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Appeals - Grant with Terms versus Remitting Back Down to Tribunal. Canadian Pacific Railway Company v. Sauvé
In Canadian Pacific Railway Company v. Sauvé (Fed CA, 2024) the Federal Court of Appeal allowed an employer's appeal from a employee's JR, here of "a decision of a labour adjudicator that allowed in part the respondent’s unjust dismissal complaint under section 240 of the Canada Labour Code".
Here the court considers the alternate remedies of deciding the case itself, or remitting it back down to the tribunal:[53] The appellant is asking the Court to make an order allowing the appeal, to set aside the Federal Court’s judgment and to make the decision that the adjudicator should have made, namely, to reject the dismissal complaint.
[54] The case law of this Court is clear. It is only in exceptional circumstances that the Court will exercise its discretion to decide issues in dispute that fall under the jurisdiction of the administrative decision maker (Vavilov at paras. 139–142). While I am aware that the parties will be prejudiced if the file is remitted to the administrative decision maker, I am not in a position to decide that a given outcome is inevitable and that remitting the matter would serve no purpose. First, it is not the role of this Court to reassess the evidence in the record and make credibility findings. Second, the hearing before the adjudicator lasted 12 days and the testimony that was given in 2019, including that of the respondent and the complainant, is not in the Court’s record. Therefore, I would remit the matter to the same adjudicator out of a concern for the efficient use of public resources, the delays already incurred in this case, the cost to the parties, and the need to resolve the dispute between the parties. I acknowledge that the adjudicator may reach the same conclusion when providing reasons that meet the requirements of Vavilov. However, I cannot determine from the record whether the appellant demonstrated that the dismissal was justified for the reasons given. . 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. . Burnside v. Ontario (Disability Support Program)
In Burnside v. Ontario (Disability Support Program) (Div Court, 2023) the Divisional Court considered a 'person with a disability' appeal under the ODSP Act.
In this brief quote the court alludes to the unusual criteria that it would require to grant a 'declaration' (as close as one could get to an interlocutory injunction against government) in the course of an appeal from an administrative tribunal. It may be that this judge is viewing an appeal-court-issued 'declaration' as the means by which it might directly order the result below as a remedy, as opposed to the remedy of remitting the matter back to the tribunal below:[52] There were no submissions which persuaded me that there is any urgency, undue delay, or exceptional circumstances which would warrant this court’s intervention with declaratory relief. I find that an order for a new hearing before a different member of the SBT is the more appropriate relief, and I make that order accordingly. . Ghermezian v. Minister of National Revenue
In Ghermezian v. Minister of National Revenue (Fed CA, 2023) the Federal Court of Appeal considered an appeal from Federal Court ITA s.231.7 'compliance orders' made in relation to Ministerial 'demands' under ITA s.231.1 ["Information gathering"] and s.231.2 ["Requirement to provide documents or information"]. In this quote the court considers factors involved in 'remitting' a matter back down to the lower court:[62] The relevant factors in determining whether to decide the matter or send it back to the Federal Court include whether the matter is factually voluminous and complex, whether it involves oral or documentary evidence, whether it involves the assessment of credibility, whether the result is uncertain or factually suffused, whether the parties have had the opportunity to make specific submissions on the issues that remain to be decided, and whether the additional delay caused by sending the matter back would be contrary to the interests of justice (Sandhu Singh Hamdard Trust v. Navsun Holdings Ltd., 2019 FCA 295 at paras. 59-60; Canada v. Piot, 2019 FCA 53 at paras. 113-115, 124-128; Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161 at para. 157; see also Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17 at paras. 175-178, 182). . Benjamin’s Park Memorial Chapel v Bereavement Authority of Ontario
In Benjamin’s Park Memorial Chapel v Bereavement Authority of Ontario (Div Court, 2023) the Divisional Court allowed a JR where two Bereavement Authority of Ontario (BAO) refund orders were challenged, here regarding 'memorial donation' commissions paid by donors to a Foundation associated with a funeral and burial services provider. As well - "(s)hortly after this application was initiated, the BAO conceded that it did not have jurisdiction to require licensees to refund money or pay compensation.", so this was largely a consent matter where the primary issue was whether the matter should be decided by the Court or remitted back to the BAO:[15] ... Generally, where a court grants judicial review and quashes a decision, the appropriate remedy is to remit the matter to the decision-maker for reconsideration. The exceptions to this approach include where it becomes evident to the court that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose. Courts may also consider rendering the decision themselves where there are concerns about delay, fairness to the parties, or there is urgency in providing a resolution to the dispute: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 141-142; Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, at paras. 77-80. . Northern Inter-Tribal Health Authority Inc. v. Yang
In Northern Inter-Tribal Health Authority Inc. v. Yang (Fed CA, 2023) the Federal Court of Appeal considered the alternative JR remedies of remitting a labour adjudicator's decision back down, or substitution of it's own preferred decision:C. Did the Federal Court Make a Reviewable Error in Respect of Remedy?
[79] I turn finally to the issue of remedy and, as already noted, conclude that the Federal Court erred in effectively deciding the unjust dismissal complaint through its retention of jurisdiction over the remedy for the complaint.
[80] In Canada (Citizenship and Immigration) v. Tennant, 2019 FCA 206, 436 D.L.R. (4th) 155 (Tennant II), this Court reviewed the bounds of its own and the Federal Court’s jurisdiction to decide issues that Parliament has remitted to administrative decision-makers. As noted in Tennant II, where it is appropriate for this Court or the Federal Court to decide such issues, they generally proceed by way of declaration, remission of all or part of the matter to the administrative decision-maker with directions, or, depending on the circumstances, by simply dismissing the application without further relief. All such remedies involve indirect substitution.
[81] Until relatively recently, it was thought that this Court and the Federal Court did not possess authority to proceed by way of direct substitution (see paragraph 70 of Tennant II and cases cited therein). However, as noted in Tennant II, more recently, this Court has engaged in direct substitution and occasionally itself decided issues (see, e.g., Canada v. Williams Lake Indian Band, 2016 FCA 63, 396 D.L.R. (4th) 164, rev’d on other grounds, 2018 SCC 4, [2018] 1 S.C.R. 83; Canada (Attorney General) v. Bétournay, 2018 FCA 230, 48 Admin. L.R. (6th) 71; Canada (Attorney General) v. Burke, 2022 FCA 44, 468 D.L.R. (4th) 165).
[82] Where either direct or indirect substitution is adopted, though, the case law is clear that the reviewing court should only exercise its discretion to decide issues that are left to administrative decision-makers in exceptional circumstances. In Vavilov, the majority stated at paragraphs 139 to 142:[139] Where a court reviews an administrative decision, the question of the appropriate remedy is multi-faceted. It engages considerations that include the reviewing court’s common law or statutory jurisdiction and the great diversity of elements that may influence a court’s decision to exercise its discretion in respect of available remedies. While we do not aim to comprehensively address here the issue of remedies on judicial review, we do wish to briefly address the question of whether a court that quashes an unreasonable decision should exercise its discretion to remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons.
[140] Where the reasonableness standard is applied in conducting a judicial review, the choice of remedy must be guided by the rationale for applying that standard to begin with, including the recognition by the reviewing court that the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide: see Delta Air Lines, at para. 31. However, the question of remedy must also be guided by concerns related to the proper administration of the justice system, the need to ensure access to justice and “the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place”: Alberta Teachers, at para. 55.
[141] Giving effect to these principles in the remedial context means that where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons. In reconsidering its decision, the decision maker may arrive at the same, or a different, outcome: see Delta Air Lines, at paras. 30-31.
[142] However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paras. 18-19. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-30; Renaud v. Quebec (Commission des affaires sociales), 1999 CanLII 642 (SCC), [1999] 3 S.C.R. 855; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 161; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1, at paras. 53-54; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175, at paras. 51-56 and 84; Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52, at paras. 54 and 88. Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55. (See also to similar effect, Fono v. Canada Mortgage and Housing Corporation, 2021 FCA 125, 333 A.C.W.S. (3d) 742 at paras. 11–13, and Canada (Attorney General) v. Duval, 2019 FCA 290, 313 A.C.W.S. (3d) 558 at para. 38, where this Court held that issues should be remitted to the administrative decision-maker as it could not be said that only one result was inevitable).
[83] For the reasons set out above, it is impossible for this Court or the Federal Court to determine if the respondent’s dismissal was justified. Nor has there been an endless merry-go-round of decisions or any other circumstance mentioned in Vavilov that might provide a basis for a reviewing court to decide the merits of Ms. Yang’s unjust dismissal complaint.
[84] I accordingly conclude that the Federal Court made a palpable and overriding error in effectively deciding the merits of the appellant’s unjust dismissal complaint as opposed to remitting that issue to the adjudicator. . Municipal Property Assessment Corporation et. al v. County of Wellington
In Municipal Property Assessment Corporation et. al v. County of Wellington (Div Court, 2023) the Divisional Court cited their option in an appeal from a tribunal, to either remit back down or directly decide the case (with statutory appeals there is no preference for remitting the case back down like there is with judicial reviews):[35] They maintain that the standard of review on this appeal is either correctness or palpable and overriding error, depending on the characterization of the questions at issue on the appeal. When applying the correctness standard on a review of an administrative decision, the reviewing court is to either uphold the underlying determination or substitute its own view (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 at para. 54). In such cases, a matter will only be remitted back to the administrative decision- maker in certain circumstances. For example, the Divisional Court has remitted matters back to the Board in circumstances where the Board had not actually fulfilled its mandate to determine current value at first instance, and where the evidence necessary for the Court to make that determination is unavailable (Municipal Property Assessment Corporation v Zarichansky, 2020 ONSC 1124 (Div Ct)). . Briggs v. Durham (Police Services Board)
In Briggs v. Durham (Police Services Board) (Ont CA, 2022) the Court of Appeal considers the law of appellate remedies, here whether to remit the case back down or substitute it's own decision afresh:[53] As held in Vavilov, in the normal course, a decision overturned on a standard of reasonableness should be returned to the original decision-maker for reconsideration. However, there are circumstances where it may be appropriate for a court to substitute its decision for the decision of the Tribunal. In Vavilov, at para. 144, the Supreme Court explained the circumstances where it may be appropriate to do so:However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose. Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed. [Citations omitted.] [54] In this case, the Divisional Court recognized that, in the normal course, the matter should be remitted back to the Tribunal. However, the Divisional Court gave several reasons for substituting its decision for the decision of the Tribunal. As reviewed above, these include the extensive delay since the first application was started, that the Tribunal does not have any special expertise in interpreting settlement documents, that the matter could be resolved on the record before the court and that the issue could only be answered in one of two ways.
[55] In accordance with Vavilov, these were for the most part relevant considerations. On its own, the Tribunal’s lack of expertise in interpreting releases does not justify the decision not to remit the matter back to the Tribunal. Otherwise, courts could step into an administrative decision-maker’s shoes in all cases where a court and a decision-maker have equal expertise. However, in combination, the other factors, especially the inordinate delay in this case, justify the Divisional Court deciding the matter rather than remitting it back to the Tribunal. Mr. Briggs’s first application arises from an incident that occurred in 2012. His application raises serious issues of racial profiling. He should not have to wait any longer for a final resolution. . Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1
In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1 (Ont CA, 2022) the Court of Appeal reversed a Divisional Court ruling that quashed OLRB rulings below. The Court of Appeal also held that the lower court wrongly substituted their own ruling (ie. they didn't remit it back to the OLRB):(5) The Divisional Court erred in failing to remit the matters to the Board
[106] At para. 141 of Vavilov, the Supreme Court instructs that where a decision is unreasonable it is “most often appropriate to remit the matter to the decision maker to have it reconsider the decision”. This follows a long line of jurisprudence to the effect that a very high and “extraordinary” threshold must be reached for a court to refuse to remit the matter to the tribunal. See, for example, D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paras. 14-17; Canada (Attorney General) v. Zalys, 2020 FCA 81, at para. 104; Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, 148 O.R. (3d) 705, at para. 80, leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 59.
[107] Accordingly, a reviewing court may only render a decision on the merits exceptionally. I see no exceptional circumstances justifying departure from that general principle. This was not a case such as that envisioned by the Supreme Court at para. 142 of Vavilov, where it said that the intention that the administrative decision maker decide the matter at first instance “cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations”.
[108] In this case, there has been no “endless merry-go-round of judicial reviews and subsequent reconsiderations” of the OLRB Decisions. Mr. Turkiewicz’s three judicial review applications were heard together, on which the Divisional Court rendered a single decision. And, there had been no prior reconsiderations of any of the OLRB Decisions. . Canada (Attorney General) v. Benjamin Moore & Co.
In Canada (Attorney General) v. Benjamin Moore & Co. (Fed CA, 2022) the Federal Court of Appeal considered an appeal from the Federal Court's order to 'remit, with directions', here of a patent matter back to the involved tribunal. The case discussed the nature of such 'directions', their alternate status as either orders or reasons for decision, and their appealability:[15] Whether an appeal is taken from the reasons or the judgment is not always self-evident. This Court has developed certain criteria in an effort to guide the answer to that question.
[16] In Canada (Citizenship and Immigration) v. Yansane, 2017 FCA 48, 26 Admin. L.R. (6th) 267 [Yansane], the Court had to determine whether an administrative decision maker unreasonably ignored the Federal Court’s recommendation in obiter that, upon reconsideration of the matter, the decision maker consider certain evidence (Yansane at para. 23). This Court found that only explicit instructions that have practical consequences are binding (Yansane at para. 19):... [O]nly instructions explicitly stated in the judgment bind the subsequent decision-maker; otherwise, the comments and recommendations made by the [Federal] Court in its reasons would have to be considered mere obiters, and the decision-maker would be advised to consider them but not required to follow them. [17] The Court described the policy rationale for this restriction (Yansane at para. 18):We must never lose sight of the fact that such directions or instructions depart from the logic of a judicial review, and that their abusive or unjustified use would go against Parliament’s desire to give specialized administrative organizations the responsibility for ruling on questions that often require expertise that common law panels are lacking. [18] Benjamin Moore relies on Yansane in its submissions to this Court for the following propositions:(1) Paragraph (3) simply makes explicit what is already implicit in every judicial order: namely, that the terms of the order must be carried out in accordance with the law, including the law contained in the reasons for the order; and
(2) [T]his Court has recognized that a judgment which contains a reference to the reasons for the judgment does not thereby create a novel appeal route.
[Extracted from Benjamin Moore’s submissions.] [19] However, I read Yansane to hold that general references to reasons in a formal judgment do not form part of the judgment itself so as to give rise to a right of appeal based on the reasons (Yansane at para. 25). Yansane does not preclude all references to reasons in a judgment from creating viable appeal routes. I also see no reason why the policy rationale articulated in Yansane should not apply to appeals in some circumstances.
[20] General instructions in a judgment were also distinguished from explicit instructions in Fournier v. Canada (Attorney General), 2019 FCA 265, 312 A.C.W.S. (3d) 421 [Fournier].
[21] The issue before the Court in Fournier was whether the Federal Court’s instruction that an administrative body reconsider the matter "“in light of [the corresponding] reasons”" formed part of the judgment such that that instruction alone could be appealed (Fournier at paras. 25-26). This Court noted that no appeal lies from a general statement in the Federal Court’s judgment that the matter be reconsidered "“in accordance with the [corresponding] reasons”", as the statement is insufficient to incorporate the entirety of the reasons into the judgment (Fournier at para. 31). This type of statement was not a direction, as the reconsidering body "“must always take into account the decision and findings of the reviewing court, unless new facts call for a different analysis”" (Fournier at para. 30, citing Yansane at para. 25). The Federal Court of Appeal differentiated this statement from a "“strict direction”" (Fournier at para. 31), indicating that part of the reasons may be incorporated into the judgment through such a direction.
[22] This requirement for precision in the drafting of judgments is underscored by several considerations. A party may only appeal statements in a judgment that have practical consequences; a statement in a judgment that does not affect or change the judgment’s overall effect is unnecessary to the court’s disposition of the matter. Precision in judgments is also important for the purposes of enforcement. Here, paragraph 3 of the judgment lays out a test for the Commissioner that can be uniquely enforced, separately from the accompanying reasons.
[23] In interpreting the effect of paragraph 3, Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 458 D.L.R. (4th) 125 [Canadian Council for Refugees] at paragraphs 11-14 is instructive. Stratas J.A. in that case struck a cross-appeal that did not seek to change the enforceability of the original decision (Canadian Council for Refugees at para. 12):A cross-appeal lies when a party “seeks a different disposition of the [judgment] appealed from”: Rule 341(1)(b) of the Federal Courts Rules, S.O.R./98-106. “Different disposition” means a remedy that will have real-life, practical consequences for the party cross-appealing. A cross-appeal does not lie simply because a party is dissatisfied with the reasons for judgment: Ratiopharm Inc. v. Pfizer Canada Inc., 2007 FCA 261, 367 N.R. 103 at paras. 6 and 12. [24] A party cannot, on appeal, ask an appellate court to accept new arguments in support of its position if it has already been awarded the relief it sought. This is because the reasons justifying the order, when incorporated within the formal judgment, do not change the result of the order; such an incorporation would be "“merely a matter of form, not substance”" (Ratiopharm at para. 9).
[25] For this reason, a court must always have regard to the essential nature of the appeal (Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 50). The notice of appeal must be read in light of the reasons and the judgment, with a view to determining whether the appeal is a veiled attempt to keep the benefit of the judgment but realign the reasons for judgment. Sometimes a party will be successful in the result, but will not like the manner by which they succeeded. Courts must always be vigilant to guard against appeals brought on this basis.
[26] The essential nature of this appeal is to challenge the substantive question of how the Commissioner is to determine whether a particular subject matter is patentable; paragraph 3 of the Federal Court’s judgment is a specific direction in this respect, akin to a declaratory judgment. Consistent with Yansane, Fournier, and Canadian Council for Refugees, the specific direction in paragraph 3 forms part of the judgment and uniquely binds the Commissioner to a particular test in a way that the reasons alone do not. This test responds to the only substantive consideration that was before the Federal Court, laying at the core of the Federal Court’s formal judgment in the matter. I conclude that the appeal is accordingly within this Court’s jurisdiction under subsection 27(1) of the Act. . Canada (Attorney General) v. Kattenburg
In Canada (Attorney General) v. Kattenburg (Fed CA, 2021) the Federal Court of Appeal held that where an administrative decision is flawed for inadequate reasons, and the reviewing court cannot infer the correct answer from the administrative decision-maker's fact-findings, then the case should be sent back down with directions:[17] Vavilov makes it clear that when confronted with the absence of a reasoned explanation, courts should refrain from determining the proper outcome and providing the required justification themselves (Vavilov at para. 96). This merely recognizes Parliament’s institutional design choice in conferring on administrative decision-makers the task of construing the legislation that they are called upon to apply and applying it to the facts of their case, exercises that call for deference on the part of reviewing courts. It follows that in a post-Vavilov context, the Federal Court judge should not have embarked on the Agency’s task.
[18] The appropriate remedy is to send the matter back to the Agency so that it can determine the matter for itself. This is not the type of case where this step can be bypassed because the outcome is self-evident (compare Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government, 2021 MBCA 36 at paras. 104-108). ...
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