Simon's Megalomaniacal Legal Resources

Appeals - Standard of Review (SOR) - Questions of Law Only (2)

. Cineplex Inc. v. Commissioner of Competition

In Cineplex Inc. v. Commissioner of Competition (Fed CA, 2026) the Federal Court of Appeal dismissed a Competition Act appeal, here brought against a Competition Tribunal finding that the appellant had "engaged in reviewable conduct by making pricing representations to the public that were false or misleading in a material respect" [CA ] - and issued a cease order, an administrative fine and costs.

Here the court cautions about parties attempting to re-phrase appeal issues to make them sound like questions or errors of law:

[26] That said, this Court has cautioned against grounds of appeal being "“expressed in an artful way to make them appear to raise legal questions when they do not”": Bell Canada v. British Columbia Broadband Association, 2020 FCA 140 at para. 51; Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79 at para. 29. As will be explained further on in these reasons, the issues in this appeal relate primarily to the Tribunal’s fact-specific application of the law to Cineplex’s conduct, matters that merit significant deference.

. Gorscak v. Jarzabek [SOR for procedural fairness in question of law-only appeals necessitates Yatar joint appeal-JR procedure]

In Gorscak v. Jarzabek (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 (question of law-only) appeal, this brought against the termination of tenancy on grounds of RTA s.66 ['Termination for cause, act impairs safety'] in the context of a fire.

The court took the oppourtunity to run a newish interpretation of the appellate standard of review (SOR) for procedural fairness ('fairness'). Prior to this, fairness was treated essentially as an exception to all SOR considerations, being either described as 'no' SOR (ie. not being accorded any deference) or as 'correctness' (which means the same thing, ie. no deference). This court, citing the earlier case of Beyan v. IMH Pool XX LP, (Ont Div Ct, 2025) - and drawing on Law Society of Saskatchewan v. Abrametz (SCC, 2022) - held that issues of procedural fairness may be broken up into the three appellate errors of mixed fact and law, law and fact. This result (although not applied in the case), logically results in the jurisdictional declining to hear of fact-dominated procedural fairness issue where the tribunal's appeal jurisdiction is limited to 'questions of law' alone.

This result - although addressed with the cumbersome joint JR-appeal process emanating from the Yatar line of case in other non-fairness contexts - has to date been avoided by treated issues of fairness wholistically - ie. by applying any error to the favour of the appellant. Here the court avoids this result by (apparently) finding an 'extricable question of law' [at paras 29-34], but the line of argument respecting the standard of review for procedural fairness is both: contrary to prior doctrine, and duplicative of procedures (requiring the Yatar joint appeal-JR procedure if the argument is to be made):

[12] In respect of procedural fairness, Shore J. stated in Beyan v. IMH Pool XX LP, 2025 ONSC 5392, at paras. 21-24, that:

[21] Issues of procedural fairness arising from tribunal decisions where there is a statutory appeal mechanism are subject to the appellate standard of review of correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220. Absent an extricable question of law, the Court may not interfere with the LTB's findings of fact underlying its conclusion on procedural fairness. In other words, the LTB is entitled to control its own process and is entitled to deference on procedural matters requiring an exercise of discretion, unless there was an error in principle in how the discretion was exercised.

[22] Tribunals are owed considerable deference on their procedural decisions. This is because administrative tribunals have the experience and expertise to balance the need to ensure fair participation for all parties with the prompt determination of proceedings on their merits: Wei v. Liu, 2022 ONSC 3887 (Div. Ct.), at para. 9.

[23] When scrutinizing the procedural choices of a Tribunal, the reviewing Court cannot insist on the "optimal" procedure from various options that meet the standard for procedural fairness. The court is required to respect the procedural choices made by the Tribunal: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817 at para. 27; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 231.

[24] Finally, LTB decisions are to be reviewed in the context of its high volume of applications and its statutory mandate to adopt the most expeditious method of proceeding that afford parties with adequate opportunity to know the issues and to be heard.

This result apparently traces back to the Abrametz reasons [para 27]:

[27] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court held that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply: paras. 33 and 36-52. While this proposition was stated in the context of substantive review, the direction that appeals are to be decided according to the appellate standards of review was categorical. Thus, where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review.

To me, it's easy to see why this Abrametz quote has attracted little attention - after all, the 'appellate standard of review' is properly characterized as 'correctness' - but that's not entirely accurate. The 'appellate standard of review' (SOR) for issues of law is correctness, while the SOR for other issues (ie. those of mixed fact and law, and fact) is 'palpable and overriding error'. My thinking to date, like I suspect many of us, was that procedural fairness as an issue was exempt from any SOR considerations, and any such issue was to dealt with wholistically.

The point is made aptly in Lengyel v. The Licence Appeal Tribunal et al. (Div Court, 2023) where the Divisional Court held that an appeal or judicial review for 'fairness' was conducted under the same standard, whether it was characterized as 'not having a standard of review' or 'correctness':

[16] On allegations of procedural fairness in the context of a judicial review I adopt the comments of Sachs, J. in the matter of Khorsand v. Police Services Board 2023 ONSC 1270 at para. 33:

In Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, the Supreme Court made the same finding with respect to applications for judicial review that raised issues of procedural fairness. Since Khela Ontario courts have been divided – some having applied the correctness standard of review to issues of procedural fairness and some having held that there is no need for a standard of review analysis when it comes to issues of procedural fairness – a decision is either procedurally fair or it is not. In my view, there is little practical difference between these articulations. A reviewing court does not accord deference to decisions that impact procedural fairness.

Of similarly effect, the court in Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021) held that issues of administrative fairness were also issues of law:

[18] In Tipping v. Coseco Insurance Company the court held at para. 41 that: “Procedural fairness and natural justice, including allegations of bias, are questions of law. ....

That is, in these cases the court makes no further break-down of the elements of the 'appellate standard of review', necessarily resolving them on a wholistic basis.

. Swerdfiger v. Director of the Ontario Disability Support Program [challenge to tribunal Rules on appeal]

In Swerdfiger v. Director of the Ontario Disability Support Program (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from SBT decisions "by the Director of the Ontario Disability Support Program (“ODSP”) in which the Director denied the appellant’s application for a special diet allowance (“SDA”) based on a medical condition known as “Avoidant/Restrictive Food Intake Disorder” (“ARFID”)".

Here the court denies the appellant's effort to challenge SBT Rules as having "failed to keep up with the Tribunal's power to review Code violations":

Are the Tribunal's rules procedurally unfair?

[19] The appellant submits that the rules of the Tribunal have failed to keep up with the Tribunal's power to review Code violations, a power that was made clear in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, because the rules themselves fail to accommodate individuals with disabilities.

[20] The appellant refers to four rules in the Tribunal's rules of procedure: Ontario Social Benefits Tribunal, Rules of Procedure for Appeals to the Social Benefits Tribunal. She contends that, while rules 4.3 and 4.4 allow a respondent to change positions and to rely on additional facts up to 30 days before the hearing of an appeal, r. 5.11 precludes an appellant from filing new medical information later than 30 days before the hearing of an appeal. She submits that this guarantees that appellants have no opportunity to provide medical evidence concerning new arguments or positions where a respondent changes positions at the last possible opportunity.

[21] As alluded to earlier, a stand-alone challenge to the Tribunal's rules is beyond the scope of this court's jurisdiction to consider under s. 31(1) of the ODSPA. Our jurisdiction is limited to questions of law. While a denial of procedural fairness is an issue of law, it must be shown that the rules resulted in the actual denial of procedural fairness, and not just that they might have done so: Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022), at para. 6.05.

. Swerdfiger v. Director of the Ontario Disability Support Program

In Swerdfiger v. Director of the Ontario Disability Support Program (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from SBT decisions "by the Director of the Ontario Disability Support Program (“ODSP”) in which the Director denied the appellant’s application for a special diet allowance (“SDA”) based on a medical condition known as “Avoidant/Restrictive Food Intake Disorder” (“ARFID”)".

The court equates the SOR for legal errors and for procedural fairness, this in an appeal limited to questions of law only:

Standard of Review

[18] The appellant submits that there are two standards of review applicable in this case, one applicable to questions law and the other applicable to questions of procedural fairness. With respect, this is not correct. The correctness standard applies to both types of questions in the context of a statutorily granted right of appeal such as this one: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 27.

. Best Buy Canada Ltd. v. Canada (Border Services Agency)

In Best Buy Canada Ltd. v. Canada (Border Services Agency) (Fed CA, 2025) the Federal Court of Appeal dismisses a joint appeal/JR application, here seeking to "set aside the decision of the Canadian International Trade Tribunal".

Here Stratas JA interestingly considers the Federal Court system's equivalent issue to the Ontario system's 'Yatar' recent dual appeal-JR procedure. He concludes that the federal system largely tolerates such a procedure, but that it is rare that it is tactically required [as most issues can be characterized as legal] - ending with (what I read as) a costs warning [para 16] against parties using it unnecessarily:

[1] The appellant/applicant asks this Court to set aside the decision of the Canadian International Trade Tribunal dated November 8, 2023 in file AP-2022-015. It does so by way of an appeal on questions of law under section 68 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and a separate application for judicial review under subsection 28(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. For the following reasons, we will dismiss both with costs.

....

B. The separate judicial review

(1) Can a judicial review be brought in the face of a statutory appeal provision that restricts the grounds the Court can consider?

[8] There are many statutory appeal provisions that restrict an appellant to "“questions of law”" or "“questions of jurisdiction”" or impose a leave-to-appeal requirement, or some combination of these things: see, e.g., Canada Transportation Act, S.C. 1996, c. 10, s. 41(1); Broadcasting Act, S.C. 1991, c. 11, s. 31(2); Telecommunications Act, S.C. 1993, c. 38, s. 64(1); Competition Act, R.S.C. 1985, c. C-34, ss. 30.24(2) and 34(3); Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 68(1)(c). Can a judicial review be brought in the face of these statutory appeal provisions?

[9] This Court has given two answers to that question:

(1) Statutory appeal provisions that impose restrictions do not prevent a party from bringing a judicial review as of right on any administrative law grounds: see Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161.

(2) Statutory appeal provisions sometimes restrict a court to considering "“questions of law”" or "“questions of jurisdiction”" or can require that the appellant obtain leave to appeal. Provided that the restriction furthers "“a pressing and valid government objective”" (legislation normally binding courts) and leaves the judiciary able to decide "“whether state action conforms with [the law,] the Constitution, and the requirement of fair and impartial administration of justice”", the restriction will be upheld and a separate judicial review disobeying the restriction will be precluded: Democracy Watch v. Canada (Attorney General), 2023 FCA 39 at para. 5. While courts can ignore total restrictions on review, such as those contained in a classic privative clause, they cannot ignore partial ones that are valid on the above principles: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at paras. 102-103 (and the Supreme Court cases cited therein).

[10] Speaking only for myself, I think the Best Buy decision overlooked the controlling authorities mentioned in the preceding paragraph. But multiple majorities of this Court have either approved Best Buy or left it in place: see Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93 at paras. 115-117; BCE Inc. v. Québecor Média Inc., 2022 FCA 152 at para. 58; Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209; Democracy Watch v. Canada (Attorney General), 2024 FCA 158. This Court’s repeated affirmation of Best Buy outweighs the personal views of any individual judge: Janssen Inc. v. Canada (Attorney General), 2021 FCA 137; Miller, above. Thus, Best Buy is the law in this Court until the Supreme Court says otherwise. The Supreme Court has expressly left open whether Best Buy is valid: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191 at para. 50.

[11] But just because Best Buy says parties can bring a separate application for judicial review doesn’t mean they should. In fact, in most cases they shouldn’t. Why? Just about anything that can be raised in a separate application for judicial review can be raised in a statutory appeal where only "“questions of law”" can be raised:

. Alleged legal errors by the administrative decision-maker, whether they be found in the Constitution, legislative provisions, common law principles or administrative law principles. This includes questions of law that are extricable from (i.e., taint or dominate) questions of mixed fact and law: Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573; Canadian National Railway Company v. Canada (Transportation Agency), 2016 FCA 266 at para. 22; Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151 at para. 15.

. Procedural fairness concerns: Emerson Milling at paras. 18-19.

. Sufficiency of reasons or inadequate reasons on a key point: Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at paras. 21-33.

. Errors that seem factual but are really legal errors or failures to follow legal principles governing fact-finding. For example, a decision-maker that wrongly takes judicial notice (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458), wrongly finds facts without any supporting evidence (Canada (Border Services Agency) v. Danson Décor Inc., 2022 FCA 205 at para. 14), wrongly draws a factual inference or finds facts contrary to the law of evidence (e.g., Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161 and the cases cited therein; Garvey v. Canada (Attorney General), 2018 FCA 118 at para. 6), or wrongly finds facts contrary to a statutory provision (Walls v. Canada (Attorney General), 2022 FCA 47 at para. 41; Page v. Canada (Attorney General), 2023 FCA 169 at para. 79).

[12] Sometimes parties bring applications for judicial review to get the Court to reweigh the evidence. But we never do that under the reasonableness standard: see, e.g., Pier 1 Imports at para. 45; and many other authorities.

[13] As for leave-to-appeal requirements in some statutory appeal provisions, they do not stop arguable issues from coming before the Court. Quite the opposite. If the issues are "“fairly arguable”", we grant leave: Emerson Milling at para. 56; Canadian Pacific Railway Co. v. Canada (Transportation Agency), 2003 FCA 271, [2003] 4 F.C.R. 558 at para. 17; and on the meaning of "“fairly arguable”", see Lukács v. Swoop Inc., 2019 FCA 145 at para. 15. No one has a right to bring or prosecute a case that is not "“fairly arguable”".

[14] Judicial reviews and statutory appeals are the same as far as administrative law remedies are concerned: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at paras. 139-142; and with specific regard to s. 52 of the Federal Courts Act, see Cathay Pacific Airways Limited v. Air Miles International Trading B.V., 2015 FCA 253 and Punniamoorthy v. Canada (Minister of Employment and Immigration) (1994), 1994 CanLII 10959 (FCA), 113 D.L.R. (4th) 663, 20 Admin. L.R. (2d) 73.

[15] In light of the above, this much is true: rare are the times a party really needs to bring a separate judicial review.

[16] A needless judicial review should never be brought. It subverts judicial economy, burdens the Registry, drives up costs, and undermines simplicity and efficiency in administrative law: Vavilov at para. 29; Pier 1 Imports at para. 51; Best Buy at para. 68. If brought, it should be immediately discontinued: Federal Courts Rules, S.O.R./98-106, Rule 165. If not discontinued, a respondent should move to dismiss it. And the Court, on its own motion, can dismiss it too: Dugré v. Canada (Attorney General), 2021 FCA 8 at paras. 19-24 and cases cited therein (plenary powers of the Court and Rule 74). If a separate judicial review has been brought and is truly needed, it must be consolidated with the statutory appeal under Rule 105.