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Federal Court - Judicial Review (2). O'Driscoll v. Canada (Attorney General)
In O'Driscoll v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this brought against the dismissal of a JR "as it did not challenge a matter within the scope of section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 (Federal Courts Act). The Federal Court also dismissed the appellant’s application for mandamus as the appellant failed to identify a public legal duty to act on the part of the respondent Royal Canadian Mounted Police (RCMP) Commissioner."
The court considered what is JR justiciable, here in an RCMP police complaint context:[12] As the Federal Court noted, a matter that fails to affect legal rights, impose legal obligations, or cause prejudicial effects is not reviewable (Democracy Watch v. Canada (Attorney General), 2021 FCA 133 at para. 29; Air Canada v. Toronto Port Authority at paras. 24, 29; Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15, 175 A.C.W.S. (3d) 303 at paras. 9-13, leave to appeal to SCC refused, 33086 (11 June 2009) [Democracy Watch 2009]). The Commissioner’s lack of response to the appellant’s June 19th email did not constitute a reviewable decision as it did not affect the appellant’s legal rights, impose legal obligations, or have prejudicial effects. The appellant had no legal right to be provided with answers to her questions, the Commissioner had no legal duty or obligation to respond to the appellant’s questions, and the non-response did not have prejudicial effects.
[13] The same reasoning applies to the OISP review. The Commissioner was under no legal duty to conduct an internal review of the allegations, nor do the results of that review, if any, affect the appellant’s legal rights.
[14] The appellant places considerable emphasis on the importance of judicial review to ensure that public officers conduct themselves according to law and argues that judicial review is the only way in which the RCMP can be held accountable for what she says was misleading the Alberta Court of King’s Bench.
[15] This argument parallels that made by the appellant in Democracy Watch, 2009 where it was argued that the failure of the Ethics Commissioner to undertake an investigation harmed public confidence in the integrity of government decision making. The argument was rejected by this Court which concluded that the Ethics Commissioner had no duty to investigate beyond that prescribed by statute. The refusal to investigate did not affect the applicant’s rights and the Ethics Commission was under no statutory duty to act on the applicant’s request.
[16] Where Parliament creates a formal complaints procedure with a concomitant duty on an agent of Parliament or public officer to investigate, it does so expressly (Canada (Attorney General) v. Democracy Watch, 2020 FCA 69 at paras. 32-35). In establishing the CRCC process, Parliament did not create a general complaints procedure that gave rise to a legal obligation on the Commissioner to respond to demands beyond the scope of what is required by statute, such as many demands set forth in the June 19th email. By statute, the appellant had a right to file a complaint, to have it investigated and to receive a response, which she now has. I note, parenthetically, that the question whether the appellant, who was neither the spouse nor the mother at the center of the domestic and child abuse allegations, had standing to file a complaint was not raised before us.
[17] The RCMP delivered its report on the two complaints on January 25, 2024. It addressed each of the appellant’s 14 allegations in considerable detail. The report concluded:Please be advised that pursuant to section 45.64 of the RCMP Act, I am notifying you that the investigation into this complaint has now been concluded. Furthermore, according to section 45.7(1), if you are not satisfied with the manner in which your complaint has been disposed by the RCMP, you may request a review by the CRCC by writing to them within 60 days after receiving this RCMP Final Report at the following address or online at the following webpage. [...] [18] I turn next to the request for an order of mandamus.
[19] The Federal Court concluded that the appellant did not meet the test for mandamus set out in Apotex. That test requires the appellant establish, inter alia, that the Commissioner owed her a public legal duty to act, and that she has a clear right to the Commissioner’s performance of that duty.
[20] The appellant cites subsection 5(1) of the RCMP Act, which grants the Commissioner the responsibility and authority for the management and control of the RCMP, as the source of the legal right to have the Commissioner respond to her questions and investigate the allegations of systemic misconduct in the Cochrane and Airdrie detachments. The appellant also contends that a public legal duty to act arises from the common law duties of police as described by the Supreme Court in R. v. Godoy, such as preservation of the peace, the prevention of crime and the protection of life and property (1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, 168 DLR (4th) 257).
[21] These arguments fail.
[22] Subsection 5(1) is the source of the Commissioner’s authority for the management and control of the RCMP. Absent an effect on a legally cognizable right or interest, a grant of statutory authority to a public official does not give rise to a legal right on the part of a citizen to require that the associated administrative discretion of management and control be exercised in a certain way, or at all (see, for example, Reisdorf v. Canada, 2023 FCA 188 at para. 8). There is therefore no error in the Federal Court’s finding that "“the Commissioner had no legal obligation to respond within the unilateral, arbitrary and extremely short deadline”" imposed in the June 19th email (Federal Court Decision, at para. 27).
[23] The appellant’s reliance on the common law duties of the police does not assist her position. Whatever the scope of those duties, they do not translate into a positive duty on the part of the Commissioner to respond to the appellant's email. . O'Driscoll v. Canada (Attorney General)
In O'Driscoll v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this brought against the dismissal of a JR "as it did not challenge a matter within the scope of section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 (Federal Courts Act). The Federal Court also dismissed the appellant’s application for mandamus as the appellant failed to identify a public legal duty to act on the part of the respondent Royal Canadian Mounted Police (RCMP) Commissioner."
Here the court considered the federal JR SOR, here including a mandamus request:[10] Questions as to what constitutes a "“matter”" within subsection 18.1(1) of the Federal Courts Act go to the jurisdiction of the Court and are assessed on the standard of correctness (Canadian Judicial Council v. Girouard, 2019 FCA 188 at para. 30; Air Canada v. Toronto Port Authority, 2011 FCA 347, at para. 26). Similarly, the first criterion for mandamus, namely whether there is a public legal duty, is assessed on a correctness basis, with the balance of the mandamus criteria raising questions of mixed fact and law reviewable on a standard of palpable and overriding error (Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 FC 742 (FCA), 51 CPR (3d) 339 [Apotex]; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). . Atwood v. Canada (Attorney General) [notice of application]
In Atwood v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal from a JR, which was earlier dismissed because "the appellant had impermissibly altered the nature of his judicial review application because he abandoned all the remedies sought in the application and instead sought a declaration ... which fundamentally altered the nature of the application."
Here the court illustrates the importance of a Notice of Application being accurate (and thus the need to amend it if the remedy sought is changed):[3] The appellant was told in paragraph 26 of an earlier Federal Court decision in Atwood v. Attorney General of Canada, 2023 FC 959 (per Sadrehashemi J.) that if he wished to seek a declaration regarding the application of the open court principle to the RCMP grievance process, a request to amend his notice of application could be made to the Case Management Judge. The appellant did not do so and instead sought to raise the request for declaratory relief in his memorandum of fact and law. His failure to properly amend his pleadings meant that the issue of the requested declaration was not in issue in the pleadings, with the result that the respondent was deprived of a meaningful opportunity to file evidence about the RCMP grievance process.
[4] We agree with the Federal Court that the request for declaratory relief fundamentally altered the nature of the application for judicial review and that it was not open to the appellant to make this alteration in his memorandum. . 3533158 CANADA INC v. Canada (Attorney General) [mandamus]
In 3533158 CANADA INC v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal of a JR dismissal, this where the appellant sought "an order of mandamus compelling the Minister of National Revenue, acting through the Canada Revenue Agency, to refund the appellant’s input tax credits under Part IX of the Excise Tax Act":[3] We find that the Federal Court’s conclusion that there was an equitable bar to the relief sought is sufficient to dispose of this appeal. The Federal Court found that the unexplained 15‑month delay of inactivity between the appellant being notified by the CRA that its objection was invalid and the appellant initiating proceedings before the Tax Court of Canada created an equitable bar to the issuance of an order of mandamus in the appellant’s case. This finding is a discretionary finding (Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at p. 76, citing Charles Osenton & Co. v. Johnston, [1942] A.C. 130). Absent a palpable and overriding error, this Court cannot interfere with the Federal Court’s exercise of discretion (Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215). The appellant has not persuaded us of such an error. . Salt River First Nation #195 v. Shanks
In Salt River First Nation #195 v. Shanks (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from a JR that set aside a Band Council Resolution that "precluded Mr. Shanks and other members of the First Nation from receiving the per capita distribution to be made to members at that time", which per capital distribution was "paid annually to members from funds held by the First Nation pursuant to a treaty settlement agreement".
The main issue considered on the JR (and this appeal) was whether the Resolution was of a sufficiently public nature to support being JR justiciable:[2] Mr. Shanks brought an application for judicial review challenging the validity of the Band Council Resolution. For reasons cited as Shanks v. Salt River First Nation #195, 2023 FC 690, the Federal Court allowed the application for judicial review and set aside the Band Council Resolution on the ground that it was unreasonable. In reaching this decision the Federal Court rejected the submission of the First Nation that the Court lacked jurisdiction to hear the application. Instead, the Federal Court concluded that when enacting the Band Council Resolution, the Council acted as a "“federal board, commission, or other tribunal”" and that the authority exercised by the Council was of a sufficiently public character to confer jurisdiction on the Federal Court.
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II. Applicable Legislation
[6] Subject to certain exceptions that have no application to this appeal, subsections 18(1) and (3) of the Federal Courts Act R.S.C., 1985, c. F-7 give exclusive, original jurisdiction to the Federal Court to entertain applications for judicial review of decisions of "“any federal board, commission or other tribunal”".
[7] Section 2 of the Federal Courts Act defines the phrase "“federal board, commission or other tribunal”" to mean any entity "“having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown”". Again, this definition is subject to a number of exceptions, none of which apply to this appeal.
III. The Standard of Review
[8] Whether the Federal Court had jurisdiction to judicially review the Band Council Resolution is a question of law, reviewable on the standard of correctness (Anisman v. Canada (Border Services Agency), 2010 FCA 52, at para. 26); (Housen v. Nikolaisen, 2002 SCC 33, at para. 8). This requires the Federal Court to correctly articulate and apply the test for determining whether an entity is acting as a federal board, commission or other tribunal (Innu Nation v. Pokue, 2014 FCA 271, at para 10).
[9] Before turning to the application of the standard of review, nothing in this case turns on any distinction between a board, commission or other tribunal. Therefore, for simplicity, the phrase "“federal board”" will be used in the balance of these reasons and should be read as including reference to a federal commission or other tribunal.
IV. Application of the Standard of Review
A. Applicable Legal Principles
[10] The leading authority with respect to the proper interpretation of the definition of federal board is the decision of this Court in Anisman. There, at paragraph 29, the Court concluded that "“a two-step enquiry”" must be made to determine whether an entity is a federal board. The first enquiry is directed to what jurisdiction or power is being exercised. The second enquiry is directed to the source or origin of the jurisdiction or power that is being exercised. The primary determinant is the source of the entity’s authority. The question is, when acting, was the tribunal empowered by or under federal legislation or by an order made pursuant to a prerogative power of the federal Crown? Neither the nature of the power exercised nor the nature of the body exercising the power are determinative of whether a tribunal falls within the definition.
[11] Subsequent to the decision of this Court in Anisman, the Supreme Court clarified in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018]1 S.C.R. 750, at paragraph 14, that judicial review is only available "“where there is an exercise of state authority and where that exercise is of a sufficiently public character”". The Supreme Court went on to state that "“a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision-maker’s exercise of power. Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term”" (para. 20).
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[21] The jurisprudence of this Court and the Federal Court is to the effect that Band Councils established under the Indian Act are federal boards whose decisions are subject to judicial review when they exercise their powers over band members under a federal statute such as the Indian Act and when the issue involves a matter that is "“public”" in nature: Sebastian v. Saugeen First Nation No. 29 (Council of), 2003 FCA 28, at paragraph 51; Ermineskin First Nation v. Minde, 2008 FCA 52, at para. 33; Horseman v. Horse Lake First Nation, 2013 FCA 159, at para. 6; Buffalocalf v. Nekaneet First Nation, 2024 FCA 127, at para. 19.
E. Was the power exercised of a sufficiently public character so as to make judicial review available?
[25] At paragraphs 33 to 35 of its reasons, the Federal Court considered and rejected the submission of the First Nation that the exercise of power at issue was not public in nature and so was not amenable to judicial review.
[26] The First Nation argues that the Federal Court erred by not conducting a full analysis of the nature of the power exercised in accordance with the factors set out by this Court in Air Canada v. Toronto Port Authority, 2011 FCA 347 at paragraph 60. The First Nation argues that instead the Court over emphasized Council’s status as the government of the First Nation.
[27] This submission requires this Court to consider the nature of the holding in the Air Canada case. In decisions such as Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court restated the principle that relationships that are essentially private in nature are to be redressed by way of the private law not public law. In Air Canada, this Court then directed itself to the question of how to determine where a particular matter falls on the public-private spectrum. At paragraph 60, the Court observed that in determining the public-private issue, all of the circumstances are to be weighed. The Court then went on to enumerate a number of factors relevant to the determination of whether a matter is sufficiently public to bring it within the purview of judicial review. The Court’s listing did not purport to be exhaustive, and the Court noted that whether one factor or a combination of factors operate to tip the balance to make a matter public in nature depends upon the facts of the case.
[28] In the present case, the Federal Court did not cite Air Canada; nor did the Court explicitly review the factors enumerated in Air Canada. This said, the Court did review a number of factors to reach its conclusion that Council was not acting privately when it exercised the power at issue. Particularly, the Court considered that the decision was made following a meeting duly convened within the meaning of subsection 2(3) of the Indian Act, that the decision concerned a payment made pursuant to the terms of the Revenue Account Law, and that the decision to authorize per capita distribution payments was inherently a governance issue relating to the management and disposition of funds from a settlement which was established for the benefit of the First Nation. These facts fall within the scope of factors articulated in Air Canada, particularly: the nature of the decision-maker and its responsibilities, the extent to which the decision is founded and shaped by law as opposed to private discretion, and the character of the matter for which review is sought.
[29] While it would have been preferable for the Court to have specifically referenced the factors articulated by this Court in Air Canada, and while the parties and this Court would have been assisted by an express consideration of those factors, I am not persuaded that the Court committed any reviewable error when it concluded that the impugned Band Council Resolution was of a sufficiently public character to properly attract judicial review.
[30] Applying the factors articulated in Air Canada that are of particular relevance to this case:The character of the Band Council Resolution was not a private, commercial matter. The decision involved the distribution of public funds and flowed from the Revenue Account Law adopted by members of the First Nation and incorporated into the Election Regulations. The fact that compensation was paid to the First Nation as "“personal property”" did not make the Band Council Resolution private in nature.
The decision-maker was the governance body recognized by the Indian Act and the Band Council Resolution was registered with the appropriate Minister.
The decision was not founded in private discretion but rather in the terms of the Treaty Settlement Agreement, the Settlement Trust Agreement, the Revenue Account Law and the Election Regulations. Judicial Review is a suitable public law remedy to challenge the lawfulness of the Band Council Resolution.
[31] It follows that when making per capita payments pursuant to the Revenue Account Law and enacting the Band Council Resolution, Council was not acting in a private capacity. Therefore, the Resolution is subject to judicial review.
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