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Judicial Review - Privative Clauses

'Privative' clauses are fascinating legal things, lying at the heart of the s.96 Constitution Act, 1867 court's role in our form of government. Simply, they are statutory provisions that purport to bar judicial review on the 'public' matters that we normally expect them for. In Ontario this expectation is set out in the Judicial Review Procedure Act (JRPA). Privative clauses are at the heart of what is, and what isn't, 'justiciable' by the courts. Traditionally, the closer one gets to the partisan political substance of the legislature or cabinet, the more likely the courts are to respect privative clauses. However it is not unusual for the courts to habitually, and baldly, disregard privative provisions that they feel 'go to far' and attempt to render the court's role irrelevant, no matter how plainly the statute reads.

Privative clauses cases can involve statutory appeals insofar as they 'substitute for' (and thus rationally excuse) privative measures, but whenever a legislature passes appeal provisions it is plain that the legislature has considered the issue of what remaining jurisdiction lies for judicial review, and that itself will generate respect for their structuring of jurisdiction (especially with Vavilov's re-found importance for legislation).

The court in Vavilov is now clear [at para 49] that privative clauses do not affect the 'reasonableness' standard of review in judicial review.

. Canada (Attorney General) v. Best Buy Canada Ltd.

In Canada (Attorney General) v. Best Buy Canada Ltd. (Fed CA, 2021) the Federal Court of Appeal considered the Crevier (SCC, 1981) case on privative clauses (statutory clauses purporting to oust the court's judicial review jurisdiction) [more at 61-67]:
[52] Does this conclusion offend the "“rule of law”"? Canada argues that it is the constitutional role of the courts to supervise the executive branch of government, and that in order to be fulfilled, this role requires full review of administrative decisions on all matters. In other words, reasonableness review of administrative decisions is constitutionally entrenched, and cannot be limited by legislative act.

[53] It is true that the Supreme Court, in Crevier v. A.G. (Québec) et al., 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 [Crevier], held that the legislature cannot completely oust judicial review via use of a privative clause. It is worth reviewing the facts of that oft-cited case, and briefly unpacking the Supreme Court’s holding.

[54] Crevier dealt with the question of whether a provincial legislature can entirely eliminate judicial review of an administrative tribunal empowered to make findings of fact and rule on matters of law. The administrative scheme at issue was set up under Québec’s Professional Code, R.S.Q. 1977, c. C-26, which at the time granted the Professions Tribunal judicial powers to hear appeals of disciplinary decisions made by the different professional orders’ Disciplinary Committees. The Professions Tribunal was composed of judges of the Provincial Court, i.e. not judges appointed by the federal government under section 96 of what was then still the British North America Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91, since reprinted in R.S.C. 1985, Appendix II., No. 5. At the time, article 194 of the Professional Code purported to completely eliminate recourse to the Superior Courts for review of Professions Tribunal decisions. It read:
"194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities."

"194."" Aucun des recours extraordinaires prévus aux articles 834 à 850 du Code de procédure civile ne peut être exercé ni aucune injonction accordée contre les personnes visées à l’article 193 agissant en leur qualité officielle."

[55] The articles of the Code of Civil Procedure referred to dealt with applications for judicial review. The most relevant provision was article 846, which read:

"846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases: "

"846."" La Cour supérieure peut, à la demande d’une partie, évoquer avant jugement une affaire pendante devant un tribunal soumis à son pouvoir de surveillance ou de contrôle, ou reviser le jugement déjà rendu par tel tribunal: "

"1. when there is want or excess of jurisdiction;. "

"1. dans le cas de défaut ou d’excès de juridiction; "

"2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect; "

"2. lorsque le règlement sur lequel la poursuite a été formée ou le jugement rendu est nul ou sans effet; "

"3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done; "

"3. lorsque la procédure suivie est entachée de quelque irrégularité grave, et qu’il y a lieu de croire que justice n’a pas été, ou ne pourra pas être rendue; "

"4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice "

"4. lorsqu’il y a eu violation de la loi ou abus de pouvoir équivalant à fraude et de nature à entraîner une injustice flagrante. "

"However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal. "

"Toutefois, ce recours n’est ouvert, dans les cas prévus aux alinéas 2, 3 et 4 ci-dessus, que si, dans l’espèce, les jugements du tribunal saisi ne sont pas susceptibles d’appel. "

"[Emphasis added, italics in original] "

"[Nos soulignés] "
[56] The Supreme Court struck down article 194 on the basis that it had the effect of constituting the Professions Tribunal a section 96 court. Chief Justice Laskin, writing for the Court, held the following:
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 British North America Act 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. (Crevier at pp. 236–37 [Emphasis added])
[57] Crevier has since oft been cited for the proposition that a legislature cannot completely oust judicial review: see e.g. Vavilov at para. 24; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 31. As Stratas J.A., for this Court, recently framed it, "“[p]ut positively, Crevier stands for the proposition that there must always be at least some prospect or degree of review”": Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 2021 CarswellNat 1003 at para. 102 [Canadian Council for Refugees]. This is indeed all it stands for. It does not imply that the legislature cannot limit or preclude judicial review of administrative decisions for certain types of issues: see e.g. Canadian Council for Refugees at para. 102, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 CanLII 88 (SCC), [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402 at 333; Capital Regional District v. Concerned Citizens of British Columbia et al., 1982 CanLII 220 (SCC), [1982] 2 S.C.R. 842, 141 D.L.R. (3d) 385; Vavilov at paras. 45–52. On the contrary, as the emphasized portion of the above cited passage makes clear, Crevier actually explicitly states that the legislature may oust judicial review on issues not touching jurisdiction.

[58] It is also clear from the above cited passage that, at the time, the Supreme Court considered "“questions of jurisdiction”" to be a more narrow and important category of question than "“questions of law”". In my view, it follows that, according to the reasoning espoused in Crevier, a statutory scheme that allows for appeal of an administrative decision on a question of law meets the constitutional threshold articulated in Crevier.

[59] The Supreme Court in Crevier was pre-occupied with the lack of any appeal from a decision of the Professions Tribunal to a Superior Court. Comparing to the legislative scheme at issue in this case, it is clear that the Supreme Court’s holding in Crevier would limit Parliament’s ability to completely insulate the CITT from any Superior Court review. In the Customs Act, Parliament has not attempted to do so. Instead, it has provided an appeal mechanism, and simply limited what can be appealed to questions of law. Similar to the Code of Civil Procedure at the time Crevier was decided, the Federal Courts Act makes clear that the traditional judicial review remedies provided for in that Act—injunction, certiorari, prohibition, etc.—are unavailable when a statutory appeal from an administrative decision is provided for: Federal Courts Act, s. 18.5.

[60] In my view, Crevier supports the position that Parliament may restrict judicial review to questions of law. A statutory provision having this effect, such as section 68 of the Customs Act, meets any threshold established in Crevier. To hold otherwise would be to eliminate any possibility that Parliament could, via statute, restrict the ambit of judicial review of administrative action. What purpose would the specific provisions of the Customs Act, and many other federal statutes that restrict review, serve if recourse to the Courts could always be had on all issues under the general provisions of section 18 and section 28 of the Federal Courts Act?
. Canada (Attorney General) v. Iris Technologies Inc.

In Canada (Attorney General) v. Iris Technologies Inc. (Fed CA, 2022) the underlying case was a judicial review (JR) brought by Iris seeking several declarations after an audit and tax reassessments. The basis of the JR were the grounds and procedures of the audit. The AG made an interlocutory motion to quash the JR, which lost twice at the Federal court (prothonotary and panel), and then appealed again to the Federal Court of Appeal. There the AG finally won.

The court addressed a privative clause issue in this fashion:
[3] Cloaking grievances in administrative law language and remedies does not necessarily make them such. A court must look beyond the words used. This is particularly so in the context of challenges to assessments under the ETA or Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) where Parliament has established a specialized court and system for tax appeals, and has expressly excluded the judicial review jurisdiction of the Federal Court where an appeal lies from an assessment (Tax Court of Canada Act, R.S.C. 1985, c. T-2, s. 12; Federal Courts Act, R.S.C. 1985, c. F-7, s. 18(5); Canada v. Addison & Leyen Ltd., 2007 SCC 33, [2007] 2 S.C.R. 793); JP Morgan, above.

....

[13] The mere fact that the Minister has issued an assessment does not oust the jurisdiction of the Federal Court. Where the Tax Court does not have jurisdiction to deal with the Minister’s conduct or where the true purpose of the application is to seek practical relief against the exercise of a discretion, the bar in section 18.5 does not apply. That was the situation in Canada (National Revenue) v. Sifto Canada Corp., 2014 FCA 140, [2014] 5 C.T.C. 26, where a judicial review was allowed in respect of penalties issued in a reassessment: see also Dow Chemical v. Minister of National Revenue 2022 FCA 70.


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