are expressly included in paragraph 18.1(3)(a) of the Federal Courts Act which allows the Court to remedy "“any act or thing”" that a decision maker did or refused to do. The fact the conduct in question has ceased is not a bar to classifying the matter as a reviewable "“continuous course of conduct”" (David Suzuki Foundation v. Canada (Health), 2017 FC 682, 2017 CarswellNat 3285 at para. 28).
[36] It is only when the "“matter”" is a discrete decision or order that the time limit of 30 days set out in subsection 18.1(2) applies (Krause at paras. 20-23; Air Canada at para. 25). Where the "“matter”" under review constitutes a course of conduct (Save Halkett Bay Marine Park Society v. Canada (Minister of the Environment), 2015 FC 302, 476 F.T.R. 195 at para. 77), as opposed to a discrete decision (see, e.g., Apotex Inc. v. Canada (Minister of Health), 2011 FC 1308, 400 F.T.R. 28 at para. 18), the time limit of subsection 18.1(2) does not limit review of the initiating decision (Servier Canada Inc. v. Canada (Minister of Health), 2007 FC 196, 2007 CarswellNat 2184 at para. 17; Apotex Inc. v. Canada (Minister of Health), 2010 FC 1310, 2010 CarswellNat 4944 at para. 10). As stated in Fisher v. Canada (Attorney General), 2013 FC 1108, 441 F.T.R. 273 at paragraph 79:[T]he important point is not whether the policy itself or individual steps to implement it are challenged, but whether there is a closely connected course of allegedly unlawful government action that the applicant seeks to restrain by means of the prerogative writs of mandamus, declaration, prohibition, or certiorari.
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