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Judicial Review - Privative Clauses
COMMENTS
'Privative' clauses are fascinating legal things, lying at the heart of the s.96 Constitution Act, 1867 court's role in our form of government. Simply, they are statutory provisions that purport to bar judicial review on the 'public' matters that we normally expect them for. In Ontario this expectation is set out in the Judicial Review Procedure Act (JRPA). Privative clauses are at the heart of what is, and what isn't, 'justiciable' by the courts. Traditionally, the closer one gets to the partisan political substance of the legislature or cabinet, the more likely the courts are to respect privative clauses. However it is not unusual for the courts to habitually, and baldly, disregard privative provisions that they feel 'go to far' and attempt to render the court's role irrelevant, no matter how plainly the statute reads.
Privative clauses cases can involve statutory appeals insofar as they 'substitute for' (and thus rationally excuse) privative measures, but whenever a legislature passes appeal provisions it is plain that the legislature has considered the issue of what remaining jurisdiction lies for judicial review, and that itself will generate respect for their structuring of jurisdiction (especially with Vavilov's re-found importance for legislation).
The court in Vavilov is now clear [at para 49] that privative clauses do not affect the 'reasonableness' standard of review in judicial review.
MORE CASES
Part 2
. Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375)
In Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375) (Fed CA, 2023) the Federal Court of Appeal considered a JR from a maritime/longshoreman's employers' association. The applicant had applied to the CIRB (it was denied) for orders requiring their workers to keep working during a strike, here under s.87.4(4) of the Canada Labour Code. During this the federal government passed back-to-work legislation [the Port of Montreal Operations Act, 2021 (PMOA)], so the issue arose as to whether the application was moot. As well, the union sought to challenge the PMOA under s.2(a) ['association'] of the Charter.
In these quotes the court considers s.87.4 of the Canada Labour Code:[5] Subsequent to the hearing before this Court, at the request of the panel, the parties submitted written representations on the issue of whether this application had become moot in light of the adoption by Parliament of back-to-work legislation in May 2021 in Port of Montreal Operations Act, 2021, S.C. 2021, c. 6 (the PMOA). The PMOA ended a strike that was occurring in the Port of Montreal and required all bargaining unit members to return to work. The PMOA also provided for settlement, via a mediation-arbitration process, of the collective agreement between the Union and the MEA applicable to the Port of Montreal bargaining unit.
[6] Having reviewed the parties’ representations on the mootness issue, I have concluded that this application for judicial review has not been rendered moot due to a challenge to the PMOA that the Union brought and that is currently pending before the Superior Court of Quebec in Syndicat des débardeurs, SCFP, section locale 375 c. Procureur général du Canada, file number: 500-17-116886-212.
[7] In this challenge, the Union seeks to have the PMOA declared inoperative as an unjustifiable infringement on the freedom of association guaranteed to its members by subsection 2(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter). Should such a declaration be made, it is possible that the Union might again find itself in a legal strike position for the Port of Montreal bargaining unit. This possibility means that the issues raised in this application for judicial review are still live ones and accordingly must be decided by this Court.
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I. Section 87.4 of the Code
[10] It is useful to commence by reviewing section 87.4 of the Code and some of the principles regarding its application that the CIRB has set out in the more significant decisions interpreting the provision. The complete text of section 87.4 of the Code is attached in the Appendix to these Reasons. The salient features of the section may be summarized as follows.
[11] Added to the Code in 1999, section 87.4 is designed to protect the public interest. The section requires the maintenance during a legal strike or lock out of "“… the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public”" (subsection 87.4 (1)).
[12] The provision operates by casting primary responsibility for the maintenance of such activities on the parties to the collective agreement and bargaining unit employees, who are required to ensure the maintenance of all activities necessary to prevent an immediate and serious danger to the safety or health of the public.
[13] Subsections 87.4(2) and (3) provide parties to the collective agreement with the ability to settle the terms of a maintenance of activities agreement, governing the activities to be maintained during a legal strike or lockout, and the basis upon which such activities are to be performed. If a maintenance of activities agreement is reached, it must be filed with the CIRB.
[14] Where no agreement is reached but notice to negotiate one was given, subsection 87.4(4) of the Code provides a mechanism for a party to apply to the CIRB to settle what supply of services, operation of facilities, or production of goods must be maintained during a legal strike or lockout.
[15] By virtue of subsection 87.4(5) of the Code, the federal Minister of Labour is also afforded the ability to refer such issues to the CIRB when a strike or lockout is imminent or occurring.
[16] Where an application is made under either subsection 87.4(4) or (5) of the Code, the Board is authorized to issue a maintenance of activities order under subsection 87.4(6) where it "“… is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public”".
[17] Where a referral is made to the CIRB within the time periods contemplated in the Code (or within such longer time period as the Board might authorize pursuant to subsection 16(m.1) of the Code), by virtue of paragraph 89(1)(e) of the Code, the parties cannot engage in a strike or lockout until the CIRB decides the maintenance of activities application. Therefore, the making of an application like the one made by the MEA to the CIRB in the present case has the effect of suspending acquisition of the right to strike or lockout.
[18] If, following an application made to it, the CIRB concludes that there are some services, facilities or production that must be maintained during a strike or lockout because their cessation could result in an immediate and serious danger to the safety or health of the public, the Board possesses broad remedial authority. Pursuant to paragraphs 87.4(6)(a) and (b) of the Code, the CIRB may settle which services, facilities or production must be maintained, which employees are prevented from striking or being locked out, and on what terms they will perform the activities that are to be maintained. By virtue of paragraph 87.4(6)(c) of the Code, the CIRB may in addition "“impose any measure that it considers appropriate for carrying out the requirements of [section 87.4].”"
[19] Further, where the CIRB is of the opinion that the number of employees prevented from striking or being locked out would render a strike or lockout ineffective, subsection 87.4(8) of the Code provides the Board remedial authority to order the settlement of the collective agreement via a binding process, such as third-party interest arbitration.
[20] Subsection 87.4(7) of the Code affords the Board authority to review, confirm, amend or cancel a maintenance of activities agreement or previous Board order made under section 87.4 of the Code, following an application made by one of the parties to the collective agreement or the Minister of Labour after a legal strike or lockout has commenced if the Board is of the opinion that "“the circumstances warrant”".
[21] In assessing what services must be maintained, the CIRB has indicated that section 87.4 of the Code is a public interest provision that requires the Board to "“… balanc[e] the principles of free collective bargaining with the protection of the safety and health of the public”" (City of Ottawa, 2009 CIRB 447, [2009] C.I.R.B.D. No. 12 at para. 34 [City of Ottawa]). To somewhat similar effect, in Canadian National Railway Company, 2005 CIRB 314, [2005] C.I.R.B.D. No. 9 at para. 27 [CN], the Board noted that, "“[w]hen seized with a section 87.4 application, the Board’s duty is to interpret and apply the Code in a way that promotes the statutory objectives of encouraging harmonious labour relations.”"
[22] The Board further held in Nav Canada, 2002 CIRB 168, [2002] C.I.R.B. No. 168 at para. 227 [Nav Canada], that:... Any restrictions on the right to strike, even though imposed in the interests of health or safety, must appropriately respect the importance of the right in the context of the Code. Free collective bargaining is seriously compromised if the right to strike may not be exercised by employees to counteract the employer’s economic power. ... [23] Likewise, in Société de transport de l’Outaouais, 2017 CIRB 849, [2017] C.I.R.B.D. No. 5 [Société de transport], the CIRB noted at paragraph 164 that "“… any restriction of the right to strike must be limited to what is strictly necessary and solely to ensure the health and safety of the public.”"
[24] That said, the Board has also stated that, where an employer establishes that there are activities carried out by bargaining unit members which must be maintained to prevent an immediate and serious danger to the health or safety of the public, "“… the protection of the risk to the health of the public must be determinative”" (Atomic Energy of Canada Limited, 2001 CIRB 122, [2001] C.I.R.B.D. No. 19 at para. 295 [AECL CIRB], aff’d in Chalk River Technicians and Technologists v. Atomic Energy of Canada Ltd., 2002 FCA 489, [2003] 3 F.C. 313 [AECL FCA]).
[25] The CIRB has dealt with the onus of proof in cases arising under section 87.4 in somewhat different fashions, depending on the circumstances in the case before it.
[26] In AECL CIRB, Nav Canada and CN, the Board held that the initial onus rests on the party seeking the limitation on the right to strike or lockout to establish that there are activities that are required to be maintained in accordance with section 87.4 of the Code. However, the CIRB went on to hold that the opposite party also has an obligation to ensure the relevant facts are placed before the Board. The Board expressed these requirements at paragraph 31 of CN as follows:When the activities to be maintained are in dispute, the onus rests primarily with the employer to prove that certain services, operations or facilities must continue despite a strike or a lockout. That being said, both parties have the obligation to provide the Board with convincing evidence supporting their respective positions (Atomic Energy of Canada Limited, supra). It is imperative that the parties assist the Board by providing evidence that will enable it to determine whether or not the services are essential in order to protect the health or safety of the public and whether or not a strike or lockout will cause a danger (Nav Canada, [2002] CIRB no.168, at paragraph 168). [27] The Board held in Aliant Telecom Inc., [2003] C.I.R.B. L.D. No. 947 [Aliant Telecom] that a respondent union may discharge its obligation to provide relevant evidence via cross-examination of the witnesses called by the employer.
[28] In Atomic Energy of Canada Limited, 2015 CIRB 774, [2015] C.I.R.B.D. No. 20 [AECL 2015], where the CIRB had previously held that certain activities were to be maintained during a previous round of bargaining and the employer sought to argue that circumstances had changed such that employees should have the right to strike and the employer the right to lock out, the Board held that the employer bore the burden of proof. The employer was accordingly required to establish that there were no activities that were required to be maintained during a legal strike or lockout to prevent a serious and immediate danger to the health or safety of the public.
[29] The CIRB has further held that the evidence required to establish that activities should be maintained during a legal strike or lockout must be "“significant”" (Fredericton International Airport Authority Inc., 2012 CIRB 641, 2012 CarswellNat 4350 (WL) at para. 13; see also to similar effect Société de transport at paras. 164, 173, 177, 182, 191). At paras 31-73 the court reviews the CIRB analysis, which they ultimately endorsed.
. 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. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal [Stratas JA, sitting alone] considered a motion to quash a JR, but defers and leaves the motion to a full panel. The larger case here lays at the heart of executive politics versus the judiciary - being that of judicial review of fact, and mixed fact and law, decisions of the Conflict of Interest and Ethics Commissioner under the Conflict of Interest Act where appeal is limited to 'issues of law'. In this extended quote Stratas JA muses on matters of justiciability, privative clauses, the increasing frequency of such limited administrative appeals (ie. "questions of law only"). These quotes are a thoughtful contribution to this very important current issue, and as well acknowledge the recent Ontario Court of Appeal decision in Yatar (that can allow JR in such cases) as this [see paras 25-56].
. Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal (Stratas JA), later summarizes the result in this 2022 Democracy Watch case as follows:[5] This Court declined to deal with the Commissioner’s motion: Democracy Watch v. Canada (Attorney General), 2022 FCA 208. Instead, it adjourned it to the panel hearing the merits of the application. It did so because of a serious conflict in the Court’s jurisprudence:. Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, which says that partial restrictions on judicial review, such as the bar here, are contrary to the rule of law and should be ignored, just as courts ignore privative clauses.
. Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at paras. 102-103 which says that partial restrictions on judicial review, such as section 66 of the Conflict of Interest Act, are valid as long as they are supported by a pressing and valid government objective and are otherwise consistent with the rule of law, the ability of the judiciary to assess whether state action conforms with the Constitution, and the requirement of fair and impartial administration of justice. A panel of this Court will resolve this legal conflict.
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[19] The legal conflict mentioned in paragraph 5 above—which this Court will resolve in Stage 1—has been live in cases across Canada and also in recent cases in this Court: Democracy Watch, above; Canadian National Railway Company v British Columbia, 2022 BCSC 2263 at paras. 67-68; Prairies Tubulars (2015) Inc. v. Canada (Border Services Agency), 2022 FCA 92 at para. 17; BCE Inc. v. Québecor Média Inc., 2022 FCA 152 at paras. 55-58; Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 at paras. 53-57, seemingly reversing Yatar v TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337 at paras 28-29 and Fratarcangeli v North Blenheim Mutual Insurance Company, 2021 ONSC 3997 at para 63 on this point. The issue split the Supreme Court of the United Kingdom in four ways in R (Privacy International) v Investigatory Powers Tribunal, [2019] UKSC 22.
[20] It has also been the subject of academic comment. According to the well-respected academic commentator Mark Mancini, Best Buy is “questionable” and “inconsistent with other authority” and this “really important” issue is “not clearly decided yet”: see Issues 4, 45, 57 and 71 of the Sunday Evening Administrative Review (blog) (online: https://sear.substack.com/p/issue-4-august-8-2021, https://sear.substack.com/p/issue-45-june-19-2022, https://sear.substack.com/p/issue-57-september-11-2022 and https://sear.substack.com/p/issue-71-administrative-law-wrapped). According to Professor Paul Daly, a leader in the administrative law academy, “[t]his issue is going to run and run and run, as long the content of the core constitutional minimum of judicial review remains obscure”: see “Vavilov on the Road” in Administrative Law Matters (blog) (online: https://www.administrativelawmatters.com/blog/2021/08/12/vavilov-on-the-road/). . Canada (Attorney General) v. Best Buy Canada Ltd.
In Canada (Attorney General) v. Best Buy Canada Ltd. (Fed CA, 2021) the Federal Court of Appeal considered the Crevier (SCC, 1981) case on privative clauses (statutory clauses purporting to oust the court's judicial review jurisdiction) [more at 61-67]:[52] Does this conclusion offend the "“rule of law”"? Canada argues that it is the constitutional role of the courts to supervise the executive branch of government, and that in order to be fulfilled, this role requires full review of administrative decisions on all matters. In other words, reasonableness review of administrative decisions is constitutionally entrenched, and cannot be limited by legislative act.
[53] It is true that the Supreme Court, in Crevier v. A.G. (Québec) et al., 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 [Crevier], held that the legislature cannot completely oust judicial review via use of a privative clause. It is worth reviewing the facts of that oft-cited case, and briefly unpacking the Supreme Court’s holding.
[54] Crevier dealt with the question of whether a provincial legislature can entirely eliminate judicial review of an administrative tribunal empowered to make findings of fact and rule on matters of law. The administrative scheme at issue was set up under Québec’s Professional Code, R.S.Q. 1977, c. C-26, which at the time granted the Professions Tribunal judicial powers to hear appeals of disciplinary decisions made by the different professional orders’ Disciplinary Committees. The Professions Tribunal was composed of judges of the Provincial Court, i.e. not judges appointed by the federal government under section 96 of what was then still the British North America Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91, since reprinted in R.S.C. 1985, Appendix II., No. 5. At the time, article 194 of the Professional Code purported to completely eliminate recourse to the Superior Courts for review of Professions Tribunal decisions. It read:"194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities."
"194."" Aucun des recours extraordinaires prévus aux articles 834 à 850 du Code de procédure civile ne peut être exercé ni aucune injonction accordée contre les personnes visées à l’article 193 agissant en leur qualité officielle."
[55] The articles of the Code of Civil Procedure referred to dealt with applications for judicial review. The most relevant provision was article 846, which read:
"846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases: "
"846."" La Cour supérieure peut, à la demande d’une partie, évoquer avant jugement une affaire pendante devant un tribunal soumis à son pouvoir de surveillance ou de contrôle, ou reviser le jugement déjà rendu par tel tribunal: "
"1. when there is want or excess of jurisdiction;. "
"1. dans le cas de défaut ou d’excès de juridiction; "
"2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect; "
"2. lorsque le règlement sur lequel la poursuite a été formée ou le jugement rendu est nul ou sans effet; "
"3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done; "
"3. lorsque la procédure suivie est entachée de quelque irrégularité grave, et qu’il y a lieu de croire que justice n’a pas été, ou ne pourra pas être rendue; "
"4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice "
"4. lorsqu’il y a eu violation de la loi ou abus de pouvoir équivalant à fraude et de nature à entraîner une injustice flagrante. "
"However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal. "
"Toutefois, ce recours n’est ouvert, dans les cas prévus aux alinéas 2, 3 et 4 ci-dessus, que si, dans l’espèce, les jugements du tribunal saisi ne sont pas susceptibles d’appel. "
"[Emphasis added, italics in original] "
"[Nos soulignés] " [56] The Supreme Court struck down article 194 on the basis that it had the effect of constituting the Professions Tribunal a section 96 court. Chief Justice Laskin, writing for the Court, held the following:It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. (Crevier at pp. 236–37 [Emphasis added]) [57] Crevier has since oft been cited for the proposition that a legislature cannot completely oust judicial review: see e.g. Vavilov at para. 24; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 31. As Stratas J.A., for this Court, recently framed it, "“[p]ut positively, Crevier stands for the proposition that there must always be at least some prospect or degree of review”": Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 2021 CarswellNat 1003 at para. 102 [Canadian Council for Refugees]. This is indeed all it stands for. It does not imply that the legislature cannot limit or preclude judicial review of administrative decisions for certain types of issues: see e.g. Canadian Council for Refugees at para. 102, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 CanLII 88 (SCC), [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402 at 333; Capital Regional District v. Concerned Citizens of British Columbia et al., 1982 CanLII 220 (SCC), [1982] 2 S.C.R. 842, 141 D.L.R. (3d) 385; Vavilov at paras. 45–52. On the contrary, as the emphasized portion of the above cited passage makes clear, Crevier actually explicitly states that the legislature may oust judicial review on issues not touching jurisdiction.
[58] It is also clear from the above cited passage that, at the time, the Supreme Court considered "“questions of jurisdiction”" to be a more narrow and important category of question than "“questions of law”". In my view, it follows that, according to the reasoning espoused in Crevier, a statutory scheme that allows for appeal of an administrative decision on a question of law meets the constitutional threshold articulated in Crevier.
[59] The Supreme Court in Crevier was pre-occupied with the lack of any appeal from a decision of the Professions Tribunal to a Superior Court. Comparing to the legislative scheme at issue in this case, it is clear that the Supreme Court’s holding in Crevier would limit Parliament’s ability to completely insulate the CITT from any Superior Court review. In the Customs Act, Parliament has not attempted to do so. Instead, it has provided an appeal mechanism, and simply limited what can be appealed to questions of law. Similar to the Code of Civil Procedure at the time Crevier was decided, the Federal Courts Act makes clear that the traditional judicial review remedies provided for in that Act—injunction, certiorari, prohibition, etc.—are unavailable when a statutory appeal from an administrative decision is provided for: Federal Courts Act, s. 18.5.
[60] In my view, Crevier supports the position that Parliament may restrict judicial review to questions of law. A statutory provision having this effect, such as section 68 of the Customs Act, meets any threshold established in Crevier. To hold otherwise would be to eliminate any possibility that Parliament could, via statute, restrict the ambit of judicial review of administrative action. What purpose would the specific provisions of the Customs Act, and many other federal statutes that restrict review, serve if recourse to the Courts could always be had on all issues under the general provisions of section 18 and section 28 of the Federal Courts Act? . Canada (Attorney General) v. Iris Technologies Inc.
In Canada (Attorney General) v. Iris Technologies Inc. (Fed CA, 2022) the underlying case was a judicial review (JR) brought by Iris seeking several declarations after an audit and tax reassessments. The basis of the JR were the grounds and procedures of the audit. The AG made an interlocutory motion to quash the JR, which lost twice at the Federal court (prothonotary and panel), and then appealed again to the Federal Court of Appeal. There the AG finally won.
The court addressed a privative clause issue in this fashion:[3] Cloaking grievances in administrative law language and remedies does not necessarily make them such. A court must look beyond the words used. This is particularly so in the context of challenges to assessments under the ETA or Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) where Parliament has established a specialized court and system for tax appeals, and has expressly excluded the judicial review jurisdiction of the Federal Court where an appeal lies from an assessment (Tax Court of Canada Act, R.S.C. 1985, c. T-2, s. 12; Federal Courts Act, R.S.C. 1985, c. F-7, s. 18(5); Canada v. Addison & Leyen Ltd., 2007 SCC 33, [2007] 2 S.C.R. 793); JP Morgan, above.
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[13] The mere fact that the Minister has issued an assessment does not oust the jurisdiction of the Federal Court. Where the Tax Court does not have jurisdiction to deal with the Minister’s conduct or where the true purpose of the application is to seek practical relief against the exercise of a discretion, the bar in section 18.5 does not apply. That was the situation in Canada (National Revenue) v. Sifto Canada Corp., 2014 FCA 140, [2014] 5 C.T.C. 26, where a judicial review was allowed in respect of penalties issued in a reassessment: see also Dow Chemical v. Minister of National Revenue 2022 FCA 70.
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