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Federal Court - Joint Appeal-JR (Yatar). Best Buy Canada Ltd. v. Canada (Border Services Agency)
In Best Buy Canada Ltd. v. Canada (Border Services Agency) (Fed CA, 2025) the Federal Court of Appeal dismisses a joint appeal/JR application, here seeking to "set aside the decision of the Canadian International Trade Tribunal".
Here Stratas JA interestingly considers the Federal Court system's equivalent issue to the Ontario system's 'Yatar' recent dual appeal-JR procedure. He concludes that the federal system largely tolerates such a procedure, but that it is rare that it is tactically required [as most issues can be characterized as legal] - ending with (what I read as) a costs warning [para 16] against parties using it unnecessarily:[1] The appellant/applicant asks this Court to set aside the decision of the Canadian International Trade Tribunal dated November 8, 2023 in file AP-2022-015. It does so by way of an appeal on questions of law under section 68 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and a separate application for judicial review under subsection 28(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. For the following reasons, we will dismiss both with costs.
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B. The separate judicial review
(1) Can a judicial review be brought in the face of a statutory appeal provision that restricts the grounds the Court can consider?
[8] There are many statutory appeal provisions that restrict an appellant to "“questions of law”" or "“questions of jurisdiction”" or impose a leave-to-appeal requirement, or some combination of these things: see, e.g., Canada Transportation Act, S.C. 1996, c. 10, s. 41(1); Broadcasting Act, S.C. 1991, c. 11, s. 31(2); Telecommunications Act, S.C. 1993, c. 38, s. 64(1); Competition Act, R.S.C. 1985, c. C-34, ss. 30.24(2) and 34(3); Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 68(1)(c). Can a judicial review be brought in the face of these statutory appeal provisions?
[9] This Court has given two answers to that question:(1) Statutory appeal provisions that impose restrictions do not prevent a party from bringing a judicial review as of right on any administrative law grounds: see Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161.
(2) Statutory appeal provisions sometimes restrict a court to considering "“questions of law”" or "“questions of jurisdiction”" or can require that the appellant obtain leave to appeal. Provided that the restriction furthers "“a pressing and valid government objective”" (legislation normally binding courts) and leaves the judiciary able to decide "“whether state action conforms with [the law,] the Constitution, and the requirement of fair and impartial administration of justice”", the restriction will be upheld and a separate judicial review disobeying the restriction will be precluded: Democracy Watch v. Canada (Attorney General), 2023 FCA 39 at para. 5. While courts can ignore total restrictions on review, such as those contained in a classic privative clause, they cannot ignore partial ones that are valid on the above principles: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at paras. 102-103 (and the Supreme Court cases cited therein). [10] Speaking only for myself, I think the Best Buy decision overlooked the controlling authorities mentioned in the preceding paragraph. But multiple majorities of this Court have either approved Best Buy or left it in place: see Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93 at paras. 115-117; BCE Inc. v. Québecor Média Inc., 2022 FCA 152 at para. 58; Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209; Democracy Watch v. Canada (Attorney General), 2024 FCA 158. This Court’s repeated affirmation of Best Buy outweighs the personal views of any individual judge: Janssen Inc. v. Canada (Attorney General), 2021 FCA 137; Miller, above. Thus, Best Buy is the law in this Court until the Supreme Court says otherwise. The Supreme Court has expressly left open whether Best Buy is valid: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191 at para. 50.
[11] But just because Best Buy says parties can bring a separate application for judicial review doesn’t mean they should. In fact, in most cases they shouldn’t. Why? Just about anything that can be raised in a separate application for judicial review can be raised in a statutory appeal where only "“questions of law”" can be raised:. Alleged legal errors by the administrative decision-maker, whether they be found in the Constitution, legislative provisions, common law principles or administrative law principles. This includes questions of law that are extricable from (i.e., taint or dominate) questions of mixed fact and law: Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573; Canadian National Railway Company v. Canada (Transportation Agency), 2016 FCA 266 at para. 22; Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151 at para. 15.
. Procedural fairness concerns: Emerson Milling at paras. 18-19.
. Sufficiency of reasons or inadequate reasons on a key point: Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at paras. 21-33.
. Errors that seem factual but are really legal errors or failures to follow legal principles governing fact-finding. For example, a decision-maker that wrongly takes judicial notice (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458), wrongly finds facts without any supporting evidence (Canada (Border Services Agency) v. Danson Décor Inc., 2022 FCA 205 at para. 14), wrongly draws a factual inference or finds facts contrary to the law of evidence (e.g., Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161 and the cases cited therein; Garvey v. Canada (Attorney General), 2018 FCA 118 at para. 6), or wrongly finds facts contrary to a statutory provision (Walls v. Canada (Attorney General), 2022 FCA 47 at para. 41; Page v. Canada (Attorney General), 2023 FCA 169 at para. 79). [12] Sometimes parties bring applications for judicial review to get the Court to reweigh the evidence. But we never do that under the reasonableness standard: see, e.g., Pier 1 Imports at para. 45; and many other authorities.
[13] As for leave-to-appeal requirements in some statutory appeal provisions, they do not stop arguable issues from coming before the Court. Quite the opposite. If the issues are "“fairly arguable”", we grant leave: Emerson Milling at para. 56; Canadian Pacific Railway Co. v. Canada (Transportation Agency), 2003 FCA 271, [2003] 4 F.C.R. 558 at para. 17; and on the meaning of "“fairly arguable”", see Lukács v. Swoop Inc., 2019 FCA 145 at para. 15. No one has a right to bring or prosecute a case that is not "“fairly arguable”".
[14] Judicial reviews and statutory appeals are the same as far as administrative law remedies are concerned: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at paras. 139-142; and with specific regard to s. 52 of the Federal Courts Act, see Cathay Pacific Airways Limited v. Air Miles International Trading B.V., 2015 FCA 253 and Punniamoorthy v. Canada (Minister of Employment and Immigration) (1994), 1994 CanLII 10959 (FCA), 113 D.L.R. (4th) 663, 20 Admin. L.R. (2d) 73.
[15] In light of the above, this much is true: rare are the times a party really needs to bring a separate judicial review.
[16] A needless judicial review should never be brought. It subverts judicial economy, burdens the Registry, drives up costs, and undermines simplicity and efficiency in administrative law: Vavilov at para. 29; Pier 1 Imports at para. 51; Best Buy at para. 68. If brought, it should be immediately discontinued: Federal Courts Rules, S.O.R./98-106, Rule 165. If not discontinued, a respondent should move to dismiss it. And the Court, on its own motion, can dismiss it too: Dugré v. Canada (Attorney General), 2021 FCA 8 at paras. 19-24 and cases cited therein (plenary powers of the Court and Rule 74). If a separate judicial review has been brought and is truly needed, it must be consolidated with the statutory appeal under Rule 105. . Canada (Attorney General) v. Pier 1 Imports (U.S.)
In Canada (Attorney General) v. Pier 1 Imports (U.S.) (Fed CA, 2023) the Federal Court of Appeal considered a joint appeal-JR against a ruling of the CITT (Canadian International Trade Tribunal), here addressing the calculation of 'value for duty' for imported goods (custom rates).
The relevant Customs Act (CA) provisions [CA s.67] purported to bar JR (a privative clause), leaving the aggrieved party with only a 'question of law' appeal right [CA s.68], an situation that has attracted recent judicial attention (Yatar):A. Observations Regarding the Concurrent Appeal and Application for Judicial Review
[28] The present case addresses both an appeal and an application for judicial review brought concurrently. Our Court recently discussed the issue as to whether an application for judicial review can be considered notwithstanding the statutory appeal mechanism contemplated by Parliament in subsection 68(1) of the Customs Act.
[29] More specifically, in Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, [2021] F.C.J. No. 848 (Best Buy), our Court was unanimous on the disposition of the appeal but split on the question of whether the limitation in section 18.5 of the Federal Courts Act excluded applications for judicial review on questions of fact. The minority reasoned that only the statutory appeal mechanism under subsection 68(1) of the Customs Act was available to the parties to review the decision—i.e., only errors of law could be reviewed by our Court (Best Buy at paras. 36–61). The majority, however, found that such a complete bar to judicial review would be incompatible with the rule of law. Hence, the majority concluded that both errors were reviewable—errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review (Best Buy at paras. 112, 120). Our Court has since confirmed that the ability to bring an application for judicial review in parallel with an appeal, though on limited grounds, has been settled by Best Buy (BCE Inc. v. Québecor Média Inc., 2022 FCA 152, 2022 A.C.W.S. 5773 at para. 58 (BCE)).
[30] The above rulings are binding. The concurrent filing of an appeal and an application for judicial review in the same proceeding nonetheless raises certain practical considerations that will briefly be addressed in conclusion of these reasons.
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[47] In conclusion, a few additional observations are apposite with respect to concurrent proceedings—appeal and judicial review—where the legislative intent is to limit an appeal to questions of law, as is the case in section 68 of the Customs Act (Vavilov at paras. 33, 36).
[48] The interaction between a right of appeal and judicial review has recently garnered judicial and academic interest across the country (See Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, 2022 A.C.W.S. 1702 (leave to appeal to SCC granted, 40348 (9 March 2023)) (Yatar); Smith v. The Appeal Commission, 2023 MBCA 23, 479 D.L.R. (4th) 121; Best Buy; BCE; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 (Canadian Council for Refugees); Neptune; Democracy Watch v. Canada (Attorney General), 2023 FCA 39, 2023 A.C.W.S. 707; Democracy Watch v. Canada (Attorney General), 2022 FCA 208, 2022 A.C.W.S. 5655; Paul Daly, “Vavilov on the Road” (2022) 35:1 Can. J. Admin. L. and Prac. 1; Paul Daly, “Rights of Appeal: Contracting or Expanding Judicial Review?” (3 October 2023), online (blog): Administrative Law Matters ˂www.administrativelawmatters.com/blog/2023/10/03/rights-of-appeal-contracting-or-expanding-judicial-review/˃; Mark Mancini, “Issue #71: Administrative Law Wrapped, 2022” (18 December 2022), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-71-administrative-law-wrapped˃; Mark Mancini, “Issue #45” (19 June 2022), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-45-june-19-2022˃; Mark Mancini, “Issue #4” (8 August 2021), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-4-august-8-2021˃).
[49] The key issue emerging in this regard, except for Canadian Council for Refugees and the Democracy Watch cases, does not seem to be whether an application for judicial review remains available to a party concurrent to an appeal. Rather, the genuine issue is to what extent a judicial review application, which is by definition a discretionary remedy, should be entertained when filed concurrently with an appeal that has been expressly limited in scope.
[50] However trite, the duplication of proceedings has an impact on judicial economy (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 70). Recently, the Supreme Court in Vavilov reiterated the goal of judicial efficiency in administrative law (Vavilov at para. 29). The minority in Best Buy foresaw the consequences of the duplication of procedures, noting that the “process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone” (Best Buy at para. 68).
[51] The present circumstances are no different. This appeal and application for judicial review followed two sets of procedural requirements but were ultimately heard together (see Rule 301 and following and Rule 337 and following of the Federal Courts Rules, S.O.R./98-106). The parties, nonetheless, had to prepare and respond to two memoranda, which contained overlapping arguments. This may be explained by the fact that an application for judicial review must be filed within 30 days, whereas an appeal can be filed within 90 days (see s. 18.1(2) of the Federal Courts Act and s. 68(1) of the Customs Act). These timeline incongruences resulted in the parties including in their judicial review application memoranda arguments that should have fallen within the purview of the limited right of appeal. Consequently, at the hearing, the arguments were repetitive, or at best, repackaged and articulated differently in the context of either the appeal or the application for judicial review.
[52] The better approach to reflect Parliament’s intent and the rule of law might be the more restrictive stance adopted by the Ontario Court of Appeal, which reiterates that “judicial review is always available,” but mandates that courts ask themselves whether it is an “appropriate” exercise of their discretion, adding that this is so only in “rare cases” (Yatar at paras. 42, 48). However, the Ontario Court of Appeal did not expand on the meaning of “rare cases,” stating that they should be determined on a “case-by-case basis” (Yatar at para. 45). Perhaps because, as a matter of practice, and in the vast majority of cases, the statutory appeal will be sufficient to address the issue at hand, and the judicial review, although available, will be rendered superfluous (Yatar at para. 47; Best Buy at para. 129).
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