What are Administrative Tribunals For, Anyway?

[76]           Board hearings are not an open-line radio show where anyone can dial in and participate. Nor are they a drop-in center for anyone to raise anything, no matter how remote it may be to the Board’s task of regulating the construction and operation of oil and gas pipelines.

So says Stratas J.A. for a unanimous Federal Court of Appeal in Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 245. Neither are judicial reviews, for that matter. Forest Ethics was described as a busybody which sought “to review an administrative decision it had nothing to do with” (at para. 33).

There is a fascinating discussion of the importance of the administrative record. Here, the applicants had attempted to raise before the court a constitutional issue that it had failed to raise before the Board:

[42]           This matters. Had the constitutional issue been raised before the Board, the Board could have received evidence relevant to it, including any evidence of justification under section 1 of the Charter. The Board would also have had the benefit of cross-examinations and submissions on the matter, along with an opportunity to question all parties on the issues. Then, with those advantages, it would have reflected and weighed in on the matter and expressed its views in its reasons. In its reasons, it could have set out its factual appreciations, insights gleaned from specializing over many years in the myriad complex cases it has considered, and any relevant policy understandings. At that point, with a rich, fully-developed record in hand, a party could have brought the matter to this Court on judicial review…

[44]           Were it otherwise, if administrative decision-makers could be bypassed on issues such as this, they would never be able to weigh in. On a judicial review, administrative decision-makers do not have full participatory rights as parties or interveners. They cannot make submissions to the reviewing court with a view to bolstering or supplementing their reasons. They face real restrictions on the submissions they can make. See generally Canada (Attorney General) v. Quadrini, 2010 FCA 246 (CanLII), [2012] 2 F.C.R. 3 at paragraphs 16-17. As a result, often their only opportunity to supply relevant information bearing upon the issue – such as factual appreciations, insights from specialization and policy understandings – is in their reasons.

This case touches on other interesting questions relating to substantive and procedural review which I will address in a subsequent post.

This content has been updated on November 5, 2014 at 06:48.