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Federal Court - JR - Justiciability. Pacific Coast Terminals Co. Ltd. v. Vancouver Fraser Port Authority
In Pacific Coast Terminals Co. Ltd. v. Vancouver Fraser Port Authority (Fed CA, 2026) the Federal Court of Appeal considered "issues pertaining to the content of the record in judicial review", particularly "the demarcation between the obligation of a tribunal to transmit a certified tribunal record (certified record) under rule 317 of the Federal Courts Rules, SOR/98-106 [Rules], and the evidence that the applicant and respondent put before a court under rules 306 and 307".
The court considers what matters are 'JR-justiciable', here under Federal Court jurisdiction:[80] Subsection 18.1(1) of the Federal Courts Act, R.S.C., 1985, c. F-7 does not limit the Court’s jurisdiction on judicial review to "“decisions or orders”" of a federal board. The subsection captures a broader range of conduct, as "“[a]n application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought”" (emphasis added). Indeed, actions or "“[o]ngoing policies that are unlawful or unconstitutional may be challenged at any time by way of an application for judicial review seeking, for instance, the remedy of a declaratory judgment”" (Air Passenger Rights v. Canada (Attorney General), 2024 FCA 128 [Air Passenger Rights]; Key First Nation v. Lavallee, 2021 FCA 123 at para. 24 [Key First Nation]; Democracy Watch v. Canada (Attorney General), 2021 FCA 133; May v. CBC/Radio Canada, 2011 FCA 130 at para. 10, citing Sweet v. Canada, 249 N.R. 17 (C.A.), 1999 CanLII 8927; Krause v. Canada, [1999] 2 F.C. 476 (C.A.), 1999 CanLII 9338 at paras. 20–23 [Krause]).
[81] The concept of an ongoing course of conduct captures situations where a series of decisions over time or the application of an ongoing policy may be the subject of a single application for judicial review. The concept aligns with, and supports, the jurisdiction over "“matters”", as a "“matter”" may not lend itself to, or crystallize as, a discrete or a single decision. This is of particular importance in understanding when the period for commencing judicial review begins.
[82] The cases cited in China Mobile illustrate this principle.
[83] In Key First Nation, issues arising over several months from a Band’s contentious retainer agreement with a law firm were "“a matter”", and the time for commencing judicial review was not restricted to the execution of the retainer. Similarly in Krause, the government’s accounting practice of amortizing surpluses in federal pension plans monthly was reviewable as an ongoing course of conduct, and the time for commencing judicial review was not constrained to a particular monthly entry in the books of account. . Saddle Lake Cree Nation #462 v. Collins [Charter s.25 '']
In Saddle Lake Cree Nation #462 v. Collins (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a Federal Court JR, here brought against a ruling "that the decision to deny the right to vote to Bill C-31 members was unreasonable" - where Bill-31 "had the effect of reinstating status to women, and by extension to their children, who had lost their Indian status upon marrying non-status men".
Here the court usefully sets out basics of Federal Court 'JR-justiciability':[10] Moreover, section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 (FCA) captures a broad range of conduct and is not limited to "a decision or an order of a federal board". An application for judicial review may be made "“by anyone directly affected by the matter in respect of which relief is sought”" (subsection 18.1(1) of the FCA; see Key First Nation v. Lavallee, 2021 FCA 123 at paras. 34-35). This includes, as the Federal Court noted, Ms. Collins seeking a declaration on the constitutional validity of the Voting Prohibition, which in essence constitutes the "“matter”" of the application for judicial review (Federal Court decision at para. 50).
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