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Appeals - Standard of Review (SOR) - Statutory 'Reviews'. Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al.
In Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al. (Fed CA, 2023) the Federal Court of Appeal considers an appeal from an unusual multi-party AIA statutory de novo 'review' [under s.44(1)] (neither an appeal nor a JR) at the Federal Court. This novel statutory procedure gave rise to novel standard of review considerations [SS: it's 'correctness' at the Federal Court of Appeal]:A. What is the standard of review?
[33] This case has a novel element which calls for particular attention to the standard of review. That element is subsection 44.1 of the AIA which is reproduced below:44.1 For greater certainty, an application under section 41 or 44 is to be heard and determined as a new proceeding.
44.1 Il est entendu que les recours prévus aux articles 41 et 44 sont entendus et jugés comme une nouvelle affaire. [34] The fact that an application for review should be “heard and determined as a new proceeding” means that the Federal Court is not reviewing the Information Commissioner’s or the department head’s refusal to disclose the requested information but is instead conducting a de novo hearing.
[35] In Canada (Health) v. Elanco Canada Limited, 2021 FCA 191, 337 A.C.W.S. (3d) 153 [Elanco], this Court dealt with the issue of the standard of review to be applied by this Court to the Federal Court’s review of a refusal to disclose certain information in light of section 44.1 of the AIA. In that case, the information was third-party information, which is exempted from disclosure by section 20 of the AIA. This Court noted that the Federal Court judge who heard the application was not reviewing the Minister’s refusal but was rather making their own determination as to whether the exemption from disclosure as set out in section 20 of the AIA was applicable: Elanco at para. 23. As a result, the reviewing judge was in the same position as a trial judge who makes findings of fact and applies the law to those facts.
[36] The Court then reviewed the debate in the jurisprudence, prior to the passage of section 44.1, as to whether the appropriate standard of review on appeals from a section 41 or 44 review was the administrative law standard (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559) or the appellate standard (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen]). After concluding its review of the jurisprudence, this Court found that:In my view, to the extent that there was any dispute with respect to the applicable standard of review to be applied on an appeal from a decision of the Federal Court on an application under section 44 of the Act, the addition of section 44.1 to the Act ends any such debate. The principles as set out in Housen are applicable in this appeal.
Elanco at para. 32 [37] As a result, the Federal Court’s determinations of questions of law are reviewable on the correctness standard while its determinations of questions of fact or questions of mixed fact and law are reviewable on the standard of palpable and overriding error: Elanco at para. 33. While this Court’s analysis in Elanco did not deal with extricable questions of law, there is no reason to doubt that the Housen standard of correctness would apply to those questions.
[38] It should be noted that because the case was argued as an application for judicial review, the Federal Court did not approach the issues on the basis of a de novo hearing. For the purposes of this appeal, the conclusions to which the Court came will be treated as its conclusion, notwithstanding the fact that it may have applied a deferential standard to the administrative decision-maker’s decision.
[39] Given the direction in section 45 of the AIA that applications are to be heard and determined in a summary way, the Families were correct to proceed by way of application but the relief available to them was not judicial review but a de novo hearing.
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