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Judicial Review - Remedies - Remit/Decide (2). Boua v. Office of the Independent Police Review Director
In Boua v. Office of the Independent Police Review Director (Div Court, 2024) the Divisional Court comments on when remitting an administrative matter 'back down' is merited as a remedy on a successful JR:What is the appropriate remedy?
[40] The appropriate remedy in most cases where a reviewing court finds a decision to be unreasonable is to remit the matter to the administrative decision-maker: Vavilov, at para. 141. In this case, our concerns about the Director’s decision centre on his failure to address questions of procedural fairness caused by language issues in the underlying investigation. In these circumstances, it is particularly appropriate to remit the matter to the Director so that the question of procedural fairness can be comprehensively considered and addressed. Given that the procedural rights afforded to Ms. Boua are in issue, we have not addressed the balance of her substantive submissions on this application. . Ledore Investments v. Dixin Construction
In Ledore Investments v. Dixin Construction (Div Court, 2023) the Divisional Court, while granting a JR, considered whether to decide the matter themselves or remit it back down to the adjudicator:What is the appropriate remedy?
[41] Ross Steel submits that if the court finds a breach of procedural fairness, it should set aside the adjudicator’s determination as unreasonable and substitute its own analysis. In Ross Steel’s submission, the only reasonable conclusion is to require Dixin to pay Ross Steel.
[42] We disagree that the court should engage in its own analysis. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, states at para. 142 that even where a decision is found to be unreasonable, it will most often be appropriate to remit the matter to the administrative decision maker to have it reconsider its decision with the benefit of the court’s reasons. The Court of Appeal for Ontario recently cautioned against a reviewing court conducting its own analysis, stating that “unless the matter fits into one of the ‘limited scenarios’ described in Vavilov at para. 142, the reviewing court should instead remit the matter back to the original decision maker to be decided in accordance with the applicable law”: Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, at para. 102.
[43] Here, the adjudicator, who has expertise in the construction industry, has not yet had the benefit of the parties’ submissions and any additional evidence on what he found to be the dispositive issue. He should be permitted to reconsider the issue after receiving their input. Although whenever a matter is remitted to an underlying administrative decision-maker it causes delay for the parties, this case is not one of the limited situations in which it is appropriate for the court to reach a decision on the merits itself.
[44] Therefore, the application is allowed. The matter is remitted to the adjudicator for determination in accordance with these reasons. . Kids Kingdom Daycare Inc. v. Ontario (Min. of Education)
In Kids Kingdom Daycare Inc. v. Ontario (Min. of Education) (Div Court, 2023) the Divisional Court considers (and grants) the JR 'remitting back down' remedy:What is the appropriate remedy?
[53] Based on the merits of its position on reasonableness, Kids Kingdom asks this court to make an order in the nature of mandamus, compelling the Director to approve Ms. Burgess as a supervisor. I would not make this order.
[54] A court should substitute its own decision for that of an administrative decision maker only where a particular outcome is inevitable and where remitting the matter back to an administrative decision maker would serve no useful purpose: Vavilov, at para. 142. For reasons I think it best not to expand upon, I do not believe this is such a case.
[55] Instead, I would remit the matter to a different director for a fresh decision along with a reminder that the director considering the application must provide Kids Kingdom with notice of his or her concerns, disclosure of the basis for those concerns, and an opportunity to address them before the decision is made. . Mirza et al. v. Law Society of Ontario
In Mirza et al. v. Law Society of Ontario (Div Court, 2023) the Divisional Court considers 'remitting' as a remedy where a JR is granted:[52] Although, where an administrative decision is not upheld, it will usually be appropriate to remit it to the decision maker to reconsider its decision with the benefit of the court’s reasons, there are limited scenarios in which remitting the matter would be inappropriate. Courts may consider concerns such as delay, fairness to the parties, and urgency in resolving the dispute in the court’s exercise of its discretion on remedy: Vavilov, at paras. 141-42. . Association for Reformed Political Action Canada v. Hamilton (City of)
In Association for Reformed Political Action Canada v. Hamilton (City of) (Div Court, 2023) the Divisional Court considered (and granted) a Charter s.2(b) freedom of expression JR, here involving with municipal bus advertising.
In these quotes the court considers the benefits of remitting administrative decisions 'back down' on a successful JR:[11] The Applicants argued that the Court should nevertheless have heard argument on the application and considered whether to order the City to accept the Ad. Counsel submitted, essentially, that the Charter was not engaged and that the judicial review was limited to the reasonableness of the City’s application of the Canadian Code of Advertising Standards. In short, they sought to have this Court weigh in on the controversial issue of whether a fetus is a person and, depending on the outcome, have this Court order the Ad be posted.
[12] The problem with the Applicants’ position is that it is contrary to what is stated in their application, which is that the City failed to conduct a robust Dore/Loyola analysis, and that the decision infringed their Charter rights. They now seek to narrow the scope of the case, in order to avoid consideration of the City’s objectives in providing a public transit system. As this Court noted at para. 75 of Guelph, the challenge for municipalities to consider whether to post contentious advertisements “require[s] balancing competing interests and nuanced principles.”
[13] As in Guelph, it is not for the Court to engage in reasoning that ought to have been undertaken by the decision-maker. The Court wrote in Guelph, at para. 91, “... it is not the court's role at this stage to weigh in on an evaluation of the advertisements. Rather, it is first for the City to weigh the issues identified by the Coalition against the applicant's right to freedom of expression.”
[14] This is consistent with the long-standing general practice on judicial review of remitting matters back to the original decision maker rather than having courts provide reasons on the issue. As the Ontario Court of Appeal observed in Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, 148 O.R. (3d) 705, at para. 77, “[o]rdinarily, where a court grants judicial review and quashes a decision, the appropriate remedy is to remit the matter to the decision maker for reconsideration in the light of the court's decision.” Such an approach is consistent with the principle of deference to administrative decision makers: Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R, 6, at paras. 29-31. This is not an exceptional case in which reconsideration can only lead to one outcome, such that remitting the matter back would be pointless: 2274659 Ontario Inc. v. Canada Chrome Corp., 2014 ONSC 4446, 324 O.A.C. 116 (Div. Ct.), at paras. 98-111, aff’d 2016 ONCA 145, 394 D.L.R (4th) 471, at paras. 69-74, leave to appeal refused, [2016] S.C.C.A. No. 172.
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