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Federal Court - Judicial Review. Reisdorf v. Canada (Attorney General)
In Reisdorf v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal from a dismissal of a JR, here where the applicant argued that an administrative email response "setting out CBSA’s views on how the relevant legislation and investigative processes work" was justiciable (it wasn't):[5] We do not endorse the Federal Court’s reasons. That said, we see no reason to interfere with its decision because we agree that the CBSA email in question is not a matter that is amenable to judicial review.
[6] Under the Federal Courts Act, judicial review is available in respect of a wide range of matters, including orders and decisions issued by federal decision makers. However, the case law recognizes that such matters do not include situations where the conduct at issue in the judicial review application fails to affect legal rights, impose legal obligations, or cause prejudicial effects: Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 at paras. 24, 29; Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15, 175 A.C.W.S. (3d) 303 at paras. 9-13, leave to appeal to SCC refused, 33086 (11 June 2009) [Democracy Watch].
[7] As was the case with the appellants in Democracy Watch, the appellants in the present appeal have no right to request or obtain a ruling from CBSA on their request. The right to request an advance ruling under section 43.1 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) is limited to specific goods and may be made only by designated members of a prescribed class, as set out in the regulations, which do not include the appellants (see Tariff Classification Advance Rulings Regulations, SOR/2005-256, s. 2.).
[8] Perhaps more importantly, the CBSA email in question does not decide anything at all in respect of the importation of goods from Xinjiang, China. Rather, the email is merely a courtesy reply, thanking the appellants for their inquiry and setting out CBSA’s views on how the relevant legislation and investigative processes work. . Whiteduck v. Ontario
In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considered the federal and Ontario availability of lawsuits ('actions') to challenge administrative acts, as opposed to judicial reviews:[66] Ontario relies on Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 2 S.C.R. 585, at para. 19, for the proposition that a proceeding to set aside an administrative decision must be brought by way of judicial review. In TeleZone, the plaintiff sued the federal government for damages in tort and breach of contract for rejecting its personal communications services licence application. The Supreme Court rejected Canada’s argument that the plaintiff must first seek judicial review of the decision to reject the licence application before proceeding with a civil action. It did so on the basis that TeleZone was not seeking to set aside or nullify the decision. Even so, the plaintiff could pursue damages in the Ontario Superior Court of Justice despite the Federal Courts Act, R.S.C. 1985, c. F-7.
[67] In my view, the decision in TeleZone is not applicable. TeleZone dealt with decisions of the federal government, the Federal Court’s jurisdiction under the Federal Courts Act, and the concurrent jurisdiction of provincial superior courts under the Act. Section 18 of the Act confers exclusive original jurisdiction on the Federal Court to determine any case seeking administrative remedies, including writs of certiorari, against any federal board, commission, or tribunal. There is no equivalent statutory provision in Ontario ousting the Superior Court’s jurisdiction on the facts of this case, as I have noted in the analysis of the more limited reach of the Judicial Review Procedure Act. . Oleynik v. Canada (Attorney General)
In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal cites (and supports) a lower court's quashing of a JR which it held to be a collateral attack on a university's "decision not to support the Application [for the grant]", which was not subject to judicial review:[16] The Federal Court agreed with the Attorney General that the judicial review application was in substance a complaint against MUN, over which the Federal Court has no judicial review jurisdiction. In particular, the Federal Court found (First Decision at para. 13):…the true nature of the application is a collateral attack on MUN’s decision not to support the Application [for the grant]. However, MUN is not a federal board, commission, or other tribunal within the meaning of subsection 2(1) of the [Federal Courts Act] as the university is not a body “empowered by or under federal legislation or by an order made pursuant to a prerogative power of the federal Crown”: Anisman v Canada (Canada Border Services Agency), 2010 FCA 52 at para 30. ....
[42] Not all conduct by a public body gives rise to a right to seek judicial review. The conduct must affect legal rights, impose legal obligations or be prejudicial: Air Canada v. Toronto Port Authority, 2011 FCA 347 at paras. 28-29. Dr. Oleynik is not party to the Agreement and he has not pointed to any right he has to enforce it. Moreover, even if MUN breached the Agreement as he alleges, he has not suggested how any action or inaction by SSHRC has affected his legal rights, has imposed legal obligations on him or been prejudicial. An appeal based on the grounds he has advanced has no merit. . Oleynik v. Canada (Attorney General)
In Oleynik v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal cites a lower court's application of case authority regarding quashing a JR:[14] In the First Decision, the Federal Court granted that motion and dismissed the application. It concluded that the high threshold to strike the judicial review application (articulated in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588, 51 A.C.W.S. (3d) 799 (FCA) and JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250) was met because the decision Dr. Oleynik sought to review was outside the Federal Court’s jurisdiction. . Leahy v. Canada (Justice)
In Leahy v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal considered the federal test for striking a JR:[6] I see no error in the Federal Court’s reasons. Furlanetto J. correctly identified the legal test to strike a notice of application for judicial review, where the application may only be struck where it is "“so clearly improper as to be bereft of any possibility of success”" (Reasons at para. 17, citing David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), [1995] 1 F.C. 588, 1994 CanLII 3529 (FCA)). The judge noted that where there is clear and binding authority that is directly contrary to the position on which the application is based, the application meets the standard of being "“bereft of any possibility of success”" and may appropriately be struck at an early stage (Reasons at para. 18). That is the case here. . Leahy v. Canada (Justice)
In Leahy v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal considered whether a court could be subject to a judicial review (here the Supreme Court of Canada):[1] This is an appeal of an order of the Federal Court (2021 FC 302, per Furlanetto J.). In that decision, Furlanetto J. granted the respondent’s motion to strike the appellant’s judicial review application of a decision of the Registrar of the Supreme Court of Canada (the Registrar). Under subsection 73(4) of the Rules of the Supreme Court of Canada, S.O.R./2002-156 (the Rules), the Registrar had refused the appellant’s motion for reconsideration of the Supreme Court’s decision to dismiss his motion for leave to appeal from a decision of this Court.
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[8] The Supreme Court is not a federal board, commission or tribunal within the meaning of section 18.1 of the Federal Courts Act. To hold that the Federal Court could compel the Supreme Court to hear a motion for reconsideration would offend the principle that courts control their own processes, which is in turn an element of the unwritten constitutional principle of judicial independence. Further, if the Federal Court could judicially review a decision or order of the Supreme Court, that decision itself would be subject to appeal to the Supreme Court (Scheuneman at para. 11; Sydel at paras. 56-58). The absurdity of the proposition is self-evident.
[9] The appellant argues that the Registrar is not a judge, and cannot therefore decide matters that bear on appeals to the Supreme Court. He further argues that, as applications for leave to appeal are considered by a panel of three judges of the Supreme Court, the same procedure must apply to his motion for reconsideration. I disagree with both of these arguments.
[10] Section 18 of the Supreme Court Act, R.S.C. 1985, c. S-26 authorizes the Registrar to exercise any jurisdiction of a judge sitting in chambers as may be conferred by general rules or orders made under that Act, and subsection 73(4) of the Rules specifically allows the Registrar to refuse to accept a motion for reconsideration. Lest there be any doubt on the point, section 12 of the Rules provides that every order of the Registrar shall be binding on the parties "“as if the order had been made by a judge.”" . Viaguard Accu-Metrics Laboratory v. Standards Council of Canada
In Viaguard Accu-Metrics Laboratory v. Standards Council of Canada (Fed CA, 2023) the Federal Court of Appeal found that a JR application was premature:[4] The Federal Court properly identified the governing authority on point, Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332, and applied it to the facts of this case. C.B. Powell, which applies the Supreme Court authority existing at that time, has received the later approval of the Supreme Court in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, and has recently been reaffirmed by this Court in Dugré v. Canada (Attorney General), 2021 FCA 8. Dugré at para. 37 confirms that the bar against premature judicial reviews must be kept "“next to absolute”": there is little room for flexibility in the enforcement of this bar.
[5] C.B. Powell stands for the proposition that judicial review is a remedy of last resort: if an effective remedy might be available in an administrative or other process, that process first must be pursued. As part of that process, the administrative decision-maker will determine whether it has the jurisdiction to grant the remedy requested and, if so, whether it will grant the remedy. This respects the demarcation of function between administrative decision-makers and reviewing courts that the Supreme Court emphasized in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[6] In this case, the Standards Council of Canada Appeals Policy provides an administrative procedure by which the appellant can challenge an earlier reinstatement decision by filing a complaint. We cannot say with certainty that the appellant would be unable to raise, as part of that procedure, any of the issues raised in its notice of application or that there would be no room for reasonable debate before the administrative decision-maker. Indeed, in response to questioning in oral argument, the appellant candidly admitted that there would be "“little room”", not no room, for debate before the administrative decision-maker. Thus, the doctrine in C.B. Powell applies: the appellant must first pursue that debate and the remedies it seeks in the administrative forum. Judicial review is not available at this time. . Lukács v. Canada (Public Safety and Emergency Preparedness)
In Lukács v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2023) the Federal Court of Appeal considered the Federal Court Rules test for compiling to a JR record:[7] In this case, the case management judge correctly identified the test for the admission of evidence under Rule 312 of the Federal Courts Rules, namely that the evidence must be admissible on the application for judicial review, and it must be relevant to an issue that is properly before the reviewing Court. She further noted that, as this Court observed at paragraph 2 of Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 101, in assessing whether the granting of an order under Rule 312 is in the interests of justice, the Court must also consider:a) whether the evidence sought to be adduced was available when the party filed its affidavits, or could have been available with the exercise of due diligence;
b) whether the evidence will assist the Court, in the sense that it is relevant to an issue to be determined and sufficiently probative that it could affect the result; and
c) whether the admission of the evidence will cause substantial or serious prejudice to the other party. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal (Strathas JA) considered another interlocutory issue in a larger politically-charged judicial review of decision-making by the Conflict of Interest and Ethics Commissioner. The immediate interlocutory issue here was the applicant's request that a full Commissioner record by available in the face of "bar(s) against raising certain grounds of review" [Conflict of Interest Act, s.66], whether the court should respect (or not) this immunity as a privative clause, and associated practical preservation of confidentiality concerns:[7] Democracy Watch’s disclosure request places the Commissioner in an untenable position. The Commissioner is being asked to disclose confidential documents in support of a ground that might be barred under section 66. If ultimately the panel hearing the application finds that section 66, as a partial restriction on judicial review, applies to bar some or all of the grounds raised in this application, then confidential material that never should have been disclosed will have been disclosed.
[8] Democracy Watch proposes protections to ensure that any material disclosed remains confidential as much as possible. For example, it proposes that confidential material will be disclosed only to its counsel and the panel and that both will be operating under strict prohibitions against disclosure.
[9] But this is not a full answer to the Commissioner’s concern. Confidentiality will no longer be all-encompassing: some, albeit very few, will have access to the material, arguably contrary to the expectations and legal rights of those who supplied evidence during the Commissioner’s investigation.
[10] The confidential material sought by Democracy Watch is relevant to only one ground for review: an alleged error of fact. The other two grounds concern statutory interpretation, a purely legal issue requiring the Court to examine the text, context and purpose of the Act. The confidential material is irrelevant to that task.
C. The solution
[11] The conundrum posed by this disclosure motion can be solved by Rule 107 of the Federal Courts Rules. Under Rule 107(1), the Court can order that “issues in a proceeding be determined separately”.
[12] Rule 107(1), which applies to a “proceeding”, applies here. An application for judicial review is “proceeding”: see Rule 2 (definition of “application”); see also Lukács v. Swoop Inc., 2019 FCA 145 at para. 9.
[13] Thus, the Court has the power under Rule 107 to order that an issue in this application for judicial review be determined separately. Here, the issue is the conflict in the Court’s jurisprudence about whether section 66 of the Conflict of Interest Act bars the grounds the applicant raises in its application: see paragraph 5 above.
[14] If the Court decides that section 66 bars the grounds, the Court must dismiss the application. If the Court decides that section 66 does not bar the grounds, in particular the ground of error of fact raised by Democracy Watch, the Court will have to consider the merits of the application. In that case, the first item of business will be whether the Commissioner has to disclose confidential material and, if so, under what conditions.
[15] Proceeding in this way ensures that disclosure under strict protective conditions—if it happens at all—will be only as a very last resort. . Kurgan v. Canada (Attorney General)
In Kurgan v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the standing necessary to bring a judicial review:[6] The Federal Court found that Mr. Kurgan did not have standing to bring the applications for judicial review as he did not satisfy his burden to demonstrate that he is directly affected by the amended decisions of the Parole Board. The Federal Court referred to Friends of the Canadian Wheat Board v. Canada (Attorney General), 2011 FCA 732 in which this Court stated, at paragraph 21:For a person to be directly affected “the decision at issue must be one which directly affects the party’s rights, imposes legal obligations on it, or prejudicially affects it directly”... [7] The Federal Court identified the correct legal test to be applied to determine if Mr. Kurgan was directly affected by the amended decisions of the Parole Board. In detailed reasons, the Federal Court applied this test and found that Mr. Kurgan was not directly affected by the amended decisions of the Parole Board. Despite the submissions of Mr. Kurgan in this appeal, we find that the Federal Court did not make any palpable and overriding error in its findings of fact or mixed fact and law. . Canada (Attorney General) v. Valero Energy Inc.
In Canada (Attorney General) v. Valero Energy Inc. (Fed CA, 2020) the Federal Court of Appeal allowed an appeal by Canada (CRA) to strike a judicial review application by a corporation challenging information and document demands imposed on it by an income tax audit:[26] On a motion to strike a notice of application for judicial review, this Court set out the relevant test to be followed in Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557, at paragraph 47 [JP Morgan]: the Court will strike an application only where it is bereft of the possibility of success because there is "“an obvious, fatal flaw striking at the root of this Court’s power to entertain the application”". The Federal Court correctly cited this test (Reasons at paragraph 6). . Drew v. Canada (Attorney General)
In Drew v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered the evidence that can be considered in the federal judicial review:[8] In support of her application for judicial review, the appellant sought to rely on documents that were not before the Commission when it made its decision. Applying the rule according to which the evidentiary record before a court is the evidence that was before the decision-maker (Association of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22, 428 N.R. 297 at paras. 19-20), and determining that the appellant’s situation did not fit into the exceptions to this rule, the Federal Court held that it could not consider these documents.
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