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Judicial Review - Remedies - Remit/Decide
MORE CASES
Part 2
Introduction
'Remitting or deciding' is my phrasing for the largest category of Ontario JR remedies on granting the application. At least since Vavilov (SCC, 2019) [paras 139-142], Canadian law - with it's newly re-found respect for statutes, and thus tribunals - stresses the desirability of 'sending the matter back down' ['remitting'] where a court grants a JR application. This is done out of respect for the tribunals, which is always 'statute-based'. Vavilov does admit to the possibility "that a particular outcome is inevitable" [para 142] and will, in limited circumstances, tolerate the JR court deciding the matter itself ["deciding"] but the 'normal' remedy on granting is that of remitting.
One variation to 'remitting' is that the JR court has discretion to remit with 'directions', which are essentially the court's guidance on problematic issues. An example of that is in Wilkinson v. Canada (Attorney General) (Fed CA, 2020), which is extracted below.
An additional interesting issue is where exactly an Ontario court draws it's jurisdiction to 'remit', as the JRPA - in most of these "statutory power of decision" cases is limited to injunctions and declarations. If such a case finds itself taken up on appeal to the Court of Appeal it has plain jurisdiction in CJA 134(1)(c) to "make any other order or decision that is considered just", but at the Divisional Court level they are restricted to the two conventional remedies of 'injunction and declaration' which are surrounded by their own well-developed and complex equitable jurisdictions. So for example, can one argue against a remitting order that the applicant doesn't have 'clean hands' or some other equitable bar? Is the clearly discretionary nature of a JR remedy (not only a JR grant) set out in the JRPA an intentional reflection of equitable-remedial nature of JRs?
. Terra Reproductions Inc. v. Canada (Attorney General)
In Terra Reproductions Inc. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers whether a court, when granting a JR of an administrative ruling, should either remit the decision or decide it themselves:[8] Reviewing courts can impose their view of the merits of the matter over an administrator only in “limited scenarios”: Vavilov at para. 142. One is where the requirements for mandamus are met. Another is where reviewing courts, operating under the standard of review of reasonableness, not correctness (i.e., not imposing their own view of the matter over that of the administrator), find that only one particular outcome is reasonable or “inevitable” based on the evidence filed before the administrator: Vavilov at para. 142; Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326 at 361; Maple Lodge Farms Ltd. v. Canada (Food Inspection Agency), 2017 FCA 45, 411 D.L.R. (4th) 175 at para. 52; Blue v. Canada (A.G.), 2021 FCA 211 at paras. 49-51. The recent case of Mason should not be taken to be saying anything different. . Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited
In Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited (Fed CA, 2023) the Federal Court of Appeal, when granting a judicial review, considered that it could depart from the normal 'remitting down' remedy and simply make the appropriate order itself:[23] The usual remedy upon granting applications for judicial review is to set aside the decision and return the matter to the tribunal for redetermination. However, remedies on judicial review are discretionary and there are circumstances where a court may depart from the usual practice (Vavilov at para. 142; Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R. 374 at paras. 99-102; Canada (Commissioner of Competition) v. Rogers Communications Inc., 2023 FCA 16, 477 D.L.R. (4th) 553 at para. 11).
[24] This is one of those cases. Given the limitations in the evidence before the Tribunal, only one result was open to the Tribunal and no purpose would be served in remitting the matter to it. . Burlacu v. Canada (Attorney General)
In Burlacu v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal held that the court below was correct in not remitting the labour grievance back down to the tribunal below:[10] The Federal Court also found that the grievance decision was deficient because it did not address the appellant’s concern about a lack of impartiality. But it declined to send the matter back for redetermination because, as a substantive matter, the grievance would still have to be dismissed (at paras. 64-65). In the Federal Court’s view, dismissal of the grievance was the only reasonable substantive outcome that was available given the facts and the law.
[11] This remedial option was open to the Federal Court: Vavilov at para. 142; and see, e.g., Maple Lodge Farms v. Canada (C.F.I.A.), 2017 FCA 45, 411 D.L.R. (4th) 175, Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1 at paras. 53-54 and Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52 at paras. 54 and 88. We review the Federal Court’s remedial decisions using the appellate standard of review: Canada v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209 at paras. 88-89; Makivik Corporation v. Canada (Attorney General), 2021 FCA 184. Here, applying the appellate standard of review, the Federal Court neither erred in law nor committed palpable and overriding error.
[12] In making these remedial decisions, the Federal Court did not slip into making its own decisions on the merits of the grievance—a matter reserved to the decision-maker on the grievance. In other words, in no way was it conducting a form of illegitimate correctness review. Rather, in this case, the Federal Court kept to its role as a reviewing court conducting genuine reasonableness review. Throughout it acted in accordance with Vavilov and within the remedial limits prescribed by it. . Longueépée v. University of Waterloo
In Longueépée v. University of Waterloo (Ont CA, 2020) the Court of Appeal considered when an appeal court should (or shouldn't) substitute it's own decision on appeal and remit the matter back down to the tribunal below:[90] In considering the question of remedy, the majority in Vavilov held that “where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons”: at para. 141. However the court went on to say that “[d]eclining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose”: at para. 142. Indeed, this is what the Supreme Court did in Vavilov.
[91] By contrast, in Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, 148 O.R. (3d) 705, leave to appeal refused, [2020] S.C.C.A. No. 59, this court quashed the decision of the administrative decision maker and remitted the matter for reconsideration. An important factor was that the administrative decision maker had not had a genuine opportunity to weigh in on the issue in question.
[92] The University argues that it was inappropriate for the Divisional Court to bypass the HRTO and to remit the matter directly to the Admissions Committee without conducting an analysis as to whether this was an exceptional case where such a remedy was warranted. It submits that this approach is incompatible with the approach required under Vavilov.
[93] Mr. Longueépée submits that the Divisional Court was right to send the matter back to the Admissions Committee. Although the court did not have the benefit of the majority reasons in Vavilov, this is an exceptional case where a particular outcome is inevitable: the University discriminated in its admissions process when it relied on Mr. Longueépée’s unaccommodated grades and reasonable accommodation would require the reassessment of Mr. Longueépée’s application without relying on the gap between his prior grades and the 65 percent grade standard. Mr. Longueépée also notes that because all of the parties are publicly funded, the Divisional Court’s remedy avoids wasting public funds litigating an issue where there is only one possible result.
[94] The Divisional Court did not explain why, having allowed the application for judicial review, it was sending the matter back to the Admissions Committee with directions on how to assess Mr. Longueépée’s application, and not to the HRTO to determine the appropriate remedy. I am satisfied that the conclusion that the University discriminated against Mr. Longueépée in the admissions process is inevitable on the record that was before the Vice Chair. That said, the appropriate remedy is not. In my view, in these early post-Vavilov days, it is preferable to return the matter to the HRTO for its further disposition in light of these reasons so that it may fashion the remedy that, in its opinion, would promote compliance with the Code. . Wilkinson v. Canada (Attorney General)
In Wilkinson v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal, after repeated JRs, remitted a matter back to the tribunal - but this with "substantive Directions":[59] The usual remedy in judicial review proceedings is to return the matter to the original decision maker for redetermination, often with directions as to how to proceed: see s. 52 of the Federal Courts Act, R.S.C. 1985, c. F-7. This has been tried unsuccessfully twice now. Given the length of time this matter has dragged on and the obvious resistance to implementing the Committee’s recommendation, the time has come to return the matter to the Deputy Head but with substantive directions so as to bring this long running saga to an end.
[60] In Allard, this Court commented that the Federal Court judge who took it upon himself to settle the classification of a position ought not to have done so in the circumstances of that case. In Allard, a classification grievance was heard by a first classification grievance committee who found that the existing classification should be upheld. This was set aside on judicial review on the basis that the committee had impermissibly modified the work description by construing it so as to effectively rewrite it. The matter was returned to a second classification grievance committee who came to the same conclusion as did the first committee. This finding was again set aside on judicial review on the same basis as the first decision, namely that the committee had impermissibly modified the work description by misconstruing it.
[61] The judge who heard the second application for judicial review acknowledged that the courts are reluctant to make decisions that have been conferred to administrative tribunals except in extraordinary circumstances. However, the judge felt that he was in the presence of such circumstances and directed the employer to "“recognize”" the position at the higher classification as requested by the appellant. The factors which led the judge to do so were the fact that both Committees made the same mistake and the passage of time since the grievance was filed.
[62] This Court, in obiter, commented that while a reviewing court may direct a particular outcome, that power should only be exercised in the clearest of circumstances. Without purporting to exhaust the circumstances where such a power should be exercised, this Court went on to say that it "“should only be exercised when there is only one possible reasonable outcome open to the decision-maker”": see Allard at para. 45.
[63] An example of a case where the Court found that there was only one possible reasonable outcome is Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, [2013] F.C.J. No. 196 [LeBon]. LeBon, a Canadian, was serving a prison sentence in the United States and applied to serve his sentence in Canada pursuant to the International Transfer of Offenders Act, S.C. 2004, c. 21. Of the ten factors to be considered, only one weighed against him. The Minister’s original decision was set aside on the basis that he had not considered and weighed all the factors. Upon reconsideration, the Minister came to the same conclusion. In the second judicial review, the Federal Court found that the Minister had only paid lip service to the previous decision and that he had a closed mind. The Court ordered the Minister to authorize the transfer.
[64] This Court upheld the Federal Court’s decision. It found that there were two sources of power enabling the Court to exercise its discretion in favour of making a mandatory order. First, once the factor upon which the Minister relied was excluded (because there was no support for it in the record), all of the remaining factors favoured LeBon’s return to Canada. It was open to the Court "“to conclude on this evidence that the only lawful exercise of discretion [was] the granting of transfer”". Second, this Court found that a mandatory order was required to prevent further delay and harm that would be caused if the matter were returned to the Minister for a third decision in circumstances where the Minister did not give serious consideration to this Court’s previous decision: see LeBon at para. 14.
[65] This case resembles LeBon in many ways but differs in at least one respect: the Deputy Head was given a third chance to consider the Committee’s recommendation and the result was the same as it was in the previous two cases.
[66] As in LeBon, the delay in resolving this matter has caused harm to the appellants. The details of that harm, as particularized in paragraphs 49-51 of the Affidavit of Jerry Jesso, include increased stress in the workplace and in their personal lives, financial hardship, reduced pension benefits (which are particularly acute for those who have retired since these proceedings were begun), and reduced career mobility. The prevention of further delay and harm is a factor justifying this Court’s intervention.
[67] In the same way as in LeBon, the Deputy Head was unable to come to grips with the issues. Thus, the reasons given by the Deputy Head for rejecting the Committee’s recommendation, the absence of substantive recommendations at the national level and the Committee’s failure to consider the organizational context are simply not borne out.
[68] Once these elements are taken off the table, to use the phrase this Court used in LeBon, all the remaining factors discussed by the Deputy Head closely track the Committee’s description of the MRP job. In those circumstances, the only reasonable conclusion is that the Committee’s recommendation should be accepted.
[69] I would point out that this is not a case where the underlying classification issue is being determined by the Court. That issue was considered at length by the Committee which prepared a comprehensive report. This Court’s intervention rests on its core strength which is determining if the justification for a decision is reasonable. Having found that the Deputy Head’s rejection of the Committee’s recommendation was unreasonable, and considering that in three attempts to justify his conclusion, the Deputy Head has been unable to formulate a rationale which withstands review on a deferential standard, this Court is not overreaching in requiring the Minister to accept an expert recommendation that he is unable to justify rejecting.
[70] The decision which the Deputy Head had to make was binary. He could either accept or reject the Committee’s recommendation. If he is unable to justify rejecting the Committee’s recommendation, the only choice left is to accept it.
[71] As a result, I would allow the appeal, set aside the judgment of the Federal Court, and return the matter to the Deputy Head for redetermination on a basis consistent with this decision and the recommendation of the Classification Grievance Committee within 30 days of the date of this judgment. . Turkiewicz v. Ontario Labour Relations Board
In Turkiewicz v. Ontario Labour Relations Board (Div Ct, 2021) the Divisional Court commented as to when to send a case back down after a successful judicial review:Remedy
[62] In most cases, the proper result would be to remit the First Decision back to the Board for a new hearing.[54] This approach has been reinforced by the Supreme Court of Canada’s decision in Vavilov,[55] which confirms the importance of the Legislature’s choice that such matters be decided by the Board and not by a court. Where, as here, the jurisprudence below is not well developed on the issue leading this court to intervene, it is better for that jurisprudence to be developed by the Board at first instance, rather than this court.
[63] However, on the record before this court, the result is inevitable: the declaration does not serve the underlying purposes of s.1(4), as reflected in the legislative and jurisprudential history of that provision and its related provision, s.69. Whatever test might be developed to distinguish between “gaps’ that preclude a s.1(4) declaration and “gaps” that do not preclude such a declaration, it seems evident that no labour relations purpose could be served by a declaration in this case.
[64] In these circumstances, I have concluded that no purpose would be served by sending this case back to the Board for a fresh hearing. This is not because this court wishes to seize unto itself a role reserved to the Board. It is because one must not lose sight of the fact that there is a person whose life and ability to earn an income has been impacted by these extended proceedings for several years with the accompanying stress, uncertainty and expense. He should not be required to face further proceedings on these issues.
[65] To quote from Vavilov:[56]However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, at paras. 18-19 (CanLII). An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-30; Renaud v. Quebec (Commission des affaires sociales), 1999 CanLII 642 (SCC), [1999] 3 S.C.R. 855; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 161; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1, at paras. 53-54; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175, at paras. 51-56 and 84; Gehl v. Canada (Attorney General), 2017 ONCA 319, at paras. 54 and 88 (CanLII). Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55. . Enercare Home & Commercial Services v. UNIFOR, Local 975
In Enercare Home & Commercial Services v. UNIFOR, Local 975 (Div Ct, 2021) the Divisional Court considers when a court should 'send the matter back down again' in a successful judicial review:Remedy
[73] The applicants ask this court to substitute a finding that Enercare and Ganeh/Beaver are not related employers within the meaning of LRA, s.1(4). It is not for this court to decide the case on the merits. The result is not a foregone conclusion. In Vavilov, the Supreme Court of Canada confirmed that review courts are not to usurp the role assigned by legislatures to administrative tribunals: [t]he “role of the courts in these circumstances is to review and they are, at least as a general rule, to refrain from deciding them themselves.”[58] Exceptional cases, like this court’s decision in Nation Rise Wind Farm v. Ontario[59] fall within the ambit of exceptional circumstances described by the Supreme Court of Canada in Vavilov:[T]here are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended…. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose…. Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed.[60] [74] The outcome here is not “inevitable”. I appreciate that these issues have been outstanding for a long time. In the context of a labour relations dispute, where there is a continuing relationship between the parties that will be affected by the result, the matter should go back for determination below. . Entertainment Software Assoc. v. Society Composers
In Entertainment Software Assoc. v. Society Composers (Fed CA, 2020) the Federal Court of Appeal considered a judicial review application where the new s.2.4(1.1) 'making available' of the Copyright Act was at issue. This provision makes it a 'communication of a work' under the Act (for which a SOCAN tariff was payable) to "allow() a member of the public to have access to it from a place and at a time individually chosen by that member of the public". As much of public internet use of copyrighted material is of this nature, the case was quite significant.
The Court [Stratas JA] commented as follows on remedies for judicial review:(4) Remedy
[98] After a reviewing court has determined that a statutory interpretation reached by the administrative decision-maker cannot be sustained, the reviewing court must consider the issue of remedy.
[99] The usual remedy is to quash the administrative decision and send it back for re-decision because the legislature has made the administrator, not the reviewing court, the merits-decider: Vavilov at paras. 140-141. But that is not always the case. Remedies are discretionary: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1 (the discretion to grant or not grant remedies in procedural cases); MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 (the discretion to grant or not grant remedies for substantive defects).
[100] On occasion, the usual remedy has not been granted because no purpose would be served by sending the matter back to the administrative decision-maker for re-decision: see, e.g., Renaud v. Quebec (Commission des affaires sociales), 1999 CanLII 642 (SCC), [1999] 3 S.C.R. 855, 184 D.L.R. (4th) 441; Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710; Robbins v. Canada (Attorney General), 2017 FCA 24; Maple Lodge Farms v. Canada (C.F.I.A.), 2017 FCA 45, 411 D.L.R. (4th) 175; Sharif at paras. 53-54. This discretion must be carefully exercised bearing in mind that the administrative decision-maker, not the reviewing court, is the merits-decider: Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, 78 D.L.R. (4th) 175 at 361 S.C.R.; Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297 at paras. 16-19.
[101] The Supreme Court has now reaffirmed the validity of the remedial jurisprudence mentioned above: Vavilov at paras. 139-142. . Rudyk v. Halton Region Conservation Authority
In Rudyk v. Halton Region Conservation Authority (Div Ct, 2021) the Divisional Court granted an application for judicial review in a conservation authority case, but limited the broad remedies sought:[36] In my view, the broad declaratory relief sought by the applicants is an overreach. It is not the role of the Divisional Court on an application for judicial review to grant broad declarations regarding the rights of a party under a statute. Rather, the Court reviews the decision of an administrative decision maker to determine whether the decision was reasonable and/or procedurally fair. The relief available flows from that determination. Accordingly, the role of the Court on this application for judicial review is to determine whether the decision of the Authority voiding the permit was unreasonable or procedurally unfair and, if so, what remedy to grant in the circumstances. As set out below, in my view, the Authority’s decision was both unreasonable and procedurally unfair. The appropriate remedy is to quash the decision. This means that the permit remains valid, but the Authority is not precluded from following the process set out in section 8 of O. Reg. 162/06 to give notice to the applicants that it intends to cancel the permit and to hold a show cause hearing.
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Appropriate remedy
[57] In my view, the appropriate remedy in this case is to quash the Authority’s decision. This means that the development permit originally issued by the Authority remains valid. It will be up to the Authority to decide whether to seek to cancel the permit and, if so, to do so in accordance with the procedure set out in section 8 of the O. Reg. 162/06.
[58] As indicated above, both sides appear to invite this Court to decide whether the permit should be cancelled. The applicants argue that the work at issue is not a “development” within the meaning of the Conservation Authorities Act or that, even if it is, it falls within the scope of the original permit. They ask this Court to make declarations that would allow them to continue with the work without further interference from the Authority. For its part, as indicated above, the Authority seems to argue that it is self-evident that the work at issue is a development and that it is not within the scope of the original permit.
[59] In Vavilov, at para. 142, the Supreme Court stated that, as a general rule, courts should “respect the legislature’s intention to entrust the matter to the administrative decision maker”. The Court noted a few exceptions where it may be appropriate for courts to decide the issue; for example, where the result is inevitable or where there has been significant delay or there is urgency. In this case, the outcome is not inevitable. For example, the applicants have legitimate arguments regarding the original scope of the permit and the Authority may have legitimate concerns regarding whether the walls collapsing changed the scope of the work such that the permit should be cancelled and the applicants should be required to apply for a new permit. The parties’ evidence and their arguments should form part of the record on a show cause hearing. This Court should not decide these issues as a matter of first impression.
[60] I appreciate that, from the applicants’ perspective, there has been extensive delay in this matter. However, this is not sufficient to justify having this Court essentially conduct the show cause hearing. In addition, while most of the blame for the delay can be laid at the Authority’s feet for consistently seeking to defend its position that it had authority to “void” the permit without a show cause hearing, some of the delay is also attributable to the applicants for seeking to challenge the Authority’s decision through an application for declaratory relief rather than through an application for judicial review. This outcome may cause further delay if the Authority chooses to pursue the cancellation of the permit. However, it will ensure that the decision is made following the proper process by decision-makers who have been entrusted by the legislature to decide the issues.
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