Is Deference on Procedural Fairness now the Law in the Federal Courts?
It seems to be, post-Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 245.
First, the facts. The Board conditionally approved a major pipeline project to be completed by Enbridge. There are various challenges to the decision pending before the courts. This challenge concerned a number of matters that could fairly be described as ancillary to the main issue: whether the Board could and should take climate change considerations into account in its decisions; whether the Board had facilitated meaningful participation during its decision-making process; and whether the applicant, S, could participate in the proceedings before the Board.
These matters were “an inseparable triumvirate of decisions with intertwined procedural and substantive attributes” (at para. 61). Although Stratas J.A. saw “considerable merit” in “focusing on the outcome reached by the administrative decision-maker with due regard to any significant problems in its reasoning” he nonetheless analyzed the three issues separately, in line with how they were argued (at para. 62). One of these was substantive (the climate change analysis: see para. 69 for Stratas J.A.’s conclusion); the other two were procedural.
The Board’s procedural decisions were reviewed on a deferential standard.
Some background is necessary. Stratas J.A. previously argued in favour of deference on questions of procedural fairness — see my post here — but he was in the minority in Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59. By contrast, Evans J.A. (now retired) insisted in Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 that the standard of review of procedural questions is correctness, but that “weight” must be given to the decision-maker’s procedural choices. In Maritime Broadcasting, Stratas J.A. responded that deference with weight is incoherent, akin to describing a car as “stationary but moving”.
Here is how he summarized the current state of play:
 This decision is procedural in nature. On the current state of the authorities in this Court, the standard of review is correctness with some deference to the Board’s choice of procedure (see Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 (CanLII) at paragraphs 34-42) though, as noted in my reasons in Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59 (CanLII) at paragraphs 50-56, some authorities from this Court prescribe deference as the proper approach. Re:Sound urges us to be “respectful of the agency’s choices,” and exercise a “degree of deference” when assessing the Board’s procedural decision.
 In Maritime Broadcasting, supra at paragraph 61, I explained Re:Sound as follows:
I prefer to interpret Re:Sound in a manner faithful to Dunsmuir, the later cases of the Supreme Court and the settled cases of this Court, all of which bind us. These cases tell us that review conducted in a manner “respectful of the agency’s choices” or with a “degree of deference” to those choices is really a species of deferential review – i.e., the reasonableness standard, a standard the Supreme Court in Dunsmuir, supra described (at paragraphs 47-48) as the only “respectful” or “deferential” one.
See also the discussion at para. 82.
In Stratas J.A.’s view, the reference to “weight” in Re:Sound must be taken as endorsing a deferential standard which, post-Dunsmuir, can only mean reasonableness. Accordingly, all procedural questions are subject to review for reasonableness (unless they fall into one of Dunsmuir’s correctness categories or the presumption of reasonableness can be rebutted). This, it seems to me, is now the law in the federal courts.
Two comments are in order. First, I am not convinced that Evans J.A.’s reasons in Re:Sound advocated a fusion of procedural and substantive review. Evans J.A. attempted to reconcile the desirability of deference with the orthodox, correctness approach. For now, however, the Forest Ethics interpretation prevails.
Second, there is no mention of the recent Supreme Court of Canada decision in Mission Institution v. Khela, 2014 SCC 24. There, the Court, per LeBel J., restated the orthodox, correctness approach (at para. 79). But the Court also emphasized that a “margin of deference” is to be given to a decision-maker’s procedural choices (at para. 89), a position indistinguishable from Evans J.A.’s position in Re:Sound. Heretofore, Federal Court judges have embraced Khela as justifying correctness review of procedural questions, but post-Forest Ethics, that will no longer be possible.
In the instant case, Stratas J.A. held that the formulation of the participation form and the decision to deny S the status of participant were reasonable:
 Ms. Sinclair alleges that the Application to Participate Form is too complicated, takes too much time and frightens interested people from participating in the proceedings. I disagree. The form is no worse than other forms of application in other fora, such as motions to intervene in this Court. The Board is entitled to take the position that, consistent with the tenor of section 55.2 of the National Energy Board Act, supra, it only wants parties before it who are willing to exert some effort.
 Bearing in mind the margin of appreciation that we must afford to the Board, the Board’s decision to deny Ms. Sinclair participation in the larger proceeding was reasonable. I offer the following reasons:
- The Board explained that it denied certain persons participation rights because in its view they did not satisfy the test under section 55.2. In other words, it was mindful of the need to apply the statutory standard to each application for participation before it, a matter incumbent upon it.
- The Board went further and discussed Ms. Sinclair’s application specifically. It accurately recounted her submission – that her interest lay in her religious beliefs and her Canadian citizenship in general. The Board held that this was “only a general public interest in the proposed Project.” It added that she lives in North Bay, Ontario, a community “not in the vicinity of the Project.” On the facts and the law, bearing in mind the Board’s experience in determining what is and is not useful in proceedings before it and its interest in efficient, timely proceedings, this was an acceptable and defensible outcome.
Stratas J.A. also recognized that the decision to deny S participation was a “mix” of both procedure and substance (at para. 79). I have previously noted the difficulty of classifying matters as procedural and substantive post-Dunsmuir. A fused approach would obviate the need for this classification exercise.
The state of Canadian administrative law on procedural questions is now in a state of serious flux. Deference also seems to be the norm in Quebec: Syndicat des travailleuses et travailleurs de ADF – CSN c. Syndicat des employés de Au Dragon forgé inc., 2013 QCCA 793 (see my post here). However, Au Dragon forgé pre-dated Khela and judges have had to try and reconcile the two. In Journal de Montréal c. Barrette, 2014 QCCS 5196, at para. 19, for example, Masse J. reasoned that Au Dragon forgé applies only to procedural decisions that follow from the interpretation of statutory provisions. In the other provinces, correctness seems to remain supreme on procedural questions (though readers should feel free to correct me).
With different standards now applying in different courts, and confusion stemming from its decision in Khela, the Supreme Court will surely have to confront the issue of deference on questions of procedural fairness in the post-Dunsmuir era. It is worth mentioning that no party argued for deference on procedural questions in Khela, so the Supreme Court has not yet been able to give appropriate attention to this issue.
This content has been updated on November 10, 2014 at 16:35.