2019 Developments in Administrative Law Relevant to Energy Law and Regulation


Until the middle of December, 2019 had been an unusually quiet year for Administrative Law judgments of significance, especially from the Supreme Court of Canada. However, all that changed on December 19 when the Supreme Court delivered its long-awaited judgments in Canada (Minister of Citizenship and Immigration) v Vavilov,1 and Bell Canada v Canada (Attorney General).2 These were the cases where, in granting leave to appeal, the Supreme Court had invited the parties to revisit Dunsmuir v New Brunswick,3 with particular reference to the standard of review to be deployed by courts in conducting judicial review of administrative action.4 The next day, the Supreme Court delivered another judgment, Canada Post Corporation v Canadian Union of Postal Workers,5 in which the Court applied the new standard of review template that it had developed particularly in Vavilov.

This new template has particular significance not only for lower courts but also for front-line energy regulators. I will therefore devote most of my time in this annual survey to a discussion of the modified standard of review regime and its likely impact on the conduct of regulatory proceedings as well as subsequent judicial scrutiny of the outcomes of those proceedings. In addition, I will address remedial issues of relevance to Energy Law and Regulation dealt with by the Supreme Court of Canada during 2019. Finally, I deal with three issues arising out of the Trans Mountain Pipeline litigation, two of which are affected by the February 4, 2020 judgment of the Federal Court of Appeal in Coldwater Indian Band v Canada (Attorney General),6 to which I will refer briefly.



For decades, the issue of standard of review has cast an exceptionally long shadow over the Canadian law of judicial review of administrative action. Finding the right balance between the roles of administrative decision-makers as the legislatively designated instruments of governance, on the one hand, and the courts as the protectors of the rule of law and agencies of accountability, on the other, has proved highly problematic. At the very least, the previous serious reconsideration of this issue in Dunsmuir had for most lower courts, counsel, administrative decision-makers themselves, and observers and commentators been incomplete and flawed in some of its prescriptions. Now, those involved in Canadian Administrative Law have another prescription with which to grapple. Whether it will be any more successful than its immediate predecessor remains to be seen. And, by successful, I mean the achievement of at least two objectives: first, the reconciliation of the tension between legislative choice of instrument and the rule of law, and, second, a reduction in the amount of time devoted to standard of review in the conduct of applications for judicial review of and statutory appeals to the courts from administrative action (including inaction).

For energy law and regulation, Vavilov might seem an unlikely case in which to develop a generalized prescription for standard of review selection and application of the appropriate standard of review. It concerned an application for judicial review of the revocation of the certificate of Canadian citizenship of the Canadian born son of Russian spies, a decision that hinged on the interpretation of provisions in the Citizenship Act.7 However, Bell Canada v Canada (Attorney General)8 involved a public interest regulator and issues somewhat closer to energy regulation regimes though still at some remove: a Canadian Radio-television and Telecommunications Commission (“CRTC”) Order and Decision exempting football’s Super Bowl from an Order requiring the simultaneous substitution of American commercials from the Canadian feed of American originating television programmes. As opposed to the situation in Vavilov, it entered the lists of the Federal Court of Appeal by way of appeal by leave on a question of law and jurisdiction.


I. Decisions Subject To Statutory Appeals

In the initial commentary on the new regime, and there has already been a great deal of it,9 the most notable and controversial aspect of Vavilov, as applied simultaneously in Bell Canada, was the majority’s recalibration of standard of review selection as it applied to matters coming to the courts by way of statutory appeal as opposed to a common law or statutory application for judicial review.10 Henceforth, absent legislative specification to the contrary, courts hearing such appeals were to apply the Housen v Nikolaisen11 template mandated for appeals from lower courts in civil law matters. On pure questions of law and questions of law that were readily extricable from mixed questions of law and fact, the standard of scrutiny was to be that of correctness. For questions of fact and mixed law and fact from which there were no readily extricable pure questions of law, the standard of review would be that of “palpable and overriding error.”

Given that the majority of Canada’s energy regulators (as with the CRTC) are located in a statutory scheme that provides for access to the courts from their decisions and orders by way of appeal, often only on leave and restricted to questions of law and jurisdiction,12 this amounts to a very significant change. I will not dwell upon the merits of that change; Nigel Bankes has done so already and persuasively in his blog post entitled “ Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response.”13 What it does do, however, is to remove most energy regulators from a situation where, on pure questions of law, they were entitled to the benefit of a strong presumption of reasonableness review when interpreting their home or a closely related statute. While post-Vavilov, that presumption has become even stronger in the context of common law and statutory applications for judicial review, it has ceased to exist for energy regulators from which access to the courts is by way of appeal. In an appeal setting, absent specific legislative direction, there will be no deference on questions of law but just straight correctness review. Certainly, in the domains of questions of fact or mixed fact and law, they may be no practical difference between review on a reasonableness basis (the prior standard) and review for “palpable and overriding error.” However, in the more generally important domain of pure questions of law, correctness review will now reign.

This was underscored by the majority judgment in Bell Canada.14 Appellate review of the CRTC’s Decision and Order was conducted on a de novo correctness basis with no focus on the reasons of the CTRC or other aspects of reasonableness scrutiny of administrative action. It was a standard exercise in statutory interpretation.

Leaving aside the question of whether this new regime for statutory appeals represents a wise or principled change, it at least has the merits of apparent simplicity. It seems self-applying at least as far as appeals on pure questions of law are concerned. The issue has been removed from the realm of contextual assessment, and, in particular, whether, as one of the elements in the Dunsmuir list of contextual considerations, a particular right of appeal might be a relevant or decisive factor in departing from the previous presumption of correctness review for pure questions of statutory interpretation. Henceforth, the standard will invariably be correctness.

However, this does not mean that the appropriation of the Housen standards of appellate scrutiny will be without problems. Nigel Bankes has identified some of those.15 One issue in particular merits discussion in this context. In most instances, appeals from energy regulators to the courts are confined to questions of law or jurisdiction. In the context of applications for judicial review, the Vavilov court (unanimously) expunged the concept of jurisdiction from the rubric of standard of review selection.16 It will no longer be one of the categories of issue that lead to the rebutting of the presumption of reasonableness review. That raises the question of the afterlife of “jurisdiction” as an appellate ground of review or, indeed, as a judicial review ground of review when explicitly spelled out, as in section 18.1(4)(a) of the Federal Courts Act.17

Indeed, in Bell Canada, the majority, despite its rejection in Vavilov of jurisdiction as an unworkable concept, seemed perfectly comfortable in viewing the critical interpretative issue in that case as “go[ing] directly to the limits of the CRTC’s statutory grant of power.”18This seems like a definition of a true question of jurisdiction, and later this is further underscored by the majority’s reference to the “appellants’ primary jurisdictional argument”19 as well as to this being an issue about “the scope of its authority.”20

Even admitting the irony of the majority’s apparently easy movement into the rubric of jurisdictional review in an appeal setting, it might at first blush seem to be a matter of little moment. In the end, given the right of appeal on pure questions of law, it really does not matter whether the appellate court deals with the issue as one of law or jurisdiction. The standard applied, that of correctness, will be the same in any event. However, traditionally, questions of jurisdiction were not always pure questions of law. They might well be fact-driven or involve inextricably mixed questions of law and fact. Should those questions of “authority” arise in the future in the context of a statutory appeal, will Housen prevail and dictate the application of the “palpable and overriding error” standard or will it be trumped by the Dunsmuir principle that “true” questions of jurisdiction are to be determined on a correctness basis?21


As for energy regulators such as the New Brunswick Energy and Utilities Board22 and the Governor in Council as a final decision-maker on pipeline applications under section 186(1) of the Canadian Energy Regulator Act, given that their decisions are expressly stated to be reviewable by way of judicial review,23 not statutory appeal, the Vavilov judicial review, not appeal reconfiguration will apply.

What does that involve? First, there is now a general presumption of reasonableness review for all their decisions.24 Second, the four contextual factors that might previously have been deployed in rebuttal of that presumption (and, in particular, considerations of comparative expertise) no longer have purchase.25 Third, the rebuttal of the presumption is now linked to three of the four Dunsmuir automatic correctness categories — constitutional questions, dueling or competing jurisdictions, and questions of fundamental importance to the legal system as a whole.26

As already noted, jurisdiction has been dropped from the original four categories. As well, the “fundamental importance” category has been modified by the exclusion of the qualification that the issue must also be one beyond the expertise of the administrative decision-maker; irrespective of expertise, correctness review is required. What is left dangling, however, is whether these three categories are constitutionally protected. In other words, while the majority also acknowledges that the standard of review can be modified and the general presumption overridden legislatively, it is unclear whether that is true of the three correctness categories.

Those doubts aside, here too, standard of review selection has been simplified. Moreover, given the relative infrequency of decisions that engage the three exceptional correctness categories, reasonableness will now be the almost invariable standard in common law or statutory judicial review (as opposed to appeal) whether the issue be one of law, mixed law and fact, or fact. Deference enthusiasts will assuredly take comfort from that.



However, it is in the second element of the Vavilov majority judgment that issues may arise. What are the badges of an unreasonable decision? How committed to deference as a defining principle are the majority judges in Vavilov?

At one level, despite the hiving off of review by way of statutory appeal, the majority appears committed to deference. At the standard of review selection stage, there is now a strong affirmation of a presumption of reasonableness review irrespective of grounds and the category of administrative decision-maker. Moreover, the derogation from that principle in the dropping of comparative expertise as a relevant consideration in the exceptional fundamental importance category may not be the detractor from deferential review that the minority rails against.27 Indeed, the majority are at pains to emphasize that lower courts should not regard any of this as inviting an expansion of the fundamental importance category beyond its currently constrained limits as reflected in the very limited number of precedents.28


When it comes to the application of the reasonableness standard, the majority insist that the starting point, at least for administrative decision-makers who are obliged to and do give reasons for their decisions, must be the reasons provided.29 It is not to be prefaced by judicial evaluation of what decision the court would have reached were it the decision-maker followed by matching of the court’s preconceived vision of the appropriate or correct answer against that provided by the decision-maker. Moreover, the majority’s insistence that the burden of establishing unreasonableness rests with the challenger30 reinforces commitment to a review process that is rooted in a principle of deference.

While insisting on the importance of reasons and adherence to Dunsmuir’s call for “justification, transparency and intelligibility,”31 the majority nonetheless recognizes that administrative decision-makers’ reasons are not expected to partake of the archival, formal character expected of judicial decision-making.32 The majority also reiterates the proposition that administrative decision-makers are not expected to cover each and every one of the arguments made or all the evidence submitted by the parties.33 In this context, the majority is supportive, subject to constraints, of a search for elucidation in materials outside the formal record of the hearing such as precedents and factual background information in the possession of the decision-maker.34 As for decision-makers not obliged to give reasons such as those charged with the making of subordinate legislation, legislative history including internal exchanges may provide acceptable surrogates.35

As well, the majority, having rejected formal consideration of comparative expertise as a factor in the standard of review selection process, nonetheless recognizes expertise as evidenced by the nature or quality of the reasons provided as supporting the extent to which reviewing courts should be deferential.36 This too points towards a strong level of commitment to the deference project.

To be sure, administrative decision-makers have lost a possible avenue for resisting judicial review in the majority’s insistence that decisions must be justified as opposed to justifiable,37 and the supporting proposition that decisions should not generally be upheld as reasonable simply on the basis of outcome. However, it is hard to see this as a dilution of the commitment to deferential review. It represents a legitimate constraint on the extent to which there can be ex post facto reasons advanced in support of the conclusions reached. Deference simply loses its persuasive force when the reasoning and processes of an administrative decision-maker provide no contemporaneous basis for ascertaining why the decision-maker reached the decision that it did. More generally, there is also no reason to gainsay the majority’s insistence that the administrative decision-maker provides a logical or internally rational justification for its conclusions.38


However, there are aspects of the majority’s judgment under the heading “Performing Reasonableness Review” which may be read by lower courts as heralding the arrival of a more “robust”39 (the majority’s term) form of judicial review in the sense of review that imposes a variegated range of constraints on decision-making by administrative decision-makers.

Notwithstanding that the Court repudiates the deployment of the long-established contextual factors in establishing the appropriate standard of review, the majority is strongly committed to a contextual approach in the delineation of an appropriate standard of reasonableness. They reiterate the post-Dunsmuir mantra that reasonableness is a single standard but one which “takes its colour from the context.”40 What is required of administrative decision-makers is that they reach conclusions and adopt solutions that respect the “contextual constraints”41 arising out of “the legal and factual context of the decision under review.”42 What are these contextual constraints and to what extent might they aid and abet in a retreat from genuinely deferential review?

In the majority’s elaboration of the requirements of a duty to give reasons, as noted already, they have reinsinuated expertise as a consideration. Expertise as demonstrated through the reasons provided is a factor to be taken into account in assessment of the “justification, transparency and intelligibility” of the reasons and the outcome.43 Though the majority does not say so explicitly, the converse, reasons that speak to no particular or limited expertise might in future for some judges justify closer scrutiny in the name of reasonableness of the reasons and the outcome.

Subsequently, the majority identifies two “fundamental flaws”44 that make a decision unreasonable. One of them, which in general terms cannot be questioned, is a decision which lacks “internally coherent reasoning.”45 In developing that concept, the majority does, however, use terminology that might too readily attract the attention of interventionist minded judges. Thus, for example, the assertion that a decision will be unreasonable “where the conclusion reached cannot follow from the analysis undertaken”46 may be seen is inviting close inquiry into the merits of the decision-maker’s reasoning and lead to in effect correctness review.

More significant, however, than the two examples just discussed is the majority’s elaboration of the second “fundamental flaw;” the requirement that the decision must be “justified in light of the legal and factual constraints that bear on it.”47 In this context, the majority, as was the case with expertise, in effect reintroduces two now contextual considerations that were banished from the arena of standard of review selection: jurisdictional error and inconsistent decision-making. As seen already, the majority (supported by the minority48) removed “true questions of jurisdiction” as a category that displaced the general presumption of reasonableness review.49 As for inconsistent decision-making, the Court refused to add this as a stand-alone ground for rebuttal of the presumption.50

Under the heading “Governing Statutory Scheme,” the majority returns to the concept of jurisdiction and reiterates the demise of the “true question of jurisdiction” category.51 However, after acknowledging that a “decision-maker’s interpretation of its statutory grant of authority is generally entitled to deference,”52 they go on to assert that:

…[r]easonableness review does not allow administrative decision-makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it. 53

Persuasively, the minority points to this as heralding the reintroduction within the concept of reasonableness of “jurisdictional error,”54 and the majority’s simple assertion that this is not the case55 sounds very hollow indeed.

In what follows under this heading, there is also another potential invitation to intrusive review albeit under the rubric of “reasonableness.” Not surprisingly, the majority refer to the accepted wisdom that there may be some questions of statutory interpretation that admit of only one reasonable answer.56 Indeed, there can be no questioning of the general proposition. However, what is problematic lies in the identification of the circumstances which justify such a conclusion with the dangers to deference clearly indicated by a recent statement by a Federal Court of Appeal Justice to the effect that the vast majority of issues of statutory interpretation admit of only one answer.57

Even more generally, under the heading “Principles of Statutory Interpretation,”58 the majority insists that administrative decision-makers respect the modern approach to questions of statutory interpretation:

But whatever form the interpretive exercise takes, the merits of an administrative decision-maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision.59

This too invites what in effect is correctness review of questions of statutory interpretation albeit under the guise of reasonableness. It is just too easy to categorize a ruling on an issue of statutory interpretation with which the reviewing judge disagrees as based on an improper reading of the “text, context and purpose the provision.”

There are other elements of the majority’s discussion of the need for administrative decision-makers to operate within “the legal and factual constraints that bear on the decision” that may be read as expanding the opportunities for intervention and diminishing the commitment to truly deferential review.60 However, let me conclude this discussion with reference to consistency as a contextual factor. In this context, the majority deals with consistency under two headings — “persistently discordant or contradictory legal interpretations within an administrative body’s decisions”61 and “depart[ure] from longstanding practices or established internal authority.”62 While the majority is not at all clear as to the appropriate judicial response to the former,63 it is somewhat more specific with respect to the latter: the decision-maker’s reasons must explain the reasons for the departure; without such an explanation the decision will be unreasonable.64 I have no problem with such a prescription except that the majority does not explain what precisely it means by requiring that departures be justified. Is it enough that the decision-maker has provided a credible explanation of its failure to follow precedent, thereby preserving an element of deference, or does it mean that the reviewing court should review the justification on a correctness basis?


In its elaboration of how lower courts should conduct reasonableness review, the majority certainly frames that exercise within an overall commitment to deference. However, in accepting that the exercise will always be a contextual one and providing an account of some of the factors that will provide that context, the majority calls into question the proposition that a contextual approach does not mean a commitment to varying standards or intensity of reasonableness review. This entire exercise is predicated on a sense that different scenarios involve different approaches and that, under the umbrella of the “reasonableness” label, there is now a range of possibilities that extend from what is in reality unadorned correctness review through to a very high level of deference.

As well as giving lie to the majority’s rejection of the notion that reasonableness is a single, invariable standard, this raises serious theoretical questions as to the extent to which under this approach reasonableness is being overworked as a concept. Moreover, in a practical sense, the majority’s elaboration of the various contextual factors contains statements that provide ample fodder for expansive judicial intervention in administrative decision-making, intervention that will retain few, if any elements that are deferential. It remains to be seen whether in making choice of standard of review less contentious, the majority has simply transferred the difficult standard of review issues to the delineation of what in any context are the badges of unreasonableness. Put bluntly, in this new world, has the Court handed to deference sceptics among the judiciary all the tools they need to engage in disguised correctness review?

Nonetheless, it must be said that in both Vavilov and especially Canada Post,65 the Supreme Court for the most part leads by example. In each, at least in the majority judgments, the reasons for the decision are the starting point for judicial review. It is against those reasons that the contextual considerations are measured. Moreover, in Canada Post, Rowe J, in justification of reversing the judgment of the Federal Court of Appeal66 and restoring the appeals officer’s decision, approaches the decision of that officer with a disposition that is respectful of the reasoning process apparent in the reasons provided.67 This holds considerable promise for the preservation of deferential review at least in cases of statutory interpretation which proceed to the courts by way of an application for judicial review, as opposed to a statutory appeal.

Perhaps of even more importance in this whole reconfiguration exercise is Vavilov’s contribution as a manual on best practices for administrative decision-makers in the writing of decisions. It should become compulsory reading for all administrative decision-makers and their staff (including counsel). Not only does it provide a template for the structuring of reasons, but it also instructs administrative decision-makers in the range of considerations or contextual factors that they may have to address as part of their mandate and its underlying legal premises.



During 2019, most of the Supreme Court’s quantitatively limited Administrative Law (in a very broad sense) caseload involved remedial issues.68 In general, those remedial issues had little or no relevance to the work of energy regulators as exemplified by the subject matter of what was probably the most jurisprudentially interesting of this group of cases: Canada (Public Safety and Emergency Preparedness) v Chhina.69 It involved the extent of the provincial superior courts’ habeas corpus jurisdiction with respect to detentions under the Immigration and Refugee Protection Act,70 and whether it was precluded as a matter of either jurisdiction or discretion by that legislation’s remedial regime or access to judicial review under the Federal Courts Act.71 As is obvious, this is a question of little or no moment in the context of energy law and regulation.


At first blush, equally of no moment would seem to be R v Bird,72 a judgment concerning the availability of collateral attack in the context of a Criminal Code73 prosecution for violation of a long-term supervision order issued the National Parole Board. However, to the extent that the availability of collateral attack on orders issued by agencies and government officials in an energy-based regulatory capacity is a matter of relevant interest, comment on this judgment is warranted. It also has links with the standard of review issues elaborated on in Vavilov and for that reason alone merits attention.

The Canadian principles with respect to collateral attack were established in 1998 in R v Consolidated-Maybrun Mines Ltd74 and R v Al Klippert Ltd.75 In general, collateral attack was frowned on provided there were adequate opportunities for direct attack on the relevant decision or order. More specifically, in those two precedents, the Court adopted a five criteria76 discretionary approach to determining whether collateral attack would be allowed to proceed.

In Bird, in terms of the Consolidated-Maybrun criteria, two in particular warranted the attention of the Supreme Court — the challenge to the order was founded on section 7 of the Canadian Charter of Rights and Freedoms77, and the Criminal Code’s penalty for violation of a long term supervision order was imprisonment for up to ten years. The Court was not impressed by the argument that this was a case involving Charter rights. There were direct and adequate avenues available to Bird for challenging the order on Charter grounds.78 With respect to the penalty provided for in the Criminal Code, the majority of the Court did treat this as the one of the five criteria that worked in Bird’s favour.79 However, it was not enough to offset the four counter indicators.80 In particular, Moldaver J, delivering the judgment of the majority, saw any arguments stemming from the severity of the penalty as outweighed by the importance of not encouraging a culture of “Breach first; challenge later.”81

Given that the apparently strong arguments in favour of permitting collateral attack failed in Bird, it is difficult to envisage many circumstances in which the Canadian courts would permit collateral attacks on orders made by energy regulators and officials. Nonetheless, in the arena of attacks on subordinate legislation, the possibility may still exist that defendants to enforcement proceedings will under certain conditions be permitted to raise the validity of the relevant by-law or regulation. After all, in Consolidated-Maybrun,82 the Court referred to its precedents83 recognizing collateral attacks on by-laws with apparent approval and certainly without explicitly questioning let alone overruling them.

Indeed, there may be factual configurations that would make it appropriate to permit a collateral attack to proceed in the context of a previously unchallenged regulatory order even if that regulatory order might at the time of issue been subject to appeal to a court. In that context, there could well be a Vavilov standard of review issue. In the mounting of a defence to enforcement proceedings, would the standard of review for the legality of the order be that of correctness as on the statutory appeal or would the order fall to be scrutinized within the framework of the general presumption of reasonableness review? As Nigel Bankes has pointed out,84 this is an issue that may very well arise when there exist both appellate and judicial review opportunities for challenging the validity of an administrative decision for error on a pure question of law.


Frequently, where an administrative decision-maker, for example, fails to act in accordance with the rules of procedural fairness, the remedial consequence will be a quashing of the final decision and a remission of the matter to the decision-maker (or, in some instances, an alternative decision-maker) to be retaken, this time following the dictates of the rules of procedural fairness. However, that is not an invariable outcome. In many instances, the applicant for judicial review (and especially one who is the subject of sanctioning proceedings) will simply want the decision quashed; a remission for the purposes of reconsideration is something to be avoided.

In effect, this was the situation in Vavilov. When, on an application for judicial review, both the Federal Court of Appeal85 and the Supreme Court of Canada determined that the appeals officer had unreasonably misinterpreted the relevant provision in the Citizenship Act and the Registrar had not identified, as an alternative, other bases on which Vavilov’s citizenship should be revoked, there was no reason to remit the matter back for reconsideration this time in accordance with the law or the reviewing court’s reasons for judgment. On the statutory interpretation issue, there was only one reasonable conclusion on the facts of this case. Moreover, Vavilov’s Canadian citizenship had in effect been restored by the Court’s quashing of the revocation. There was nothing more to be done. In such a case, the absence of a remission order for reconsideration of the matter would not in any way compromise the decision-making autonomy of the administrative official.

Nonetheless, as a general principle, the Supreme Court has recognized that, at the remedial stage, reviewing courts should not step inappropriately into the shoes of the administrative decision-maker. This is well illustrated by Delta Air Lines Inc v Lukács,86 which I commented in the 2017 review.87 There, the Supreme Court determined that the Canadian Transportation Agency had erred in principle in the test that it applied in denying Lukács standing to make a complaint. In dissent, Abella J, hadsupported the denial of status as reasonable on grounds not addressed in the Agency’s reasons.88 Among the reasons given by the Chief Justice for rejecting Abella J’s affirmation of the outcome reached by the Agency was that it would have amounted to the Court inappropriately “assuming the role of the Agency”89 by imposing on it a rationale for denying status that the Agency had not itself developed. In such cases, the appropriate remedial disposition was for the Court to remit the matter for reconsideration in accordance with the reasons of the Court. Thereafter, it was open to the Agency, in exercising its discretion over the determination of standing to make a complaint, to evaluate whether there were other legitimate grounds on which it should deny status to Lukács.

Subsequently, in Vavilov, the majority reinforced this conclusion by reference to Lukács.90 It made it clear that, at least in the context of administrative decision-makers that provide reasons, it was not generally appropriate for courts to deny an application for judicial review on the basis that, irrespective of the reasons provided, the outcome itself could be supported on other grounds not identified by the decision-maker. Except in situations where there was only one reasonable outcome and not that reached by the administrative decision-maker, the generally appropriate remedial disposition was, as in Lukács, remission for reconsideration.

Nonetheless, the majority recognized that there could be exceptional circumstances in which remission would be inappropriate given:

…concerns related to the proper administration of the justice system, the need to ensure access to justice, and “the goal of expedient and cost-efficient decision-making which often motivates the creation of specialized administrative tribunals in the first place.”91

Among the situations identified by the majority were cases in which “a particular outcome is inevitable”92 and remission would serve “no useful purpose.”93 Here, the primary authority cited was a case involving energy regulation, the 1994 decision of the Supreme Court of Canada in Mobil Oil Canada Ltd v Canada Newfoundland Offshore Petroleum Board.94 While there had been a breach of the rules of procedural fairness, remission was not appropriate given that the substantive matter in the proceedings had already been resolved by a judgment on a counterclaim in the same proceedings.

Indeed, Lukács itself suggests another example. What if, on remission, the Agency again denied status, and this too was the subject of challenge on the basis that this decision was similarly tainted by unreasonableness albeit of a different variety? The Vavilov majority hints strongly that a subsequent reviewing court might in those circumstances legitimately step into the shoes of the administrative decision-maker. Appeals to deference and respect for legislative choice of the administrative decision-maker as the regulatory instrument:

…cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations.95

Among other factors relevant to a reviewing court’s exercise of remedial discretion on whether to remit, the majority lists:

…concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision-maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources.96

The judgment of Stratas JA, for the Federal Court of Appeal in D’Errico v Canada (Minister of Human Resources and Skills Development),97 cited with approval by the majority in Vavilov,98 provides a good example of a case in which some of the listed considerations were triggered. At stake was an application for judicial review of a decision denying a disability pension. In justification of not remitting an unreasonable decision but stepping into the shoes of the decision-makers and ordering the payment of the pension, Stratas JA took into account the following considerations:

  1. In what was meant to be a rapid determination process, the application for the pension had been made six years previously;
  2. If the matter were to be remitted and the new determination then be subject to an application for judicial review, a further two years were likely to elapse;
  3. The pension in question was one that was meant to address very serious conditions and was of critical life-sustaining importance to those who were eligible; and
  4. The record before the Court on the application for judicial review was sufficient to enable the Court to reach a conclusion on the merits.99



Just as this paper was “going to press” on February 4, the Federal Court of Appeal handed down its judgment in Coldwater Indian Band v Canada (Attorney General).100 This was the application for judicial review in which various indigenous groups had been granted leave to challenge on limited grounds the Governor in Council’s reconsideration decision approving the construction of the Trans Mountain Pipeline Expansion Project. In dismissing the application for judicial review, a panel of the Federal Court of Appeal, consisting of Noël CJ and Pelletier and Laskin JJA, held that the revised Order approving the Project had, with respect to the specific substantive (as opposed to remedial) issue on which leave to seek judicial review had been granted, met the standards of reasonableness set out in Vavilov. In granting leave to appeal,101 Stratas JA had framed that issue as follows:

[W]as the consultation with Indigenous peoples and First Nations adequate in law to address the shortcomings in the earlier consultation process that were summarized at paras. 557-563 of Tsleil-Waututh Nation [v Canada (Attorney General)102]?103

Much of the judgment consists of a careful assessment of the process followed by the Crown and the then National Energy Board in response to the earlier Federal Court of Appeal’s remission of the matter for reconsideration. In this exercise, the Court paid particular attention to the reasons that the Governor in Council provided for its final Order.

Given the fact intensive nature of this application for judicial review and the consideration that the judgment is strictly outside the ambit of my mandate to review 2019 developments, I do not intend to spend much time endeavoring to provide a comprehensive analysis of this very important judgment. However, as it is one of the early applications of Vavilov, the principal focus of this annual review, I will venture some commentary on that aspect of the case. However, before that, let me pick up on two issues arising out of the application for leave to appeal judgment and one of the interlocutory motions that were part of the extensive case management exercise that was the background to the three day December hearing of the application for judicial review.


Several applicants in applying for leave to seek judicial review of the reconsideration decision and Order had raised the issues of conflict of interest and bias. In the aftermath of the original approval decision, the Government of Canada had, through a corporate vehicle, purchased Trans Mountain. In those circumstances, it was argued that the Governor in Council would have both a conflict of interest and be subject to a reasonable apprehension of bias in redetermining the matter with reference to the flaws identified by the Federal Court of Appeal in Tsleil-Waututh.104

In the context of the application for leave to appeal and the test of whether there was “a fairly arguable”105 case on these grounds, Stratas JA characterized the submission as “suffer[ing] from a fatal flaw.”106 The decision-maker, the Governor in Council, was a distinct entity from the Government of Canada and did not own the project. Given that the purchase of Trans Mountain and the structuring of the Government’s ownership arrangements was accomplished through a series of Orders in Council,107 this argument has obvious problems. On the other hand, Stratas JA’s subsequent justification108 based on statutory authorization is much more plausible. Assuming that there is a statutory or prerogative basis for the Governor in Council for both the approval of pipeline projects and the purchase of a pipeline asset, absent a constitutional argument, common law principles as to bias and conflict of interest must give way. As held by Stratas JA, the statute prevails over the common law.

It is also relevant that Stratas JA acknowledges109 that any significant failure on the part of the Governor in Council in circumstances such as this to respect the requirements of consultation and accommodation might, with some evidential or on the record support, give rise to legitimate legal concerns. Was the Governor in Council in fact distracted from its responsibilities on behalf of the Crown to engage in good faith consultation and accommodation by its ownership of the project that was under scrutiny? However, in the context of this application for leave to appeal, there was not a “shred of evidence”110 to support such a contention.

Indeed, while the issue of bias was not one on which leave to appeal had been given, nonetheless, the Federal Court of Appeal in Coldwater Indian Band indicated its agreement with this aspect of the Stratas judgment:

[T]here is no evidence that the Governor in Council’s decision was reached by reason of Canada’s ownership interest rather than the Governor in Council’s genuine belief that the Project was in the public interest. While the assessment that was ultimately made may benefit the Crown as owner of the Project, nothing suggests that the Governor in Council was not guided by the public interest throughout.111


In two previous iterations of this annual review,112 I have been critical of the Federal Court of Appeal for its exclusion of any access to judicial review of the National Energy Board stage of a pipeline approval process in which the final decision-maker is the Governor in Council.113 This outright ban on judicial review of the Board has been explained on various bases: rights are not affected at the Board stage; the Board’s report is not justiciable; defects at the Board level can be cured at the Governor in Council stage; the legislative scheme justifies the implication that any challenge by way of judicial review should await the final decision of the Governor in Council.114

Not surprisingly, in the context of the leave to appeal application in Coldwater Indian Band,115 and a separate application for judicial review filed by one of the affected First Nations in response to the restrictive terms on which leave to appeal had been granted,116 Stratas JA sitting alone in both instances doubled down on the Federal Court of Appeal’s position on this issue.

In the leave to appeal judgment, he described the project approvals process in the National Energy Board Act as “a complete code.”117 He then continued:

As this process unfolds, recourse to the judicial system is forbidden; only at the end of the process, after the Governor in Council has decided the matters is recourse potentially available.118

For this proposition, he cited the foundational precedent, Gitxaala Nation v Canada,119 in which he and Dawson JA had delivered the joint majority judgment of the Federal Court of Appeal, as well as Tsleil-Waututh.120

Thereafter in the second case, he held that the Nation’s subsequent application for judicial review amounted to a violation of the terms of the order made in the leave to appeal application. In that context, again citing the same two judgments,121 he rejected the Nation’s argument that deficiencies in the National Energy Board’s processes should be able to be addressed by an immediate application for judicial review; that review should not have to await the Governor in Council’s decision at the end of the process:

This Court has considered and rejected this argument multiple times because this particular legislative regime is not designed to permit a series of piece-meal judicial reviews. This renders cases under different legislative regimes irrelevant.122

In a blog on this second case,123 Professors Wright, Olszynski, and Bankes accept that this aspect of the judgment was inevitable and that at this stage the only realistic venue for reversing the Federal Court of Appeal’s position would be on an appeal in an appropriate case to the Supreme Court of Canada. However, they go on to question whether the rule itself was based on a misreading or misapplication of prior Federal Court of Appeal precedents.

I will not comment on whether the assertion about the prior precedents is justified. My point remains the same as it has been throughout. In terms of general Canadian judicial review principles, there is no longer any outright bar on the filing of applications for judicial review of non-binding reports.124 However, as a matter of remedial discretion, courts should generally treat such applications for judicial review as premature because of the potential for the disruption of administrative processes and the likelihood that any defects can be rectified at later stages of the process. Under this regime, mid-process intervention will be an exceptional category.

In my view, this regime is ample to take care of most, if not all the concerns that have animated the Federal Court of Appeal. More generally, I would argue that it is better to leave some room for exceptional cases than to create a new category of non-justiciable government action. I also question the proposition that the Court’s position flows automatically from the terms of the relevant legislation and the classification of those provisions as a legislatively intended complete code. The legislative message can be read in a somewhat less draconian fashion with the concerns about disruption seen as amply taken care of by reading into the relevant portions of the legislation an implicit endorsement of the common law’s remedial discretion principles.


In the foundational duty to consult Supreme Court judgment, Haida Nation v British Columbia (Minister of Forests),125 McLachlin CJ addressed the issue of standard of review. After accepting that on pure questions of law such as the “existence or extent of the duty to consult or accommodate is a legal question” on which the standard of review is that of correctness,126 she continued to the effect that those engaged in the process were entitled to deference in the form of reasonableness review with respect to the factual assessment components of the exercise.127 Thereafter, in a separate paragraph, the Chief Justice moved to consider the “process itself.”128 It too fell to be evaluated “on a standard of reasonableness.”129 She continued:

What is required is not perfection, but reasonableness.130

This discussion of standard of review raises at least one question. Obviously, in the first paragraph, McLachlin CJ is discussing the standard to be applied to the review of decision-making by statutory authorities,and accepts differing standards of review for determinations on questions of law and questions of fact. However, it may be that in the second paragraph, the focus is changed. In this context, she may not be deploying reasonableness in the sense of a standard of review to be applied to scrutiny of the reasons for decision provided by a statutory decision-maker. Rather, in the context of the process followed by the decision-maker, reasonableness becomes a ground of review as opposed to a standard against which to measure the decision-maker’s reasons. Irrespective of the decision-maker’s reasons, if any for following a certain process, the task of the reviewing court is to determine by reference to its own lights whether the process is substantively reasonable.

One might ask: What difference does it make? And, maybe, in a practical sense, it does not. However, for the judicial review of energy regulators who are engaged in the assessment of whether the Crown has met its consultation and accommodation obligations, the matter may have some relevance. In conducting review of a regulator’s determination on whether the Crown’s obligations have been fulfilled, should the reviewing court’s focal point, particularly after Vavilov, be an assessment of whether the regulator’s reasons as to the adequacy of consultation and accommodation have met the test or standard of reasonableness? Or, should the court make its own, independent or correctness determination of whether the process of consultation and accommodation was reasonable? And, I want to suggest that they might be very different tasks and, as a matter bearing on the court’s rules of procedure, dealt with in rather different ways. Thus, for example, the first approach might be one that is generally confined to the record of the proceedings under review while the second might allow for a ready introduction of extra-record material and argumentation.

In granting leave to appeal in the Coldwater Indian Band case,131 Stratas JA added a rider to the primary question on which leave was granted. In dealing with the issue of whether the shortcoming of the previous process had been remedies, the parties should “include submissions on the standard of review, margin of appreciation or leeway that applies in law.”132 Subsequently, in one of his interlocutory judgments as case manager of the litigation, he in fact referred to this very issue in suggesting “some of the questions that might usefully be explored”133 under this rider.

[I]n its Order in Council, the Governor in Council stated that it had considered the issue of consultation and had concluded that Canada fulfilled its duty to consult. This is a decision by an administrative decision-maker. Normally, such decisions are reviewed using the reasonableness standard of review…134


Is the following irrelevant because compliance with the duty to consult, subject to leeway, is mandatory regardless of whether the Governor in Council thinks it has been complied with or not?135

In its judgment in Coldwater Indian Band,136 the Court in fact responded to this invitation and provided a definitive answer: post-Vavilov, the focal point for the conduct of review should be the reasons of the Governor in Council:

The existence and depth of the duty to consult are not in issue. All parties agree that the duty is one of deep consultation. The fundamental issue to be decided is whether taking this into account, the Governor in Council could reasonably conclude that the flaws identified…were adequately remedied by the renewed consultation process. This is a narrow issue primarily based on the Governor in Council’s evaluation of the adequacy of the consultation that took place during the second consultation process, an assessment that is fact intensive and that calls for deference.137

Indeed, in two further paragraphs,138 the Court continued to emphasise that its focus “must be on the reasonableness of the Governor in Council’s decision.” The Court also expressed its exasperation with the applicants’ approach to the proceedings:

At an early stage in these proceedings, the applicants were twice invited to focus on the Governor in Council’s decision and to address the standard of review…Instead, they chose to focus on the merits of the decision.139

From this, it can be assumed safely that the Federal Court of Appeal sees judicial review of administrative decision-maker assessments of the adequacy of consultation with and accommodation of Indigenous Peoples as subject to the review standard of reasonableness. Moreover, following Vavilov, the focus of review must be the reasons provided the administrative decision-maker. Presumably, however, where the decision-maker has not addressed specifically the adequacy of Crown consultation and accommodation (by reason of oversight or a lack of authority to do so), reviewing courts will engage in an independent or de novo assessment of the “reasonableness” not of the decision but of the extent of the consultation and accommodation.

* Emeritus Professor, Faculty of Law, Queen’s University.

  1. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. (For a more substantive discussion on the impact of Vavilov, please review my paper scheduled to appear in The Advocates’ Quarterly, which deals with some matters not canvassed in this annual review.)
  2. Bell Canada v Canada (Attorney General), 2019 SCC 66.
  3. Dunsmuir v New Brunswick, 2008 SCC 9.
  4. See e.g. the leave to appeal judgment in Canada (Citizenship and Immigration) v Vavilov, 2018 CarswellNet 2127 and 2018 CarswellNet 2128.
  5. Canada Post Corporation v Canadian Union of Postal Workers, 2019 SCC 67.
  6. Coldwater Indian Band v Canada (Attorney General), 2020 FCA 34.
  7. Citizenship Act, RSC 1985, c C-29, ss 22.1 to 22.4.
  8. Supra  note 2. (Given this, it remains puzzling to me that there were no energy regulators or representatives of the energy sector among the numerous interveners participating in these two case. Given the impact of Vavilov on standard of review in the context of statutory appeals, there may now be some regret over decisions not to seek participatory rights.)
  9. See, for example, Paul Daly, “The Vavilov Framework and the Future of Canadian Administrative Law” (15 January 2020) on SSRN and building on earlier assessments of Vavilov posted to his blog Administrative Law Matters, and also Shaun Fluker, “Vavilov on Standard of Review in Canadian Administrative Law” (6 February 2020), online: Ablawg
  10. Supra note 1 at paras 36-52.
  11. Housen v Nikolaisen, 2002 SCC 33.
  12.  See e.g. Alberta Utilities Commission Act, SA, c A-37.2, ss 29(1) and (2); Responsible Energy Development Act, SA, c R-17.3, ss 45(1) and (2); Ontario Energy Board Act, 1998, SO 1998, c 15, Sched B, s 33(2) (though not requiring leave); Utility and Review Board Act, SNS 1992, c 11, s 30(1) (though also not requiring leave); and Canadian Energy Regulator Act, SC 2019, c 28, ss 72(1) and (2).
  13.  Nigel Bankes, “Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response”, (3 January 2020), online: Ablawg <http://ablawg.ca/wp-content/uploads/2020/01/Blog_NB_Vavilov.pdf>.
  14. Supra note 2.
  15. Supra note 13.
  16. Supra note 1 at paras 65-68.
  17. Federal Courts Act, RSC 1985, c F-7.
  18. Supra note 2 at para 4.
  19. Ibid at para 33.
  20. Ibid.
  21. Supra note 3 at para 59.
  22. Energy and Utilities Board Act, SNB, c E-9.18, s 52(1), creating an unqualified right to seek judicial review. In contrast, applications for judicial review of decisions of the Quebec Régie de l’energie are limited to questions of jurisdiction: Act respecting the Régie de l’énergie, SQ, c R-6.01.
  23. Canadian Energy Regulator Act, SC 2019, c 18, s 188(1). See also s 70, respecting applications for judicial review of the decisions of the Pipeline Claims Tribunal.
  24. Supra note 1 at paras 10 and 23.
  25. Ibid at para 58.
  26. Ibid at paras 17 and 53.
  27. Ibid at para 244.
  28. Ibid at para 61.
  29. Ibid at para 84.
  30. Ibid at para 100.
  31. Supra note 3 at para 47
  32. Supra note 1 at paras 92 and 114.
  33. Ibid at paras 98 and 128.
  34. Ibid at para 94.
  35. Ibid at para 137.
  36. Ibid at para 93.
  37. Ibid at para 86.
  38. Ibid at paras 99ff.
  39. Ibid at para 13.
  40. Ibid at para 89, citing among other judgments Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 59.
  41. Supra note 1 at para 90.
  42. Ibid.
  43. Ibid at para 93.
  44. Ibid at para 101.
  45. Ibid at para 105.
  46. Ibid at para 103.
  47. Ibid at para 101.
  48. Ibid at para 282.
  49. Ibid at paras 65-68.
  50. Ibid at paras 71-72.
  51. Ibid at para 109.
  52. Ibid.
  53. Ibid.
  54. Ibid at para 285.
  55. Ibid at para 109.
  56. Ibid at para 110.
  57.  Nadon JA in Bell Canada v 7265921 Canada Ltd (dba Gusto TV), 2018 FCA 174 at paras 194-196.
  58. Supra note 1 at paras 115ff.
  59. Ibid at para 120.
  60.  For example, ibid at paras 133-35, under the category “Impact of the Decision on the Affected Individual”, is the majority prescribing that reviewing courts take a much harder look or be less deferential when the interests at stake are by the reviewing court’s lights significant?
  61. Ibid at para 132.
  62. Ibid at para 131.
  63. Ibid at para 132.
  64. Ibid at para 131.
  65. Supra note 5.
  66. Canadian Union of Postal Workers v Canada Post Corporation, 2017 FCA 153.
  67. Supra note 5 at paras 28ff.
  68.  Aside from those mentioned in the text, R v Myers, 2019 SCC 18, Bessette v British Columbia (Attorney General),
    2019 SCC 31, and R v Penunsi, 2019 SCC 39, all involved judicial review of summary criminal proceedings.
  69. Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29.
  70. Immigration and Refugee Protection Act, SC 2001, c 27.
  71. Federal Courts Act, RSC 1985, c F-7.
  72. R v Bird, 2019 SCC 7.
  73. Criminal Code, RSC 1985, c C-46.
  74. R v Consolidated-Maybrun Mines Ltd, [1998] 1 SCR 706.
  75. R v Al Klippert Ltd, [1998] 1 SCR 737.
  76.  See Consolidated-Maybrun, supra note 74 at paras 45-49.
  77. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
  78. Supra note 74 at para 49.
  79. Ibid at para 82.
  80. Ibid at paras 83-85.
  81. Ibid at para 83.
  82. Supra note 74 at para 25.
  83. R v Greenbaum, [1993] 1 SCR 674; R v Sharma, [1993] 1 SCR 650.
  84. Supra note 13.
  85. Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132.
  86. Delta Air Lines Inc v Lukács, 2018 SCC 2.
  87.  David J Mullan, “2017 Developments in Administrative Law Relevant to Energy Law and Regulation” (2018) 6:1 ERQ 19-24.
  88. Supra note 86 at para 29.
  89. Ibid at para 28.
  90. Supra note 1 at paras 140-42.
  91. Ibid at para 140, quoting Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 55.
  92. Ibid at para 142
  93. Ibid.
  94. Mobil Oil Canada Ltd v Canada Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202 at pp 228-30.
  95. Supra note 1 at para 142.
  96. Ibid.
  97. D’Errico v Canada (Minister of Human Resources and Skills Development), 2014 FCA 95.
  98. Supra note 1 at para 142.
  99. Supra note 97 at paras 18-20.
  100. Supra note 6.
  101. Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224. For extensive commentary on this judgment, see Nigel Bankes, Martin Olszynski, and David Wright, “Federal Court of Appeal Provides Reasons in TMX Leave Applications” (11 September 2019), online: Ablawg <http://ablawg.ca/wp-content/uploads/2019/09/Blog_NB_MO_DW_Raincoast.pdf>.
  102. Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153.
  103. Supra note 101 at para 65. Stratas JA also stated two other questions: Whether “any defences or bars to the application for judicial review apply?” (at para 66), and, contingently: “[S]hould a remedy be granted and, if so, what remedy and on what terms?” (at para 66).
  104. Supra note 102.
  105. Supra note 101 at paras 14-16.
  106. Ibid at para 33.
  107. See Orders in Council, 2018-0635 (31 May 2019), 2018-0670 (1 June 2018) and 2018-0672 (1 June 2018).
  108. Supra note 101 at para 34, citing Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52.
  109. Ibid at para 35.
  110. Ibid.
  111. Supra note 6 at para 23.
  112.  David J Mullan, “2016 Developments in Administrative Law Relevant to Energy Law and Regulation” (2017) 5:1 ERQ 15 at 29-30, and David J Mullan, “2018 Developments in Administrative Law Relevant to Energy Law and Regulation” (2019) 7:1 ERQ.
  113. See the joint judgment of Dawson and Stratas JJA in Gitxaala Nation v Canada, 2016 FCA 187 and the judgment of Dawson JA for the Court in Tsleil-Waututh Nation v Canada (Attorney General) supra note 102 at paras 170-202.
  114. Supra note 112 provides documentation.
  115. Raincoast Conservation Foundation v Canada (Attorney General), supra note 101.
  116. Stk’emlupsemc te Secwepemc Nation v Canada (Attorney General), 2019 FCA 239 (also known as Ignace v Canada (Attorney General)).
  117. Supra note 101 at para 10.
  118. Ibid at para 11.
  119. Supra note 113.
  120. Supra note 102.
  121. Supra note 115 at para 36. See also Stratas JA’s further reiteration of this position in his judgment for a panel of three in Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 259 at para 13.
  122. Ibid.
  123. David V Wright, Martin Olszynski, and Nigel Bankes, “TMX Litigation Takes an Unusual Turn at the Federal Court of Appeal” (5 October 2019), online: Ablawg <http://ablawg.ca/wp-content/uploads/2019/10/Blog_DW_MO_NB_Ignace.pdf>.
  124. See e.g. Alberta Wilderness Assn v Canada (Minister of Fisheries and Oceans), [1999] 1 FC 483 (CA).
  125. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73.
  126. Ibid at para 61.
  127. Ibid.
  128. Ibid at para 62.
  129. Ibid.
  130. Ibid.
  131. Supra note 101.
  132. Ibid at para 65.
  133. Stk’emlupsemc te Secwepemc Nation v Canada (Attorney General), 2019 FCA 266 at para 13.
  134. Ibid at para 15.
  135. Ibid at para 18.
  136. Supra note 6.
  137. Ibid at para 16.
  138. Ibid at paras 29 and 79.
  139. Ibid at para 80.


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