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Judicial Review - Privative (2)

. Canada (Attorney General) v. Pier 1 Imports (U.S.)

In Canada (Attorney General) v. Pier 1 Imports (U.S.) (Fed CA, 2023) the Federal Court of Appeal considered a joint appeal-JR against a ruling of the CITT (Canadian International Trade Tribunal), here addressing the calculation of 'value for duty' for imported goods (custom rates).

The relevant Customs Act (CA) provisions [CA s.67] purported to bar JR (a privative clause), leaving the aggrieved party with only a 'question of law' appeal right [CA s.68], an situation that has attracted recent judicial attention (Yatar):
A. Observations Regarding the Concurrent Appeal and Application for Judicial Review

[28] The present case addresses both an appeal and an application for judicial review brought concurrently. Our Court recently discussed the issue as to whether an application for judicial review can be considered notwithstanding the statutory appeal mechanism contemplated by Parliament in subsection 68(1) of the Customs Act.

[29] More specifically, in Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, [2021] F.C.J. No. 848 (Best Buy), our Court was unanimous on the disposition of the appeal but split on the question of whether the limitation in section 18.5 of the Federal Courts Act excluded applications for judicial review on questions of fact. The minority reasoned that only the statutory appeal mechanism under subsection 68(1) of the Customs Act was available to the parties to review the decision—i.e., only errors of law could be reviewed by our Court (Best Buy at paras. 36–61). The majority, however, found that such a complete bar to judicial review would be incompatible with the rule of law. Hence, the majority concluded that both errors were reviewable—errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review (Best Buy at paras. 112, 120). Our Court has since confirmed that the ability to bring an application for judicial review in parallel with an appeal, though on limited grounds, has been settled by Best Buy (BCE Inc. v. Québecor Média Inc., 2022 FCA 152, 2022 A.C.W.S. 5773 at para. 58 (BCE)).

[30] The above rulings are binding. The concurrent filing of an appeal and an application for judicial review in the same proceeding nonetheless raises certain practical considerations that will briefly be addressed in conclusion of these reasons.


[47] In conclusion, a few additional observations are apposite with respect to concurrent proceedings—appeal and judicial review—where the legislative intent is to limit an appeal to questions of law, as is the case in section 68 of the Customs Act (Vavilov at paras. 33, 36).

[48] The interaction between a right of appeal and judicial review has recently garnered judicial and academic interest across the country (See Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, 2022 A.C.W.S. 1702 (leave to appeal to SCC granted, 40348 (9 March 2023)) (Yatar); Smith v. The Appeal Commission, 2023 MBCA 23, 479 D.L.R. (4th) 121; Best Buy; BCE; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 (Canadian Council for Refugees); Neptune; Democracy Watch v. Canada (Attorney General), 2023 FCA 39, 2023 A.C.W.S. 707; Democracy Watch v. Canada (Attorney General), 2022 FCA 208, 2022 A.C.W.S. 5655; Paul Daly, “Vavilov on the Road” (2022) 35:1 Can. J. Admin. L. & Prac. 1; Paul Daly, “Rights of Appeal: Contracting or Expanding Judicial Review?” (3 October 2023), online (blog): Administrative Law Matters ˂www.administrativelawmatters.com/blog/2023/10/03/rights-of-appeal-contracting-or-expanding-judicial-review/˃; Mark Mancini, “Issue #71: Administrative Law Wrapped, 2022” (18 December 2022), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-71-administrative-law-wrapped˃; Mark Mancini, “Issue #45” (19 June 2022), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-45-june-19-2022˃; Mark Mancini, “Issue #4” (8 August 2021), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-4-august-8-2021˃).

[49] The key issue emerging in this regard, except for Canadian Council for Refugees and the Democracy Watch cases, does not seem to be whether an application for judicial review remains available to a party concurrent to an appeal. Rather, the genuine issue is to what extent a judicial review application, which is by definition a discretionary remedy, should be entertained when filed concurrently with an appeal that has been expressly limited in scope.

[50] However trite, the duplication of proceedings has an impact on judicial economy (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 70). Recently, the Supreme Court in Vavilov reiterated the goal of judicial efficiency in administrative law (Vavilov at para. 29). The minority in Best Buy foresaw the consequences of the duplication of procedures, noting that the “process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone” (Best Buy at para. 68).

[51] The present circumstances are no different. This appeal and application for judicial review followed two sets of procedural requirements but were ultimately heard together (see Rule 301 and following and Rule 337 and following of the Federal Courts Rules, S.O.R./98-106). The parties, nonetheless, had to prepare and respond to two memoranda, which contained overlapping arguments. This may be explained by the fact that an application for judicial review must be filed within 30 days, whereas an appeal can be filed within 90 days (see s. 18.1(2) of the Federal Courts Act and s. 68(1) of the Customs Act). These timeline incongruences resulted in the parties including in their judicial review application memoranda arguments that should have fallen within the purview of the limited right of appeal. Consequently, at the hearing, the arguments were repetitive, or at best, repackaged and articulated differently in the context of either the appeal or the application for judicial review.

[52] The better approach to reflect Parliament’s intent and the rule of law might be the more restrictive stance adopted by the Ontario Court of Appeal, which reiterates that “judicial review is always available,” but mandates that courts ask themselves whether it is an “appropriate” exercise of their discretion, adding that this is so only in “rare cases” (Yatar at paras. 42, 48). However, the Ontario Court of Appeal did not expand on the meaning of “rare cases,” stating that they should be determined on a “case-by-case basis” (Yatar at para. 45). Perhaps because, as a matter of practice, and in the vast majority of cases, the statutory appeal will be sufficient to address the issue at hand, and the judicial review, although available, will be rendered superfluous (Yatar at para. 47; Best Buy at para. 129).
. Mulmer Services Ltd. v. LIUNA, Local 183

In Mulmer Services Ltd. v. LIUNA, Local 183 (Div Court, 2023) the Divisional Court considered the LRA's privative provisions [s.114(1) and s.116] and how that is interpreted in modern JR 'standard of review' doctrine:
[31] Moreover, in the context of labour relations, the courts have a longstanding jurisprudential commitment to affording labour relations tribunals the highest degree of deference.[30] Indeed, as the Ontario Court of Appeal said in a 2020 decision, “[f]ew tribunals have received more judicial deference than labour tribunals and nothing in Vavilov detracts from this posture.”[31] Our Court of Appeal recently emphasized, in the context of a decision of the OLRB, that the “relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review.”[32] The Court of Appeal went on to hold that the Board “is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute.”[33]

[32] Having regard for the governing statutory scheme here, it is to be noted that the LRA conveys exclusive jurisdiction on the Board to determine disputes under the Act. The Act contains two strong privative clauses. Subsection 114(1) mandates the Board’s jurisdiction and provides, inter alia, that the Board’s decisions are “final and conclusive for all purposes,” as follows:
The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
[33] In a similar vein, s. 116 of the Act reflects the legislative intent that judicial review of the Board’s decisions must afford great deference to the Board, as follows:
No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.
[34] Consistent with the courts’ jurisprudence on the reasonableness standard of review, these statutory provisions underscore the importance of judicial restraint and respect for the Board’s interpretation of the LRA, its home statute.


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Last modified: 18-10-23
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