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Federal Courts - Appeals (2). You v. Canada (Attorney General)
In You v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from three dismissals of JRs against CRA decisions that the appellant "did not qualify for three benefits: the Canada Emergency Response Benefit, the Canada Recovery Benefit and the Canada Worker Lockdown Benefit".
Here the court considers the appellate approach that applies when "the Federal Court’s judgment dismisses all three applications for judicial review, its reasons address only one of them":[2] Although the Federal Court’s judgment dismisses all three applications for judicial review, its reasons address only one of them: the application concerning the Agency denying Ms. You the Canada Recovery Benefit. The reasons do not deal with Ms. You’s applications for the Canada Emergency Response Benefit and the Canada Worker Lockdown Benefit.
[3] When the Federal Court does not offer reasons in support of an order or judgment, this Court considers the matter de novo or re-does it from scratch: Plante v. Canada (Correctional Services), 2005 FCA 120 at para. 2; Canada (Attorney General) v. Larkman, 2012 FCA 204 at para. 60; Mathias v. Canada, 2017 FCA 19. In appeals from applications for judicial review, this Court does that anyway: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-46. . Northback Holdings Corporation v. Canada (Environment and Climate Change)
In Northback Holdings Corporation v. Canada (Environment and Climate Change) (Fed CA, 2025) the Federal Court of Appeal dismissed a motion, here to dismiss an appeal.
The court considers how to "read pleadings", here appeal pleadings:[14] The Court must read pleadings, like the notice of appeal here, "“holistically and practically”" and "“without fastening onto matters of form”" to understand "“the real essence”" of the appeal and gain "“‘a realistic appreciation’ of [its] ‘essential character’”": JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50; Canadian National Railway Company v. Canada (Transportation Agency), 2023 FCA 245 at para. 14; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at para. 51; Canada (Attorney General) v. Benjamin Moore & Co., 2023 FCA 168 at para. 34.
[15] Part of reading the pleadings "“holistically and practically”" and "“without fastening onto matters of form”" is to understand that they are part of a larger litigation process. In the case of notices of appeal, there may be other documents in the appeal process that can shed light on them. For example, while an appellant’s memorandum of fact and law cannot go beyond the ambit of the notice of appeal, it may nevertheless be useful in interpreting the meaning of the words in the notice of appeal. And since notices of appeal drive off of the judgment and reasons of the first-instance court, the notice of appeal must be read in light of those documents, and also any memoranda of fact and law that led to them. See Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, [2021] 3 F.C.R. 206 at para. 51; Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 29-30. This is especially so here, where the Federal Court’s judgment expressly remits the matter back for "“redetermination in accordance with the Court’s [r]easons”".
[16] The appellant’s notice of appeal must supply a "“complete...statement of the grounds intended to be argued”": Rule 337 of the Federal Courts Rules, S.O.R./98-106. When interpreting the notice of appeal, the Court must not read into the grounds something that, on any fair interpretation, is not really there.
[17] In this case, Canada says that Northback is appealing from a Federal Court judgment that gave them everything they wanted — remittal back for redetermination.
[18] That is true only if one interprets Northback’s notice of appeal in a formal, literal sense and with tunnel vision. A wider, context-sensitive, holistic and practical approach leads to a different conclusion. Northback didn’t want remittal back on any old issue. It wanted remittal back for redetermination on the issue it cared about — whether the report was so defective that it was not a "“report”" under the Canadian Environmental Assessment Act, 2012. And that issue is arguable given the authorities of this Court: see, e.g., Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 F.C.R. 3 at paras. 769-770. . Canada (Attorney General) v. Onex Corporation
In Canada (Attorney General) v. Onex Corporation (Fed CA, 2024) the Federal Court of Appeal dismissed a motion by the respondent to quash a Crown appeal, this appeal being from "a decision of the Federal Court (2024 FC 1247, per Régimbald J.) granting the judicial review of two decisions of the Minister of National Revenue" regarding ITA remedial matters,
The basis of the motion to quash was that the Notice of Appeal was inadequate, and left the respondent without notice of the appeal issues they faced:[4] The respondents’ position is that the notice of appeal is "“brief and imprecise”", "“devoid of any explanation of the legal bases and material facts supporting the conclusions alleged by the [a]ppellant”", "“bereft of any chance of success”", and "“manifestly doomed to fail”": Respondents’ Written Representations at paras. 29-31, 47. They submit that this Court has the power to quash the notice of appeal on that basis, and that it should do so and summarily dismiss the appeal.
[5] In further support of their motion, the respondents assert that an appeal’s lack of substance may be "“demonstrated by the absence of any argument, fact, or legal basis in [the] notice of appeal”", such that "“the respondent is not given fair notice of the case that has to be met”": Respondents’ Written Representations at para. 37, citing Martinez v. Canada (Communications Security Establishment), 2019 FCA 282, leave to appeal to SCC refused, 39061 (30 April 2020) [Martinez]. This, the respondents assert, results in an abuse of process.
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[14] Rule 337 of the Federal Courts Rules, SOR/98-106, describes the content of a notice of appeal. Relevant here is the requirement in paragraph (d) that it contain "“a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on”".
[15] Read in the context of the Federal Court’s reasons, and bearing in mind the applicable standard of review on an appeal of a judicial review, in my view the appellant’s notice of appeal meets this requirement. It articulates a concise statement of the first ground the appellant intends to argue and refers to the statutory provisions relied on in support of that ground.
[16] The notice of appeal also sets out a second ground of appeal. That is, even if the Minister had the authority to grant the respondents an extension of time to file the election, her refusal to do so is reasonable and the Federal Court erred by failing to properly consider the Minister’s reasons for doing so. While one may view the second ground as lacking some detail, it does not warrant quashing the notice of appeal. Rather, read in light of the Federal Court’s reasons and the notice of appeal as a whole, I consider it adequately stated. The purpose of the appellant’s memorandum of fact and law is to elaborate on the grounds of appeal.
[17] Finally, I reject the respondents’ assertion that they do not have notice of the case they have to meet. It is evident they do because their written representations on this motion are almost entirely devoted to defending the Federal Court’s decision and explaining why the first ground of appeal is "“baseless”".
[18] Undoubtedly, the respondents disagree that the Minister’s decisions are reasonable and that the Federal Court erred. The respondents may be right—the appeal may fail. However, I agree with the appellant that, in bringing this motion, the respondents effectively seek to argue the merits of the appeal solely based on the Federal Court’s reasons. That they cannot do.
[19] Here, the respondents brought their motion before the deadline for the parties to file the agreement regarding the content of the appeal book. Neither the administrative decisions, nor the material before the decision-maker when she rendered the decisions, are in the Court record for this motion. . Li v. Canada (Citizenship and Immigration) [removing docs from court file as de facto quashing: FCA s.74(d)]
In Li v. Canada (Citizenship and Immigration) (Fed CA, 2024) the Federal Court of Appeal (Stratas JA) dismissed an appeal, here from a court 'direction' (not from an 'order') that "the appellant’s motion for a stay of removal was premature because travel documents for the appellant were not ready". 'Directions' can't be appealed, thus raising a lack of jurisdiction argument and respondent countered with a Rule 74 motion to 'remove document from the court file', which - in conjunction with the Federal Court's 'plenary' authority under Constitution Act, 1867 s.101 - serves in some Federal Court contexts as a de facto quashing of an appeal:[1] The appellant appeals from a direction of the Federal Court. The Federal Court directed that the appellant’s motion for a stay of removal was premature because travel documents for the appellant were not ready. As a result, the Federal Court refused to schedule the motion.
[2] The respondents now move for an order terminating this appeal. Specifically, the respondents invoke Rule 74 of the Federal Courts Rules, SOR/98-106. That Rule provides that the Court may order that a document, here the notice of appeal, be removed from a court file if, among other things, the filing of the document is contrary to an Act of Parliament.
[3] Alongside Rule 74 are the Court’s plenary powers — the implied and necessarily incidental but very real powers it possesses as a Court under section 101 of the Constitution Act, 1867 (UK), 20 & 31 Vict, c. 3, s. 101, reprinted in R.S.C. 1985, Appendix II, No. 5, a Court of equal status and standing with others in this country.
[4] In the case of notices of appeal, Rule 74 and the Court’s plenary powers have empowered the Court to remove a notice of appeal where the Court lacks jurisdiction to hear an appeal or the appeal is doomed to fail from the outset: Dugré v. Canada (Attorney General), 2021 FCA 8 and the cases cited at paras. 19-24; Virgo v. Canada (Attorney General), 2019 FCA 167; Coote v. Canada (Human Rights Commission), 2021 FCA 150; Lee v. Canada (Correctional Service), 2017 FCA 228. This Court has exercised this power in the immigration context: see Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 144, [2018] 2 F.C.R 344, Wong v. Canada (Citizenship and Immigration), 2016 FCA 229, 487 N.R. 294 and Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 (all attempts to appeal a Federal Court order in the face of the bars against appeals in the Immigration and Refugee Protection Act, S.C. 2001, c. 27).
[5] Here, this Court lacks jurisdiction to hear this appeal and so under Rule 74 and the plenary powers of the Court, the notice of appeal must be removed from the Court file and the Court file closed.
[6] Before the Court is an appeal from a direction of the Federal Court. The general rule is that such directions cannot be appealed to this Court: Tajdin v. His Highness Prince Karim Aga Khan, 2012 FCA 238; Simon v. Canada (Attorney General), 2019 FCA 28; Froom v. Canada, 2003 FCA 141, 312 N.R. 282.
[7] This general rule admits of at least one exception. If a direction affects the rights of a party in a substantial way, for example in the sense of foreclosing substantive arguments for all time or imposing procedures that are fundamentally unfair and prejudicial, the party may ask the Federal Court to embody its direction in a formal order so that it can be appealed. A good example is seen in Subhaschandrun v. Canada (Solicitor General), 2005 FCA 27, 249 D.L.R. (4th) 269, where the Federal Court refused to deal with a request for a stay of a removal order, adjourning the matter to a time when the request would be moot.
[8] The appellant did not pursue that recourse in the Federal Court. Nor could it have done so. The direction here is only about the timing of a stay motion. I am not persuaded that the timing of the stay motion affects the appellant’s substantive arguments or rights for all time or works any fundamental unfairness or prejudice to the appellant. . Wiseau Studio, LLC v. Harper
In Wiseau Studio, LLC v. Harper (Fed CA, 2024) the Federal Court of Appeal dismissed a second appeal of a ruling that "granted the respondents’ motion to dismiss" a copyright infringement claim "on the ground of cause of action estoppel."
Here the court stated it's SOR for "reviewing a Federal Court decision on an appeal from an order of an associate judge":[2] When reviewing a Federal Court decision on an appeal from an order of an associate judge, this Court will only intervene if the Federal Court judge’s refusal to interfere with the associate judge’s decision was premised on an error of law or a palpable and overriding error of fact or mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at paras. 83-84 [Hospira]. . Iris Technologies Inc. v. Canada
In Iris Technologies Inc. v. Canada (SCC, 2024) the Supreme Court of Canada dismisses an appeal regarding "the shared statutory jurisdiction in tax matters of the Tax Court of Canada and the Federal Court of Canada":[2] It brings into plain focus the divide between the exclusive jurisdiction of the Tax Court to hear “appeals” relating to the correctness of tax assessments and the exclusive jurisdiction of the Federal Court to conduct judicial review in tax matters. The appeal in this case helps explain why the appeal in Dow should — as the Federal Court of Appeal held — give rise to a different outcome, based on a principled understanding of the distinct statutory foundations for the exclusive jurisdiction of these two courts established by Parliament.
[3] In the result, I agree with the conclusion of my colleague Côté J. to dismiss the taxpayer’s appeal before our Court but, with respect, my conclusion rests on different reasons.
[4] In my view, the Federal Court of Appeal’s reasoning is entirely well founded, including its statement that the Tax Court does not have jurisdiction where the true purpose of an application for judicial review is to “seek practical relief against the exercise of a discretion” by the Minister of National Revenue (2022 FCA 101, [2022] 1 F.C.R. 401, at para. 13). As Rennie J.A. observed, in the circumstance of ministerial discretion, the statutory rule ousting Federal Court jurisdiction in judicial review in favour of the Tax Court does not apply. This explains, as Rennie J.A. said for the court, why the outcome of the Federal Court of Appeal’s decision in Canada v. Dow Chemical Canada ULC, 2022 FCA 70, [2022] 5 C.T.C. 1 (“Dow FCA”), is favourable to the Federal Court’s jurisdiction where the discretionary ministerial decision under s. 247(10) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (“ITA”), was at the centre of the jurisdictional debate.
[5] In other words, the Federal Court of Appeal in this case confirmed its decision in the partner case of Dow FCA in which it recognized the exclusive jurisdiction of the Federal Court over a ministerial discretionary decision provide for by the ITA. In this case, the Federal Court of Appeal recognized the exclusive jurisdiction of the Tax Court in appeals of the assessments where no such ministerial discretion was involved. Importantly, Rennie J.A. said, at para. 13 of his reasons, that the decisions of the Federal Court of Appeal in the two companion cases, with their apparently divergent outcomes, are entirely compatible.
[6] I agree with Rennie J.A.
[7] Significantly, the reasoning of the Federal Court of Appeal that I propose to endorse on this point explains, jurisprudentially, the proper contours of the dividing line between the exclusive jurisdiction of the Tax Court to review the correctness of a tax assessment by a de novo procedure on appeal and the jurisdiction of the Federal Court in tax matters. Notwithstanding the issuance of a tax assessment, the Federal Court has the exclusive jurisdiction to conduct judicial review over discretionary decisions delegated to the Minister by Parliament, including those that directly affect tax liability. The Minister’s assessment of net tax pursuant to the Excise Tax Act, R.S.C. 1985, c. E-15 (“ETA”), is not the exercise of a discretionary power. Instead, it is a non‑discretionary determination where the outcome, the assessment, is dictated by statute. Jurisdiction over the correctness of the assessment falls to the Tax Court under s. 302 of the ETA.
[8] Highlighting this distinction between ministerial discretionary decisions and the tax assessment itself, which is non-discretionary, is, I think, all-important in explaining the jurisdictional debate in our Court in Dow and in this appeal. It further explains why the Attorney General of Canada defended the jurisdiction of the Federal Court in Dow, notwithstanding the issuance of an assessment and, on the same day before this Court in this appeal, challenged the jurisdiction of the Federal Court as trenching on the exclusive jurisdiction of the Tax Court over the correctness of the taxpayer’s assessment.
[9] When juxtaposed against Dow, as Rennie J.A. sought to do at para. 13 of his reasons, this case presents a further opportunity to confirm the view that it is Parliament’s intention that jurisdiction in tax matters is shared between the two courts and that the Tax Court is not a one-stop judicial shop for resolving tax disputes.
[10] On the specifics of the Attorney General of Canada’s motion to strike the application for judicial review brought by the taxpayer, I agree with the Federal Court of Appeal that two of the claims raised by the appellant, Iris Technologies Inc., in its application — those alleging procedural unfairness and a lack of an evidentiary foundation — are properly within the exclusive jurisdiction of the Tax Court. They are best characterized as attacks on the correctness of the assessment which is the proper subject matter of an appeal to the Tax Court under the express authority of the ETA. Since the Tax Court has exclusive jurisdiction over challenges to the correctness of assessments, the bar in s. 18.5 of the Federal Courts Act, R.S.C. 1985, c. F-7 (“FCA”), applies to these two aspects of the application. Accordingly, the Federal Court has no jurisdiction over these aspects. This is because of an express statutory grant of jurisdiction to the Tax Court from the assessment in s. 302 of the ETA and not, as the appellant proposed in Dow, based on an extension of the Tax Court’s jurisdiction by “necessary implication”.
[11] Iris’ third claim, that the Minister acted with an improper purpose, could, in some circumstances, be the basis for an application for judicial review. But the improper purpose claim should nevertheless be struck here because Iris did not allege facts in its application that, if taken to be true, would give any support to this claim.
[12] I further agree with the Federal Court of Appeal that the declaratory remedy sought in the application would have no practical effect and the application should also be struck on this basis.
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