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Judicial Review - Privative Clauses

. 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.


[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.
. Todde v. Workplace Safety and Insurance Appeals Tribunal

In Todde v. Workplace Safety and Insurance Appeals Tribunal (Div Ct, 2022) the Divisional Court faced a 'robust privative clause' and, along with the parties, ignored it:
[6] Decisions of the WSIAT are subject to a robust privative clause, contained in s. 123(4) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., which provides:
Finality of decision

(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.
[7] The parties agree that the WSIAT decisions should be reviewed on a reasonableness standard.
. Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks)

In Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2021) the Divisional Court considered the standard of review where there was a statutory privative clause:
[18] The Ministers’ determinations about the application of s. 15 of the EBR are subject to review on a standard of reasonableness, in accordance with the presumption that reasonableness is the standard of review in applications for judicial review, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] S.C.J. No. 65, at para. 23.

[19] Counsel for Ontario submitted that the presence of the privative clause in s. 118 of the EBR limits judicial oversight to review for unlawfulness. Subsection 118(1) provides that
Except as provided in section 84 and subsection (2) of this section, no action, decision, failure to take action or failure to make a decision by a minister or his or her delegate under this Act shall be reviewed in any court.
Subsection 118(2) provides,
Any person resident in Ontario may make an application for judicial review under the Judicial Review Procedure Act on the grounds that a minister or his or her delegate failed in a fundamental way to comply with the requirements of Part II respecting a proposal for an instrument.
“Instrument” is a defined term, and there are no instruments in issue in these applications.

[20] I disagree with Ontario’s submission. Vavilov makes it clear that reasonableness is the presumptive standard of judicial review of an administrative decision unless the Legislature has provided otherwise – for example, by conferring a statutory right of appeal (at para. 24). As well, Vavilov states that privative clauses “serve no independent or additional function in identifying the standard of review” (at para. 49).

[21] Ontario relies on Greenpeace v. Ontario, 2019 ONSC 5629, 148 O.R. (3d) 191 (Div. Ct.), at para. 35 (“Greenpeace # 1”) and Hanna v. Ontario (Attorney General), 2011 ONSC 609, 105 O.R. (3d) 111 (Div. Ct.), at para. 31 as supporting a more limited standard of review. Hanna is distinguishable from the present case, because it dealt with the court’s restrained scope of review when the validity of regulations is in issue. In Hanna, the Divisional Court held that the substance of the Minister’s decision to recommend a regulation respecting setbacks for wind energy facilities could not be reviewed by the courts so long as the minister complied with the process mandated by s. 11 of the EBR.

[22] Greenpeace #1 was released prior to Vavilov. The dissent states at para. 35, “Where a statutory precondition requires that an opinion be reached or a determination made, it is beyond the scope of judicial review to assess whether the determination was objectively correct or reasonable.” The footnote cites Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741, a case that was also dealing with the validity of regulations, where the judicial role on review is limited. Vavilov is clear that the presumptive standard of review is reasonableness, and that presumption puts this issue to rest. Prior dictum from this Court to the contrary should not be followed: the standard of review is reasonableness.
. 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?
. Xia v. Board of Governors of Lakehead University

In Xia v. Board of Governors of Lakehead University (Div Ct, 2020) the Divisional Court considered a near-privative clause in the Ontario Human Rights Code (a privative clause is a statutory provision that attempts to prohibit judicial review of a government decision). This provision prohibited judicial review unless "the decision is patently unreasonable”, which by all principles of statutory interpretation is more extreme than plain "reasonableness", the standard of review affirmed in Vavilov in 2019. However the court read the two standards to be the same, obviously to avoid the justiciability crisis that would result if the provision were read literally. This is an ongoing justiciability issue, the courts trying to preserve their supervisory role over government and the government (here Ontario) trying to avoid judicial scrutiny [you need to review the Intercounty Tennis and the Midwives cases cited there]:
[14] Section 45.8 of the Code provides that a decision of the Tribunal “is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable”.

[15] Dr. Xia and Lakehead submit that the standard of review to be applied is reasonableness, relying in part on Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 (Div. Ct.) at paras. 37, 45; see also Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 (CanLII) at paras. 77-88.

[16] On the other hand, the HRTO submits that the Divisional Court is bound to apply the legislated standard of review of patent unreasonableness, by which it means the specific and distinct rules associated with the patent unreasonableness standard as set out in the pre-Dunsmuir case law. The HRTO submits that the legislated standard requires deference unless a decision is “clearly irrational” and “evidently not in accordance with reason.” I do not agree, for the reasons set out in the Intercounty Tennis Association and Association of Ontario Midwives cases discussed above. The standard of review is reasonableness as explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) (SCC).
The balance of the case is worth reading for it's treatment of procedural fairness and HR rules issues which, in my opinion, reflect an overly harsh treatment of the human rights applicant [paras 18-40].


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