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Appeals and Judicial Reviews - Discretion and Fettering Discretion The topic of 'discretion' is quite broad but basically it refers to a delegated authority to make a decision as the delegatee thinks fit - be it a judge, or some other form of public authority.
. Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").
In these quotes the court considers it's JR 'discretion':[28] The relief sought in this application for judicial review is discretionary and the court is most likely to intervene where there has been a denial of justice that cannot be cured within the administrative process. Further, it is preferrable to consider the issues in light of a full record and with the benefit of the reasons of the administrative decision-maker. This is particularly important when this Court is being asked to consider Charter issues.
[29] This Court has the discretion to proceed where another avenue for relief has not been pursued but will do so only in exceptional circumstances. The consent of the parties is insufficient. In this application, we are persuaded to exercise our discretion to proceed with respect to the first of the two issues, given the record on that issue, but not the Charter issue, as discussed further below. . Law Society of Ontario v Schulz
In Law Society of Ontario v Schulz (Div Court, 2023) the Divisional Court considered errors in the exercise of discretion, here in a Law Society Tribunal Hearing Division regarding the composition of the hearing panel:[30] The Appeal Division’s conclusion that there was no error in the exercise of discretion by the Chair or Vice-Chair was based on its finding that there was no record upon which the panel might find some impropriety in excluding a lay adjudicator from the panel and no evidence on which it might conclude whether the discretion was “properly or improperly” exercised. The Appeal Division further found that the Chair is under no obligation to “record or document” the reason for appointing an all-lawyer panel. I find this reasoning problematic for the following reasons.
[31] First, in this case, there is nothing in the record to suggest that the Chair or Vice-Chair actually exercised their discretion to proceed with a panel of three lawyers, let alone that the discretion was exercised for one of the available grounds under s. 1(4) of the Regulation. The hearing panel made no mention of the composition of the panel at the outset of the hearing or at any other time.[3] In the absence of an order, statement or any indication that the discretion not to assign a lay adjudicator to the panel was exercised, it is impossible to conclude that the discretion was exercised and that it was exercised for a ground provided in s. 1(4) of the Regulation. In my view, it cannot simply be assumed that the discretion was exercised, and that it was exercised for a ground available under the Regulation.
[32] Second, the Chair’s discretion to depart from the requirements of s. 1(2) is not absolute. Because the Chair can only exercise their discretion for one of the grounds stated in s. 1(4) of the Regulation, the issue is not whether a party challenging the composition of the panel can demonstrate impropriety in the Chair’s exercise of discretion. Rather, the issue is whether the discretion was exercised in accordance with s. 1(4) of the Regulation.
[33] A party challenging the composition of the hearing panel would rarely be able to put forward evidence that the exercise of discretion was not in accordance with s. 1(4) of the Regulation. It is for this reason that the Appeal Division’s finding that the Chair is under no obligation to “record or document” the reason for appointing an all-lawyer panel is particularly problematic. If this were the case, a party would never know whether the discretion to depart from s. 1(2) of the Regulation was exercised in accordance with the Regulation. In my view, because the Regulation requires that the Chair assign a lay adjudicator to the hearing panel and provides only limited grounds for departing from that requirement, the Chair must provide the basis for the exercise of discretion.
[34] One of the bases the Appeal Division gave for finding that the Chair was not required to notify the parties of the panel’s composition was that an agenda naming the adjudicators was published a week before the hearing, and the parties could have checked the adjudicator biographies on the Tribunal website. I agree that the parties can and ought to check that the panel is properly constituted. However, the burden of ensuring that the composition of the panel complies with the Regulation is not on the parties, but on the Chair.
[35] My finding is not intended to suggest that the Chair must render a written decision and/or provide extensive reasons when assigning a panel that departs from the requirements of s. 1(2) of the Regulation. The Tribunal’s current practice is to send out an agenda prior to the hearing identifying the panel members. Where the Chair has exercised their discretion under s. 1(4), the agenda could include a statement indicating under which of the three grounds the discretion was exercised.
[36] Alternatively, the information could be stated on the record at the outset of the hearing. While this could give rise to an objection to the composition of the panel at the outset of the hearing, it would be preferable that the objection be raised and addressed at the hearing stage rather than on appeal before the Appeal Division. It would also be open to the Chair to issue an order in advance of the hearing.
[37] Nothing in my reasons should be interpreted as constraining the discretion of the Chair under s. 1(4) of the Regulation to assign panels that depart from the requirements of s. 1(2).
[38] Given that the composition of the hearing panel raised an issue of jurisdiction, it was appropriate for the LSO to raise the issue on appeal, despite having failed to make an objection before the hearing panel. In any event, in my view, the test for raising a new issue on appeal was met. Because the issue was a question of law and/or procedural fairness, the sufficiency of the evidentiary record was not an issue. Moreover, there was no reason to believe that the LSO’s failure to raise the issue at the hearing was a tactical one. Finally, the refusal to raise the new issue would have resulted in a miscarriage of justice.
[39] Alternatively, if I am mistaken that the hearing panel lacked jurisdiction over the application because it was improperly constituted, I find that the Appeal Panel erred in failing to find that the absence of a lay adjudicator on the panel was a procedural defect that gave rise to a breach of procedural fairness. Given the societal harms that arise from child pornography and the exploitation of children, it was crucial that the public interest perspective be incorporated in this proceeding. The Regulation contemplates that this be done through the participation of a lay adjudicator on every hearing panel where a lawyer is subject to discipline. In my view, in this case, the absence of a lay adjudicator on the hearing panel raises an issue as to the fairness of the proceeding from a public interest perspective.
[40] In summary, the Appeal Division erred in law in finding that the composition of the hearing panel did not give rise to a lack of jurisdiction and in failing to remit the matter to a properly constituted panel. . Canada v. Bowker
In Canada v. Bowker (Fed CA, 2023) the Federal Court of Appeal considered a Crown appeal from a Tax Court cost award. In this quote the court considers whether the court below was 'fettering it's discretion':[23] The appellant argues that the Court erred, by fettering its discretion, in limiting the range of costs to 50%-75% of solicitor-client costs while the respondent argues that the appellant places too much emphasis on the sequence in which the Tax Court ordered its analysis, that is, dealing with the issue of the range before examining the various relevant factors.
[24] It is true that the argument that the Court fettered its discretion arises from the fact that the Court established the range before it had even considered the factors set out in Rule 147(3).
[25] When one reviews the Tax Court’s analysis of the various factors listed in Rule 147(3), it is apparent that the Court’s focus is on how each factor moves the needle higher or lower in the 50%-75% range that it had previously selected. But a review of like cases undertaken after the Tax Court had addressed the various factors may have pointed to the possibility of a lower range. The fact that the possibility of a lower range was precluded by the approach taken by the Tax Court is an indicator that the Tax Court had, in fact, fettered its discretion and, in doing so, erred in law.
....
[28] The Tax Court’s selection of the 50% to 75% range was made in the name of consistency. Unfortunately, the sources cited showed no consistency. Assuming that the Court had in mind that its award should be consistent with other decisions of the Tax Court, it is notable that it did not cite other costs decisions of the Tax Court to demonstrate that the amount which it awarded was consistent with what had been done in other cases.
[29] The Tax Court was right to advance consistency as a basis upon which to base an award of costs but it erred in principle in not addressing the Court’s own jurisprudence in setting a range of possible awards. The Court’s own jurisprudence is important because a lack of consistency in the treatment of comparable cases leads to arbitrary results: see Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, [2017] 2 S.C.R. 317 at para. 138, Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 at para. 18.
[30] Consistency is important for another reason. A consistent approach to costs leads to predictability. Litigants’ decision-making is improved if they are able to assess, to a reasonable degree, the potential quantum of costs to which they may be exposed in the event of an adverse result. To the extent that a secondary purpose of costs is to encourage proportionality and advance settlements (Decision at para. 19), a reasonable grasp of one’s potential exposure to costs can only assist in achieving those purposes. . Canada (Transportation Safety Board) v. Carroll‑Byrne
In Canada (Transportation Safety Board) v. Carroll‑Byrne (SCC, 2022) the Supreme Court of Canada considered the disclosure of a cockpit voice recorder (CVR) in the course of civil class litigation regarding an airplane crash. The disclosure of the CVR - as an "on‑board recording" - was governed by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). The case thus involves a balancing between the presumed evidentiary search for the truth on the one hand, and the specific statutory (and discretionary) privilege of the CTAISBA.
In the following quotes the court considers the appellate standard of review involving a discretionary matter:[40] The parties disagree on the standard of review for the second issue. The Board argues that the standard is correctness, as it relates to whether the chambers judge applied the correct legal test. Some of the respondents disagree. They say that the Board is, instead, asking this Court to reweigh the factors and to revisit findings of fact, which are entitled to deference.
[41] The disagreement is more apparent than real. A discretionary decision, such as the one contemplated by Parliament in s. 28(6)(c), is generally entitled to deference and may only be interfered with if there is a legal error (considered to be an error in principle), a palpable and overriding factual error (viewed as a material misapprehension of the evidence) or a failure to exercise discretion judicially (which includes acting arbitrarily or being “so clearly wrong as to amount to an injustice”) (Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 36, quoting P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629, at para. 15). An error in the interpretation of s. 28(6)(c) of the Act plainly raises a question of law reviewable on correctness. Thus, if the chambers judge applied the wrong test in weighing the public interest in the administration of justice, or misunderstood the privilege in law by misidentifying its statutory purpose, as the Board alleges, he erred in law (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 27; Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 36). I would add that such an error would preclude affording the deference that is ordinarily given to a judge who undertakes the fundamentally discretionary exercise of weighing interests provided for by the Act. Should it be determined that, due to a misapprehension of the law, the chambers judge put the wrong weights on the scales, his balancing would be inherently flawed. If, on the other hand, the chambers judge correctly identified the factors to be weighed but, in his appreciation of the evidence, assigned different weights than the Board would have wished, the alleged error should be understood as one that attacks the discretionary character of the balancing contemplated by s. 28(6)(c). Absent a palpable and overriding error in his appreciation of the evidence, or proof that the chambers judge did not exercise his discretion under the Act judicially, his decision on the production and admissibility of the CVR deserves deference. . National Organized Workers Union v. Sinai Health System
In National Organized Workers Union v. Sinai Health System (Ont CA, 2022) the Court of Appeal considers the standard of review for a discretionary judicial decision:[28] The application judge’s decision to decline to exercise the Superior Court’s residual jurisdiction in labour relations matters was a discretionary decision. As such, it attracts significant deference on appeal. It may only be set aside if it discloses error of law or palpable and overriding error of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36; H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, 386 D.L.R. (4th) 262, at para. 19; Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824, at para. 22. . Mugizi v. Ngo
In Mugizi v. Ngo (Ont CA, 2022) the Court of Appeal considered when a discretionary decision is challengeable:[8] Nor is there any basis to interfere with the motion judge’s decision to dismiss the appellant’s action. The motion judge did not exercise her discretion unreasonably, nor did she act on an incorrect principle or make a palpable and overriding error on a factual matter: Sickinger v. Krek, 2016 ONCA 459, 132 O.R. (3d) 548, at para. 31. ... . British Columbia (Minister of Forests) v. Okanagan Indian Band
In British Columbia (Minister of Forests) v. Okanagan Indian Band (SCC, 2003) the Supreme Court of Canada considered court review of discretionary decisions, here costs:B. Appellate Review of Discretionary Decisions
42 The discretion of a trial court to decide whether or not to award costs has been described as unfettered and untrammelled, subject only to any applicable rules of court and to the need to act judicially on the facts of the case (Earl v. Wilhelm (2000), 199 Sask. R. 21, 2000 SKCA 68, at para. 7, citing Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17 (C.A.)). Sigurdson J.’s decision in the present case was based on his judicial experience, his view of what justice required, and his assessment of the evidence; it is not to be interfered with lightly.
43 As I observed in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, however, discretionary decisions are not completely insulated from review (para. 118). An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of the facts. As this Court held in Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801, at p. 814-15, the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review.
44 Two errors in particular vitiate the chambers judge’s decision and call for appellate intervention. First, he overemphasized the importance of avoiding any order that involved prejudging the issues. In a case of this kind, as I have indicated, this consideration is of less weight than in the ordinary case; in fact, the allocation of the costs burden may, in certain cases, be determined independently of the outcome on the merits. Sigurdson J. erred when he concluded that his discretion did not extend so far as to empower him to make the order requested. Secondly, Sigurdson J.’s finding that a contingent fee arrangement might be a viable alternative for funding the litigation does not appear to be supported by any evidence, and I agree with Newbury J.A. that the prospect of the Bands’ hiring counsel on a contingency basis seems unrealistic in the particular circumstances of this case. . Karia Estate v. Karia
In Karia Estate v. Karia (Ont CA, 2022) the Court of Appeal considered the standard of review for a discretion appeal issue:[23] ... Similarly, “[a]n appellate court is only justified in interfering with a lower court judge’s exercise of discretion if that judge misdirected himself or if his decision is so clearly wrong as to amount to an injustice”: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 95. . CBC v. Chief of Police
In CBC v. Chief of Police (Div Ct, 2021) the Divisional Court considered the standard of review for issues of discretion:[21] The standard of review on a question involving the exercise of discretion is whether the decision maker committed an error in principle or was plainly wrong. Reversing a decision maker’s discretionary decision is also appropriate where the decision maker gave no or insufficient weight to relevant considerations: Penner v. Niagara (Regional Police Services Board).[3] . Restoule v. Canada (Attorney General)
In Restoule v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal considered basics applicable to discretion:[192] In the seminal Baker decision, L’Heureux-Dubé J. noted: “The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.”[125] It is now trite law that “there is no such thing as absolute and untrammelled ‘discretion’”.[126] Where discretion is granted by statute, that discretion, said L’Heureux-Dubé J., “must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.”[127] These boundaries set a reasonable “margin of manoeuvre” for a decision-maker exercising discretion.[128] . MDS Inc. v. Factory Mutual Insurance Company
In MDS Inc. v. Factory Mutual Insurance Company (Ont CA, 2021) the Court of Appeal considered the standard of review that applies to an award of prejudgment interest (which it held to be discretionary):The standard of review for the award of prejudgment interest
[22] The trial judge awarded prejudgment interest at MDS’ actual cost of borrowing, including compound interest, under ss. 128 and 130 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).
[23] Provided that the exclusions to an award of interest set out in the CJA do not apply, the trial judge’s decision to award prejudgment interest at a rate higher or lower than provided for in ss. 128 and 129 is discretionary: see Tribute (Springwater) Limited v. Atif, 2021 ONCA 463, at paras. 26-27. In exercising discretion to award interest at a rate higher or lower than provided for in ss. 128 and 129, the trial judge must take into account changes in market interest rates, the circumstances of the case, the amount claimed and recovered, and other relevant considerations: CJA, s. 130(2).
[24] As this court held in Krieser v. Garber, 2020 ONCA 699, 70 C.C.L.T. (4th) 40, at para. 46:The court will only interfere with the exercise of discretion if it was based on an error of law (determined on a correctness standard), a palpable and overriding error of fact, the consideration of irrelevant factors or the omission of factors that ought to have been considered, or if the decision was unreasonable in the sense that it is not compatible with the judicial exercise of discretion. [Citations omitted.] In particular, the trial judge must consider the factors set out under s. 130(2) of the CJA.
[25] As such, the standard of review in respect of this issue is that of error of law or palpable and overriding error. . Meekis v. Ontario
In Meekis v. Ontario (Ont CA, 2021) the Court of Appeal considered the improper exercise of discretion:[86] The appellants’ core misfeasance allegation on the unlawful act element is that the respondent coroners exercised their discretion to knowingly discriminate against a class of persons which included the appellants. In my view, this may be understood as an exercise of discretion for an improper purpose. Discretion must be exercised reasonably and, as indicated, it cannot be exercised based on discriminatory considerations. Rather, it should be structured by the relevant statutory factors under the applicable legislative scheme: see, Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 63. . Connor Homes v. Director
In Connor Homes v. Director (Div Ct, 2021) the Divisional Court considered deference accorded discretionary decision on appeal:Deference on Discretionary Decisions
[55] Deference is owed at both stages of the Mohan/White Burgess analysis. At the first step of determining whether the proposed evidence meets the threshold admissibility requirements (here necessity and the application of the LAT gatekeeping role), appellate interference is justified only where the finding is “clearly unreasonable, contaminated by an error in principle, or reflective of a material misapprehension of evidence.”[33]
[56] At the second step, discretionary gatekeeping, the decision maker must determine whether the benefits of admitting the evidence outweigh the “consumption of time, prejudice and confusion”. The Court of Appeal has stated that this balancing is “equally case-specific” and “involves the exercise of judicial discretion, not the application of a bright line rule.” The determination at the gatekeeper stage is entitled to deference “absent an error of law or of principle, or a material misapprehension of the evidence.”[34]
[57] The Supreme Court of Canada set out the standard of review for reversing a judge’s exercise of discretion in Penner v. Niagara (Regional Police Services Board) at paragraph 27:A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice: Elsom v. Elsom, 1989 CanLII 100 (SCC), [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at pp. 76-77.[35] . Bell Canada v. British Columbia Broadband Association
In Bell Canada v. British Columbia Broadband Association (Fed CA, 2020) the Federal Court of Appeal considered one indicia of fettering discretion:[157] ... An administrative decision-maker fetters the exercise of their discretion by relying exclusively on an administrative policy without regard to the law (Stemijon Investments Limited v. Canada (Attorney General), 2011 FCA 299, 475 N.R. 341, at paragraphs 24 and 60). . Ontario (Labour) v. Cobra Float Service Inc.
In Ontario (Labour) v. Cobra Float Service Inc. (Ont CA, 2020) the Court of Appeal sets out the standard of review for discretionary decisions:[18] Discretionary decisions attract a high level of deference on appeal. Appellate courts will only intervene where there is a clearly identifiable legal error, a material misapprehension of the relevant evidence, or a result that is clearly wrong in the sense that it is not defensible on the relevant law and facts: Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, at para. 25. . CNH Canada Ltd. v. Chesterman Farm Equipment Ltd.
In CNH Canada Ltd. v. Chesterman Farm Equipment Ltd. (Ont CA, 2018) the court states the obvious point that a legally delegated discretion must be exercised in accordance with the law:[80] As explained above, an appeal from a Tribunal decision under s. 5 of the Farm Implements Act is limited to questions of law. As with all discretionary decisions, the Tribunal’s discretion to award costs must be exercised in accordance with the law: see generally, Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 53, 56; John Doe v. Ontario (Finance), 2014 SCC 36 (CanLII), [2014] 2 S.C.R. 3, at para. 52. If the Tribunal makes an error in principle or the award is clearly wrong, appellate intervention may be warranted: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 (CanLII), [2004] 1 S.C.R. 303, at para. 27; Kerry (Canada) Inc. v. DCA Employees Pension Committee, 2007 ONCA 416 (CanLII), at paras. 170-71, aff’d Nolan v. Kerry (Canada) Inc., 2009 SCC 39 (CanLII), [2009] 2 S.C.R. 678.
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