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Appeal - Standard of Review (SOR) - Appeal of Judicial Review ('Shoes'). Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court cites the 'stepping into the shoes' SOR of the JR judge on such appeals:[41] It is settled law that, when this Court hears an appeal from a decision of the Federal Court on judicial review, its role is to determine whether the Federal Court selected the appropriate standard of review and, if so, whether that standard was applied properly. It is settled law as well that this approach "“accords no deference to the reviewing judge’s application of the standard of review”", therefore requiring the appellate court to "“perform [] a de novo review of the administrative decision”" (Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10 (Horrocks); Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45−47 (Agraira); Groupe Maison Candiac Inc. v. Canada (Attorney General), 2020 FCA 88 at paras. 27–28; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 36 (Mason); Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 at para. 15).
[42] As stated in Mason at paragraph 36, these principles have remained good law following the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov). . Sun v. Canada (Attorney General)
In Sun v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal against an earlier dismissal of a JR, this against a CRB decision by the CRA:[4] Appeals in this Court from judicial reviews in the Federal Court are essentially do-overs: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 and Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 S.C.R. 107). However, where the Federal Court’s reasons are compelling and complete, as here, the appellant in this Court faces a tactical burden to identify some error in the Federal Court’s reasoning: Bank of Montreal v. Attorney General of Canada, 2021 FCA 189, [2021] D.T.C. 5111. On this, the appellant has fallen well short: on both the substantive reasonableness of the Agency’s decision and the procedural fairness issues the appellant raises, we agree with the result reached by the Federal Court for the reasons it gave. . Bartlett v. Canada (Attorney General)
In Bartlett v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a denial of a JR, here against a decision of the Social Security Tribunal – Appeal Division refusing to set aside a refusal to grant leave to appeal:[3] The Appeal Division identified the correct legal test for the granting of leave. That test is found in section 58.1 of the Department of Employment and Social Development Act, S.C. 2005, c. 34. The Appeal Division found that none of Ms. Bartlett’s issues met the test. The Appeal Division was not satisfied that the General Division had erred in any arguable way. In particular, the Appeal Division noted that Ms. Bartlett intended to base her appeal on particular figures that the General Division had rejected on the facts. . Thales DIS Canada Inc. v. Ontario (Transportation)
In Thales DIS Canada Inc. v. Ontario (Transportation) (Ont CA, 2023) the Court of Appeal considered the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), here in the course of a successful Crown appeal of a JR finding that the bidding requirements were in violation of CETA.
Here the court considers the standard of review that applies for an appeal of a JR, in which they find the lower court had erred ['shoes']:[85] As this court explained in Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, at para. 46, on an appeal from a decision of the Divisional Court dealing with an application for judicial review, there are two steps for identifying the standard of review. First, the court must determine the standard of review that applies when reviewing the decision of the Divisional Court. Second, the court must determine the standard of review that the Divisional Court was to apply to the Decision.
(a) Standard of review on appeal
[86] On an appeal from a judicial review decision of the Divisional Court, this court must decide whether the Divisional Court identified the correct standard of review to be applied and whether it applied that standard of review correctly: Turkiewicz, at para. 49; Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553, 157 O.R. (3d) 753, at para. 20. In determining whether the Divisional Court correctly applied the appropriate standard of review, this court is to “step into the shoes” of the Divisional Court: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 46; Turkiewicz, at para. 49. . Bonnybrook Park Industrial Development Co. Ltd. v. Canada (National Revenue)
In Bonnybrook Park Industrial Development Co. Ltd. v. Canada (National Revenue) (Fed CA, 2023) the Federal Court of Appeal considered it's role in an appeal from a judicial review decision below:[11] In this appeal, the Court is to step into the shoes of the Federal Court. This means that this Court is to perform a de novo review (Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10). In undertaking this review, a key question for this Court is whether the Minister’s decision is reasonable. The Supreme Court of Canada has provided instructions on reasonableness review in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Bonnybrook also raises issues of procedural fairness. . Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975
In Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975 (Ont CA, 2022) the Court of Appeal reversed a JR ruling when it found that the Divisional court had come to it's own determination of the result (correctness), rather than assessed the OLRB ruling for reasonableness:[72] First, a reasonableness review requires an initial consideration of the Board Decision as a whole, to determine if the decision bears the requisite level of intelligibility, transparency, and justification. The reviewing court must consider only whether the decision – both the rationale for it and the outcome to which it led – is unreasonable (Vavilov, at paras. 84-86). It is not to undertake a de novo analysis but, rather, it must “examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” (para. 116).
[73] The Divisional Court did not follow this approach when it reviewed the Board Decision. Instead, it considered the legislative history of s. 1(4) and the OLRB jurisprudence on it and came to its own determination of what was required for the Board to make a related employer declaration. Its view was that it was necessary for the parties’ bargaining history, collective agreement, and other agreements respecting contracting out to be considered when determining whether the s. 1(4) preconditions to a declaration had been met. Because the Board had not done that, according to the Divisional Court, the Board Decision was unreasonable. However, as the Federal Court of Appeal aptly put it, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, at para. 28; Vavilov, at para. 83. Instead of following the Vavilov approach, the Divisional Court made its own yardstick and measured the Board Decision against it. . Canada (Justice) v. D.V.
In Canada (Justice) v. D.V. (Fed CA, 2022) the Federal Court of Appeal, citing Horrocks (SCC, 2021), confirmed that the standard of review in an appeal from a JR was to "conduct reasonableness review anew" ('stepping into the shoes'):[5] The appeal must be granted and the Federal Court’s judgment set aside. The Federal Court failed to conduct reasonableness review: instead, it improperly substituted its view of the matter for that of the Minister. In the course of its analysis, rather than conducting reasonableness review, the Federal Court applied its own view of the Ministerial review provisions, a view very much contrary to any reasonable interpretation of those provisions.
[6] In a case like this, we are to conduct reasonableness review anew: Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585. . Thomson v. Canada (Attorney General)
In Thomson v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal states the doctrine in Agraira and Horrocks (SCC, 2021) on appeals of judicial reviews:[14] As this appeal is from a judgment on a judicial review application, in accordance with the Supreme Court of Canada’s decision in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs 45-46 [Agraira], this Court is required to step into the shoes of the Federal Court. We must determine whether the Federal Court selected the appropriate standard of review and, if it did, whether it applied it properly. Recently, the Supreme Court of Canada in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, declined the invitation to reconsider Agraira and confirmed that its principles continue to apply. . Longueépée v. University of Waterloo
In Longueépée v. University of Waterloo (Ont CA, 2020) the Court of Appeal spelled out the manner of determination of the standards of review on an appeal from a judicial review application:[47] On an appeal of a judgment of the Divisional Court disposing of a judicial review application, this court must determine whether the Divisional Court identified the appropriate standard of review and applied it correctly. In doing so, this court will “step into the shoes” of the Divisional Court and focus on the administrative decision under review: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47; Groia v. Law Society of Upper Canada, 2016 ONCA 471, 131 O.R. (3d) 1, at para. 49, rev’d on other grounds 2018 SCC 27, [2018] 1 S.C.R. 772; Ball v. McAulay, 2020 ONCA 481, at para. 5.
[48] Accordingly, what is required in order to address the issues on appeal is for this court: (1) to determine the appropriate standard of review; (2) to apply that standard of review to the decisions of the Vice Chair; and if her decisions were properly set aside, (3) to determine the appropriate remedy. . Ontario Nurses’ Association v. Participating
In Ontario Nurses’ Association v. Participating (Ont CA, 2021) the Court of Appeal considers the standard of review for an appeal of a judicial review application:Guiding principles
[40] The focus of this court’s inquiry is the reasonableness of the Tribunal’s decision. This involves “stepping into the shoes” of the lower court and focusing on the Tribunal’s decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46.
[41] An inquiry into the reasonableness of an administrative tribunal’s decision begins with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1.
[42] Post-Vavilov, there is a single standard of reasonableness. At para. 89:[R]easonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that “[r]easonableness is a single standard that takes its colour from the context.” [Citations omitted.] [43] A tribunal’s governing statute is an important part of considering whether the tribunal’s decision was reasonable “in light of the relevant factual and legal constraints that bear on it.” Vavilov, at para. 108:Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures. [44] Vavilov reaffirms the “modern principle” of statutory interpretation, which requires that “the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”: Vavilov, at para. 117.
[45] The administrative decision must be consistent with principles of statutory interpretation and be compliant with the “rationale and purview of the statutory scheme under which it is adopted”: Vavilov, at paras. 108, 118. As set out in Vavilov at para. 121:The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. [Emphasis added.] [46] Vavilov cautions that a reviewing court is not interpreting the statute de novo. Rather, the focus should be on the reasonableness of the administrative decision. In other words, the focus of the analysis is on why the Tribunal’s decision is unreasonable, not what this court would have decided in the Tribunal’s place. This is explained at paras. 115-116:Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.
Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached. [Emphasis added.] . Subramaniam v. Canada (Citizenship and Immigration)
In Subramaniam v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal considered an appeal from a denial of a judicial review in the Federal Court (the standard of review for issues of law on appeals is 'correctness', but for judicial review is 'reasonableness'):[16] On appeal from a decision of the Federal Court sitting in judicial review of a decision of an administrative decision-maker, this Court must "“step into the shoes”" of the Federal Court to determine whether it identified the appropriate standard of review, and whether it applied this standard properly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47.
[17] There is broad agreement between the parties that the applicable standard of review is that of reasonableness. .... . Canada (Public Safety and Emergency Preparedness) v. Ahmed
In Canada (Public Safety and Emergency Preparedness) v. Ahmed (Fed CA, 2022) the Federal Court of Appeal affirmed that on an appeal from a judicial review application, the appeal court 'steps into the shoes' of the application court and effectively conducts a de novo judicial review: [23] It is trite that on appeal from a decision of the Federal Court sitting in judicial review, this Court must determine whether the Federal Court chose the appropriate standard of review and, if so, whether it properly applied it in reviewing the impugned administrative decision. This requires the Court to "“step into the shoes”" of the Federal Court and effectively focus on the administrative decision under review (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-46).
[24] Recently, the Supreme Court of Canada, in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585 (Horrocks), declined the invitation to reconsider Agraira, and confirmed that its principles continue to apply. The Agraira approach, according to Horrocks, "“accords no deference to the reviewing judge’s application of the standard of review”"; it rather requires the Court to "“perform[] a de novo review of the administrative decision”" (Horrocks at para. 10).
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