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Intervention - Tribunals. Westjet v. Lareau
In Westjet v. Lareau (Fed CA, 2024) the Federal Court of Appeal considered the administrative issue of 'bootstrapping':[17] A further concern is "bootstrapping": administrative decision-makers making submissions to reviewing courts that, in reality, are new reasons supporting the decisions they made. This undermines two principles. First, administrative decision-makers must provide all necessary explanations in support of their decisions in their reasons and, if they fail to do that, their decisions may be set aside: Vavilov at para. 83. Second, after administrative decision-makers have decided matters, including explaining themselves in their reasons, they are functus or finished and, without legislative authorization, they cannot touch the matters again: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848. . Registrar AGCO v. Lopez
In Registrar AGCO v. Lopez (Div Court, 2023) the Divisional Court considers a LAT intervention motion, another of the relatively unusual requests by a tribunal to intervene (in a limited fashion) on it's own decision:[1] The Licence Appeal Tribunal (“LAT”) brought an unopposed motion in writing for an order granting the LAT leave to intervene in this appeal, pursuant to rules 13.02 and 13.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
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[6] On the motion to intervene, the LAT seeks to provide submissions to the Court on questions of the scope of appeal, standard of review, the statutory framework of the LAT Act and the HRLA and the procedural history of this matter. The LAT does not intend to take any position on the merits of its decision or the outcome of the appeal. This is an appropriate role for tribunals before the courts. It is consistent with the recognition in Ontario Energy Board v Ontario Power Generation Inc., 2015 SCC 44 at paras. 52-57 (CanLII) in which the Supreme Court of Canada wrote that that courts determining tribunal standing will “balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality.” As noted in Ontario Energy Board, submissions from the tribunal can add value to appeal proceedings (at para. 46).
[7] The proposal filed by LAT in its materials establish that it will not delay the hearing of the appeal. It has attached a draft factum which sets out the limited submissions it intends to file on the appeal. There is no evidence of any prejudice to any party. Further, it does not appear that the respondent, Mr. Lopez has filed any material or will be an active participant in the appeal. This court routinely hears from tribunals in other administrative contexts and under similar terms and has recognized the value that tribunal intervenors can add to proceedings in this court: see Birani v. Tarion, 2017 ONSC 2503 at paras. 13-14 (Div. Ct.)
[8] The LAT seeks leave to file a factum not exceeding 15 pages, excluding schedules, and present oral argument for up to 15 minutes, or such time as is permitted by the Court. It does not seek to adduce evidence, raise any new issues, and it will abide by any court directions with respect to the timing for the exchange of materials, subject to any extensions that may be granted.
[9] As this court noted in Cusimano v Toronto (City of) 2011 ONSC 4768 at para. 10, this Court endorsed allowing intervention where the proposed intervenor’s contribution will be useful to the court, by offering even a slightly different perspective than that of the parties, while not causing an injustice to the parties. I find that the LAT has established that it will over a perspective that is not that of the parties, that its participation will assist the court and that the terms presented are reasonable limits on its participation while balancing the need for “fully informed adjudication.”
[10] Accordingly, I grant the LAT has leave to intervene subject to the following terms:(a) The Licence Appeal Tribunal shall accept the appeal records as filed by the parties and shall not seek to adduce to them;
(b) The Licence Appeal Tribunal may file a factum not exceeding 15 pages in length;
(c) The Licence Appeal Tribunal may make oral submissions of up to 15 minutes in length, or such time as permitted by the panel of the Court hearing the appeal;
(d) The Licence Appeal Tribunal shall not seek costs nor shall costs be awarded against it in the appeal; and
(e) There shall be no costs with respect to this motion. . Drewlo Holdings Inc. v. MPAC
In Drewlo Holdings Inc. v. MPAC (Div Court, 2023) the Divisional Court considered a motion by the Assessment Review Board for intervenor status as a friend of the court [under RCP 13.02]:[10] The applicable principles that guide the court’s exercise of its discretion under Rule 13.02 on the question of tribunal intervention are well recognized. This includes consideration of the factors outlined in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., (1990) 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 and the non-exhaustive factors identified in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (CanLII), [2015] 3 S.C.R. 147 at para. 59. Concerns about tribunal participation on appeal should not be read to establish a categorical ban. For the most part, there is a more relaxed attitude in allowing tribunal participation in statutory appeals of its decisions. A discretionary approach provides the best means of ensuring the principles of finality and impartiality are respected without sacrificing the ability of reviewing courts to hear useful and important information and analysis. Ontario (Energy Board), at paras. 46, 52.
[11] For the following reasons, I find that it is appropriate for the Board to participate in the appeal on the proposed terms and subject to the discretion of the panel hearing the appeal.
[12] The Divisional Court encourages and routinely grants tribunal intervention as an aid the court in understanding the procedural and institutional context behind the decision under appeal: Tartu College v. Municipal Property Assessment Corporation et al. (29 June 2022), Toronto, 715/19, 309/20 (Div. Ct.) [unreported]. However, this does not mean the court grants leave without due consideration of the recognized factors that must inform the court on the propriety of the proposed terms of tribunal standing on the appeal.
[13] A fair reading of the decisions relied upon by the Board in support of its motion demonstrates the court’s due consideration and principled application of the established factors in the exercise of its discretion to grant standing to various adjudicative tribunals, such as the Board: Birani v. Tarion, 2017 ONSC 2503; Hutchison v. Aviva General Insurance Company, 2022 ONSC 7136; Tartu College. In Birani and Hutchison, the court did not simply grant the tribunal’s proposed terms of participation. Each decision demonstrated a balancing of the need for fully informed adjudication against the importance of maintaining tribunal impartiality. In both cases, the court put limits on the proposed participation, such as prohibiting the tribunal from making submissions on standard of review or reasonable apprehension of bias. Although the court did not cite caselaw in its reasons in Tartu College, again, reading the reasons as a whole, it is evident that the court had the principles in Ontario (Energy Board) and Peel at the forefront in its reasons and did not simply presume standing.
[14] Although this is an opposed appeal involving experienced counsel, I am persuaded the Board brings a background and perspective to the statutory and tribunal process that is distinct from that of the parties, such as MPAC. As demonstrated in its proposed factum, the Board is in a unique and well-equipped position to present information concerning its process, jurisdiction, the record, the applicable standard of review, policy considerations and the interrelationship of various legislative provisions: Ontario (Energy Board), at paras. 43, 44; Birani at para. 15; Hydro Ottawa v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2019 ONSC 4898 at para. 7; Tartu College.
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[18] I am persuaded the Board can make a useful contribution to the appeal without causing an injustice to the immediate parties. The Board can speak to issues that transcend the interests of the immediate parties in terms of the legislative imperatives and processes to achieve correctness of the assessments, finality of tax assessments and fairness to taxpayers.
[19] The Board’s involvement will not result in a material delay of the appeal. The Board notified the parties of its intention to seek standing shortly after leave to appeal was granted. Drewlo has perfected its appeal. MPAC and the City have refrained from delivering their responding materials pending the disposition of this motion and Drewlo would want the right to file reply materials if leave to intervene is granted. The parties hope the appeal can be heard in the November 2023 sittings. It is therefore possible that the appeal can be ready for that week, although much will depend on the status of that hearing list. It may well not be listed for argument in November 2023 due to scheduling demands; however, that will not be as a result of the Board’s participation. To the extent these reasons have delayed the readiness of the matter for hearing, that is through no fault of the Board. As explained at the hearing of the motion, I have had to dedicate resources to a criminal jury trial that proceeded over the bulk of this summer. . Registrar, Home Construction Regulatory Authority v. Yarco Developments Inc.
In Registrar, Home Construction Regulatory Authority v. Yarco Developments Inc. (Div Court, 2023) the Divisional Court considered (and grants) a motion by the LAT to intervene as a friend of the court [under RCP 13.02] on an appeal of it's own decision. The extract includes the order terms as they are commonly germane in such orders:The Test for Leave to Intervene
[5] Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides for intervention as a friend of the court, states as follows:Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. [6] The Court of Appeal has established that when deciding whether to grant leave to intervene as a friend of the court, the following considerations apply:a. The nature of the case;
b. The issues involved;
c. The likelihood that the proposed intervener will make a useful and distinct contribution not otherwise offered by the parties; and
d. Whether the intervention will cause injustice to the parties or undue delay.
Peel (Regional Municipality) v. Greater Atlantic & Pacific Co. of Canada ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.). [7] When considering whether the proposed intervener will make a useful contribution, the court focuses on: (i) the proposed intervener and its expertise or interest in the issues at stake, and (ii) the specific contribution the intervener proposes to make.
[8] The Supreme Court of Canada has held that it is appropriate for reviewing courts to determine the scope of a tribunal’s participation in an appeal of its own decision in a manner that does not compromise tribunal impartiality or allow for bootstrapping: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 at para. 57.
Application of the Factors
[9] The nature of the case and issues involved engage the public interest because the Appellant is a regulator exercising public powers to grant a licence under a legislative regime.
[10] The LAT is an administrative tribunal created in January 2000 pursuant to the LAT Act. It is designated as a constituent tribunal of Tribunals Ontario, pursuant to s. 2 of O. Reg. 126/10 under the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009. The LAT hears appeals under 34 statutes regarding licencing and consumer compensation and protection matters, including the NHCLA, which deals with the licensure of vendors and builders of homes in Ontario.
[11] A tribunal’s standing on an appeal of its own decision is determined based on a balancing of “the need for fully informed adjudication against the importance of maintaining tribunal impartiality.” Because of their “expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome.”: Ontario Energy Board, at paras. 47, 53 and 57.
[12] The LAT’s limited submissions on the statutory and procedural context, the applicable standard of review and its scope, procedural fairness, and statutory interpretation, are consistent with the scope of a tribunal’s participation in an appeal and will provide useful a perspective to the court without compromising the principles of impartiality or finality.
[13] Given that the other parties consent to the LAT’s motion for leave to intervene, the proposed intervention would not cause injustice or prejudice to either party. In addition, O’Brien J. has directed a schedule for the delivery of further material before the hearing scheduled for September 13, 2023. As a result, the LAT’s intervention would not unduly delay the proceeding.
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Conclusion
[14] Accordingly, I find that the LAT has met the test for leave to intervene as a friend of the court. The motion for leave to intervene is granted.
[15] The following conditions are imposed on the LAT’s intervention, subject to the discretion of the panel hearing the application for judicial review:(a) The LAT will accept the record as prepared by the parties and not add to it, adduce further evidence or raise any new issues beyond those raised by the parties;
(b) The LAT will make all reasonable efforts to avoid duplicating the other parties’ submissions;
(c) The LAT will serve a factum not exceeding 20 double-spaced pages by August 7, 2023;
(d) The other parties may file reply facta to respond to the issues raised in the LAT’s factum, not to exceed 12 double-spaced pages, by August 21, 2023;
(e) The LAT will be permitted to make submissions not exceeding 15 minutes at the hearing of the appeal; and
(f) Unless the panel permits otherwise, the LAT will not seek costs. . Société Radio-Canada v. Canada (Attorney General)
In Société Radio-Canada v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal (on consent) from a CRTC ruling which found that the SRC (the French counterpart of the CBC) had used offensive language, being the racist 'N'-word. The appeal ground was "that the CRTC exceeded its jurisdiction and failed to take into account the applicable legal framework as well as the SRC’s freedom of expression as guaranteed by the Charter" [para 19].
In these quotes to court considers an interesting tribunal intervener standing issue:[20] On January 6, 2023, the CRTC sought leave to intervene in order to oppose the Attorney General’s motion and defend its decision. On February 1, 2023, leave was denied on the ground that this intervention would violate the principles of impartiality and finality of administrative decisions (see the order dated February 1, 2023 dismissing the CRTC’s motion for leave to intervene, citing in support Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147, paras. 65 and 72; and Canada (Attorney General) v. Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3, para. 17).
[21] That same day, the Court, acting on its own motion with the view of obtaining a complete picture of the issues before it, appointed Professor Paul Daly as an amicus curiae, or “friend of the court”, and gave him the mandate of advancing any argument that the CRTC would have been entitled to advance in resisting the Attorney General’s motion, without regard to the jurisprudential constraints limiting its participation.
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