Internally Appealing: Recent Canadian Cases on Internal Administrative Appeals
Regular readers will know that I have been following very closely the Canadian case law on internal administrative appeals. Three recent decisions, two from the Federal Court of Appeal on the Refugee Appeal Decision (the body that first prompted my interest in the subject) and one from the Prince Edward Island Court of Appeal (h/t Jonathan Coady), contain much interesting discussion of several important issues.
The first is the standard of review. When an appellate administrative body has determined how to go about performing its role, how should a reviewing court assess the determination? Is this a quintessentially legal question that the courts should answer or is it a classic case of a decision-maker interpreting its own statute, in which case deference is owed? In Workers Comp. of P.E.I. v. Dyment, 2016 PECA 10, Jenkins C.J.P.E.I. treated this as a matter of statutory interpretation: it is a “fundamental” question about the scope of the appellate body’s jurisdiction (at para. 11), to be answered by “determin[ing] and giv[ing] effect to the intention of the Legislature as expressed in the applicable legislation” (at para. 13): “It always depends on the language of the enabling statute” (at para. 40).
By contrast, in Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 and in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, both Gauthier J.A. and de Montigny J.A. (albeit on a much narrower question about the Refugee Appeal Division’s interpretation of its power to receive new evidence) applied the reasonableness standard. As Gauthier J.A. put it in Huruglica, addressing the broad question of the Refugee Appeal Division’s role: “Just as legal principles applicable to cost awards and to time limitations have been found to fall within the expertise of…administrative bodies…, defining the scope of its appellate function (or its standard of review) must be within the RAD’s expertise” (at para. 32).
Notably, both of the Federal Court of Appeal cases involved important questions of general law certified for resolution by a first-instance judge. Of course, since the Supreme Court of Canada’s decision in Kanthasamy, the certification of a question does not mean that the standard of review will be correctness. This is unfortunate because, as Gauthier J.A. observed, “This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by [immigration decision-makers], who saw it as helpful in carrying out their functions” (Huruglica, at para. 28).
On the other hand, de Montigny J.A. saw “no urgent need to intervene, especially since the principles that will emerge from the jurisprudence of this Court and the Federal Court will necessarily provide a framework…” (Singh, at para. 26). This is true, though allowing the Refugee Appeal Division to formulate a new approach (or approaches) that will in turn have to be reviewed by the Federal Court (as these numerous cases often are) and, perhaps, the Federal Court of Appeal does not strike me as an especially efficient way of proceeding. Legislation to restore the status quo ante (Huruglica, at para. 29) would be welcome but is surely unlikely to find a place on Parliament’s very busy legislative agenda.
In any event, as Gauthier J.A. explained, the nature of the question is such that the range of reasonable outcomes (i.e. the range of approaches the Refugee Appeal Division could reasonably apply) is very narrow. Indeed, in her view, “the legislative intent is not ambiguous” (at para. 44). In Singh, de Montigny J.A. was able to dispose of the case on the basis that an analogous statutory provision had already received a definitive interpretation from the Federal Court; as a result, Mr. Singh had not rebutted “the presumption that Parliament intended to defer to the courts’ interpretation of a legislative text when it chose to repeat the same essential points in another provision” (at para. 49, see also para. 64). The relevant provision was simply “not written in an ambiguous manner” (at para. 63).
The second is which factors an appellate body should consider in determining its role. Jenkins C.J.P.E.I. looked to the principles of statutory interpretation to guide his analysis (see e.g. paras. 23-26). He found the Newton decision of the Alberta Court of Appeal “particularly helpful, for the in-depth analysis by Slatter J.A. that distinguishes the supervisory function of court review on judicial review of administrative action from appellate tribunal appellate review of initial decision maker action”, but emphasized that in the final analysis “each case is dependent on the particular applicable statutory regime” (Dyment, at para. 44). By contrast, Gauthier J.A. did not find Newton “particularly useful”: “I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context” (Huruglica at para. 46; see her detailed analysis at paras. 53-103). At least they both agreed that the principles of judicial review of administrative action have no role to play in administrative appeals (Huruglica, at para. 47, Dyment, at para. 39).
Or do they? The third is what role an appellate body should play. Despite their insistence on a contextual analysis of the statutory scheme in all cases and their rejection of the applicability of the principles of judicial review, both Gauthier J.A. and Jenkins C.J.P.E.I. advocated a standard of correctness (Huruglica, at paras. 64 78, 98 and 103, Dyment, at para. 53). But isn’t “correctness” drawn from the vocabulary of judicial review (or, indeed, appellate review)? It would perhaps be better to say that administrative appeals are in a different category altogether. Indeed, saying so would cohere better with Gauthier J.A.’s and Jenkins C.J.P.E.I.’s emphasis on the need to interpret each statutory scheme very carefully.
The fourth is whether deference has any role at all. Both Gauthier J.A. and Jenkins C.J.P.E.I. recognized that there are situations in which deference might be appropriate, in that an appellate body should give some deference or weight to the findings of the first-instance decision-maker (Dyment, at para. 55). In Huruglica, Gauthier J.A. acknowledged that the first-instance decision-maker sometimes “enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears” (at para. 70). But if this is the case, then the “correctness” standard seems inappropriate because — at least as the term is now used in Canada — it does not accommodate the giving of weight or deference. It would be better, in my view, to recognize that what is needed is the formulation of general principles of internal administrative appeals which can be applied flexibly to a range of different bodies; it is not simply a matter of statutory interpretation. Though, in fairness, this may be a quibble over form rather than substance, because underneath the label employed by Gauthier J.A. and Jenkins C.J.P.E.I. lies an approach that vests appellate bodies “with full power to review [first-instance] decisions on all questions, including questions of fact” (Dyment, at para. 48).
Those interested (and able to read French) can consult my article “Les appels administratifs au Canada” to see what I think about these issues. I intend to translate this lengthy article into English, but have not yet found the time to do so. I will try in the meantime to post a ‘readers’ guide’ which summarizes its main points.
This content has been updated on May 17, 2016 at 16:22.