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Administrative - Waiver. Halton (Regional Municipality) v. Canada (Transportation Agency)
In Halton (Regional Municipality) v. Canada (Transportation Agency) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from Ontario municipalities of a decision of the Canada Transportation Act [CTA] [s.41(1)].
Stratas JA considers issues of fresh law (which he addresses under 'waiver'), here in a 'fairness' context:(2) Procedural matters
[13] Where a party in the reviewing court submits that the administrative decision-maker did something procedurally unfair and the party did not raise the point before the administrative decision-maker, the administrative decision-maker did not make a decision on any argued procedural point. In that circumstance, it does not make sense to speak of a standard of review of a decision because, quite simply, there was no decision. In that situation, the Court should simply evaluate whether the procedures were fair within the meaning of Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at 837-841 S.C.R. However, in that situation, since the party did not raise the point before the administrative decision-maker, the party may be precluded from raising the matter in the reviewing court due to the doctrine of waiver. In this case, more will be said about this: see paragraphs 37-38 below.
[14] As for instances where an administrative decision-maker has made a procedural decision after receiving submissions, standard of review need not be addressed in detail in this case. The procedural issues the appellants raise in this Court largely do not implicate that situation. And due to the nature of the issues raised, they can be resolved without considering the standard of review.
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[37] At the end of the joint panel’s hearing, a very lengthy one, it announced—consistent with everyone’s understanding—that the evidentiary record was closed. The appellants did not object.
[38] In the circumstances, the lack of objection constituted waiver or lack of timely objection. This prevents the appellants from raising this alleged procedural error in this Court: Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, 66 Admin. L.R. (6th) 1 at para. 47; Canadian National Railway Company v. Canada (Transportation Agency), 2021 FCA 173 at para. 68; Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, 314 D.L.R. (4th) 340 at para. 48; Algoma Tubes Inc. v. Canada (Attorney General), 2022 FCA 89 at para. 19. . Teksavvy Solutions Inc. v. Bell Canada
In Teksavvy Solutions Inc. v. Bell Canada (Fed CA, 2024) the Federal Court of Appeal dismisses a CRTC rate-setting appeal.
Here the court considers administrative 'waiver', in the context of a bias argument:[57] Another fundamental obstacle lies in Teksavvy’s way on this submission: waiver. Knowing about the Chair’s meeting with the senior officer of Bell Canada while the rates applications were pending, Teksavvy did not raise the issue with the CRTC. Instead, it kept the issue to itself until the CRTC released its decision, a decision that went against it.
[58] It is trite law that a party that knows of a procedural flaw, defect or irregularity with an administrative process must raise it with the administrative decision-maker as soon as reasonably possible. Failure to do so constitutes waiver of the flaw, defect or irregularity. It cannot be raised in a judicial review or a statutory appeal of the administrative decision. See Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488 at para. 48; Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006 at para. 113; Telus Communications Inc. v. Telecommunications Workers Union, 2005 FCA 262, 257 D.L.R. (4th) 19 at paras. 43-49; Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4 F.C.R. 377 at para. 66.
[59] There are many good reasons supporting this legal rule.
[60] Raising an issue with the administrative decision-maker as soon as reasonably possible gives the decision-maker a chance to review the situation and correct any mistake or oversight it has made before any prejudice results. Where a mistake or oversight cannot be corrected, steps might nevertheless be taken that can mitigate any prejudice.
[61] If the issue matters to a party—and is not merely trivial—and if it has arguable merit, one would expect that a party would raise it as soon as reasonably possible.
[62] Finally—and in making this point, I cast no aspersions on Teksavvy here, which genuinely and in good faith pursued this submission—it is unseemly for a party to notice that a mistake or oversight has been made and then hide in the weeds, ready to pounce should the case go against it. Such a party has no real interest in correcting the mistake or oversight but rather wishes, for tactical reasons, to take out some insurance against an adverse result. Our administrative law never rewards purely tactical behaviour that benefits a party to the detriment of the larger public interest or the proper administration of justice.
[63] Thus, as Teksavvy did not raise the issue of this meeting while the CRTC was still considering its rates decision, it cannot raise the issue in this appeal.
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