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Judicial Review - Public v Private (4) [Federal]

. Cyr v. Batchewana First Nation of Ojibways [air canada]

In Cyr v. Batchewana First Nation of Ojibways (Fed CA, 2022) the Federal Court of Appeal considered when a matter was private or public for the purposes of judicial review, considering s.2 and 18(1) of the Federal Courts Act and Air Canada v Toronto Port Authority (Fed CA, 2011):
[3] This case touches on the provisions of the Sale Agreement signed between Mr. Cyr and the BFN, as well as the Housing Authority’s power to evict Mr. Cyr from his home should he breach the terms of the Sale Agreement. It also concerns the BFN’s overall land management. The issue here is whether the decision being challenged, the Housing Authority’s conduct when it evicted Mr. Cyr, constituted an administrative action susceptible to judicial review. That is, was the Housing Authority acting in a public nature, as a "“federal board, commission or other tribunal”" as defined in section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7, for the purpose of subsection 18(1)?


(2) The application of the Air Canada factors

[45] Next, I will review the Federal Court Judge’s application of the eight factors set out in Air Canada to the facts before her. The factors are not exhaustive, and some may not apply to the matter before the Court. Nonetheless, in determining the public-private nature of an administrative decision, all of the circumstances must be weighed. Whether or not any one factor or a combination of a particular factor tips the balance and makes the matter "“public”" depends on the facts of the case and the overall impression registered upon the Court (Air Canada at para. 60).

[46] Of the eight factors she considered, the Federal Court Judge found that four favored a finding that the matter was of a private law nature, two favored a finding of public law, and two were not relevant to the matter before her.

[47] The four factors she determined that were favoring a finding that the matter was of a private law nature are the following:
1) The character of the matter for which the review was sought.

2) The extent to which a decision is found in and shaped by the law as opposed to private discretion;

3) The extent of a public entity’s control of the administrative decision-maker; and

4) The public law remedies that are available on judicial review.
[48] With respect to the character of the matter for which the review was sought, the Federal Court Judge found that the breaches relied on by the Housing Authority for the eviction were contained in the Sale Agreement, implying that a breach of contract is the reason for the eviction (Decision at para. 42).

[49] The Federal Court Judge also determined that there was no band council resolution regarding the eviction notice, and that the authority to evict appears to be solely in the hands of the Housing Authority. The Federal Court Judge went on to note that there was no evidence that the matter is subject to a land code, or within the framework of the First Nations Land Management Act. In addition, all notices were from the Housing Authority. She concluded that based on these facts, the Housing Authority was a separate entity with its own decision-making processes that deal with housing of Band members (Decision at paras. 25, 28 and 46). The Federal Court Judge found that "“[o]verall, the factor is weighted to a private function of the day-to-day aspects of managing the Band’s housing, including arrears notices and other notices including the decision to evict based on a contract.”" (Decision at para. 47).

[50] I disagree with the Federal Court Judge’s factual finding that the Housing Authority is separate from Band Council. As indicated in paragraphs 42 to 44 above, the overall evidence supports a factual finding that the Housing Authority is acting as the agent of the BFN and its Band Council. The Federal Court Judge’s conclusion that the Housing Authority dealt with the day-to-day aspects of managing the Band’s housing is accurate, but its decision to evict Mr. Cyr could not have been made without the Chief and Council’s approval.

[51] While the Federal Court erred, the error is inconsequential as I agree with the Federal Court Judge’s finding that the functions exercised by the Housing Authority are of a private law nature because they arise from the terms of the Sale Agreement. The Housing Authority managed the payment of the monthly installments, handled arrears, received complaints from members of the BFN regarding breaches, sent notices of breaches to the purchaser, and oversaw the eviction process. These activities are similar to those of a property manager.

[52] Regarding the second factor, the extent to which the decision is found in and shaped by the law, the Federal Court Judge determined that the Housing Authority finds its authority for the eviction in the Sale Agreement. No decisions were shaped by law but rather were at the discretion of the BFN and the Housing Authority, subject to the provisions of the contract (Decision at para. 51).

[53] I see no palpable and overriding error.

[54] On the third factor at issue, the Federal Court Judge found that there was nothing on the record to suggest that the Housing Authority was influenced in any way by a public entity or is an agent of the government. She relied on the fact that it appears the Housing Authority exercises its own decision-making powers and discretion (Decision at para. 53).

[55] Again, I disagree with the Federal Court Judge findings on this third factor for the reasons given previously. The record supports a finding that the Housing Authority was acting as agent for the BFN, because it regularly represented the BFN in its contractual obligations.

[56] I must focus then on the BFN’s role and whether it is influenced or acts as an agent of the Federal Government. In my view, decisions concerning Band housing, and whether the BFN should enter into a private agreement with one of its members to allow him to secure and purchase Band housing, are made independent of government. The Federal Government does not become involved until the BFN decides whether a Certificate of Possession should be issued to the purchaser. Here, so long as the terms of the Sale Agreement are complied with, the agreement refers to the transfer to the purchaser, by way of a bill of sale, title to the premises and taking all necessary proceedings to furnish the purchaser with a Certificate of Possession.

[57] The third factor leans towards a finding that the decision is of a private law nature.

[58] Finally, on the question of the remedies available on judicial review, the Federal Court Judge determined that this factor weighed heavily in favour of the matter being of a private law nature. The Federal Court Judge found that given the history between the parties and the attempts to have Mr. Cyr evicted, a redetermination from the Band Council would almost definitely return the same result. She also added that if Mr. Cyr was wrongfully evicted, he might have access in a different forum to damages for the value of the property, his expenses incurred outside his home and other potential remedies (Decision at paras. 54 and 55).

[59] The Federal Court Judge’s statement that a redetermination would have to go before the Band Council, not the Housing Authority, is revealing. This statement supports the finding that the Housing Authority is acting as the agent of the BFN and is not independent of Band Council.

[60] Nevertheless, I agree with the Federal Court Judge that a redetermination would likely not provide Mr. Cyr with a different result. Given also that the remedy of damages is not available in a judicial review, this factor leans heavily towards the finding that the decision is of a private law nature.

[61] I have considered these four factors and agree with the Federal Court Judge’s analysis of the character of the decision itself and her conclusion in law. The BFN Band Council exercised its private law contractual rights to evict Mr. Cyr, and therefore the Federal Court does not have jurisdiction to hear the application for judicial review because it raises matters that are of a private law nature.

(3) The application of Jimmie

[62] Mr. Cyr contends that the Federal Court Judge misapplied Jimmie to the facts. I disagree.

[63] Regarding other relevant jurisprudence, the Federal Court Judge relied on the Federal Court decision of Cottrell v. Chippewas of Rama Mnjiknaning First Nation Band, 2009 FC 261, 342 F.T.R. 295 [Cottrell] and distinguished this case from the Federal Court decision in Jimmie.

[64] In Cottrell, the Federal Court dealt with a somewhat similar matter where Mr. Cottrell was evicted from his rental accommodations on the reserve. The Federal Court found, at paragraph 81 of the decision, that although band council was a public body and its decision can be subject to judicial review, in this case, the parties entered into a private law contract dealing with Mr. Cottrell’s right to occupy the house in question. The Court in Cottrell noted, at paragraph 82 of its decision, that Mr. Cottrell had the full range of contractual remedies available to him. Cottrell was decided before this Court rendered its guidance in Air Canada.

[65] The Federal Court Judge found that, as in Cottrell, Mr. Cyr signed a private law contract with the First Nation dealing with his right to live in the home (Decision at para. 38).

[66] Turning to Jimmie, the Federal Court examined the decision of the First Nation to evict Ms. Jimmie from her home. Similarly, Ms. Jimmie maintained that she had a substantial equity interest in the home and the home was located on a reserve set aside for the First Nation. The Federal Court relied on Air Canada, and applied the factors to the facts before it. The Federal Court found that several factors weighed in favour of a conclusion that the decision should be viewed as an exercise of a public law power, rather than a private law power (Jimmie at para. 70). The Federal Court held that although the rental agreement was similar to rental agreements reached in the private sector, it was supplemented in important ways by the Land Code, which was relied upon by Council in making the Decision (Jimmie at para. 72).

[67] The Federal Court Judge found at paragraph 36 of her Decision that the case before her could be distinguished from Jimmie because Mr. Cyr’s arrangements were not the result of a land code under the FNLMA.

[68] In contrast, the eviction in Jimmie was carried out pursuant to a band council resolution in reliance of its land code. According to subsection 12(1) of the FNLMA, a land code must be approved by the community. Further, the band council has the power to enact certain laws in accordance with its land code (subsection 20(1) of the FNLMA). Thus, the land code in Jimmie is certainly closer to a public law. In Mr. Cyr’s case, he was evicted pursuant to the terms of the private contract between himself and the BFN. I see no error.
. Democracy Watch v. Canada (Attorney General) [air canada, highwood]

In Democracy Watch v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered the specific terms of the Federal Court Rules that set out when a judicial review application may be brought, from a justiciability perspective:
[23] This Court has found that if the conduct attacked in an application for judicial review fails to affect legal rights, impose legal obligations, or cause prejudicial effects, there is no right to bring a judicial review (Air Canada v. Toronto Port Authority et al., 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 29 [Toronto Port Authority] as adopted in the decision Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15, at para.10, 387 N.R. 365 [Democracy Watch 2009]).

(1) Applicant’s Submissions

[24] The applicant argues that the matter at hand is justiciable. It states that the Commissioner exercised his jurisdiction because he stated that he commenced an examination of the matter, and made a final decision on the actions of the eight public office holders. Even if this Court finds that the decision was only an exercise of discretion under subsection 45(1) of the Act, the applicant contends that it is subject to judicial review.

[25] The applicant submits that the prerequisite for the challenged act to "affect rights, impose legal obligations, or cause prejudicial effects "set out in Toronto Port Authority as adopted in Democracy Watch 2009, is contested within this Court, is not present in the text of subsection 18.1(1) of the Federal Courts Act, and does not accord with Parliament’s intent.

[26] The applicant submits that this Court has jurisdiction to review the Commissioner’s Report in this case because it is a decision and an exercise of government authority in the area of public law. The Report and the Commissioner’s inaction against the eight public office holders in question has legal consequences and prejudicial effects: it permitted potential wrongdoing to go unpunished, caused harm to public confidence and trust in the integrity of government decision-making, and harm to the democratic process. The applicant argues that had the Commissioner investigated, there would have been a prejudicial effect for the public office holders.

[27] Finally, the applicant submits that it was unreasonable for the Commissioner to refuse to exercise his jurisdiction under section 45 of the Act and to avoid applying section 9 to the actions of the eight public office holders. The applicant contends that the Commissioner’s exercise of discretion under subsection 45(1) cannot be unfettered. It maintains that under section 9, the public office holder who is seeking to influence another person could occupy a subordinate position to the other person. The applicant points to the Commissioner’s Wright Report, in which the Chief of Staff of former Prime Minister Stephen Harper was found to have violated section 9 of the Act by attempting to influence a Senator over whom he held no authority.

[28] In summary, the applicant submits that the present case raises serious justiciable issues involving important questions concerning public office holders’ compliance with conflict of interest requirements under the Act, the proper interpretation of those requirements, and the impartiality of the Commissioner.

(2) Analysis

[29] Turning to the application of subsection 18.1(1) of the Federal Courts Act, while I agree that a reviewable "“matter”" is broader than a "“decision”", the matter must nonetheless include something in respect of which a remedy may be available under subsection 18.1(3). The criteria to find that the matter is justiciable, as affirmed in Democracy Watch 2009, must be applied here. A matter that fails to affect legal rights, impose legal obligations, or cause prejudicial effects is not reviewable (Democracy Watch 2009 at para. 10; Toronto Port Authority).

[30] In Democracy Watch 2009, this Court was asked to consider the Commissioner’s refusal to investigate allegations against former Prime Minister Stephen Harper and others at the request of the applicant, because the Commissioner found that she did not have sufficient grounds to begin an examination pursuant to subsection 45(1) of the Act. This Court found, at paragraphs 9 and 14 of the decision, that the Commissioner’s refusal to investigate, including the letter communicating the decision not to investigate, was not a reviewable decision or order. This Court held that the applicant had no legal right to have its complaint investigated and the Commissioner had no duty to act on it. Therefore, the Commissioner’s letter was not a reviewable decision or order under section 66 of the Act. In conclusion, this Court determined in Democracy Watch 2009, that a decision not to investigate a public complaint under the Act does not give rise to a reviewable decision.

[31] Indeed, subsection 45(2) of the Act grants the Commissioner the power to discontinue an examination commenced on his own initiative. Even when the Commissioner has an obligation to inquire about an alleged contravention of the Act under section 44, it has been held that "“the fact that a determination has to be made does not necessarily translate into a reviewable order or decision”" (Democracy Watch v. Canada (Attorney General), 2018 FCA 194, at para. 29).

[32] This Court recently applied this principle regarding whether the public has a right to initiate a complaint in the analogous case of Canada (Attorney General) v. Democracy Watch, 2020 FCA 69 [Democracy Watch 2020]). In that case, at paragraphs 37, 38 and 40, this Court determined that, like the Act, the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.), does not create a public complaints process and the decision of the Lobbying Commissioner not to investigate a complaint brought by a member of the public is not a reviewable decision.

[33] The applicant argues that the test from Democracy Watch 2009 does not apply here because it is outmoded and too restrictive. It says that in 1990, Parliament enacted a unified section 18.1 of the Federal Courts Act, replacing the "“decisions or orders”" limitation in the former section 28.1 with "“matter”" in the current section 18.1.

[34] Further, the applicant contends that there is a divide among the justices of this Court concerning the correct test to be applied for the availability of judicial review. Since 2018, it says, at least three different panels of this Court have acknowledged or applied the test enunciated by the Supreme Court at paragraph 14 of its decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 [2018] 1 S.C.R. 750 [Wall].

[35] I must disagree with the applicant’s contention.

[36] First, to overrule Democracy Watch 2009, the applicant must show that it is "“manifestly wrong, in the sense that the Court overlooked a relevant statutory provision or a case that ought to have been followed”" (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, at para. 10). The applicant’s argument based on the 1990 legislative amendments to the Federal Court Acts does not meet this high bar. In Toronto Port Authority, this Court found that even though judicial review applies to a "“matter”" and not just a "“decision or order”", there are "“situations where, by its nature or substance, an administrative body’s conduct does not trigger rights to bring a judicial review”" (at paras. 24 and 28). Therefore, the fact that "“matters”" can be subject to judicial review does not mean that all matters are subject to it, and the test still applies.

[37] Second, I do not accept the applicant’s argument regarding the Wall-test, and the panels of this Court that have acknowledged or applied this test instead of the one from Democracy Watch 2009. The purpose of the Wall-test is to determine whether the nature of an application is the subject of a public law matter, which is uncontested in this case. Wall is about justiciability based on the subject matter of the dispute. Further, paragraph 38 of Wall confirms that justiciability requires that a legal right be at stake. Therefore, I cannot agree with the applicant that this Court in Democracy Watch 2020 “"reverted back to an outmoded and more restrictive test”". The test in Democracy Watch 2009 remains the applicable test.

[38] The applicant submits that even if the Democracy Watch 2009 test applies, its prerequisites are met in this case. I disagree.

[39] In the present case, I am of the view that the decision of the Commissioner not to commence an examination of the eight public office holders is not a reviewable matter.

[40] Here, the Commissioner stated that he did "“not have reasonable grounds to pursue concurrent examinations of [the office holder’s] conduct, nor [did he] have reason to believe that they may have breached another substantive rule under the Act”" (Applicant’s Record, Affidavit of Duff Conacher sworn on October 25, 2019, Exhibit H, p. 78, Report at para. 285). It must be determined if the conduct targeted by this application for judicial review "fails to affect legal rights, impose legal obligations, or cause prejudicial effects".

[41] In my view, the Report, when read as a whole, does not affect legal rights, impose legal obligations or cause prejudicial effects to these eight public office holders. The Report clearly concerns an investigation of Mr. Trudeau’s conduct, through his own actions or those of his agents. At paragraph 6 of the Report, the Commissioner states that he "“wrote to Mr. Trudeau to inform him that [he] was initiating an examination of his conduct”". The Commissioner received documents from the public office holders and interviewed them, but the examination was into Mr. Trudeau’s conduct (Applicant’s Record, Affidavit of Duff Conacher sworn on October 25, 2019, Exhibit H, p. 78, Report at para. 9). The Commissioner found that the other individuals’ actions would establish Mr. Trudeau’s contravention of the Act. Therefore, the legal rights and prejudicial effects relate solely to Mr. Trudeau’s liability and not his agents’.

[42] Further, the Commissioner found that "“the evidence shows that Mr. Trudeau knowingly sought to influence Mrs. Wilson-Raybould both directly and through the actions of his agents” "(Applicant’s Record, Affidavit of Duff Conacher sworn on October 25, 2019, Exhibit H, p. 78, Report at para. 284). Therefore, it cannot be said that the Commissioner is permitting potential wrongdoing to go unpunished or to cause harm to public confidence, as he found that the wrongdoing emanated from Mr. Trudeau, through the actions of his agents.

[43] Lastly, the requirement of a "“prejudicial effect”" asks whether the impugned act caused prejudicial effects. In this case, the question is whether the decision not to investigate caused prejudicial effects, and not whether an investigation would cause prejudicial effects to the office holders. Moreover, even after having decided not to investigate violations by the eight office holders in the current circumstances, the Commissioner would retain the discretion later to commence an investigation should new information come to light.

[44] Therefore, in my view, the issue raised in this application is not justiciable because it does not affect rights, impose legal obligations or cause prejudicial effects. The application should be dismissed on this basis.


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