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Justiciability - Administrative. Canadian National Railway Company v. Canada (Transportation Agency)
In Canadian National Railway Company v. Canada (Transportation Agency) (Fed CA, 2023) the Federal Court of Appeal considered a motion on an administrative tribunal appeal [under Canada Transportation Act, s.41] - though the case bears on JRs as well, here seeking disclosure of CTA case-related documents for entry into the record [under R317: 'Material in the Possession of a Tribunal'].
In these quotes the court makes the point that effective 'justiciability' - in relation to the ever-growing body of administrative matters - requires a broadening of the JR/appeal 'record' available:[7] In recent years, governments have been assigning more and more responsibility to administrative decision-makers to decide matters of great public importance, influence and impact. In a mature, healthy democracy, these sorts of decisions must be open to meaningful review and public scrutiny:. Meaningful review. In our democracy, immunization of administrative decision-making and total prohibitions on judicial review are not allowed: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at paras. 102-105 and the numerous cases cited therein; see also Payne v. Ontario Human Rights Commission, (2000), 2000 CanLII 5731 (ON CA), 192 D.L.R. (4th) 315 (Ont. C.A.) at para. 161.
. Public scrutiny. Barriers to public scrutiny should be exceptional, permitted only to the extent necessary, and supported by evidence establishing a recognized legal ground for secrecy. The availability of meaningful review and public scrutiny of administrative decision-making ensures accountability, promotes better decisions, and increases public confidence in governance: Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81 at paras. 313-315 (dissenting but not disputed by the majority), and the numerous authorities cited therein. ....
[10] In reviews of administrative decision-making—whether by application for judicial review or a statutory appeal—public scrutiny and meaningful review are interrelated. If an administrative decision-maker improperly withholds the documents and information it relied upon for its decision, the spectre of immunization of decision-making arises. The party trying to have the decision reviewed and the reviewing court itself cannot test whether the decision had a legitimate, rational basis and was consistent with the laws passed by our elected representatives. As a result, the administrative decision-maker can become a law unto itself, accountable to no one except itself: Tsleil-Waututh Nation at paras. 67-85.
[11] In our democracy, we simply do not allow that:“L’etat, c’est moi” and “trust us, we got it right” have no place in our democracy. In our system of governance, all holders of public power, even the most powerful of them—the Governor-General, the Prime Minister, Ministers, the Cabinet, Chief Justices and puisne judges, Deputy Ministers, and so on—must obey the law: Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385; United States v. Nixon, 418 U.S. 683 (1974); Marbury v. Madison, 5 U.S. 137 (1803); Magna Carta (1215), art. 39. From this, just as night follows day, two corollaries must follow. First, there must be an umpire who can meaningfully assess whether the law has been obeyed and grant appropriate relief. Second, both the umpire and the assessment must be fully independent from the body being reviewed. See the discussion in Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 77-79, Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81 at paras. 313-315 (dissenting but not disputed by the majority), and the numerous authorities cited therein.
Tyranny, despotism and abuse can come in many forms, sizes, and motivations: major and minor, large and small, sometimes clothed in good intentions, sometimes not. Over centuries of experience, we have learned that all are nevertheless the same: all are pernicious. Thus, we insist that all who exercise public power—no matter how lofty, no matter how important—must be subject to meaningful and fully independent review and accountability. (Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 at paras. 23-24.)
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