First, an apology. Readers of this journal will have enjoyed — as I have — Professor David Mullan’s annual reviews over the past decade. They are classics of the genre. All good things come to an end, however, and Professor Mullan is winding down operations. Evidently, my advocacy skills need some work, as I failed to persuade him to — at least — continue to contribute the annual reviews to this journal. For that, I apologize. I am grateful to Professor Mullan, who has been exceptionally supportive of my academic endeavours since I arrived in Canada, for seeing fit to hand me the torch; I will do my very best to repay his trust.

Canadian administrative law is, at present, in a relatively settled state. The years since the seminal Supreme Court of Canada decisions of the late 1970s — Nicholson^[1] and New Brunswick Liquor^[2] — have been marked by constant, sometimes avulsive, change. With the decision in Vavilov in 2019 the Court sought to place the law of judicial review of administrative action on solid ground.^[3] This endeavour has been a success: stability has replaced uncertainty; the transparent framework developed in Vavilov has allowed courts and counsel to get more quickly to the merits of disputes and make clear arguments.

Since Vavilov, the Court’s own interventions in administrative law have been sporadic. Pure administrative law appeals have been thin on the ground and most of the Court’s administrative law cases in the post-Vavilov era have had an extra dimension that needed clarification. Bell Canada^[4] and Canada Post^[5] accompanied Vavilov in 2019, there were no administrative law decisions of note in 2020 and just one in 2021 (where the Court was also asked to clear up a question about the role of appellate courts in judicial review cases^[6]). Late that year, I remarked that the Court had been “virtually silent” on standard of review since Vavilov.^[7] 2022 featured two decisions: Abrametz^[8] was mostly a case about unreasonable delay in administrative proceedings and standard of review was mentioned only briefly; and Entertainment Software Association^[9] was an interesting case which dealt with an issue left undecided in Vavilov and, though the analysis departed in some ways from the spirit of Vavilov, it was subtle enough that the ramifications are likely to be limited. Last year, there was another esoteric case dealing with language rights and Charter values (CSFTNO)^[10] with a single pure administrative law decision in Mason^[11] (though for the most part its significance lies in reaffirming the core principles of Vavilovian reasonableness review).

It seems clear that the Vavilov simplification exercise has reduced the number of live issues on which appellate courts part company and where the Court’s involvement is therefore required. The trend of the Court only hearing cases which have an extra dimension is likely to continue, with pure administrative law cases probably thin on the ground. Sure enough, three of the four administrative law cases currently on reserve undoubtedly have an extra dimension: Yatar deals with limited appeal rights and judicial discretion; York Teachers addresses the inter-relationship between judicial review and the Charter; and Société des casinos deals with the application of freedom of association jurisprudence by an expert labour relations tribunal.^[12] The last of the quartet is the Ontario Mandate Letters case, and even it touches on matters of high constitutional principle (although, in my view, it can be resolved, as it was in the courts below, on standard application of reasonableness review).^[13] Stability, therefore, means fewer pure administrative law cases being decided by the Court.

Several implications follow from this relative stability.

First, and most obviously, it means appellate courts become more influential. They are certainly more influential as far as litigants are concerned, as their word is increasingly sure to be the last word. They are probably also more influential in terms of developing the law: evidently, they must work within the Vavilov framework (and so the scope for innovation is limited to that extent) but have significant latitude in working out the requirements of reasonableness review in particular domains and, where the correctness standard applies, setting the legal framework particularly in areas of economic regulation.

Second, and relatedly, caution should be exercised before drawing sweeping conclusions from Supreme Court of Canada decisions. As I observed in a 2017 article in the University of New Brunswick Law Journal, it can be difficult to distinguish the “signal” from the “noise” in administrative law. Judicial review cases invariably involve the application of general principles to specific areas of law. But a decision intended to resolve an issue in a specific area of law might have implications for the operation of the general principles.^[14] This is always true of an apex court that, by definition, is dealing only with questions of national importance and it is especially true at the moment because the general principles of judicial review were settled by Vavilov. In short, it is highly unlikely that the Court when resolving an issue in a specific area intends to change the way the general principles operate. A decision by the Court might well be “noise” as far as the general principles are concerned. It is only when there is a “signal” — a clear statement in one decision or an inference from several decisions — that it can safely be said that the general principles have changed. Hence my caution last year in describing the Entertainment Software Association and Abrametz decisions, with my analysis topped and tailed by caveats about “signal” and “noise”.^[15]

Third, and perhaps most happily, the range of issues to be discussed in a ‘year in review’ paper is broader. With standard of review enjoying relative stability and the Court’s move to a more ‘administrative-law adjacent’ docket as far as judicial review is concerned, long-neglected topics might rise to prominence. The last year has provided a veritable cornucopia of fascinating administrative law issues around the country, especially in appellate courts. There have been important decisions on the duty to consult,^[16] the duty to keep the commencement of legislation under review,^[17] administrative independence,^[18] the use of artificial intelligence in public administration,^[19] the principle that administrative appeal procedures can ‘cure’ procedural defects,^[20] the content of the record on judicial review,^[21] and exhaustion of remedies.^[22]

With that background in mind, let me turn to the bill of fare in this paper.

In Part I, I will discuss the Supreme Court of Canada’s decision in Mason v Canada (Citizenship and Immigration),^[23] which has implications across the broad field of administrative law notwithstanding the fact that the specific issue related to immigration. I will touch briefly on the decision in CSFTNO, which is unlikely to have long-term implications in the area of energy law but which nonetheless is worth keeping an eye on. I will round out Part I by highlighting some appellate decisions that underscore the importance of responsive justification by all decision-makers, regardless of their status and perception of the stakes: energy lawyers both writing and challenging decisions should take careful note.

In Part II, I will discuss two recent appellate decisions on the scope of regulatory powers, an important topic that caught judicial attention both federally and in Alberta in the past year. Both decisions restate important first principles and, in the Albertan example, ponder significant questions about the authority of past decisions in the post-Vavilov era. In this section I will also address an important recent decision of the Federal Court of Appeal on open justice, which is potentially of broad application, a procedural fairness contribution by the Alberta Court of Appeal that is interesting but unlikely to have systemic ramifications and a Supreme Court decision on extraterritorial regulation.

In Part III, I will turn to an issue that is on the Supreme Court of Canada’s agenda, namely the impact of a limited right of appeal on a party’s ability to seek judicial review.^[24] This issue has garnered enormous attention since Vavilov, generating significant heat (though not necessarily light). The Supreme Court may or may not speak authoritatively on this issue in an upcoming decision but in the meantime, with the jurisprudence in appellate and first-instance courts accumulating, it seems to me to be an appropriate point at which to take stock. Given the prevalence of limited rights of appeal in Canadian regulatory law this topic is extremely important for energy lawyers.

I will not address, in this paper, the standard of review applicable to regulations,^[25] a matter to be debated at the Supreme Court in April, but Professor Mullan comprehensively discussed this subject in a recent issue of this journal, so I will wait patiently to hear what the Supreme Court has to say. I am also counsel for the appellant in one of those cases and have little to add, beyond my written submissions, to what I have already said on the subject. If you will all have me back next year, I will hopefully be able to offer my thoughts on the Supreme Court’s decision(s) on this subject.

I. SELECTING THE STANDARD OF REVIEW AND APPLYING THE REASONABLENESS STANDARD

After a hiatus of nearly four years, the Supreme Court of Canada this year applied the reasonableness standard for the first time since Vavilov and the companion case of Canada Post. The decision in Mason is significant as far as the methodology of reasonableness review is concerned, in respect of (1) the need for an administrative tribunal to grapple with submissions decided from the parties; (2) the extent to which implied reasons can support the reasonableness of a decision; and (3) when a reviewing court can consult a statute. I will start, however, by discussing the majority’s choice of standard of review, which may sound the death knell for contextual analysis.

SELECTING THE STANDARD OF REVIEW: THE DEATH OF CONTEXT?

Mason is an immigration law case. In the Immigration and Refugee Protection Act, s 74(d)^[26] permits the Federal Court, having heard a judicial review application about an immigration or refugee matter, to certify a question of general importance for the Federal Court of Appeal to resolve. For years, this provision was interpreted as requiring correctness review on questions of law. As the Supreme Court explained through a rhetorical question in Pushpanathan v Canada (Minister of Citizenship and Immigration), “Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board which are wrong in law, even clearly wrong in law, but not patently unreasonable?”^[27]

In 2015, the Supreme Court abruptly changed course, applying the reasonableness standard to a question of interpretation in Kanthasamy v Canada (Citizenship and Immigration).^[28] I do not propose to rake over the coals of this dispute (which is well described by Côté J in her compelling concurring reasons at paras 128–137) but simply to highlight that the approach to the certified question regime has long been a significant source of contention.^[29]

Now, of course, the point of departure is the Vavilov framework. With colleagues I appeared for the intervener Canadian Association of Refugee Lawyers before the Court in Mason. We argued that under the Vavilov framework the correctness standard should apply. We leaned heavily on the apparent return to contextual analysis in Entertainment Software Association,^[30] making legislative intent and rule of law arguments consistent with the approach in Entertainment Software Association. I will not repeat the arguments here as they are thoroughly and clearly developed by Côté J in her concurring reasons at paras 146–176. Suffice it to say that having put our fingers through a door that was opened by Entertainment Software Association, in Mason, the door was slammed shut by Jamal J: “recognizing a new correctness category here would conflict with Vavilov’s goal of simplifying and making more predictable the standard of review framework by providing only limited exceptions to reasonableness review.”^[31]

Although I let out a yelp of pain for my injured fingers and the definitive demise of correctness review on certified questions under the IRPA, I am not displeased at the overall outcome. Vavilov did simplify and clarify the law; rejecting context on the selection of the standard of review was an important part of the simplification and clarification exercise. Our argument for correctness review in Mason was narrowly tailored^[32] but a firm rejection of contextual analysis will strongly dissuade lower courts from opening up the correctness categories. Indeed, Jamal J did not give an inch on the scope of the existing categories. Certified questions are not, he held, general questions of law of central importance to the legal system by their nature: here, the issue raised on the certified question was “particular to the interpretation” of a discrete provision,^[33] as will typically be the case.

This is commendably clear. I am happy to lose the battle over the IRPA if it means simplicity and clarity prevail in the wars that have raged for decades in Canadian administrative law.

Nevertheless, we are now in a situation where in its first two discussions of standard of review subsequent to Vavilov, the Supreme Court has taken divergent approaches, leaning heavily on context in Entertainment Software Association, but lurching the other way in Mason. It is, after all, remarkable that a statute that said nothing at all about judicial review or appeals was held in Entertainment Software Association to require correctness review but a statute with elaborate mechanisms relating to judicial review and appeal was held in Mason not to evidence any sort of relevant legislative intent.

I have the distinct feeling that had Mason been heard and decided before Entertainment Software Association, the standard of review outcomes would have been reversed. Yet unexplained divergence from one year to another — of just this sort — was one of the ills that led to Vavilov. If the Supreme Court wishes to achieve the simplicity and clarity Vavilov promised, it needs to pick an approach and stick with it. I hope (for the Supreme Court’s sake) that Mason’s rejection of context is definitive.

APPLYING THE REASONABLENESS STANDARD: THE METHODOLOGY OF REASONABLENESS REVIEW

The Decision in Mason

The standard being reasonableness, Jamal J then turned to the question of whether the decision at issue was reasonable. The particular issue here related to the inadmissibility provisions of the IRPA, which determine who may or may not gain status in Canada. Subparagraph 34(1)(e) makes inadmissible anyone “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. In concrete terms, a finding of inadmissibility will typically lead to deportation from Canada. M was charged with attempted murder after discharging a firearm and injuring two people at a concert at the Canadian Legion in British Columbia. The charges were stayed, however, and the applicant was thus not convicted. The Minister argued — and the Immigration Appeal Division agreed — that the applicant’s conduct came within s 34(1)(e). M argued on judicial review that it was unreasonable to interpret s 34(1)(e) as encompassing “acts of violence” which do not occur in the context of terrorism, war crimes or organized criminality, these being the concerns underpinning the inadmissibility provisions of the IRPA. There must be, M argued, a national security nexus to s 34(1)(e). Pre-Vavilov, the Federal Court (Grammond J) agreed; post-Vavilov the Federal Court of Appeal (Stratas JA; Rennie and Mactavish JJA concurring) found that the tribunal’s decision was reasonable.

Jamal J held that the tribunal’s decision was unreasonable. The starting point for his analysis was the reasons of the tribunal,^[34] understood against the need for those reasons to “reflect the stakes”^[35]: potential deportation from Canada. From here, he worked out to identify three flaws in the decision which, cumulatively, led to the conclusion of unreasonableness. Although the tribunal had “applied several recognized techniques of statutory interpretation,”^[36] its decision could nonetheless not withstand reasonableness review.

First, the tribunal had failed to grapple with M’s argument that s 34(1)(e) requires a security nexus because the availability of discretionary relief (from the responsible minister) was narrower for s 34(1)(e) than the relief available for serious criminality and criminality offences (which may lead to inadmissibility under s 36). The logic of M’s argument is that the context of the statute indicates that national security crimes are to be treated more seriously than other crimes, but on the opposing interpretation, less serious crimes (indeed, here, one for which there was not even a conviction) would carry the most serious possible consequences. This was a key argument M advanced — and thus “a significant legal constraint on the interpretation of s 34(1)(e)” — but the tribunal did not address it.^[37]

The tribunal had also failed to grapple with a related argument about the impact of a finding under s 34(1)(e) on the pre-removal risk assessment to be conducted by the responsible minister before deporting M or a similarly situated person. Again, M’s argument was that the statutory scheme would only make sense if the most serious consequences attached to the most serious inadmissibility ground, namely national security but, once more, the tribunal failed to address “this important contextual argument, which…imposed a significant legal constraint.”^[38]

Second, the tribunal failed to grapple with M’s argument that not requiring a national security nexus would lead to absurd consequences that Parliament could not possibly have intended. The broader definition would capture a wide range of ordinary criminal acts, from domestic altercations to bar brawls and schoolyard fights. Then, those who were suspected of committing the acts would suffer the severe consequence of becoming inadmissible to Canada (even though they had not necessarily been convicted by a court of committing the act in question).^[39] This would also do an “end-run” around the IRPA’s limitations in respect of youth offences.^[40] Again, the tribunal should have considered this point, which was not a “minor aspect” of the interpretive context.^[41]

Third, the tribunal had failed to consider Canada’s international law obligations. Jamal J’s analysis is lengthy, but the key point is as follows:

The IAD’s interpretation allows a foreign national found inadmissible under s. 34(1)(e) to be subject to refoulement contrary to Article 33(1) of the Refugee Convention. On the IAD’s interpretation, a foreign national can be deported to persecution once they are found inadmissible under s. 34(1)(e), without a finding that the person poses a danger to the security of Canada or even if they have not been convicted of a serious offence. Such a person would be entitled to the benefit of Article 33(1) of the Refugee Convention, as the exceptions under Article 33(2) would not apply: on the IAD’s approach to inadmissibility under s. 34(1)(e), there need not be “reasonable grounds” to regard the foreign national as a “danger to the security” of Canada, or for them to have been “convicted by a final judgment of a particularly serious crime”.^[42]

As the IRPA must always be interpreted with Canada’s international obligations in mind, this was a fatal flaw in the tribunal’s reasons. It “involved the omission of the principle of non-refoulement — “the cornerstone of the international refugee protection regime” — and a critical legal constraint on interpretation of the IRPA, one that Parliament has decreed must be considered in construing and applying the IRPA.”^[43] This was a “crucial omission” and the decision was therefore unreasonable.^[44] All this even though the international law argument had not been made to the tribunal.

Indeed, there was in reality only one reasonable interpretation of s 34(1)(e), namely that a national security nexus is required. The two contextual points the tribunal failed to consider and “especially” the international law point gave “overwhelming support” to the appellant’s reading of s 34(1)(e).^[45] But this conclusion resulted from what one might term an internal rather than external approach, working out from the reasons rather than beginning with the statutory provisions themselves.^[46]

The Decision in CSFTNO

In reasons written by Côté J, the decision in Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment)^[47] is of a piece with Mason in this regard (I appeared for the intervener Francophone School Board of the Yukon). This case involved several exercises of ministerial discretion to deny entry into French-language schools. The Minister had adopted a policy that expanded the categories of minority rights holders in s 23 of the Charter and made a wider group of children eligible to attend school in French. However, the children at issue in this case did not fall within the scope of the policy. The children were either French-language speakers, otherwise embedded in the French-language community in the Northwest Territories or would contribute to the vitality of the community by attending school in French. In each case, the Commission (the provincial Francophone school board) recommended that they be permitted to attend a French-language school. But the children did not fall within the scope of the policy. Essentially on that basis the Minister refused to permit them to attend a French-language school.

The Supreme Court unanimously held that the Minister’s decisions were unreasonable. On the facts, the underlying values of s 23 were engaged even if the right itself was not, as there was a “clear link” between s 23 and the exercises of discretion “because the decisions were likely to have an impact on a minority language educational environment.”^[48] Preserving and developing the minority-language community (which admission of the children would have contributed to) are s 23 values.^[49] There was evidence before the Minister of a clear link between the admission of these Francophone or Francophile students and the values underpinning s 23. However, the Minister failed to justify her decisions given the evidence of this link. (There is much more to say about the distinction between Charter rights and Charter values and some of the potential difficulties created by the analysis in CSFTNO but, happily, these are quite unlikely to bother energy lawyers.)

Implications for the Methodology of Reasonableness Review

There are four broad implications for the methodology of reasonableness review.

First, although it is now almost trite to say this, an administrative decision-maker must grapple in its reasons with the submissions of the parties. Notice that the tribunal decision in Mason was handed down long before Vavilov was decided. I think tribunals from coast to coast to coast now appreciate that it is necessary to address the arguments made to them in order to render a reasonable decision. This is the principle of responsive justification that was central to Vavilov. The only relevant limits are that the requirement to grapple with a submission only relates to a “key” argument. In this instance, the arguments were “core planks” supporting M’s position.^[50]

This is a remarkable feature of Vavilov. Not only are the tribunal’s reasons treated as the starting point — elevating the tribunal to (close to) equal partner status^[51] as far as the interpretation of law is concerned — but the tribunal’s reasons are shaped by the interaction between the tribunal and the citizen. Vavilov requires, one might say, citizen-led law-making.

Second, CSFTNO demonstrates that a decision-maker must also grapple with relevant evidence. Here, the Minister’s decision was unreasonable because she failed to consider the Commission’s support for the applications;^[52] she did not consider the “individual characteristics of the various applications in relation to the benefits that could result from a decision to grant them”;^[53] she attached “too much importance to her duty to make consistent decisions”;^[54] and “gave disproportionate weight to the cost of the contemplated services in the exercise of her discretion”.^[55] This meant that her reasons did not demonstrate that she “meaningfully addressed the values of preservation and development of the Francophone community of the Northwest Territories so as to reflect the significant impact that the decisions might have on it”.^[56] She did not, in short, demonstrate responsiveness to the evidence before her of the contribution that admission of these children would make to the vitality of the minority language community. Where there is evidence in the record that has a bearing on the decision to be made, the decision-maker cannot brush it off but must actively grapple with it (or, alternatively, explain why it is unnecessary to grapple with it).

Third, in working out whether a decision-maker has grappled with key arguments, a reviewing court must exercise significant caution before inferring that an argument has been addressed. In Mason, the Federal Court of Appeal had held that the tribunal implicitly turned its mind to the arguments presented. Jamal J firmly disagreed.^[57] As these were key arguments — “core planks” — then they had to be met head-on, by explicit reasons.

Working out clear parameters here is difficult. The issue is how much “sensitivity to the institutional setting” and reference to the “history and context of the proceedings” a reviewing court can engage in^[58] to deduce that arguments were dealt with. Reference to background context is permissible to plug some holes in a tribunal’s reasons, but evidently not all of them. Here is what I wrote (commenting on the Federal Court of Appeal decision) in my book on Vavilov:

For my part, the term “implied” or “implicit” reasons is too strongly associated with the darkest days of the Dunsmuir decade, so I prefer to simply say that administrative decisions should be read fairly, in their whole context. The point is well explained at paras 93–94 of Vavilov…without mention of the words “implied” or “implicit”… I would say that the best way to summarize this passage is that a decision is not unreasonable because of a failure to expressly mention a particular point, where it is obvious why the decision maker did not consider it. If a test is needed, it should be a test of obviousness (note 49 at 213–214).^[59]

Put another way, the court “must be sure” that an argument has been addressed.^[60] This chimes with the Supreme Court’s analysis in Mason. Plainly, Jamal J was not “sure” that the tribunal had addressed the key arguments. It also chimes with the analysis in CSFTNO, as it was far from obvious how the Minister had addressed the evidence linking the applications to the values underpinning s 23 of the Charter. The lesson for decision-makers is to err on the side of dealing with an argument or evidence; the lesson for reviewing courts is to err on the side of not inferring that an argument or evidence was addressed in the absence of explicit grappling.

Fourth, the treatment of international law creates a tension in Jamal J’s reasons in Mason and, indeed, recalls a foundational tension in Vavilov. The tribunal did not hear arguments about international law. Yet Jamal J held that international law was a significant legal constraint on the tribunal.

On the one hand, Jamal J criticized the Federal Court of Appeal for introducing an additional step into the Vavilov analysis. As the court below described it, the judge should undertake “a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before they examine the administrators’ reasons.”^[61] For Jamal J, “Vavilov is clear that a reviewing court must start its analysis with the reasons of the administrative decision maker; starting with its own perception of the merits may lead a court to slip into correctness review.”^[62]

On the other hand, Jamal J sought out relevant provisions in the IRPA that made clear that Parliament intended the IRPA to be interpreted in conformity with Canada’s international obligations, such as s 3(2)(b) which states that one of the IRPA’s objectives is “to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement” and s 3(3)(f) which requires the interpretation and application to the IRPA to comply “with international human rights instruments to which Canada is signatory”. This was surely based on a consideration — far from preliminary — of the text of the IRPA, which the tribunal did not consider and which it was not asked to consider. Citizen-led law-making has its limits!

More seriously, I think this issue requires careful unpacking. To begin with, in his typically cogent reasons for the Federal Court of Appeal, Stratas JA was riffing on a theme I developed before Vavilov in a piece engaging with Grammond J’s thoughtful, sophisticated reasons at first instance in Mason.^[63] The ‘internal’ approach I advocated was designed to produce deferential judicial review and is consistent with Vavilov; the ‘external’ approach I described was explicitly rejected in Vavilov. The Federal Court of Appeal’s preliminary view methodology was therefore not designed to lead to less deferential judicial review. Quite the opposite.

This does not mean that a reviewing court should literally develop a preliminary view before it even reads the tribunal’s reasons. Stratas JA’s ‘internal’ approach seeks to ensure that a reviewing court has some basic understanding of the statutory structure. Without such an understanding, a reviewing court may well be at a loss to know which arguments are important and which statutory provisions might plausibly have figured in the tribunal’s reasons. Indeed, as a practical matter, a reviewing court will be introduced to the relevant provisions by the parties’ written submissions. It has, therefore, to have some idea of how the decision is situated relative to the statutory scheme. Jamal J’s reliance on the international law provisions of the IRPA is proof positive that a reviewing court cannot conduct reasonableness review in abstraction, sealed away hermetically from statutory text, context and purpose.

This recalls a tension within Vavilov itself. Many passages in the discussion of reasonableness review reflect a commitment to deference but other passages suggest more intrusive judicial oversight. The discussion of the principles of statutory interpretation is emblematic of this ‘on the one hand but on the other hand’ approach, with decision-makers permitted to follow an approach that courts would not but also required to consider text, purpose and context. Similarly, although reasonableness is the presumptive standard of review and ‘jurisdictional’ questions no longer attract correctness review, it was also suggested in Vavilov that some legal constraints on administrative decision-makers are binding. A decision-maker cannot “enlarge their powers beyond what the legislature intended”^[64] or “arrogate powers to themselves that they were never intended to have.”^[65] In particular, a commitment to citizen-led lawmaking and reasoned decision-making may run into the venerable principle that jurisdiction cannot be granted by consent of the parties.^[66]

Here, Jamal J is plainly sympathetic to the deferential aspects of what was said in Vavilov about statutory interpretation. I think he would agree that an administrative decision-maker’s approach might “actually enrich and elevate the interpretive exercise.”^[67] Nonetheless, Vavilov also says that an administrative decision-maker “must” consider statutory text, context and purpose, and in Mason one of the reasons the tribunal’s interpretation could not stand was that it had failed to consider elements of the statutory scheme that Jamal J adjudged important. This tension is present in Vavilov. Mason does not resolve it.

One thing is clear, however. Under the IRPA, consideration of international obligations is going to be mandatory, or close to mandatory, in statutory interpretation going forward. Vavilov made clear that international law is sometimes a relevant constraint. Entertainment Software Association made clear that international obligations are relevant to the context prong of the statutory interpretation analysis. Mason makes clear that international law is a relevant constraint on decision-makers under the IRPA. Failure to consider relevant international law obligations in the IRPA context will generally lead to unreasonable decisions. Maybe the best way to think about the third aspect of the reasonableness analysis in Mason is that Parliament made a uniquely powerful, textually explicit commitment to implementing Canada’s international law obligations in the IRPA, which is unlikely to have similar force in any other context (save, perhaps, citizenship).

It is difficult to imagine many other situations in which a clear limit on the authority of a decision-maker will have been entirely ignored by the parties and decision-maker but Mason suggests that, where this is the case, a court must abide by the limit. Mason also suggests that, where this is the case, there is a carve out from the ordinary rule that an argument not made to a decision-maker cannot be raised on judicial review.^[68] Something similar has to be said about CSFTNO: where evidence is obviously relevant to the task to be performed by the decision-maker, it requires responsive justification regardless of whether a party specifically referenced it. To circle back, however, to a point I made in the introduction, care should be taken about reading too much into two decisions, one of which (Mason) would surely have been written differently by the tribunal had it had the benefit of Vavilov and the other of which (CSFNTO) arose in the highly contentious context of minority language rights and involved the hotly contested concept of Charter values.

To close, let me draw a link between the discussion of standard of review and the end of the discussion of reasonableness review. There are tensions in the Supreme Court’s post-Vavilov case law already. There are tensions within Vavilov itself, some of which are evident in Mason. Ensuring that the tensions within the Vavilov framework and jurisprudence do not cause serious difficulties will require the Supreme Court to chart a consistent course and stick to it.

RESPONSIVE REASONABLENESS REVIEW

In this section I want to highlight two appellate decisions that underscore Vavilov’s message — repeated in Mason and CSFTNO — about the importance of responsive decision-making. One commentator has observed that the proportion of decisions upheld under Vavilov is probably little different from the proportion upheld under its predecessors.^[69] Nonetheless, Vavilov undoubtedly raised the bar in terms of reasons and, in some areas, its effects have been keenly felt.

Consider, first, an energy law case, Shell Canada Limited v Alberta (Energy).^[70] This was a case relating to the calculation of royalties payable to the province from a Shell oil sands project. Alberta Energy audited the project and disallowed some costs claimed by Shell. Shell appealed under the applicable regulations, but the Director of Dispute Resolution found that under the ordinary and grammatical sense of the regulations the costs were properly disallowed. Shell then applied for the appointment of a Dispute Resolution Committee (DRC). The Minister refused to convene a DRC, on the basis that Shell’s position on the underlying point of interpretation was wholly without merit, for the following reasons:

The department’s position in this matter is that the interpretation requested by Shell in relation to “solely dedicated” costs is inconsistent with the regulations as written. The regulations remain the legal framework within which such matters must be reviewed.^[71]

This was the entirety of the reasoning on the underlying point of interpretation. Unsurprisingly, the Court of Appeal found that it was unreasonable. A simple repetition of the department’s position lacking explanation of the analysis undertaken or the test applied, failing to disclose the department’s reasoning process and omitting any discussion of context and purpose did not meet the standard of justification set out in Vavilov.^[72] As Shell’s position could not be said to be manifestly unfounded, this was not enough by way of justification. Interestingly, because the Minister had taken so long — 3 years! — to respond to Shell, the reviewing judge had not only ordered the Minister to convene a DRC, but also formulated the question for the DRC. The Court of appeal considered that this was the appropriate course of remedial action in the circumstances.

Traditionally, ministerial discretion has been subject to deferential review by the courts, in part because of the possibility of political accountability through the legislature. But this decision is evidence that there is no Vavilov opt-out for ministers; regardless of political accountability, they have to demonstrate responsiveness to the satisfaction of the courts.

Shifting gears slightly, it is also clear that the decision-maker’s perception that the stakes are low will not justify shortcomings in responsiveness. The analysis in Law Society of Newfoundland and Labrador v Buckingham^[73] relates to “screening” decisions about whether it is appropriate to send a regulated professional to a formal disciplinary hearing. When making such decisions, the disciplinary body might well impose lesser sanctions designed to punish behaviour that is not thought to warrant more serious consequences. B’s client died while in custody in the provincial correctional system. In media comments, B suggested that correctional officers were responsible for the death. A trade union for public employees complained to the Law Society and, after some back and forth, the matter was referred to the Complaints Authorization Committee. The Committee concluded that B was deserving of sanction (though it did not refer the matter for a formal hearing) and issued a “Letter of Counsel.” The Committee believed that it was not under any duty to give reasons and so, in issuing the Letter, it simply stated that it was doing so based on the information on file:

The Committee noted that at the time [Mr. Buckingham] gave these two public statements, the evidence to support them did not exist. The record demonstrated that [Mr. Buckingham] provided these statements on November 8, 2019 and that the death was ruled a homicide in December 2019.^[74]

O’Brien JA quashed the decision for unreasonableness, noting how Vavilov “affirmed the need to develop and strengthen a culture of justification in administrative decision-making”.^[75] He emphasized that in this instance, the Committee was making a final decision and that in such a context “usually more will be needed to explain the result to the people affected because there will not be any further opportunity for them to be heard.”^[76] Critically, B’s response to the allegations was part of the factual matrix and something the Committee was obliged to respond to.^[77] In addition, there would be important consequences for B in the future should he face other disciplinary proceedings or seek a judicial appointment. Given these constraints, the decision was unreasonable for want of justification.^[78] Therefore, even a mere screening decision — which resulted in a more favourable outcome for B than a reference to a formal disciplinary hearing — triggers the requirements of Vavilov and obliges decision-makers to be responsive.

Vavilov has been successful in refreshing the parts of the administrative state that previous frameworks did not reach — even ministerial discretion on sensitive matters of policy is no exception. Of course, this is an ongoing project so errors and omissions are to be expected (and carceral institutions^[79] seem to be a notable exception so far). Nonetheless, the broad outlines are clear: an institutional setting is relevant to assessing the reasonableness of a decision, but context does not provide a decision-maker who has written deficient reasons with a ‘get out of jail free’ card.

II. SCOPE OF REGULATORY POWERS

On the scope of regulatory powers, a couple of cases — one from the Federal Court of Appeal and one from the Alberta Court of Appeal — have reasserted first principles and (in the Alberta case) offered some thoughts on the interaction between the Vavilov framework and previously decided cases. Evidently, regulatory powers of any description are subject to the requirements of responsiveness outlined earlier in this paper. In addition, however, those using regulatory powers must be mindful of the primacy of legislation. The Federal Court of Appeal decision discussed below points to the need to identify positive grants of authority in legislation, whereas its counterpart from Alberta focuses on how legislative sources of authority can be more important than previous court decisions when it comes to determining the scope of regulatory powers.

GROUNDING REGULATORY AUTHORITY IN LEGISLATION

The Federal Court of Appeal decision (in which, as we shall see, I not only had a front row seat but made it into the ring) was a fascinating, complex and controversial case about broadcasting regulation and free speech: Société Radio-Canada v Canada (Attorney General).^[80] In a majority decision, the Canadian Radio-television and Telecommunications Commission (CRTC) found that Radio Canada had breached the objectives of the Broadcasting Act by permitting the broadcast of the n-word (in French) repeatedly in the same segment without warning viewers.^[81]

The complainant in the matter was a racialized person who was in the studio at the time of the segment. He brought a complaint alleging that Radio Canada had violated paragraph 3(b) of the Radio Regulations, 1986,^[82] and several objectives of the Broadcasting Act.^[83] The CRTC majority made no finding that the Regulations had been contravened but concluded that the broadcast violated the objectives of the Act, as it “did not provide high-standard programming and did not contribute to the strengthening of the cultural and social fabric and the reflection of the multicultural and multiracial nature of Canada.”^[84]

The CRTC majority located its jurisdiction in s 5(1) of the Act, which provides that the CRTC “shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1).”^[85]

The dissenting members of the CRTC took issue with their colleagues’ analysis, especially the majority’s failure to refer to the Charter protection for freedom of expression or the statutory protection to the same effect in s 2(3) of the Act.

Radio Canada exercised its statutory right to appeal to the Federal Court of Appeal on a question of law or jurisdiction. Radio Canada’s grounds of appeal were (1) that the CRTC does not have jurisdiction to punish a broadcaster by reference solely to the broadcasting policy set out in the Act; (2) that the CRTC had not addressed the Charter issue; and (3) that the CRTC had failed to consider the complaint under the Regulations and the terms of Radio Canada’s licence. The Federal Court of Appeal granted leave to appeal.

At that point, the file took an unusual turn. First, the Attorney General of Canada, which is the respondent in CRTC appeals, brought a motion to have the appeal allowed on consent under rule 349 of the Federal Courts Rules, SOR/98-106. Second, the CRTC sought leave to intervene to defend its decision, but was refused, on the basis that its intervention would not comply with the principles on tribunal participation in appeal or review proceedings set out in Ontario (Energy Board) v Ontario Power Generation Inc.^[86]

The Court of Appeal then exercised its inherent authority to manage its proceedings to appoint amicus curiae. I was appointed to ensure that the court had a full view of the legal arguments. I was asked to make any arguments that the CRTC could make in defence of its decision, given immunity from costs, and 20 days from reaching agreement on my fees with the Attorney General of Canada, to provide written submissions (in French, the language of the file). Much of my month of February was devoted to identifying arguments in defence of the CRTC’s decision which I thought merited the court’s considered attention.

Ultimately, the Court of Appeal found that the CRTC had acted unlawfully, rendering an important decision about the scope of regulatory powers, applicable to any context including energy law. The leading case is Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168.^[87] Here, a majority of the Supreme Court held that when making regulations the CRTC could not rely directly on the objectives of the Act, as policy statements in legislation do not confer jurisdiction.^[88] Subsequently, the Federal Court of Appeal observed that “section 3 and section 5 of the Act are not attributive of jurisdiction and are not sufficient in and of themselves to justify the validity of…regulatory provisions.”^[89] Hence the Attorney General of Canada’s conclusion that a decision based on ss 3 and 5 of the Act was outside the jurisdiction of the CRTC and thus indefensible.

I submitted that the decision in Cogeco (and TVA) spoke only to the CRTC’s regulation-making function. Here, the CRTC was engaged in its supervisory function, using the procedural powers set out (in very expansive terms) in subsection 18(3) of the Act: “The Commission may hold a public hearing, make a report, issue any decision and give any approval in connection with any complaint or representation made to the Commission or in connection with any other matter within its jurisdiction under this Act if it is satisfied that it would be in the public interest to do so”. The expansive terms of subsection 18(3) should be contrasted, I submitted, with the more restrictive wording — but more forceful potential consequences — of s 12. Moreover, in Capital Cities Comm. v C.R.T.C.,^[90] a decision that was not cited, still less overruled by the majority in Cogeco, the Supreme Court held that s 5 of the Act did confer jurisdiction on the CRTC.

The Court of Appeal was unpersuaded:

Capital Cities is more in line with the Attorney General’s position that subsection 5(1) is no more attributive of jurisdiction than subsection 3(1) because both are aimed at guiding the CRTC in exercising the discretionary power conferred upon it, one under the guise of a policy and the other under the guise of objects.

[S]ubsection 5(1), by its wording, provides that the objects to be pursued by the CRTC are to develop a regulatory framework and to supervise what is said over the air with the view of implementing the Canadian broadcasting policy. It follows that the argument advanced by the amicus according to which the CRTC may rely on this policy as though it was in and of itself a rule of conduct that forms part of the regulatory framework governing what can be said on the air must fail.

Contrary to the Canadian broadcasting policy, which is intended to guide the exercise of the discretionary power conferred upon the CRTC, rules of conduct are put in place in order to delineate what can and cannot be said on the air. It follows that imposing sanctions on the sole basis of this policy, as if it were itself a rule of conduct, goes against the role that Parliament attributed to this policy.^[91]

This is a very significant decision on the scope of regulatory powers. To begin with, this case serves as a useful reminder that an ‘objectives’ clause in a statute, which is typically drawn in expansive terms, does not confer jurisdiction on a regulator to exercise authority over regulated entities. The central proposition, based on a broad reading of the majority decision in Cogeco, is that a decision-maker cannot use general powers to impose sanctions when it has more specific powers available to it, even if those general powers are drawn in broad terms. This is an important change as far as the CRTC is concerned, as it has been sanctioning on-air speech on the basis of the objectives of the Act for many years.^[92] It may prove consequential for regulator and regulated in other fields. Evidently, to exercise jurisdiction over any subject-matter, a decision-maker must be able to point to a specific statutory grant of authority — and a specific grant of authority will likely trump a general grant of authority.

The Court of Appeal also found that the CRTC had erred by failing to analyze the impact on freedom of expression.

The matter was then remanded back to the CRTC for disposition on grounds other than the objectives of the Act.^[93]

More broadly, the Federal Court of Appeal’s appointment of an amicus curiae is an interesting development. The law on tribunal standing is such that it may well occur that a tribunal might not be able to participate to defend its decision on an appeal or in judicial review proceedings, or even that the tribunal cannot fully participate for fear of appearing biased in the future. There is much to commend the Federal Court of Appeal’s use of its inherent jurisdiction to appoint a competent person to present points of view a tribunal might not be able to present. The ultimate goal, of course, is to ensure that the court has as full a view as possible of the legal and factual aspects of the matter in order to render an informed decision. The circumstances of this appeal were unusual, as the Attorney General of Canada had expressly declined to defend the decision. But courts should consider the use of amicus curiae in other proceedings as well: whenever a tribunal’s defence of its decision might cause concern about its impartiality going forward, an amicus curiae could usefully make submissions and ensure that the court can make an informed decision. Ultimately, this can only contribute to upholding the rule of law in regulated sectors of the economy.

REGULATORY AUTHORITY, STATUTES AND JUDICIAL PRECEDENT

In the original ATCO case in 2006 (known as Stores Block),^[94] the Supreme Court of Canada addressed the issue of the scope of a regulator’s statutory authority, making a distinction between express and implied powers. As I have written, this distinction makes little sense and it would be better simply to focus on legislative intent, discerned by consideration of statutory text, purpose and context.^[95] Recently, the Alberta Court of Appeal considered the impact of the original ATCO case (Stores Block) and shed light on the proper approach to determining the scope of regulatory authority: ATCO Electric Ltd v Alberta Utilities Commission.^[96]

The issue here was the lawfulness of a decision of the Commission denying ATCO the ability to recover costs incurred as a result of the Fort McMurray wildfire: according to the Commission, it did not have the authority to permit ATCO to include these costs in the rates charged to consumers of electricity; these were “extraordinary” retirements of assets for which consumers ought not to pick up the tab.

The Commission arrived at this view because it took Stores Block and subsequent jurisprudence to limit its flexibility in dealing with destroyed assets.^[97] Subsequent to Stores Block, the Commission extended the logic of that decision to all extraordinary retirements of assets.^[98] In an earlier case, the Court of Appeal considered that this decision, which was a general, policy decision that did not consider any specific disposition of assets or request for a rate to be made, was reasonable: FortisAlberta Inc v Alberta (Utilities Commission).^[99]

But as the Court of Appeal pointed out, Stores Block dealt with the sale of an asset and the power of a regulator to attach conditions to the sale.^[100] This is a much more narrowly drawn power than the rate-setting authority at issue here. Indeed, the rate-setting authority refers to concepts such as a “depreciation” and “prudence” without defining them, leaving them to the regulator to work out on a case-by-case basis.^[101] In this regard, the Commission had “broad discretion”^[102] and nothing in the Supreme Court’s 2006 decision dictated the outcome of a rate-setting proceeding.^[103]

Indeed, the Stores Block decision was simply not analogous at all to the issue before the Commission, as it addressed the distribution of profits (as between shareholders and customers) from the disposal of a property, whereas here, the property had been destroyed and there was no profit to distribute.^[104] Accordingly, the matter was sent back to the Commission for redetermination.^[105]

This is a neat example of the importance of considering statutory text, purpose and context in the determination of the scope of regulatory authority. The Commission had drawn an analogy with a past case rather than looking to its statutory authority. This was an error as it caused the Commission to overlook the breadth of the power it had. Indeed, when the Supreme Court of Canada has considered the scope of the authority to set just and reasonable rates, it has taken a much more expansive view of regulatory authority than it did in the original ATCO decision.^[106] The point, then, is that broad statutory language provides broad regulatory authority, with narrower statutory language providing relatively narrower authority. In all events, regulators should look first and foremost to statutes, with past jurisprudence relevant only to the extent it deals with the same statute that provides the basis for a proposed decision.

This might therefore seem a strange case for the Court of Appeal to also address issues relating to past jurisprudence, but it nonetheless dealt with an important point about the continuing force of its previous decisions. In Vavilov, the Supreme Court made some radical changes to Canada’s administrative law framework. For instance, on a statutory appeal the standard of correctness henceforth applies on questions of law. Previously, the reasonableness standard would often apply, even on a statutory appeal on a question of law. Plenty of appellate jurisprudence (especially in the field of economic regulation) was based on consideration of the reasonableness of administrative decisions. Given, however, that reasonableness review has become synonymous with the concept of multiple possible interpretations, what is the precedential force today of a previous Court of Appeal decision holding a regulator’s interpretation of law to be reasonable given that the standard of review now applicable is correctness?

The Court of Appeal suggested that such decisions should be considered to be presumptively binding:

Vavilov should not be read as automatically displacing all the case law decided under the pre-Vavilov standard of review regime. For one thing, even if a decision was reviewed for “reasonableness” and found to be reasonable, that does not mean that the reviewing court did not also agree that the decision was “correct”… Further, decisions like FortisAlberta were themselves based on binding decisions like Stores Block. If the tribunal decision in FortisAlberta had failed to follow binding precedent it would not have been reasonable. The importance of stability in the law means that after Vavilov binding precedents of this Court should presumptively be regarded as continuing to be binding, notwithstanding the change in the standard of review analysis…^[107]

As Nigel Bankes has observed,^[108] Vavilov does not actually speak clearly to this issue. The cited passages in Vavilov deal with stare decisis generally and the relevance of the Supreme Court’s past precedents for selecting the standard of review and applying the reasonableness standard.

Is the Court of Appeal right? It seems to me that there are two distinct concerns at play here that have to be carefully untangled.

First, in some instances, a court applying the reasonableness standard will have indicated that a decision was not only reasonable but correct, or alternatively that a decision was unreasonable because there was only one acceptable, possible outcome. The Court of Appeal is right, in my view, to say that these decisions should be treated as binding even though they were decided on a reasonableness standard.

Second, however, on other occasions a court will have upheld a decision as reasonable without indicating what the correct decision would have been. The court’s conclusion might have been based, in whole or in part, on a previous decision that, in turn, might have been reasonable (but not necessarily correct). I think the underlying concern here is that there may be a chain of reasonable decisions which because they have strayed too far from statutory text, purpose or context might be incompatible with a court’s view of the correct interpretation of the statute. Rightly, the Court of Appeal is concerned that liberal application of the correctness standard would throw the authority of many past regulatory decisions into doubt. Notice that the stare decisis analysis in Vavilov was directed to the more abstract issue of the selection and application of the standard of review, whereas the Court of Appeal is concerned with the concrete problem of whether past substantive decisions on regulatory powers continue to bind. There is significant potential for upheaval here. Hence the insistence on a presumption of continuing bindingness.

Professor Bankes cogently argues that the judges are “incorrect” to insist on a presumption of continuing bindingness but I am more sanguine. Once the Court of Appeal’s concerns have been unpacked, it is easier to understand why the judges thought the presumption is appropriate. Now, it might be that the idea of a presumption is unhelpful, because as Professor Bankes notes, it prompts immediate questions about whether and in what circumstances the presumption could be rebutted. For my part, leaving presumptions out of it, I would re-word the Court of Appeal’s advice as follows: where the correctness standard applies, courts have the last word on what a statutory provision means, but in giving the last word, courts should be mindful of settled expectations and practices generated by jurisprudence upholding past decisions as reasonable. Whatever about stating this in terms of a presumption, the Court of Appeal is quite right, in my view, to insist that the change to the correctness standard should not be taken as automatically displacing past jurisprudence applying reasonableness review. Stability in important areas of economic regulation counsels caution.

OPEN JUSTICE

Economic regulators deal with complex matters, often based on large volumes of evidence, some of which is kept confidential for sound commercial reasons. To what extent are they obliged to hold their proceedings in public and permit open access to their records? The relevant question here is the scope of the so-called ‘open court’ principle, which “guarantee[s] access to the courts in order to gather information”.^[109] The oxygen of publicity has been said to be fundamental to the “legitimacy” of the administrative state.^[110] In an important and interesting decision, the Federal Court of Appeal recently grappled with the scope of the ‘open court’ principle as it applies to administrative tribunals. Its analysis has potentially broad ramifications for all tribunals, including economic regulators in the energy sectors.

In Canadian Broadcasting Corporation v Canada (Parole Board),^[111] the CBC sought judicial review of the Board’s refusal to release copies of the audio recordings of parole hearings of three offenders, amongst them Paul Bernardo. Ultimately, the Board’s decision was quashed as it reasons “were incoherent, relying on risks that had already materialized affecting opportunities that were unlikely to arise in a foreseeable future”.^[112] This was standard Vavilovian reasonableness review fare.

Of greater interest is Pelletier JA’s approach to the CBC’s more ambitious argument: that it had a constitutional right to the recordings because the Board is subject to the ‘open court’ principle underpinned by s 2(b) of the Charter. Notably, the CBC pressed this argument even though the Board’s parent statute contains a provision requiring the Board to permit anyone who applies to attend a hearing as an observer, save in defined circumstances.^[113] The significance of the CBC’s argument is that, had it been successful, it would also have had access to the audio recordings. And the logic of the argument would go much further: any information in an administrative tribunal’s public record (filings, evidence and so on) would have to be made available to the public, subject only to the possibility of a confidentiality order being made in respect of sensitive information consistent with the test set out in Sierra Club of Canada v Canada (Minister of Finance) and subsequent cases.^[114]

Writing reasons that were at once thoughtful and thought-provoking, Pelletier JA held that the open court principle does not apply to the Board.

Previously, the test for the application of the open court principle to a non-court was whether the body was exercising a quasi-judicial function.^[115] However, Pelletier JA held, the concept of a “quasi-judicial” function has “outlived its usefulness” in this context, because it focuses on a tribunal’s “processes and formal characteristics rather than its function” whereas the “public interest in court proceedings does not arise from a court’s procedural characteristics but from the fact that it decides questions of rights and duties as between citizens and as between citizens and the state”.^[116] This is a lucid and powerful statement about the rationale for the open court principle and appropriately ties openness to the substance of the issue being decided rather than the formal concept of a quasi-judicial function.

What should replace the concept of a quasi-judicial function? The CBC argued that the open court principle, underpinned by s 2(b), arises from the right of the public to express ideas about public institutions and obtain information about their functioning.^[117] For Pelletier JA, this cast the net too wide: “While the public has an interest in knowing about the functioning of all public bodies, the open court principle has to date been limited to those public bodies whose resemblance to courts invites the same degree of public oversight represented by the open court principle”.^[118]

Instead, Pelletier JA held, the touchstone should be whether the tribunal is adversarial in nature: “the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle”.^[119] Pelletier JA did not elaborate but presumably the idea here is that where a tribunal is adjudicating between the citizen and the state, or between citizen and citizen, it is performing a court-like role and properly subject to the full glare of publicity. The evident difficulty here is that relying on “resemblance to courts”, which looks suspiciously like the concept of a quasi-judicial function under a different label, puts the focus back on form rather than substance. Another difficulty is that the substantive case for the open court principle is quite weak in respect of some adversarial proceedings, where there is little public interest in the details of the matter. Disputes between landlords and tenants would be a good example: undoubtedly adversarial but typically not of importance to the public at large and thus poor candidates for the strongest form of the open court principle.

It may be that the analysis in this case was influenced by the nature of the decision-maker at issue. Here, the Board could not be characterized as adversarial in nature. It performs its functions inquisitorially, performing a risk assessment based on information received from Corrections Canada and submissions from the offender and victims. There is no “representative of the state” on the other side of the table from the offender.^[120] Moreover, the offender’s counsel (if any) will play only a limited role at the hearing. As a matter of form, the Board is plainly not court-like. In addition, however, as a matter of substance, the Board is not the most obvious candidate for application of the open court principle, given the sensitive nature of its task and the risk that its work might be distorted by sensationalistic media coverage (by outlets other than the CBC, of course, which, if nothing else, can hardly be accused of sensationalism). Perhaps, then, the tail wagged the dog in the sense that a sensible outcome — no open court principle for the Board — influenced the choice of test.

To drive home the point, it seems to me that the case for the open court principle would be much stronger in respect of a regulatory tribunal tasked with fixing licence conditions or setting rates for an important sector of the economy. Such decisions cut right to the heart of the community’s ability to understand vitally important economic issues and express itself about the direction of the polity. Such a tribunal would evidently not qualify as “adversarial” but equally evidently engages the values underpinning s 2(b) of the Charter.^[121] A test focused on those values — is the tribunal addressing an issue of importance to the community and worthy of public discussion? — would be superior to the concepts of quasi-judicial and adversarial functions, in my view. It would capture the country’s regulatory tribunals in energy and other fields, which the ‘adversarial function’ test does not. Regulatory tribunals are (in my experience) strongly committed to transparency, such that the practical effect of the choice of test does not greatly matter. As far as principle is concerned, however, an open justice test that excludes bodies that form a significant part of the economic and political fabric of Canadian life seems to me to fall short.

PROCEDURAL FAIRNESS

One final appellate decision — a rare defeat for a regulator on an issue of procedural fairness — deserves mention under the broad heading of the scope of regulatory powers: Alta Link Management Ltd v Alberta Utilities Commission.^[122] At issue here were a series of decisions made by the Commission relating to the recovery, through rates, of expenses incurred in Alberta’s transmission and distribution network.

To be more precise, the main question related to the recovery of costs at the interface between transmission and distribution, that is, substations and other facilities that transform high-voltage electricity to low-voltage electricity so as to facilitate delivery to consumers. In Alberta, transmission facility owners and distribution facility owners interact with the Alberta Electric System Operator, a corporation established under the Electric Utilities Act^[123] to direct the safe, reliable, and economic operation of the interconnected electric system, plan the capability of the transmission system, arrange for the expansion of and enhancement of the transmission system, and provide system access service on the transmission system.

The lead-up to this case involved a dispute between transmission and distribution facilities operators about the Operator’s policy. This policy, in place for about 20 years, allowed distribution facilities operators to invest in, and earn a return on, transmission facilities. The upshot of the lengthy, complex proceedings that resulted in the series of decisions was that neither transmission nor distribution facilities operators would be allowed to earn a return on contributions channelled through the Operator. 20 years of settled practice were thereby overturned. The argument that succeeded on appeal was that the Commission breached procedural fairness because the parties were not given adequate notice that the Commission was considering a fundamental change of policy.

Typically, economic regulators benefit from a high degree of deference on procedural matters.^[124] Here, however, any deference was tempered by recognition of the significant consequences for market operators: the “capital-intensive” nature of their investments was recognized as important, as was their ability to access capital on equity and debt markets,^[125] and required heightened procedural protection. The issue here was the adequacy of the notice provided about the change of policy: “the Commission was required to provide clear and transparent notice that an issue to be considered was whether both DFOs and TFOs should be precluded from earning a return on such costs”.^[126] The Court of Appeal was not satisfied that the notice was adequate.

The Commission’s argument was that the notice stated “that it would consider the legal basis of the current…customer contribution policy as it pertains to [transmission and distribution] whether there is a need for a new policy, and the date on which any new policy would commence, [making] clear that the interest of both [transmission and distribution facilities operators] in earning a return on customer contributions were implicated in the proceeding.”^[127] The Court of Appeal was unimpressed. Perhaps the interests of both players were engaged, but the possibility of a radical policy change had not been countenanced:

That the Commission’s Notice Document did not clearly inform the appellants it was considering whether both [transmission and distribution facilities operators] should be precluded from earning a return is illustrated by the absence of submissions and evidence on that issue. The ability of [transmission and distribution facilities operators] to earn a return on customer contributions was clearly of great importance to the appellants. Indeed, these proceedings originated because both AltaLink and Fortis sought to include those costs in their rate base and earn the attendant return.^[128]

This failing had a material impact on the proceedings. The Commission’s concern was about price distortion but, as the Court of Appeal pointed out, had that concern been properly communicated to the parties, they could have led expert evidence about the effect of the Operator’s policy on price signals.^[129]

In the result, the matter was remitted to the Commission (with extensive obiter comments about the legal framework, especially the notions of ownership and fair return). This decision is certainly a useful reminder that the courts have the last word on questions of procedural fairness, even if economic regulators generally have a track record of success on judicial review. It is, nonetheless, somewhat surprising that the Commission ran afoul of the duty of fairness on such a fairly technical issue. Evidently, the Court of Appeal felt that it was faced with a stark disparity between what was ultimately decided and what the parties thought would be decided. The fact that the parties’ submissions were so far off what turned out to be the mark must have concerned the Court of Appeal. The countervailing concern in procedural fairness cases is that the courts might gum up the works of public administration by requiring too much by way of procedures — that concern did not have much weight here, however, because the Commission’s proceedings spanned several years. It must have surprised the Court of Appeal, given the length and iterative nature of the proceedings, that such a gap emerged between what the parties and Commission thought the issue was. In the end, then, the unusual facts of this case mean that it is unlikely to occasion a sea change in the relationship between the courts and regulators on issues of fairness.

EXTRATERRITORIAL REGULATION

A fairly frequent problem in Canadian law is the application of regulatory statutes to individuals or businesses resident or established in another province. Think of a BC engineer advising (badly) on a utilities construction project in Quebec, an Albertan providing inside information to a Manitoban in respect of energy stocks traded in Ontario or an online portal based in Nova Scotia taking orders for the delivery of faulty electrical sockets in Saskatchewan by a manufacturer from New Brunswick.

Surprisingly enough, the Supreme Court of Canada had not until yesterday authoritatively established the test to apply to determine the circumstances in which a provincial regulator will have the authority to sanction conduct with an out-of-province aspect. Appellate courts had generally relied on Unifund Assurance Co. v Insurance Corp. of British Columbia,^[130] a decision relating to the scope of provincial insurance benefits scheme. In its decision in Sharp v Autorité des marchés financiers,^[131] the Supreme Court confirmed that the Unifund criteria should be applied.

Here, regulatory proceedings were brought in Quebec against British Columbia residents who were accused of engaging in a ‘pump and dump’ scheme that manipulated stock prices in La belle province and caused financial harm to Quebec investors. The majority of the Supreme Court (Wagner CJ and Jamal J) applied Unifund and concluded that the proceedings were within the authority of the Quebec regulator (Autorité des marchés financiers – AMF) to prosecute before the province’s securities tribunal (Financial Markets Administrative Tribunal – FMAT). Much of their analysis concerns the (in)applicability of the provincial civil code to administrative tribunals. But having found that the relevant provisions of the code did not grant the regulator the necessary authority, the majority concluded that the provincial securities statutes did provide sufficient authority, as long as there was a sufficient connection between the targets of the proceedings.

The power to adjudicate regulatory breaches flows from provincial legislation:

in this case the FMAT’s adjudicatory jurisdiction flows from the province’s prescriptive legislative jurisdiction… Section 93 of the Act respecting the Autorité des marchés financiers stipulates that the FMAT shall exercise jurisdiction under the Securities Act. Since the Quebec legislature has decided that the FMAT shall adjudicate alleged breaches of the Securities Act and the appellants’ alleged conduct has a real and substantial connection with Quebec, the FMAT necessarily has jurisdiction over the appellants in respect of their alleged contraventions. The special legislation, properly interpreted, thus provides for the FMAT’s adjudicatory jurisdiction.^[132]

In simple terms, if someone does something that contravenes a provincial regulatory statute, they are potentially liable to enforcement by the provincial regulator.

The next question is whether there is a sufficient connection between the province and the target of enforcement action. Sufficient connection depends on the application of the factors set out by Binnie J in para 56 of Unifund:

1. The territorial limits on the scope of provincial legislative authority prevent the application of the law of a province to matters not sufficiently connected to it;
2. What constitutes a “sufficient” connection depends on the relationship among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it;
3. The applicability of an otherwise competent provincial legislation to out-of-province defendants is conditioned by the requirements of order and fairness that underlie our federal arrangements;
4. The principles of order and fairness, being purposive, are applied flexibly according to the subject matter of the legislation.^[133]

Wagner CJ and Jamal J confirmed that the Unifund factors are to be applied to determine when provincial regulatory legislation can be applied with extra-provincial effect.^[134] This is not a question of the validity of the provincial legislation (which will typically fall under the capacious provincial power to legislate in respect of property and civil rights in the province) but rather of its applicability: its scope, not its lawfulness. These factors therefore determine whether enforcement action can be taken in the province against out-of-province actors (or where there is some other extra-provincial aspect).

The Unifund factors are seen as a principle of statutory interpretation,^[135] essentially a device for finding that a particular type of transaction or action which would be regulated if done in the province by a provincial resident, is in fact outside the authority of the provincial regulator. Here, as the majority’s analysis explains, the factors did not weigh against provincial regulation.

The analysis in Sharp itself is quite useful. Quebec was used as the “face” of the pump-and-dump scheme.^[136] As such, it was fair to apply the Quebec regime to their activities: “Because the appellants made Quebec the face of their securities manipulation operation, their entrance into Quebec’s market was not accidental or irrelevant, but rather was an integral part of the scheme”.^[137] This conclusion was not undermined by the possibility of proceedings in other provinces, because jurisdictional overlaps in securities regulation are a necessary feature of Canadian law.^[138] (In practice, these overlaps are addressed by provincial legislation^[139] or soft-law cooperation.^[140])

Note also the Court’s explicit approval of the need for a flexible and purposive approach when determining the territorial scope of regulatory legislation: “Because contemporary securities manipulation and fraud are often transnational and extend across provincial and national borders, courts and tribunals must take a flexible and purposive approach when applying the principles of order and fairness in the securities context. In our view, it is consistent with the principles of order and fairness for the FMAT to have jurisdiction over the appellants”.^[141] This is of a piece with the Supreme Court’s relatively hands-off approach to the Charter compliance of regulatory legislation designed to protect the public (albeit, of course, that the characterization of such legislation is controversial, as it often has anti-competitive effects that favour market incumbents).

The standard of review featured too, of course. The parties did not dispute that the applicability of regulatory legislation to out-of-province actors had to be determined on a correctness standard. Even though the analysis is context-sensitive and fact-heavy, the Supreme Court confirmed that this is a constitutional question requiring correctness review to ensure uniform answers.^[142]

In addition, the question of the relevance of the civil code to regulatory jurisdiction was said to be of central importance to the legal system and also requiring correctness review. This one was also, it is fair to say, as pure a question of law as can be imagined.

Indeed, the issues here transcended the securities sphere and was relevant to any provincial regulatory scheme and, accordingly, judicially imposed consistency was required to ensure uniformity. These are paradigm examples of the narrow correctness categories set out in Vavilov, as they relate to situations where deviation from the norm by even one regulator would undermine the coherence of the legal system.

All in all, I think this is a useful decision. The Unifund criteria are helpful in addressing difficult questions relating to out-of-province actors, as lower courts have found in previous years, and they provide a framework for regulators to cooperate on enforcement matters.

III. LIMITED RIGHTS OF APPEAL

In Vavilov, the Supreme Court of Canada referred on two occasions to the effect of a limited right of appeal. At paragraph 45, the majority viewed it as self-evident that a right of appeal limited to questions of law, or limited to questions of law or jurisdiction does not preclude judicial review. This is of a piece with the view expressed by four dissenting judges in the pre-Vavilov case of Edmonton East that the legislature “must have known that judicial review is available for any question not covered by a limited right of appeal”.^[143] Later, at paragraph 52, the majority repeated the point but added that a limited right of appeal does not “on its own” preclude judicial review. Looming over these paragraphs is the Supreme Court’s 1980s decision in Crevier, which invalidated a privative clause that would have, if given effect, prevented the courts from correcting ‘jurisdictional’ errors. However, jurisdiction is “not so much in vogue today”^[144] and, indeed, does little or no work any more in the common law of judicial review.^[145] We now find ourselves in a position where the leading authority — Crevier — speaks in terms of ‘jurisdiction’, a concept that is largely defunct and it is necessary to figure out what to do.

Since 2019, a great deal of ink has been spilled by lower courts and commentators on the meaning to be given to these statements in paragraphs 45 and 52 of Vavilov. These courts and commentators can be grouped into three camps: legislative intentionalists, discretion advocates and constitutional traditionalists. As Stratas JA observed in a characteristically colourful analysis, it can be said to be an “open question” which of these camps is right.^[146]

I will describe these camps in turn but I should warn the reader in advance that I am a constitutional traditionalist. In my view, the principle from Crevier is that the superior courts must be able to keep administrative decision-makers within the proper boundaries of their authority by applying the common law principles of judicial review.^[147] Indeed, I was one of the first to stake out that particular ground. Everything I have read since has, however, only strengthened my conviction that constitutional traditionalism is consistent with Vavilov and with the fundamentals of Canada’s public law tradition. By contrast, the position of the legislative intentionalists is — with respect — impossible to reconcile with first principles of Canadian public law. As for the discretion advocates, their emphasis on judicial discretion would require developments in the law of judicial review of administrative action that are as novel as they are problematic and must be rejected. Discretion can be useful in some circumstances but it cannot provide a complete answer to the questions posed by those paragraphs of Vavilov.

LEGISLATIVE INTENTIONALISM

The legislative intentionalists take a narrow view of Crevier and a broad view of institutional design. In their view, judicial respect for legislative intent demands that partial restrictions on judicial review (such as appeals limited to questions of law or jurisdiction) be given effect, as long as the decision-maker at issue is not completely immunized from court oversight.

Near JA’s minority reasons in Canada (Attorney General) v Best Buy Canada Ltd.,^[148] are illustrative. The issue was whether Canada could challenge a fact-sensitive tariff classification decision by the Canadian International Trade Tribunal: there is a right of appeal on questions of law only to the Federal Court of Appeal^[149] and the Tribunal’s decisions are otherwise protected by a privative clause.^[150]

Near JA thought the effect of these provisions was to preclude judicial review. He leaned heavily on the Supreme Court’s reliance on “institutional design” in Vavilov. If legislative intent is to be taken seriously, he reasoned, Parliament’s considered choice to restrict appellate oversight should be respected: “If Parliament’s institutional design choices are to be respected, factual issues and issues of mixed fact and law for which no legal question can be extracted must not be subject to review by this Court.”^[151] Near JA did not see any constitutional problems arising as a result of limiting appeals from the Tribunal to extricable questions of law, as Crevier only restricts “Parliament’s ability to completely insulate the CITT from any Superior Court review.”^[152]

Summing up his view of legislative intent and the scope of the Crevier principle, Near JA asked rhetorically, “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…?”^[153] Subsequently, Stratas JA suggested that partial restrictions on judicial review (such as those created by a limited right of appeal) that “further a valid and substantial legislative purpose” might be constitutional.^[154]

More recently, Slatter JA reasoned along similar lines in Georgopoulos v Alberta (Appeals Commission for Alberta Workers’ Compensation).^[155] The Commission had granted G less compensation than he had claimed. G appealed on a question of law or jurisdiction and also sought judicial review of the Commission’s decision. At first instance, the superior court dismissed the appeal as no legal error or breach of procedural fairness had been made out and also dismissed the application for judicial review on the reasonableness standard. For the majority of the Court of Appeal, Feehan JA was content to dismiss the appeal on the basis that G had failed to identify any error in the superior court’s analysis.

However, Slatter JA went further in concurring reasons. Noting that the legislation contains a strong privative clause along with the circumscribed appeal on questions of law or jurisdiction,^[156] he concluded that G could not apply for judicial review at all, as this would be “inconsistent” with the intention of the legislature to give the Commission “the final say on questions of fact and mixed fact and law, including assessment of the expert medical evidence”.^[157] Slatter JA reached this position having reflected on the “very wide mandate that the Legislature has to define the nature and availability of judicial review”^[158] and the “general rule” that “a statutory right of appeal from the decision of an administrative tribunal is intended to exhaust the remedies available to the applicant.”^[159]

With respect, I do not think the legislative intentionalist position is defensible.

First, it is true that the holding in Crevier was narrow but the principle dictating the outcome was significantly broader. Laskin CJ held that a statute insulating an administrative decision-maker from judicial review of jurisdictional matters “must be struck down as unconstitutional by reason of having the effect of constituting the tribunal a s. 96 court.”^[160] However, he based this holding on a broader principle: “[i]t cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review.”^[161] So, yes, a statute purporting to provide complete immunization from judicial review is unconstitutional but only because it allows an administrative decision-maker a free hand in determining the boundaries of its powers. These boundaries can be dependent on findings of fact^[162] or factually suffused determinations.^[163] Indeed, in Vavilov, the Supreme Court put legal and factual constraints on an even footing: in order to be reasonable, a decision must be justified in respect of both the law and the facts. The 2023 decision in CSFTNO, which turned on failure to adequately grapple with relevant evidence, is a stark reminder of this.

Second, as a historical matter, judicial review has always been available — long before Crevier — to ensure that administrative decision-makers remain within the boundaries of their authority.^[164] Clauses that might restrict access to the courts have been narrowly construed for eons.^[165]

When the history is fully appreciated, the legislative intentionalist approach is difficult to support. As to the wide mandate of the legislature, the lynchpin of Slatter JA’s constitutional analysis in Georgopoulos was his proposition that, historically, there was no judicial review of factual errors: “At common law, certiorari was limited to review of jurisdictional errors and errors of law on the face of the record; factual errors were not in play.”^[166]

With respect, I do not think this is correct. Certiorari has long been available to correct errors on questions of jurisdictional fact.^[167] The availability of certiorari on issues of jurisdictional fact was part and parcel of keeping administrative decision-makers within the boundaries of their lawful authority, a core function of the superior court.^[168]

As to the general rule of exhaustion of remedies, this rule has only ever applied to remedies that are adequate and effective.^[169] An appeal that is limited to questions of law cannot, evidently, be an adequate and effective remedy for alleged factual errors.^[170] Indeed, there is abundant jurisprudence, albeit now long forgotten, that the existence of a right of appeal does not prevent judicial review: certiorari was available, to correct jurisdictional error, even if there was a right of appeal.^[171] Furthermore, even exercising the right of appeal did not prevent an applicant from seeking certiorari in respect of a defect going to jurisdiction.^[172]

Now, of course, “jurisdictional” questions have been excised from the common law of judicial review since Vavilov. Nonetheless, the notion that has underpinned judicial review for centuries now — that the superior courts must ensure that administrative decision-makers remain within the boundaries set by legislation and the common law — remains an integral part of the Canadian public law tradition. Vavilov makes clear that the courts have a “constitutional duty” to ensure that administrative decision-makers respect the boundaries of their authority.^[173]

Third, the position advanced by Near and Slatter JJA relies heavily on a contextual analysis of legislative intent. But as the Supreme Court reaffirmed in Mason (righting the ship after a deviation in Entertainment Software Association), contextual analysis is now verboten in selecting the standard of review. “Institutional design” as deployed in Vavilov is a thin concept, which focuses on the application of appellate standards of review where an “appeal” has been provided for: the concept goes no further than this. It is difficult to see, therefore, why it should be used to preclude access to judicial review.

DISCRETION

Those in the discretion camp do not take sides as between legislative intentionalists and constitutional traditionalists. Rather, they would use the remedial discretion of the superior courts to refuse to grant a remedy for factual error in most cases. In that way, respect can be paid to legislative intent by restricting access to judicial review remedies but without making judicial review unavailable, as such. There is no doubt that remedial discretion has long been a feature of the law of judicial review of administrative action but those in the discretion camp advocate a new departure, in order to stake out a position between the legislative intentionalists and constitutional traditionalists.

The leading case for those in the discretion camp is the decision of the Ontario Court of Appeal in Yatar. This decision is currently on reserve at the Supreme Court of Canada. (I appeared for the intervener Canadian Telecommunications Association.)

In Yatar v TD Insurance Meloche Monnex,^[174] the Divisional Court refused to entertain a concurrent appeal and application for judicial review of a decision of the Licence Appeal Tribunal refusing an application for statutory accident benefits. For Kristjanson J, the appeal could not be entertained, as it raised questions of mixed fact and law falling outside the scope of the appeal on questions of law only. And the judicial review application should not be entertained: judicial review is discretionary and, where there is a right of appeal, should be entertained only in exceptional circumstances. She gave four reasons justifying the refusal to entertain the judicial review application.

First, the legislature had plainly intended to limit oversight of factual matters in the statutory accident benefits field, implementing a suite of reforms “designed to provide a streamlined response, prioritizing access to justice in a quicker and more efficient manner”.^[175] Second, there is an internal reconsideration power, exercisable on a basis “akin” to the correctness standard.^[176] Third, the nature of the alleged errors — on questions of fact or mixed questions of law and fact involving the assessment of evidence — was such that any judicial review would be conducted on a “high standard of deference”.^[177] Fourth, concurrent appeals and judicial reviews create “systemic difficulties”.^[178] Accordingly, judicial review would only be available in “exceptional circumstances” which were not present here.^[179]

The Ontario Court of Appeal affirmed for slightly different reasons: Yatar v TD Insurance Meloche Monnex.^[180] Nordheimer JA held that judicial review of a reconsideration decision would only be available in “rare” cases, as the courts could exercise their residual discretion not to hear the application for judicial review.^[181] This was because the legislature intended there to be swift and efficient resolution of benefits disputes.^[182]

In my view and with respect (and with the caveat that my client in the Yatar appeal sought to doubt Nordheimer JA’s analysis), this decision should not be followed. Consider the legislative intent point first. It must be pointed out that the power of reconsideration in this case was not contained in the relevant parent statute. Rather, it is contained in the Tribunal’s own rules. There is a general provision in the Statutory Powers Procedure Act, permitting tribunals to make rules relating to internal review of decisions.^[183] But this general provision can hardly indicate a specific legislative intent in respect of the benefits disputes regime. In this instance at least, the legislative intent argument rests on shaky foundations.

Beyond this, as long as we have had judicial review, it has been the case that courts can judicially review any final administrative decision, whether or not there was an elaborate internal process leading up to that decision. To give courts a discretion not to hear judicial review applications because of their perception of the quality and quantity of internal reconsiderations would allow judicial discretion to trump constitutional principle. The quality and quantity of internal reconsiderations might have a bearing on how much deference is due to the decision-maker, but it should not have a bearing on whether the individual challenging a decision is entitled to their day in court. There are principled grounds for refusing a remedy — prematurity, mootness, lack of standing, failure to exhaust alternative remedies — but the one mentioned in Yatar is not one of them. Notwithstanding the creative approach of Kristjanson J and Nordheimer JA (and again with the caveat that my client in the Yatar appeal has an interest), I am unconvinced.

Discretion featured in a slightly different way in Canada (Attorney General) v Pier 1 Imports (U.S.), Inc.^[184] Here, Boivin JA suggested, having reviewed the current controversy, that “as a matter of practice, and in the vast majority of cases, the statutory appeal will be sufficient to address the issue at hand, and the judicial review, although available, will be rendered superfluous.”^[185] For Boivin JA, an appeal may be an adequate and effective remedy (and, indeed, may often be so) but one cannot be categorical about this. In my view, discretion relating to remedies can be pushed no further than this in resolving the jurisprudential dispute about the effect of limited rights of appeal. In particular, if an appeal is confined to questions of law, but an applicant for judicial review seeks to impugn a finding of fact, it is difficult to see how the appeal can be an adequate and effective remedy.

CONSTITUTIONAL TRADITIONALISM

Constitutional traditionalists take a broad view of Crevier and a narrow view of legislative intent. For members of this camp, judicial review for substantive reasonableness and procedural fairness must always be available, on issues of law and issues of fact alike. The only situation in which judicial review can be precluded is where the legislature has provided for appellate-style or equivalent review in an independent body. Constitutional traditionalists might also be apt to think that a statutory right of appeal, because it is drafted against the well-accepted backdrop that judicial review is always available, must be interpreted to give a prospective appellant something more than that available by way of judicial review.

As will be clear from my critique above of legislative intentionalism, I believe that history firmly supports the constitutional traditionalist position. Judicial review has changed in many ways over the centuries, with the prerogative writs latterly displaced by a law of general principles of administrative action. But there are some fundamentals. Judicial review is distinct from an appeal on the merits. Clauses interfering with the ability to seek judicial review are narrowly construed. And the function of the superior courts, as constitutionalized by Crevier, is to keep administrative decision-makers within the boundaries of legality. These days, as the Supreme Court put it in Vavilov, the courts must apply the reasonableness standard “to ensure that administrative bodies have acted within the scope of their lawful authority.”^[186] Similarly, when monitoring compliance with procedural fairness, the courts may imply additional protections into statutory schemes to ensure lawful decision-making.^[187]

The leading member of the constitutional traditionalists is Gleason JA, who wrote the majority reasons for the Federal Court of Appeal in Best Buy. For her, at least some factual errors must be reviewable regardless of Parliament’s institutional design choices. Based on a magisterial review of the development of the “standard of review analysis” in Canadian law, culminating in Vavilov, she identified three fundamental propositions. First, the Supreme Court determined in Vavilov that “as a matter of principle, the availability of limited appellate review does not foreclose the availability of judicial review”.^[188] Second, there is no indication in Vavilov that privative clauses such as s 67(3) of the Customs Act bar access to judicial review or curial oversight of any types of errors:

A complete bar on the availably of judicial review for any type of issue would offend the rule of law as the Supreme Court noted in Dunsmuir, a holding that was specifically endorsed in Vavilov at para. 24. Further, the Court in Dunsmuir and Vavilov did not overturn the previous decades-old case law determining that what were previously characterized as patently unreasonable factual errors, formerly called jurisdictional, remain reviewable, albeit now under the reasonableness standard.^[189]

Third, Vavilov expressly contemplates that “factual issues may give rise to unreasonable decisions”.^[190] As a result, a privative clause cannot be read “as barring access to judicial review for all factual issues”.^[191] Institutional design considerations are “part of the relevant statutory framework — an important contextual factor in determining the parameters of a reasonable decision according to Vavilov and the case law of this Court.”^[192]

Gleason JA also cited with approval the following piece of academic commentary:

First, in the same paragraph [of Vavilov] that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.” The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.

Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’” If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov.

The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review.^[193]

This position has also been adopted in Manitoba.^[194]

This still leaves the question of when exactly judicial review can be precluded. Recall that in paragraph 52 of Vavilov the proposition is that a limited right of appeal cannot “on its own” prevent a superior court from performing its reviewing function. What does this mean?

The answer I give (and presented to the Supreme Court in Yatar) is that this is permissible where the reasonableness (and, for that matter, procedural fairness) of all aspects of a decision can be assessed by an independent body in appellate-style review: “Where the judicial review jurisdiction of the courts has been successfully ousted by statute, one finds more than a simple clause with privative language: the legislature has provided a particular channel for oversight of the legality, rationality and procedural fairness of administrative action.”^[195] One early Supreme Court of Canada case provides a nice example. In Kelly v Sulivan,^[196] a landowner sought judicial review (via a writ of certiorari) of a decision of the Commissioner’s Court, an administrative tribunal established under the Prince Edward Island Land Purchase Act, 1875, the effect of which was to acquire all her township lands in PEI. The Court held that a writ of certiorari was not available, but only because the statute precluding access to certiorari also provided that an application could be made to the superior court, within 30 days, to correct any error, informality or omission in the award.^[197] This covered the same ground as certiorari and was, accordingly, capable of ousting the superior court’s jurisdiction. But only because it covered the same ground as certiorari.^[198]

This may also occur where there is a limited right of appeal to the courts (perhaps on questions of law) and provision for appellate-style review of remaining aspects of the decision. Quite what appellate-style review means, and in particular whether an appeal to the federal or provincial cabinet meets the standard, has been debated before the courts previously^[199] and may become relevant again in the near future.

Whether the Supreme Court will tell us in Yatar which of these camps has it right remains to be seen. The statute at issue there specifically provides that the right to seek judicial review is not precluded.^[200] The legal significance of this fact is unclear, however. Whether the statute said so or not, judicial review would be available as a matter of common law.^[201] Then, the question becomes whether a limited right of appeal can function as a limitation on the scope of judicial review, either by discretion (as the courts below held in Yatar) or in some other way. Personally, I find it difficult to see a distinction of principle between preclusion of judicial review arising from discretion and preclusion of judicial review arising from statute: in both instances, it is necessary to clarify the extent to which judicial review is constitutionally entrenched (especially on questions of fact) in order to explain why it cannot be precluded. Unless the Supreme Court puts itself in the discretion camp, its disposition of Yatar will be telling.

IV. CONCLUSION

I have covered a miscellany of issues in this ‘year in review’ paper. It is something of a relief to be able to comment on a relatively settled landscape. The first few years post-Vavilov are proving much more stable and satisfactory than those that preceded the seminal 2019 decision. The Supreme Court is facing a multiplicity of issues in the coming months that will put the Vavilov framework to the test, but as long as simplicity and clarity remain as the touchstones, there is reason to be optimistic about the medium-term future of Canadian administrative law. Long may stability continue!

 

* Professor Paul Daly holds the University Research Chair in Administrative Law & Governance at the University of Ottawa. His many publications in the broad field of public law are often cited, he regularly appears before Canadian courts on public law matters and he serves as a part-time member of the Environmental Protection Tribunal of Canada.

1. Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311.
2. C.U.P.E. v N.B. Liquor Corporation, [1979] 2 SCR 227.
3. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov].
4. Bell Canada v Canada (Attorney General), 2019 SCC 66, [2019] 4 SCR 845.
5. Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900.
6. Northern Regional Health Authority v Horrocks, 2021 SCC 42.
7. Paul Daly, “Life After Vavilov? The Supreme Court of Canada and Administrative Law in 2021”, CLEBC Administrative Law Conference (18 November 2021) at 1, online: <www.canlii.org/en/commentary/doc/2021CanLIIDocs13538>.
8. Law Society of Saskatchewan v Abrametz, 2022 SCC 29.
9. Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30.
10. Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [CSFTNO].
11. Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason].
12. Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446, SCC File #40348; Elementary Teachers Federation of Ontario v York Region District School Board, 2022 ONCA 476, SCC File #40360; Association des cadres de la société des casinos du Québec c Société des casinos du Québec, 2022 QCCA 180, SCC File #40123.
13. Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2022 ONCA 74, SCC File #40078.
14. Paul Daly, “The Signal and the Noise in Administrative Law” (2017) 68 University of New Brunswick Law Journal, online: <journals.lib.unb.ca/index.php/unblj/article/view/29056/1882524241>.
15. Paul Daly, “Future Directions in Standard of Review in Canadian Administrative Law: Substantive Review and Procedural Fairness” (2023) 36:69 Canadian Journal of Administrative Law & Practice.
16. Roseau River First Nation v Canada (Attorney General), 2023 FCA 163.
17. Canada Christian College and School of Graduate Theological Studies v Post-Secondary Education Quality Assessment Board, 2023 ONCA 544.
18. McAnsh v Ontario, 2023 ONSC 3537.
19. Haghshenas v Canada (Citizenship and Immigration), 2023 FC 464; Safarian v Canada (Citizenship and Immigration), 2023 FC 775.
20. British Columbia (Attorney General) v 992704 Ontario Limited, 2023 BCCA 346.
21. British Columbia (Lieutenant Governor in Council) v Canada Mink Breeders Association, 2023 BCCA 310.
22. Viaguard Accu-Metrics Laboratory v Standards Council of Canada, 2023 FCA 63.
23. Mason, supra note 11.
24. Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446, SCC File #40348. See also Democracy Watch v Canada (Attorney General), 2023 FCA 39; Georgopoulos v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2023 ABCA 285; Canada (Attorney General) v Pier 1 Imports (U.S.), Inc., 2023 FCA 209.
25. Auer v Auer, 2022 ABCA 375, SCC File #40582; TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381, SCC File #40570. See also Sul v The Rural Municipality of St Andrews, Manitoba et al, 2023 MBCA 25; British Columbia (Attorney General) v Le, 2023 BCCA 200.
26. Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
27. Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, at para 43.
28. Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909.
29. Paul Daly, “Can This Be Correct? Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61” (11 December 2015), online: Administrative Law Matters <www.administrativelawmatters.com/blog/2015/12/11/can-this-be-correct-kanthasamy-v-canada-citizenship-and-immigration-2015-scc-61>; Paul Daly, “Certified Questions, References and Reasonableness: Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50” (8 April 2022), online: Administrative Law Matters <www.administrativelawmatters.com/blog/2022/04/08/certified-questions-references-and-reasonableness-canada-citizenship-and-immigration-v-galindo-camayo-2022-fca-50>.
30. Paul Daly, “The Return of Context? Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30” (9 September 2022), online: Administrative Law Matters <www.administrativelawmatters.com/blog/2022/09/09/the-return-of-context-society-of-composers-authors-and-music-publishers-of-canada-v-entertainment-software-association-2022-scc-30>.
31. Mason, supra note 11 at para 53.
32. See Côté J’s concurring reasons. Ibid at para 163.
33. Ibid at para 47.
34. Mason, supra note 11 at para 83.
35. Ibid at para 81.
36. Ibid at para 84.
37. Ibid at para 91.
38. Ibid at para 95.
39. Ibid at para 99.
40. Ibid at para 102.
41. Ibid at para 103.
42. Ibid at para 109.
43. Ibid at para 117.
44. Ibid.
45. Ibid at para 121.
46. Canada (Citizenship and Immigration) v Mason, 2021 FCA 156, at para 19.
47. CSFTNO, supra note 10.
48. Ibid at para 78.
49. Ibid at paras 80–82.
50. Mason, supra note 11 at para 97.
51. Paul Daly, “Administrative Tribunals in Canada: Constitutional Subordinates or Equal Partners?” (9 September 2023), online: Social Science Research Network <papers.ssrn.com/sol3/papers.cfm?abstract_id=4565804>. Forthcoming in Groves, Thomson and Weeks, eds, Administrative Tribunals in the Common Law World (Oxford: Hart, 2024).
52. CSFTNO, supra note 10 at para 98.
53. Ibid at para 99.
54. Ibid at para 102.
55. Ibid.
56. Ibid.
57. Mason, supra note 11 at paras 96, 101.
58. Vavilov, supra note 3 at paras 94, 96.
59. Paul Daly, A Culture of Justification: Vavilov and the Future of Administrative Law (Vancouver: UBC Press, 2023).
60. Zeifmans LLP v Canada, 2022 FCA 160, at para 10, per Stratas JA.
61. Supra note 46 at para 17.
62. Mason, supra note 11 at para 79.
63. Paul Daly, “Unreasonable Interpretations of Law Redux: Mason v. Canada (Citizenship and Immigration), 2019 FC 1251” (23 October 2019), online: Administrative Law Matters <www.administrativelawmatters.com/blog/2019/10/23/unreasonable-interpretations-of-law-redux-mason-v-canada-citizenship-and-immigration-2019-fc-1251>.
64. Vavilov, supra note 3 at para 68.
65. Ibid at para 109.
66. Greenwood v Buster (1902), 1 O.W.R. 225 (H.C.J.).
67. Vavilov, supra note 3 at para 119.
68. Canada (Attorney General) v Ibrahim, 2023 FCA 204.
69. Andrew Green, “How Important are Ground-Breaking Cases in Administrative Law?” (2023) 73:4 University of Toronto Law Journal, at 426.
70. Shell Canada Limited v Alberta (Energy), 2023 ABCA 230.
71. Ibid at para 4.
72. Vavilov, supra note 3 at para 23.
73. Law Society of Newfoundland and Labrador v Buckingham, 2023 NLCA 17.
74. Ibid at para 42.
75. Ibid at para 44.
76. Ibid at para 53.
77. Ibid at para 55.
78. Ibid at para 86.
79. Mark Mancini, “The Promise of Habeas Corpus Post-Vavilov: The Principle of Legality” (17 March 2022), online: Social Science Research Network <papers.ssrn.com/sol3/papers.cfm?abstract_id=4059757>. Forthcoming in (2022) Canadian Bar Review.
80. Société Radio-Canada v Canada (Attorney General), 2023 FCA 131.
81. Broadcasting Decision CRTC 2022-175.
82. Radio Regulations, 1986, SOR/86-982, at para 3(b).
83. Broadcasting Act, SC 1991, c 11.
84. Supra note 81 at para 22.
85. Supra note 83 at para 5(1).
86. Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 SCR 147.
87. Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 SCR 489 [Cogeco].
88. Ibid at paras 22–23.
89. TVA Group Inc. v Bell Canada, 2021 FCA 153, at para 35.
90. Capital Cities Comm. v C.R.T.C., [1978] 2 SCR 141.
91. Supra note 80 at paras 51–53.
92. Ibid at para 34.
93. Ibid at 62.
94. ATCO Gas & Pipelines Ltd. v Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 SCR 140 [Stores Block].
95. Paul Daly, “Against ATCO” (24 November 2023), online: Administrative Law Matters <www.administrativelawmatters.com/blog/2023/11/24/against-atco-text-purpose-context-not-implied-and-express-powers>. Forthcoming in (2024) Advocates’ Quarterly.
96. ATCO Electric Ltd v Alberta Utilities Commission, 2023 ABCA 129 [ATCO Electric].
97. Ibid at paras 13, 19.
98. Ibid at para 30.
99. FortisAlberta Inc v Alberta (Utilities Commission), 2015 ABCA 295.
100. ATCO Electric, supra note 96 at para 44.
101. Ibid at para 43.
102. Ibid at para 44.
103. Ibid at para 46. See also Alta Link Management Ltd v Alberta Utilities Commission, 2023 ABCA 325 at para 3, commenting that “the statutory framework within which [the Commission] operates is complicated and is imbedded with legal terms of art requiring a single definition” [Emphasis added].
104. ATCO Electric, supra note 96 at paras 52–53.
105. Ibid at paras 61–62.
106. See especially Bell Canada v Bell Aliant Regional Communications, 2009 SCC 40.
107. ATCO Electric, supra note 96 at para 18.
108. Nigel Bankes, “Stores Block Meets Vavilov: The Status of Pre-Vavilov ABCA Decisions” (1 May 2023), online: ABlawg <ablawg.ca/2023/05/01/stores-block-meets-vavilov-the-status-of-pre-vavilov-abca-decisions>.
109. Canadian Broadcasting Corp. v New Brunswick (Attorney General), [1996] 3 SCR 480, at para 26.
110. Southam Inc. v Canada (Minister of Employment and Immigration), [1987] 3 FC 329, at para 9.
111. Canadian Broadcasting Corporation v Canada (Parole Board), 2023 FCA 166 [Parole Board].
112. Ibid at para 85.
113. Corrections and Conditional Release Act, SC 1992, c 20, s 140(4).
114. Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522.
115. See e.g. supra note 110 at 336.
116. Parole Board, supra note 111 at para 48.
117. Ibid at para 55.
118. Ibid.
119. Ibid at para 53.
120. Ibid at para 54.
121. See the comments of the Alberta Court of Appeal in Alta Link Management Ltd v Alberta Utilities Commission, 2023 ABCA 325, at para 48: “its decision making is polycentric, fulfilling a policy-laden role which includes a strong public interest mandate.”
122. Supra note 103.
123. Electric Utilities Act, SA 2003, c E-5.1.
124. See e.g. Rogers Communications Canada Inc. v Ontario Energy Board, 2020 ONSC 6549.
125. Supra note 103 at paras 51–55.
126. Ibid at para 57.
127. Ibid at para 60.
128. Ibid at para 63.
129. Ibid at para 64.
130. Unifund Assurance Co. v Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 SCR 63.
131. Sharp v Autorité des marchés financiers, 2023 SCC 29 [Sharp].
132. Ibid at para 136.
133. Supra note 130 at para 56 [emphasis in original].
134. Sharp, supra note 131 at para 102.
135. Ibid at paras 113–114.
136. Ibid at para 129.
137. Ibid at para 133.
138. Ibid at para 134.
139. See e.g. McLean v British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895.
140. See e.g. the Canadian Securities Administrators and, especially, its Standing Committee on Enforcement.
141. Sharp, supra note 131 at para 135.
142. See also Northern Regional Health Authority v Horrocks, 2021 SCC 42.
143. Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, at para 78 [Edmonton East], citing Habtenkiel v Canada (Citizenship and Immigration), 2014 FCA 180, [2015] 3 F.C.R. 327, at para 35.
144. Democracy Watch v Canada (Attorney General), 2022 FCA 208, at para 39.
145. Vavilov, supra note 3 at paras 65–68.
146. Democracy Watch v Canada (Attorney General), 2022 FCA 208, at para 45.
147. Immeubles Port Louis Ltée v Lafontaine (Village), [1991] 1 SCR 326, at 360.
148. Canada (Attorney General) v Best Buy Canada Ltd., 2021 FCA 161.
149. Customs Act, RSC 1985, c 1 (2^nd Supp), s 68(1).
150. Ibid, s 67(3).
151. Supra note 148 at para 46.
152. Ibid at para 59. See also Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, [2021] 3 FCR 294, at para 102; Democracy Watch v Canada (Attorney General), 2022 FCA 208, at paras 42–44.
153. Supra note 148 at para 60.
154. Democracy Watch v Canada (Attorney General), 2022 FCA 208, at para 45.
155. Georgopoulos v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2023 ABCA 285.
156. Ibid at para 22.
157. Ibid at para 24.
158. Ibid at para 16.
159. Ibid at para 13.
160. Crevier v A.G. (Québec) et al., 1981 SCC, [1981] 2 SCR 220, at 234.
161. Ibid at 238 [emphasis added].
162. See e.g. Blanchard v Control Data Canada Ltd., 1984 SCC, [1984] 2 SCR 476. See generally Paul Daly, “Facticity: Judicial Review of Factual Error in Comparative Perspective” in Peter Cane et al eds., Oxford Handbook of Comparative Administrative Law (OUP, 2021), 901, at 905–907.
163. See e.g. Northern Regional Health Authority v Horrocks, 2021 SCC 42, at paras 7–9.
164. See e.g. Boston v Lelievre, 1864 CarswellQue 4, at para 15.
165. See e.g. R. v York Justices, 1835, 1 NBR 108; Ex Parte McNeil, 1857, 8 NBR 493.
166. Supra note 155 at para 17.
167. Bunbury v Fuller, 1853, 9 Ex. 109; R. v Licence Commissioners of Point Grey, 1913, 14 DLR 721; R. v Nat Bell Liquors Limited, 1922, 65 DLR 1; see also Green v Alberta Teachers’ Association, 2016 ABCA 237.
168. The difficulty with the position advanced by Mark Mancini in a recent paper, “Foxes, Henhouses and the Constitutional Guarantee of Judicial Review” (2024) Canadian Bar Review (forthcoming) is that he conflates ‘lawful authority’ with ‘questions of law’. With respect, there is no basis for this conflation, not least because at various points in history it was accepted that some ‘errors of law’ would be beyond judicial review if they were made ‘within jurisdiction’. It would be decidedly odd, therefore, as a historical matter, for there to be a constitutional guarantee of judicial review on questions of law. Unsurprisingly, there is no authority for any such conflation. Mr Mancini cites Attorney General (Que.) v Farrah, 1978, 195 SCC, [1978] 2 SCR 638, but with respect, the principle of this case is that a legislature cannot use a privative clause and other devices to transfer part of the supervisory jurisdiction of the courts to a statutory body (which was the effect of the legislative scheme). It does not stand for the proposition that the constitutional core minimum of judicial review contains only ‘questions of law’. If anything, it stands for the proposition that ‘questions of law’ are at least part of the constitutional core minimum.
169. Fooks v Alberta Association of Architects, 1982, 139 DLR (3d) 445.
170. Legal Profession Act (Re), 1967, 64 DLR (2d) 140, at 146 (Alta SC App Div).
171. Harris v The Law Society of Alberta, [1936] SCR 88, at 92, 102–103; see also Dierks v Altermatt, [1918] 1 WWR 719, at 724 (Alta SC App Div).
172. Hespeler v Shaw (1858), 16 U.C.Q.B. 104, at para 6.
173. Vavilov, supra note 3 at para 68.
174. Yatar v TD Insurance Meloche Monnex, 2021 ONSC 2507.
175. Ibid at para 41.
176. Ibid at para 43.
177. Ibid at para 44.
178. Ibid at para 45.
179. Ibid at para 46.
180. Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446.
181. Ibid at para 47.
182. Ibid at para 38.
183. Statutory Powers Procedure Act, RSO 1990, c S.22, s 21.2(1).
184. Canada (Attorney General) v Pier 1 Imports (U.S.), Inc., 2023 FCA 209.
185. Ibid at para 52.
186. Vavilov, supra note 3 at para 67.
187. Innisfil Township v Vespra Township, 1981, 59 SCC, [1981] 2 SCR 145, at 169, citing Cooper v Wandsworth Board of Works, 1863, 14 C.B. (N.S.) 180.
188. Supra note 148 at para 111.
189. Ibid at para 112. See also at paras 82–87, discussing how “seriously erroneous factual determinations [can] onstitute[e] patently unreasonable error”, and at para 116.
190. Ibid at para 113.
191. Ibid at para 116.
192. Ibid at para 117. See also Koebisch v Rocky View (County), 2021 ABCA 265, at para 24.
193. Paul Daly, “Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review” (17 November 2020), online: Administrative Law Matters <www.administrativelawmatters.com/blog/2020/11/17/unresolved-issues-after-vavilov-iv-the-constitutional-foundations-of-judicial-review>.
194. Smith v The Appeal Commission, 2023 MBCA 23, at paras 43–44.
195. Paul Daly, “Understanding Administrative Law in the Common Law World” (Oxford University Press, Oxford, 2021), at 188 [emphasis in original].
196. Kelly v Sulivan, 1877 1 SCR 3 [Kelly].
197. Though even here there was at least a suggestion that certiorari remained available to correct jurisdictional errors: “The view I take is that the mode pointed out by the Statute is the one which should have been pursued by the proprietor in this matter if there were any error, informality or omissions in the award made, and that the Court had no other authority to enquire into the proceedings of the Commissioners further than to see if the subject matter was properly before them, and, perhaps, to see if they had been guilty of any fraud in their proceedings”, ibid at 37 [emphasis added]. Underlined emphasis is mine and captures the old idea that a decision-maker must have ‘jurisdiction to enter on the inquiry’.
198. See similarly, Federal Courts Act, RSC 1985, c F-7, s 18.5. Kelly is cited by Mark Mancini in “Foxes, Henhouses and the Constitutional Guarantee of Judicial Review” (2024) Canadian Bar Review (forthcoming) as an example of the permissibility of legislation precluding judicial review. However, the scope of Kelly is plainly quite limited: the comments about excluding judicial review were made in a context where — in fact — judicial oversight was not excluded at all on the Supreme Court’s interpretation of the statutory scheme. Kelly does not stand for the bald proposition that judicial review can be precluded by statute.
199. See e.g. Canadian National Railway Company v Scott, 2018 FCA 148.
200. Insurance Act, RSO 1990, c I.8, s 280(3).
201. Edmonton East, supra note 143 at para 78.