Simon's Megalomaniacal Legal Resources

Appeal - Standard of Review - Expertise

. Achaia-Shiwram v. Intact Insurance Co.

In Achaia-Shiwram v. Intact Insurance Co. (Div Court, 2024) the Divisional Court dismissed a LAT SABS appeal, here for "no-fault accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”)" for "catastrophic psychological impairment".

Here the court relates a tribunal's expertise with the court's appellate remedies:

[20] While an appellate court is empowered to replace a tribunal’s findings on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute are to be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31; Vavilov, at para. 36.

. Teksavvy Solutions Inc. v. Bell Canada [CRTC rate-setting]

In Teksavvy Solutions Inc. v. Bell Canada (Fed CA, 2024) the Federal Court of Appeal dismisses a CRTC rate-setting appeal, with Stratas JA emphasizing the 'expertise' role of the CRTC in his typically-entertaining style:

B. The permissible scope of this appeal

[12] Rate-setting and how to go about rate-setting are matters of discretion and policy founded on industry appreciation and specialized technical study—matters resting at the very core of the CRTC’s exclusive jurisdiction under the Telecommunications Act. They are something very much in the wheelhouse of the CRTC and are alien to us. For the most part, as an appeal court, we mainly handle matters of law and related matters such as procedural fairness. For the most part, we do not decide the merits of matters, especially those that draw on industry appreciation and specialized technical study.

[13] For this reason, Parliament has restricted us to a very limited role. Under subsection 64(1) of the Act, we can deal with only "“question[s] of law or of jurisdiction”" and, even then, only with leave. This Court’s decision in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 tells us much about this limit.

[14] The phrase "“question[s] of law”" in subsection 64(1) of the Act means purely legal questions and extricable legal principles, not factually suffused and discretionary questions of mixed law and fact, and still less, questions of fact: Emerson at paras. 20-28 (decided under a substantially similar provision, s. 41(1), in the Canada Transportation Act, S.C. 1996, c. 10).

[15] The word "“jurisdiction”" in subsection 64(1) of the Act includes concerns about whether a CRTC proceeding was conducted fairly: Emerson at paras. 14-19.

[16] Often we will deny leave to appeal because the party seeking to appeal has not raised a question we can consider. When that happens, the appeal is doomed to fail or cannot be said to be "“fairly arguable”": Apotex Inc. v. Allergan Inc., 2020 FCA 208 at para. 8; Lukács v. Swoop Inc., 2019 FCA 14; Lufthansa German Airlines v. Canadian Transportation Agency, 2005 FCA 295, 346 N.R. 79 at para. 9; Canada (Minister of Human Resources Development) v. Rafuse, 2002 FCA 31, 222 F.T.R. 160 at para. 12; Martin v. Canada (Minister of Human Resources Development) (1999), 1999 CanLII 9245 (FCA), 252 N.R. 141, 178 F.T.R. 159 (F.C.A.) at para. 7.

[17] But even where we grant leave, this issue always remains live: whether we have a "“question of law or of jurisdiction”" before us under subsection 64(1) goes to our subject-matter jurisdiction. We cannot take on things that Parliament forbids us to take: see Emerson at para. 9, citing Green v. Rutherforth (1750), 27 E.R. 1144, 1 Ves. Sen. 462, at 471; Penn v. Lord Baltimore (1750), 27 E.R. 1132, 1 Ves. Sen. 444, at 446; Attorney General v. Lord Hotham (1827), 38 E.R. 631, 3 Russ. 415; Thompson v. Sheil (1840), 3 Ir. Eq. R. 135. And of even longer standing is the principle of legislative supremacy, one corollary of which is that Parliament’s laws bind courts, just like everyone else: Re: Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, 125 D.L.R. (3d) 1 at 805-806 S.C.R.; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at paras. 71–72; Ref. re Remuneration of Judges of the Prov. Court of P.E.I.; Ref. re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 at para. 101.

[18] In considering our jurisdiction in cases like this, we must remain on high alert. The say-so of a party that a "“legal test”" or "“the Act”" is involved is not enough. "“Skilful pleaders”" who are "“armed with sophisticated wordsmithing tools and cunning minds”" can express grounds in such a way as to make them sound like legal questions "“when they are nothing of the sort”": JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 49. Put another way, "“the mere say-so of a party that a ‘legal test’ is implicated”" or the expression of grounds of appeal "“in an artful way to make them appear to raise legal questions when they do not”" is "“insufficient to found an appeal”": British Columbia Broadband at para. 51.

[19] Instead, we must look at the substance of what is being raised, not the form. See generally JP Morgan at paras. 49-50, cited in Emerson at para. 29; British Columbia Broadband at para. 51.

[20] In this appeal, Teksavvy gamely offers a number of grounds for setting aside the CRTC’s rates decision and phrases them as legal issues to get past the limitation in subsection 64(1). However, in my view, Teksavvy’s real concern is disagreement with the policy adopted by the CRTC and the discretion it exercised in setting the rates, matters that we are powerless to address.

. Kitmitto v. Ontario (Securities Commission)

In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].

Here the court considers the role of a tribunal's expertise, as it feeds into the deference to be accorded it by an appeal court:

[29] While an appellate court is empowered to replace a tribunal’s findings on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute are to be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31; Vavilov, at para. 36.

. Essex (County of) v. Enbridge Gas Inc.

In Essex (County of) v. Enbridge Gas Inc. (Div Court, 2023) the Divisional Court considered an appeal from the decision of the OEB where it had "found that the pre-existing 1957 [SS: natural gas] franchise agreement between Essex and Enbridge had expired by operation of the common law rule against perpetuities" and ordered it's renewal under the Municipal Franchises Act (MFA).

In this quote the court considers the role of the OEB's 'expertise' as an appellate SOR issue:

[30] While the court is empowered to replace a tribunal’s opinion on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute should be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31, in which the court stated as follows:

While the Court will ultimately review the interpretation of the [Ontario Energy Board] Act on a standard of correctness, respect for the specialized function of the [Ontario Energy] Board still remains important. One of the important messages in Vavilov is the need for the courts to respect the institutional design chosen by the Legislature when it has established an administrative tribunal (at para. 36).

. Reisher v. Westdale Properties [for numbered case cites see main link]

In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court endorses deferring to a tribunal's expertise even under an appeal correctness standard (here in an RTA appeal):

[10] The correctness standard does not detract from the need to respect a tribunal’s specialized function. The expertise and familiarity of the Landlord and Tenant Board with the requirements of the Residential Tenancies Act is to be taken into account:

While the Court will ultimately review the interpretation of the Act on a standard of correctness, respect for the specialized function of the Board still remains important. One of the important messages in Vavilov is the need for the courts to respect the institutional design chosen by the Legislature when it has established an administrative tribunal (at para. 36). In the present case, the Court would be greatly assisted with its interpretive task if it had the assistance of the Board’s interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.[8]