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Appeals - Tribunal as Party to AppealIt is increasingly common for a tribunal being appealed from to have the right to be heard on an appeal [eg. Residential Tenancies Act (RTA), s.210(3)], or even the right to initiate an appeal by themselves [eg. RTA s.211].
This right is normally, but not always, stated in the parent statute of the tribunal. Parties considering an appeal from a tribunal order or decision should canvass the relevant parent statute and the tribunal website for such rights, as - if they exist - the tribunal is normally entitled to notice of the appeal, and perhaps further procedural entitlements that the party must comply with.
. Westjet v. Lareau
In Westjet v. Lareau (Fed CA, 2024) the Federal Court of Appeal extensively considered the standing of the Canadian Transportation Agency on an appeal:[1] This is an appeal from a decision of the Canadian Transportation Agency. The Agency is not a party to the appeal. Nevertheless, after the parties to the appeal filed their memoranda of fact and law with the Court, the Agency presented to the Court its own memorandum of fact and law.
[2] In support of this, the Agency invokes subsection 41(4) of the Canada Transportation Act, S.C. 1996, c. 10. Subsection 41(4) provides that the Canadian Transportation Agency "“is entitled to be heard by counsel or otherwise on the argument of an appeal”" under the Act. The Agency says it can participate as of right in an appeal from its own decision.
[3] For some time now, the Court and other parties have raised questions about the operation of the subsection. Many are canvassed in these reasons. Those questions largely have not been answered.
[4] Fundamentally, can the Agency do what it proposes to do here? Are there any procedural or substantive limits on this?
[5] These questions are surprisingly complex. They have troubled this Court for a long time. Therefore, in this case, the Court issued a direction to the parties to provide submissions on these questions.
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[8] Subsection 41(4) of the Act is rather unique in Canadian law.
[9] Under most administrative regimes, the governing legislation does not give the administrative decision-maker the right to be heard on an appeal from its own decisions. But subsection 41(4) gives that right to the Agency.
[10] Among other things, subsection 41(4) must be seen in light of the context in which it sits. One important part of the context is the case law governing whether and the extent to which an administrative decision-maker can participate in an appeal or judicial review from one of its own decisions.
[11] The current position is that once an administrative decision-maker decides a matter, giving full and adequate reasons for its decision, it is finished with the matter. Theoretically, when a party applies for judicial review of the decision or appeals from the decision, the administrative decision-maker can apply for leave to intervene. But if leave to intervene is granted, the decision-maker must proceed with restraint and caution.
[12] The Supreme Court has expressed very clearly the need for administrative decision-makers who participate in judicial reviews and appeals to proceed with restraint and caution: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; Northwestern Utilities Ltd. v. City of Edmonton, 1978 CanLII 17 (SCC), [1979] 1 S.C.R. 684.
[13] Restraint and caution are needed because of an important concern: an administrative decision-maker must be and must appear to be impartial as between the parties. Thus, except in the decision-maker’s own interlocutory and final decisions, it should not take sides or appear to take sides.
[14] This concern remains live in a judicial review or appeal. The reviewing court might set aside the administrative decision and return it to the administrative decision-maker for redetermination of the matter on its merits. In the redetermination, the administrative decision-maker will have to act with the appearance and reality of impartiality. If the administrative decision-maker has involved itself in a judicial review or an appeal and aggressively advocates for the position it adopted in its reasons, its appearance and reality of impartiality may suffer.
[15] The sending back of a matter to an administrative decision-maker for redetermination of the merits is not a remote possibility. Far from it. In fact, in cases where reviewing courts set aside decisions, it is the usual remedy. This is because governing legislative regimes almost always empower administrative decision-makers to decide matters on their merits, not reviewing courts. The alternative—the reviewing court deciding the merits of the matter—is truly rare. Reviewing courts impose their view of the merits of the matter only in rarely occurring situations or "“limited scenarios”" where, for example, no other outcome is available to administrative decision-makers: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 142 and Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326; and see also Community Panel of the Adams Lake Indian Band v. Adams Lake Band, 2011 FCA 37, 21 Admin. L.R. (5th) 105 and D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167 (very compelling public interest reasons).
[16] On this point, the Supreme Court’s decision in Vavilov remains the law. Recent unexplained deviations from this principle by the Supreme Court, seemingly at odds with Vavilov, should not be seen as a departure from the principle: see Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 and Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583; and for the significance to be attributed to the Supreme Court’s unexplained deviations in individual cases, see Paul Daly, "“The Signal and the Noise in Administrative Law”" (2017), 2016 CanLIIDocs 275.
[17] A further concern is "“bootstrapping”": administrative decision-makers making submissions to reviewing courts that, in reality, are new reasons supporting the decisions they made. This undermines two principles. First, administrative decision-makers must provide all necessary explanations in support of their decisions in their reasons and, if they fail to do that, their decisions may be set aside: Vavilov at para. 83. Second, after administrative decision-makers have decided matters, including explaining themselves in their reasons, they are functus or finished and, without legislative authorization, they cannot touch the matters again: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848.
[18] While the Supreme Court in Ontario Power Generation does not absolutely prohibit administrative decision-makers from intervening in an appeal, it has underscored the need for them to exercise restraint and caution for many of the reasons just mentioned. Ontario Power Generation confirms that a reviewing court in a judicial review or an appeal has the discretion, depending on the circumstances, to prevent, restrain or regulate the involvement of administrative decision-makers.
[19] Before us here is subsection 41(4) of the Canada Transportation Act. As a legislative provision, it prevails over any inconsistent judge-made law, such as the judge-made principles set out above, unless the legislative provision is constitutionally invalid: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781; see also C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2013] 1 S.C.R. 539 at para. 117. Canada (Attorney General) v. Utah, 2020 FCA 224, 455 D.L.R. (4th) 714 at para. 28 and Sturgeon Lake Cree National v. Hamelin, 2018 FCA 131, 424 D.L.R. (4th) 366 at para. 54.
[20] Subsection 41(4) provides that the Agency "“is entitled to be heard by counsel or otherwise on the argument of an appeal”" under the Act. Unfortunately, the exact meaning and scope of subsection 41(4) of the Canada Transportation Act has never been settled in our jurisprudence. As well, its interrelationship with the Federal Courts Rules has never been discussed.
[21] Many questions arise from subsection 41(4) and the Rules. Is the Agency’s involvement in an appeal a matter of right or does the Court have a discretion to deny entry into the appeal? When can the Agency involve itself in an appeal? How should it go about it? Does it need to bring a motion to involve itself in an appeal? When should it notify the Court that it intends to involve itself in an appeal? Are there limitations on what the Agency can do in an appeal?
[22] The parties have not acquainted the Court with the purposes underlying subsection 41(4), nor has the Court been able to ascertain them with any specificity. All that can be said is that Parliament was evidently of the view that the Agency may need to have a say in a particular appeal.
[23] To some extent, the Court can understand the reasons behind this. The Canada Transportation Act and associated regulations are complex and many of their requirements have serious ramifications for public safety and the larger public interest. These reasons support the view that subsection 41(4) means exactly what its text says: the Agency can involve itself in an appeal whenever it considers it necessary.
[24] There is nothing to suggest that the Agency need be given any formal status before the Court, such as a respondent or an intervener. Subsection 41(4) gives it the right to be heard but it gives it no other rights, such as those possessed by a respondent or an intervener. The presence of the Agency in the appeal will be memorialized by listing the Agency on the backsheet of the Court’s reasons. If the Agency requires a higher degree of participation than that afforded to it under subsection 41(4), such as that of a respondent or an intervener, it may seek that by motion.
[25] Parliament introduced subsection 41(4) in 1996, well after the Supreme Court’s case of Northwestern Utilities in 1978 in which the Supreme Court expressed concern about the involvement of an administrative decision-maker in an appeal from its own decision. Ontario Power Generation, a post-1996 decision, in substance does not introduce concerns different from Northwestern Utilities but is more permissive than Northwestern Utilities about the participation of administrative decision-makers in appeals. One can only conclude that, notwithstanding the concern in Northwestern Utilities, Parliament has decided that the Agency should have standing to speak to an appeal from one of its decisions.
[26] Except for one matter, subsection 41(4) does not speak to any procedural issues. In particular, it does not speak to how it should work alongside the Rules. The one matter is that the Agency has the right to be heard as of right. Therefore, the Agency need not ask for leave to participate in the appeal, such as following Rule 109 to seek leave to intervene in the appeal.
[27] In all respects, then, the Rules have full application to the Agency in this context. Foremost among these is Rule 3, the need for proceedings to go forward in the most expeditious and least expensive way. On most occasions, the Agency cannot assess whether to participate in an appeal until it has seen the parties’ memoranda. As soon as those memoranda have been filed, if the Agency intends to participate in the appeal, it should notify the Court immediately.
[28] Subsection 41(4) speaks to the Agency being "“entitled to be heard by counsel or otherwise”". This means literally that, upon advising the Court and the parties of its intention to participate, the Agency has the right to file a memorandum and make oral submissions, only file a memorandum, or only make oral submissions.
[29] The Agency will have to act in a manner that affords procedural fairness to the other parties. If the Agency intends to make oral submissions at the hearing rather than filing a memorandum of fact and law, before the hearing it will have to disclose, by letter, the nature of those oral submissions to the other parties.
[30] Subsection 41(4) does not impose any limits on what the Agency may address during its participation in the appeal. Nor does it say that there are no limits. Its silence on the issue of limits suggests that the power of the Court to regulate the conduct of an administrative decision-maker participating in the appeal, which pre-existed the enactment of the subsection in 1996, is unaffected. Thus, that power, described in helpful detail in Ontario Power Generation, remains available to the Court.
[31] Subsection 41(4) does not speak to the remedial options the Court can adopt in light of the Agency’s participation. Thus, the full armory of remedies available to the Court in an administrative appeal remain open to it. This includes, only in rare instances, the ability of the Court to decline to send the matter back to the Agency either because no other outcome is available to the Agency or for some other very compelling public interest reason: see paragraph 15, above.
[32] Suppose the Agency has made submissions before the Court that, in substance or tone, go too far and cast into clear doubt its ability to decide the matter sent back to it for redetermination in a manner consistent with actual or apparent impartiality. That may be the sort of rare situation, based on very compelling public interest reasons, requiring the Court to dictate to the Agency the decision on the merits that the Agency should make. . Njoroge v. Canada (Attorney General)
In Njoroge v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the 'intervention' standing of the ruling tribunal, here in a federal case:[12] I turn to the motion by the CJC to be added as a party under Rule 338 or as an intervener under Rule 109. The appellant objects to the motion on the basis that a decision maker should not be a party in a proceeding where its own decision is at issue.
[13] Rule 338 and its associated jurisprudence are not as unequivocal as the appellant contends. The opening words of the Rule are "“[u]nless the Court orders otherwise”". The appropriate role for a decision maker whose decision is in issue in a proceeding is, therefore, a discretionary decision for the Court. The factors that need to be taken into account include the stage of proceedings (whether the proceeding is on the merits or at an interlocutory stage on a procedural issue as here), the substance of the issues on appeal and whether the tribunal appreciates and clearly respects the limitations on its role. A court will also be mindful of the importance of public perception of a tribunal’s impartiality and want to ensure that, whatever the label assigned to a tribunal’s role in the proceedings, neither the perception or reality of its impartiality is compromised (Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147 at para. 57).
[14] Consistent with these considerations, tribunals ought, presumptively, to be added as interveners (Air Passenger Rights v. Canada (Attorney General), 2022 FCA 64; Lukács v. Canada (Transportation Agency), 2014 FCA 292 at para. 17; Canada (Attorney General) v. Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3 at para. 3). As interveners, tribunals often provide contextual evidence, describe their legislative framework and operating procedures and no more. The role of tribunals as interveners is not, however, invariable (Girouard v. Canadian Judicial Council, 2019 FCA 252; Lukács v. Canada (Transportation Agency), 2016 FCA 103).
[15] The objective is to assign to the party/intervener the status that most closely aligns with the principles constraining the role of tribunals on applications for judicial review of their own decisions, and the substance of the issue to be determined by the Court. In this case, the substance of the role that the CJC will be permitted to play on the appeal is the same, regardless of how it is described or labelled—whether as an intervener or respondent.
[16] In this case, several factors point to adding the CJC as a respondent. Its memorandum of fact and law makes clear that it understands and respects the limitations on its role and that it will play no part in defending the decision on the merits (although this appeal, on an interlocutory point, does not address the merits of the judicial review application in any event). Moreover, the central issue on appeal—the question of deliberative privilege—shows the CJC to be, in substance, a true respondent. Finally, there are procedural advantages and added efficiencies if the CJC is joined as a respondent; the filing dates are co-ordinated with those of the other respondent, which will hasten the perfection of the appeal.
[17] The CJC will therefore be added as a respondent to this appeal. . Canadian Pacific Railway Company v. Canada (Transportation Agency)
In Canadian Pacific Railway Company v. Canada (Transportation Agency) (Fed CA, 2021) the Federal Court of Appeal considered the increasingly less-odd situation where the tribunal was heard on appeal:[49] The Agency appeared and was heard on this appeal, as is contemplated by subsection 41(4) of the Act. The jurisprudence has established that where a tribunal is entitled to be heard, it is not entitled to argue the merits of the appeal or to take a position which puts it into an adversarial position with a party who will continue to appear in the future: see Canada (Attorney General) v. Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3, at para.16; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147, at para. 72.
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