|
Judicial Review - Prematurity-AAR Merger?. Buffalocalf v. Nekaneet First Nation
In Buffalocalf v. Nekaneet First Nation (Fed CA, 2024) the Federal Court of Appeal considered the effective merger of the doctrines of prematurity and adequate alternative remedy (and more):2) The administrative process has not been exhausted
[40] Even if, for the sake of the argument, I was prepared to accept that the Federal Court did have jurisdiction to entertain the application, there is another compelling reason why it should have declined to do so. It is well established that judicial review is a discretionary remedy. When the administrative process has put in place remedial recourses, these should normally be exhausted before courts can step in. This is a cardinal rule of Canadian administrative law, and nowhere has it been more eloquently spelled out than in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61 (C.B. Powell), where this Court stated (at para. 31):Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [41] See also the cases cited at paragraph 30 of C.B. Powell, as well as: Strickland v. Canada (Attorney General), 2015 SCC 37 at paras. 40, 42; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10 at paras. 35-37 (Halifax); Dugré v. Canada (Attorney General), 2021 FCA 8 at para. 37; Viaguard Accu-Metrics Laboratory v. Standards Council of Canada, 2023 FCA 63 at paras. 4-5.
[42] As noted in the case law, there are practical and theoretical reasons for judicial restraint. One of the rationales for this rule is that a premature intervention by a reviewing court could deprive it of a full record, and of an administrative decision-maker’s factual and evidentiary findings. Such findings are often suffused with expertise, policy judgments and regulatory experience: C.B. Powell, at para. 32. Indeed, early judicial intervention may lead to the imposition by a court of what amounts to the "“correct”" interpretation of a legal question that an administrative tribunal could have reasonably interpreted differently: Halifax, at para. 36. Such caution is all the more critical in an aboriginal context, and especially when dealing with governance and electoral disputes, where courts are at a disadvantage compared to decision-makers steeped in or familiar with the culture and traditions of the Band within which a dispute arose.
|
