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Part 2

. Dow Chemical Canada ULC v. Canada

In Dow Chemical Canada ULC v. Canada (SCC, 2024) the Supreme Court of Canada dismissed an FCA appeal (which in turn was from a Tax Court appeal), of an income tax assessment involving 'transfer pricing adjustment' [under ITA s.247(2)].

In this appeal-route case, an enthusiastic appellant sought to direct this appeal to the Tax Court rather than the Federal Court by way of judicial review under the argument that - in part - the former route was more efficient to the litigants from an access-to-justice perspective. These extracts are the SCC's summary of the case:
I. Overview

[1] This appeal concerns the jurisdiction of the Tax Court of Canada, sitting in appeal of a taxpayer’s assessment, to review the Minister of National Revenue’s decisions under s. 247(10) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (“ITA”). Parliament has conferred on the Minister discretionary authority to decide whether “the circumstances are such that it would be appropriate” to make a downward transfer pricing adjustment. A downward adjustment can only be made in accordance with the ITA where the Minister has come to the opinion that it is appropriate. When the taxpayer seeks to challenge the Minister’s discretionary decision, should that challenge be brought by an appeal to the Tax Court, pursuant to that court’s exclusive statutory jurisdiction to decide on the correctness of the taxpayer’s income tax assessment? Or should the taxpayer’s challenge be brought instead before the Federal Court of Canada, pursuant to that court’s exclusive statutory jurisdiction over judicial review, proceeding on the presumptively applicable standard of reasonableness?

[2] Dow Chemical Canada ULC argues that a review of the Minister’s decision under s. 247(10) of the ITA falls within the exclusive jurisdiction assigned to the Tax Court because that decision directly affects or is inextricably linked to the assessment of tax liability. Dow says its position advances the cause of fairness and convenience for all taxpayers, including multinational corporations like itself, that might benefit from one-stop judicial shopping in the Tax Court. Accordingly, Dow asks this Court to enlarge the statutory jurisdiction of the Tax Court on appeal by providing it with a new power to conduct what amounts to judicial review of the Minister’s decision on a reasonableness standard.

[3] I have had the advantage of reading the reasons prepared by my colleague Côté J. in which she proposes to allow Dow’s appeal. I agree with her that the Federal Court has exclusive statutory jurisdiction to grant relief in relation to federal ministerial decisions under s. 18(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. We share the view that s. 18.5 of that Act allows for this jurisdiction to be ousted where a federal statute, such as the ITA, expressly provides for an appeal to another body, including the Tax Court. I agree as well that the Tax Court has exclusive jurisdiction to hear appeals seeking to vary or vacate income tax assessments pursuant to s. 12 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, and s. 169 of the ITA. For both of us, the central question before the Court is whether the Minister’s decision under s. 247(10) is part of an assessment, and thus subject to the jurisdiction of the Tax Court, or whether as a separate exercise of ministerial discretion it should be subject to judicial review, on the standard of reasonableness, before the Federal Court.

[4] With the utmost respect, however, I am unable to agree with the view that the Minister’s decision under s. 247(10) can be appealed as part of an assessment to the Tax Court. Allowing this matter to be heard on appeal in the Tax Court as part of an assessment would require this Court to accept Dow’s expansive jurisdictional theory, based not on an express provision of an act of Parliament as s. 18.5 of the Federal Courts Act requires, but on what Dow claims is fair and best for access to justice. In my view, ousting the Federal Court’s jurisdiction in the absence of express direction by statute and enlarging the Tax Court’s review function would prompt new controversy over jurisdictional boundaries, all in service of supposed benefits for access to justice that strike me as largely illusory. Parliament plainly did not intend for the Tax Court to serve as an exclusive forum for taxation matters; it expressly granted by statute some jurisdiction over taxation matters to the Federal Court, some to the Tax Court, and even some original jurisdiction in taxation matters to the Federal Court of Appeal.

[5] Dow’s submissions, if accepted, would disturb settled jurisprudence, including this Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, by changing rules on standard of review, in particular for the “appeal” before the Tax Court pursuant to s. 169(1) of the ITA. Further, Dow’s position would upset Parliament’s choice to leave judicial review of discretionary administrative acts to the Federal Court, where an appropriate standard of reasonableness review may be applied and where the proper administrative law remedies are available. Dow’s theory would lead to a significant erosion of the statutory jurisdiction of the Federal Court, in tax law and potentially in other areas, where judicial review is available to supervise discretionary authority that Parliament has conferred on the executive branch of government.

[6] Importantly, Dow seeks to undermine Parliament’s design of limiting the Tax Court’s appeal jurisdiction to reviewing the correctness of assessments by changing the foundational notion of an assessment in tax law. In arguing that the s. 247(10) decision is inextricably linked to an assessment and subject to a single recourse before the Tax Court, Dow relies on a changed understanding of an “assessment” that is entirely out of step with settled law. Dow would transform the very foundation of the Tax Court’s statutory mandate to hear appeals by departing from a long-settled precedent of this Court defining an assessment in Okalta Oils Ltd. v. Minister of National Revenue, 1955 CanLII 70 (SCC), [1955] S.C.R. 824, a leading case that Dow did not cite in its argument before us. Dow’s reformulation of the concept of an “assessment” is also inconsistent with the understanding of a tax assessment as a “product” and not a “process”, a well‑established principle in the jurisprudence of the Federal Court of Appeal (see, e.g., Main Rehabilitation Co. v. Canada, 2004 FCA 403, 247 D.L.R. (4th) 597; Canada v. Anchor Pointe Energy Ltd., 2007 FCA 188, [2008] 1 F.C.R. 839, cited in C.A. reasons, 2022 FCA 70, [2022] 5 C.T.C. 1, at paras. 72-74). As Webb J.A. explained in this case, the Minister’s “opinion” in s. 247(10) of the ITA may directly affect a tax assessment where one is issued, but that does not make it part of the assessment. In s. 247(10), Parliament has delegated to the Minister — not to the Tax Court — the authority to make a discretionary determination about whether in the circumstances it is appropriate that the downward adjustment be made. I agree with the view that this is a separate decision that stands apart from the assessment. In order to vacate or vary the assessment on appeal in a manner that would impact a denial of a downward transfer pricing adjustment, the Tax Court would have to quash the decision and substitute its opinion for that of the Minister, authority the Tax Court does not have on an assessment appeal.

[7] By empowering the Minister to weigh her “opinion” of whether circumstances are such that it would be appropriate to depart from the ordinary rule and permit a downward adjustment, Parliament has conferred on the Minister, by s. 247(10), a policy-based discretionary decision-making power that is distinct from an assessment. This is no less true by reason of the fact that the Minister’s decision directly affects tax liability and the fact that the Minister’s decision will sometimes be reflected in an assessment, although a new assessment is not always issued after the Minister makes her decision. With due regard to the essential nature of Dow’s claim — which questions whether the exercise of ministerial discretion was reasonable — its grievance is one of administrative law that has been reframed as an appeal to the Tax Court relating to amounts owing in the assessment. It would appear that Dow sensed this when it started this litigation in Federal Court with an application for judicial review within the applicable limitation period after the Minister’s decision was made in 2013, four years before its appeal to the Tax Court following a reassessment in 2017.

[8] The foundational principles of administrative law set forth by this Court in Vavilov dictate that the Minister’s discretionary decision, the authorization for which was conferred by statute, is presumptively subject to judicial review on the standard of reasonableness. Dow argues that this decision can be reviewed before the Tax Court as part of an appeal from an assessment and that in this context a reasonableness standard applies. Indeed, Dow goes as far as to assert that “[t]he description by this Honourable Court in Vavilov of a ‘reasonableness review’ is equally apposite to the review that the Tax Court would undertake in an appeal of an assessment based on the Minister’s exercise of discretion under a provision like s. 247(10)” (A.F., at para. 97, citing Vavilov, at para. 15; see also transcript, at pp. 10-15). This directly contradicts the principle, made clear in Vavilov, at para. 37, that the availability of a recourse other than judicial review indicates that the legislature intends for the reasonableness standard to be displaced. In the case of “appeals” of assessments to the Tax Court under s. 169(1) of the ITA, Parliament has put in place a de novo review process which is in the nature of a trial, in which both sides adduce evidence and make submissions and in which the Tax Court decides factual questions on the balance of probabilities. A review of ministerial decisions for reasonableness has no place in the context of Tax Court “appeals”. Accepting Dow’s approach would give the Tax Court the power to review not just the application of tax law to the facts, but the power to review discretionary tax policy decisions of the Minister.

[9] In service of its view of the Tax Court’s appeal jurisdiction founded on this expanded notion of assessment, Dow advances a framework of analysis where deference to the Minister based on reasonableness or another deferential standard would apply to the s. 247(10) decision. This cannot be reconciled with the principle from Vavilov that the appeal mechanism the legislature has crafted — here the de novo process under s. 169(1) of the ITA — determines the applicable standards of review (paras. 36 et seq.). Whether the applicable standards for the review of the s. 247(10) discretionary decision are those in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, or some other appellate standard developed for reviewing administrative action by analogy to the exercise of judicial discretion raises issues of broad significance for the applicable standard of review in administrative law. The Tax Court judge also proposed a different standard from that in Vavilov and that associated with the de novo appeal proceeding under s. 169(1). She said the Minister must form her opinion “judicially” or “properly” and, if this was not done, it could be corrected by the Tax Court rather than on a reasonableness standard upon judicial review to the Federal Court (2020 TCC 139, [2021] 2 C.T.C. 2063, at paras. 142-44 and 165). I respectfully disagree with these characterizations of the applicable standard of review which I see as errors of law.

[10] Equally problematic is Dow’s position on available remedies which, in the end, invites this Court to expand the Tax Court’s powers by giving “guidance . . . as to whether the Tax Court has the ability to substitute its opinion . . . for that of the Minister” under s. 247(10) (A.F., at para. 101). In ruling on the assessment, the Tax Court cannot quash a discretionary decision of the Minister and cannot substitute its own opinion for that of the Minister acting under her delegated statutory authority. It bears recalling too that the remedies provided for in the Federal Courts Act may only be obtained on an application for judicial review to the Federal Court.

[11] These are all signs, I fear, that an embrace of Dow’s position would undermine basic administrative law principles on standard of review and remedy and leave the dividing line between the Federal Court and the Tax Court’s respective jurisdictions in disarray. These complications are avoided if it is recognized, contrary to Dow’s argument, that this distinct, discretionary decision-making power of the Minister, conferred upon her by Parliament in s. 247(10) of the ITA, is subject to judicial review in the Federal Court on a reasonableness standard, where there is an appropriate set of available statutory remedies, pursuant to the Federal Courts Act.

[12] Dow’s position also puts in jeopardy settled principles governing the jurisdiction of the Federal Court which, like the Tax Court, is a creature of statute. The Federal Court’s exclusive jurisdiction to conduct judicial review of federal administrative action — such as the Minister’s discretionary decisions under s. 247(10) — can only be excluded where there is an “express” statutory appeal mechanism in accordance with s. 18.5 of the Federal Courts Act that ousts the supervisory jurisdiction of the Federal Court. By setting the high bar that the route of appeal must be provided for expressly, Parliament ensured that exceptions to the Federal Court’s jurisdiction would flow from considered legislative direction rather than ad hoc development in the courts. Dow’s argument that jurisdiction can be conferred on the Tax Court by “necessary implication” rather than by “express” legislative provision ought to be rejected as being plainly inconsistent with the language, context, and purpose of s. 18.5. Dow’s theory would lower this bar by interpreting s. 18.5 to exclude the Federal Court’s jurisdiction not just where a decision is subject to an express statutory appeal, but also where it is merely captured by an appeal provision by implication. Beyond its significant encroachment on the Federal Court’s jurisdiction in tax law, Dow’s theory is likely to provoke litigation about which discretionary decisions are caught, implicitly, by statutory appeal provisions in other settings. This does not appear consonant with the aspirations for efficient access to justice.

[13] Dow nevertheless says it advances its theory in service of the public good of access to justice, invoking the advantages its proposed innovation would achieve for unrepresented litigants before the Tax Court. This Court must of course always be mindful of the challenges to access to justice in the matters before it. It is trite law in this field that “parallel proceedings” are to be avoided and that the statutory rules should, insofar as possible, be interpreted accordingly (Walker v. Canada Customs and Revenue Agency, 2005 FCA 393, 344 N.R. 169, at para. 11). And judicial review is of course an avenue of last resort in our law. But as important as it is, access to justice cannot displace settled understandings of Parliament’s intended division of jurisdiction between the Tax Court and the Federal Court that have meaningful purpose. Here, the proceedings challenge a decision of the Minister in a way that the Tax Court is neither charged nor equipped to undertake. “One-stop shopping” at the Tax Court would come at the expense of the remedies the taxpayer can find in the Federal Court based on considerations of relief available on judicial review, including quashing a ministerial decision. By proceeding to the Tax Court as a single venue, the taxpayer would find no redress and lose the opportunity to ask a competent court to supervise the Minister’s exercise of statutory power to ensure that the administrative actor did not overstep their legal authority in arriving at the discretionary decision. Moreover, even on Dow’s expansive view of the assessment, in circumstances in which the Minister’s decision under s. 247(10) leads to no assessment, the Tax Court has no power whatsoever to do the work that rightly should be done by the Federal Court. Respectfully stated, I am unmoved by Dow’s claim that it is before us to fight the fight of the unrepresented litigant who would benefit from the simplified procedure before the Tax Court. It is indeed those taxpayers who, in many circumstances, need the protection that judicial review and judicial review alone can provide against the wayward exercise of ministerial discretion.

[14] It is plainly in the legislative branch where far-reaching considerations related to the jurisdictional divide between the Federal Court and the Tax Court should be studied and considered. It has been usefully suggested that Parliament is the proper forum for achieving certain changes to s. 247 (see D. Sandler and L. Watzinger, “Disputing Denied Downward Transfer-Pricing Adjustments” (2019), 67 Can. Tax J. 281, at pp. 307-8). Others have decried the ad hoc character of the development of the law in this area and have called for a “comprehensive” exercise of law reform (M. H. Lubetsky, “The Fractured Jurisdiction of the Courts in Income Tax Disputes”, in P. Mihailovich and J. Sorensen, eds., Tax Disputes in Canada: The Path Forward (2022), 63, at p. 65). The courts, including this Court, are not institutionally designed to undertake such tasks and must be mindful of unanticipated consequences of changing jurisdictional boundaries between courts.

[15] When asked at the hearing what the effect of recognizing a jurisdiction for the Tax Court to review discretionary decisions of the Minister would be, counsel for Dow acknowledged that it would be “a bit of a revolution” (transcript, at p. 85). But, he said, that was why Dow brought the case to the Supreme Court. In my view, this Court should decline this invitation and leave the matter to Parliament and its informed measure of the public policy implications of any such change to the Tax Court’s and the Federal Court’s respective jurisdictions.

[16] Applying the settled principles that govern the nature of a tax assessment, the divided statutory jurisdiction between the Federal Court and the Tax Court in income tax matters, and the standard of review and remedial relief associated with general principles of judicial review in administrative law, I conclude that the challenge to a decision of the Minister under s. 247(10) is outside the appellate jurisdiction of the Tax Court. It is the proper and exclusive subject matter of judicial review before the Federal Court. I would therefore propose to dismiss the appeal.
. Wilson v. Meeches

In Wilson v. Meeches (Fed CA, 2023) the Federal Court of Appeal considers dismissing an appeal for mootness, noting that a full(er) panel is required:
[32] Given the dismissal of this motion and the reasons for it, it appears that this appeal should also be dismissed for mootness.

[33] Only a panel of this Court can dismiss an appeal: section 16 of the Federal Courts Act, R.S.C. 1985, c. F-7. Therefore, we shall now constitute a panel to determine whether this appeal should be dismissed for mootness. The panel will consider the filings in this motion and any other written submissions the parties wish to file. The Court’s Order on this motion will set a schedule for the exchange of written submissions.
. Devine v. Canada

In Devine v. Canada (Fed CA, 2023) the Federal Court of Appeal set out doctrine on striking a notice of appeal:
[5] In Zhou v. Canada (Citizenship and Immigration), 2013 FCA 194 this Court confirmed, in paragraph 2, that a Notice of Appeal can be struck where this Court:
... has no jurisdiction over the appeal, where the appeal manifestly lacks substance as to bring it within the character of a vexatious proceeding, where the appeal serves no practical purpose, or where it is “plain and obvious” that the appeal has no chance of success: Sellathurai v. Canada (Minister of Public Security), at paras. 7-8; Arif v. Canada (Citizenship and Immigration), 2010 FCA 157, 321 D.L.R. (4th) 760 at para. 9.
. Oleynik v. Canada (Attorney General)

In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal contrasts the role of a reconsideration [under R397] and an appeal:
[29] I agree with the Federal Court that “Rule 397 is not meant to be an appeal in disguise, allowing [Dr. Oleynik] to re-argue an issue a second time in the hope that the Court will change its mind” (Second Decision at para. 5). A claim that the Federal Court applied the wrong legal test in the First Decision is a subject matter for appeal, not a reconsideration motion. ...
. Oleynik v. Canada (Attorney General)

In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and granted) a motion to quash an appeal:
[2] The Attorney General of Canada has brought a motion in writing for an order quashing the proceedings pursuant to section 52(a) of the Federal Courts Act ['Powers of Federal Court of Appeal, Quashing'], R.S.C. 1985, c. F-7, and the Court’s plenary powers, or for an order removing the notice of appeal from the Court file pursuant to Rule 74(1) of the Federal Courts Rules ['Removal of documents' from court file], S.O.R./98-106 (Rules).

[3] The Attorney General submits that Dr. Oleynik’s notice of appeal is irregular and should not have been accepted by the Court for filing because it was filed too late to appeal the First Decision. The Attorney General says the reconsideration motion did not relieve Dr. Oleynik from timely filing a notice of appeal for the First Decision.

[4] As to the Second Decision, the Attorney General submits it is bereft of any chance of success and amounts to a collateral attack on the First Decision. Thus, says the Attorney General it should be quashed.

[5] Dr. Oleynik denies the notice of appeal is irregular and in any event points to Rule 56: “Non-compliance with any of these Rules does not render a proceeding…void, but instead constitutes an irregularity, which may be addressed under rules 58 to 60”. Dr. Oleynik further submits his appeal of the First Decision is not late because it could not be appealed until the Second Decision was rendered. In the alternative, he seeks an extension of time to May 19, 2023, the date he filed the notice of appeal.


[19] This Court has the power to quash an appeal that has no reasonable prospect of success and is manifestly doomed to fail: Tétreault c. Boisbriand (Ville), 2023 CAF 159 at para. 8; Martinez v. Canada, 2019 FCA 282 at para. 9; Lessard-Gauvin c. Canada (Procureur général), 2013 CAF 147; Yukon Conservation Society v. National Energy Board (1978), 1978 CanLII 3638 (FCA), [1979] 2 F.C. 14, 95 D.L.R. (3d) 655, at 18 (FCA), citing among others National Life Assur. Co. Of Canada v. McCoubrey, 1926 CanLII 73 (SCC), [1926] S.C.R. 277, [1926] 2 D.L.R. 550.
. Shull v. Canada

In Shull v. Canada (Fed CA, 2023) the Federal Court of Appeal dismissed an appeal of an interlocutory order, as the Federal Court Act [s.27(1.2)] provided that no such (informal and from the Tax Court) final orders were appealable to it:
[2] Subsection 27(1.2) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act) is clear: only a final judgment of the Tax Court in informal proceedings may be appealed to this Court. Subsection 2(1) of the Act defines a "“final judgment”" as "“any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding.”" The word "“proceeding”" in this definition refers to the very matter that is before the court, rather than a component of the matter, such as a motion (Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145, 461 N.R. 327 at para. 21, leave to appeal to SCC refused, 36035 (12 March 2015) [Alderville]).

[3] The order appealed from is not a final judgment. It does not determine any substantive right of either party, nor does it dispose of a "“proceeding”" as defined by this Court; for these reasons, the order falls outside the scope of subsection 27(1.2) of the Act, and the appeal is outside the scope of this Court’s jurisdiction. To elaborate, the order determines only a collateral, procedural right (the appellant’s right to have portions of the respondent’s pleadings excluded) without determining the substantive right that the underlying appeal seeks to assert (the appellant’s right to have the respondent’s reassessments vacated). Similarly, the motion at issue is not a "“proceeding”" for the purposes of this appeal, and is instead only a component of the appellant’s appeal from the respondent’s reassessments.

[4] This Court has confirmed that an order of the Tax Court with these effects is interlocutory, as opposed to final, in nature (National Benefit Authority Corporation v. Canada, 2022 FCA 17, 2022 D.T.C. 5011 at paras. 10-11, leave to appeal to SCC refused, 40137 (18 August 2022), applying Alderville at paras. 21-24). I add that this Court has also repeatedly characterized orders resulting from motions to strike portions of the Crown’s reply as interlocutory (Heron v. Canada, 2017 FCA 229, 2017 D.T.C. 5130 at para. 1; Tuccaro v. Canada, 2016 FCA 259, 2016 D.T.C. 5117 at paras. 1 and 27; Cameco Corporation v. Canada, 2015 FCA 143, 474 N.R. 333 at para. 1).

[5] The timing of the order further supports its characterization as interlocutory. Interlocutory decisions are typically made before the hearing of the matter as part of the resolution of a pre-hearing dispute; they are ordinarily not argued together, or otherwise intertwined, with the hearing on the merits which determines a party’s substantive rights (Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111, 2022 CarswellNat 2036 (WL Can) at paras. 27-28). The motion in this case was brought before the appeal on the merits in a step entirely separate from any determination of the appellant’s substantive rights. This degree of separation from the appellant’s original appeal simply confirms the conclusion that the order in issue is not a final judgment of the Tax Court.
. Canada (Attorney General) v. Johnson

In Canada (Attorney General) v. Johnson (Fed CA, 2023) the Federal Court of Appeal declined to remit an administrative decision back down, and decided it anew as the law was 'inevitable':
[17] For these reasons, I would allow the application for judicial review. Although courts should generally respect Parliament’s intention to entrust matters to administrative decision-makers, it may be appropriate to decline to remit a matter to an administrative decision-maker where it is evident to the Court that a particular outcome is inevitable: Canada (Attorney General) v. Burke, 2022 FCA 44 at paras. 115-117.

[18] In my view, given the law and the findings of fact in this case, no useful purpose would be served by remitting the matter back to the Social Security Tribunal (Appeal Division) for redetermination because only one reasonable conclusion would be open to it. Counsel for the applicant agrees. Accordingly, I would set aside the decision of the Social Security Tribunal (Appeal Division) dated May 10, 2022 and, giving the order it should have given, allow the Commission’s appeal of the decision of the Social Security Tribunal (General Division), all without costs.
. Coote v. Canada (Human Rights Commission)

In Coote v. Canada (Human Rights Commission) (Fed CA, 2021) the Federal Court of Appeal considered it's inherent authority to dismiss an appeal:
[16] In addition to the authority conferred by rule 74, the Court has jurisdiction to manage and regulate particular proceedings before it and, where appropriate, summarily dismiss an appeal by using its broad plenary powers. These powers have frequently been used, for example, to reject proceedings that are, among other things, frivolous or an abuse of the process of the Court (Fabrikant v. Canada, 2018 FCA 171, at para. 3). Recently, in Dugré v. Canada (Attorney General), 2021 FCA 8, the Court had this to say on the origin and underlying principles of its plenary powers:
[19] This Court has jurisdiction to summarily dismiss an appeal. Although the Federal Courts Rules, SOR/98-106 (the Rules) do not contain any specific provision allowing for the summary dismissal of an appeal, the Court has exercised this jurisdiction for decades (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 (C.A.), at page 600).

[20] This power stems from the Court’s plenary jurisdiction (Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 443 N.R. 378, at para. 36; Lee v. Canada (Correctional Service), 2017 FCA 228 [Lee], at para. 6). This Court has not only the powers conferred by statute but also the powers necessary for its effective functioning (Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, 224 N.R. 241; Lee, at paras. 2, 7-15; Fabrikant v. Canada, 2018 FCA 171, at para. 3 and the cases cited therein). As the Court explains in Lee, the Federal Courts, as part of the judicial branch of the government, must have the powers necessary to manage their own proceedings (Lee, at para. 8).

[21] This power also manifests itself in the Rules through the combined effect of Rule 74 (removal of proceedings brought without jurisdiction), Rule 4 (the gap rule) and Rule 55 (power to vary a rule, in this case Rule 74, in “special circumstances”).
. Democracy Watch v. Canada (Attorney General)

In Democracy Watch v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered factors involved when a single judge of the court, hearing an interlocutory injunction, should refer the matter to a full panel:
D. The jurisprudence on whether the motion should be decided now

[20] Interlocutory motions such as this are heard by a single judge of this Court. Where appropriate, the judge can decline to deal with the motion and adjourn it to the appeal panel for its consideration. This is a discretionary call based on certain principles. The most complete, recent discussion of these principles is found in Mediatube Corp. v. Bell Canada, 2018 FCA 127, 156 C.P.R. (4th) 289.

[21] Rule 3 in the Federal Courts Rules, S.O.R./98-106 governs the Court’s discretion: the Court is to "“secure the just, most expeditious and least expensive determination of every proceeding on its merits”". Amgen Canada Inc. v. Apotex Inc., 2016 FCA 196, 487 N.R. 202 spells out some of the more salient elements in Rule 3 that affect the Court’s discretion (at para. 10):
Where the motion is clear-cut or obvious, it might as well be decided right away. Efficiency and judicial economy support this: Collins v. Canada, 2014 FCA 240, 466 N.R. 127 at paragraph 6; Canadian Tire Corp. Ltd. v. P.S. Partsource Inc., 2001 FCA 240, 267 N.R. 135. However, if reasonable minds might differ on the outcome of the motion, the ruling should be left to the panel hearing the appeal: McKesson Canada Corporation v. Canada, 2014 FCA 290, 466 N.R. 185 at paragraph 9; Gitxaala Nation v. Canada, 2015 FCA 27 at paragraph 7. Sometimes the novelty, quality or incompleteness of the submissions may make it sensible to leave the motion for the appeal panel to determine: Gitxaala Nation, above at paragraphs 9-12.

(See also Mediatube at paras. 9-11 and Canada (Attorney General) v. Oshkosh Defense Canada Inc., 2018 FCA 102 at paras. 40-42.)
[22] Another important factor is whether an advance ruling would allow the hearing to proceed in a more timely and orderly fashion: Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189 at para. 11, citing Collins v. Canada, 2014 FCA 240, 466 N.R. 127 at para. 6 and McConnell v. Canada (Canadian Human Rights Commission), 2004 FC 817, 51 C.H.R.R. 228, aff’d 2005 FCA 389; see also Mediatube at paras. 12-13.


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Last modified: 08-07-24
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