Simon's Megalomaniacal Legal Resources

Justiciability - General (2)

. Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church

In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church (Ont CA, 2023) the Court of Appeal briefly notes limits of justiciability that apply to associations and churches:

[41] It is true that this court has accepted the general rule that where “the rules of a self-governing organization, especially a religious organization, provide an internal dispute resolution” to a person “who has been aggrieved by a decision of that organization”, that person “must seek redress in the internal procedures of that organization”: Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728, 344 D.L.R. (4th) 332, at para. 18.

. Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board

In Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board (Ont CA, 2023) the Court of Appeal considered the constant law-politics struggle over 'justiciability', that is when government behaviour can be legally reviewed:

A. THE JUSTICIABILITY OF THE MINISTER’S DECISIONS

[24] The Divisional Court held that the decision of the Board, which made a recommendation to the Minister that the CCC’s application for a change to its status and degree-granting authority was not yet ready for approval, as certain benchmarks had not been met, was not reviewable.

[25] The appellant does not challenge this aspect of the Divisional Court’s decision.

[26] With respect to the Minister’s decisions – both the decision to refer the matter to the Board and the decision to recommend against proclamation of the amendments to the CCC’s establishing legislation at this time – the Divisional Court accepted that these decisions were reviewable.

[27] The Divisional Court characterized the Minister’s decisions as “legislative, not adjudicative in nature.”

[28] The appellant argues that the Divisional Court’s finding that the Minister was exercising a legislative function, in effect, means that the decision of the Minister (the executive) to recommend not proclaiming the legislation is not justiciable, and therefore not reviewable by the court.

[29] I would reject this submission. There is no question that the Minister’s decisions under review are justiciable and that the Divisional Court treated them as such in the decision below. Whether those decisions are characterized as legislative, administrative or adjudicative in nature may be relevant to the substance of the judicial review analysis, as discussed below, but such characterization does not affect their justiciability.

. Canada v. Boloh 1(a)

In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considered an issue of 'justiciability', here in the context of international relations:

[65] In deciding cases, judges are restricted to the evidence supplied by self-interested parties and have a deep knowledge of law but little else at their disposal. In the sort of ever-evolving, sensitive and complex context we have here, are judges well placed to easily substitute their opinion for that of the Government of Canada, given the foreign information and intelligence, knowledge, and experience and expertise in foreign relations and international affairs it has? Of course not.

[66] Courts must appropriately defer to the executive when it acts on matters quintessentially and uniquely within its ken: Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin. L.R. (6th) 11 at para. 25; CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101 at para. 49; Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 148 C.P.R. (4th) 91 at para. 49; Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58, 422 D.L.R. (4th) 112 at para. 100; Hupacasath First Nation at paras. 66-67, citing numerous cases from the Supreme Court. Sensitive issues of foreign relations and international affairs are just such a matter: Portnov v. Canada (Attorney General), 2021 FCA 171, 461 D.L.R. (4th) 130 at para. 44; Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, 7 D.L.R. (4th) 95 at 522-523 S.C.R.; Spencer v. The Queen, 1985 CanLII 4 (SCC), [1985] 2 S.C.R. 278, 21 D.L.R. (4th) 756; Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438; Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481.

[67] The Government of Canada correctly submits that the Federal Court accorded insufficient deference in this case:

The Court directed Canada to undertake what can only be understood as diplomatic negotiations with [the Autonomous Administration of North and East Syria], a foreign non-state actor, and to travel to a foreign territory, without the relevant foreign State’s consent as normally required, to effect the repatriation of the detained Respondents as soon as possible after [the Autonomous Administration of North and East Syria] agrees to release them. This decision leaves the Government little flexibility or control over important matters of high policy.

(Government of Canada’s memorandum of fact and law at para. 82.) In the words of the Supreme Court in Khadr (2010) (at para. 39), the Federal Court gave "“too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests”".

. Wellman v. Telus Communication Company

In Wellman v. Telus Communication Company (Div Ct, 2021) the Divisional Court issued what I think is an unusual and questionable order. The parties disagreed about the interpretation of a Supreme Court of Canada (SCC) order with respect to costs, so - after they moved at trial level to resolve it (leading to the present appeal) - the Divisional court ordered (it wasn't simply a suggestion) that they make an application to the SCC to resolve the issue. The required application appears to be within the SCC's jurisdiction, but it bothers me that parties could be ordered to make what is normally highly-deferred-to tactical decision:

[6] As a result, this court orders that the parties jointly apply to the Supreme Court of Canada pursuant to Rule 81 and Rule 6 of the Rules of the Supreme Court of Canada, SOR/2002-156. The parties are to apply for clarification of the terms of the costs order issued by the Supreme Court, and an extension of time if necessary. The decision of Morgan J. is to be included in the application. Although directed as a joint application, the relief sought by each party may differ. This application must be made within 45 days.

. Restoule v. Canada (Attorney General)

In Restoule v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal considered basics of justiciability (there's a telling reference to the political nature of 'homelessness' in para 209):

The Governing Principles Concerning Justiciability

[209] The doctrine of justiciability imposes limits on judicial review of executive action. It is based on the sense that there are public policy issues that are beyond the jurisdiction of the courts. Stratas J.A. noted:

In rare cases … exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers.[133]

Examples of such rare cases would include the deployment of military assets, entering into foreign treaties, and addressing homelessness.

[210] The issue of addressing homelessness was raised in Tanudjaja, where the court found that there was “no sufficient legal component to engage the decision-making capacity of the courts”, and that “[i]ssues of broad economic policy and priorities are unsuited to judicial review.”[134] The application in that case asked the court “to embark on a course more resembling a public inquiry into the adequacy of housing policy.”[135] The court noted, “the issue is one of institutional competence [and] whether there is a sufficient legal component to anchor the analysis” and concluded that the application was not justiciable.[136]