Rights of Appeal: Contracting or Expanding Judicial Review?

All of a sudden there is intense interest in Canada in the consequences of rights of appeal for the availability of judicial review. 

The basic issue, to be considered next month by the Supreme Court of Canada in Yatar (and at umpteen roundtables and seminars until that case is decided), is whether legislation creating a limited right of appeal directly or indirectly precludes judicial review. The assumption is that a limited right of appeal must or can limit judicial oversight in some way, and it is on this assumption that the parties and interveners (me among them) have approached Yatar.  

I wonder now, however, whether the issue has been properly framed, because there are reasons to think that rights of appeal are designed to expand or facilitate judicial oversight, not contract it. The thought is prompted by my work on the new edition of Administrative Law in Ireland. In Ireland, it has often been said that because judicial review is always available as a matter of constitutional right (as in Canada), an appeal must give something more than judicial review: “It is presumed that the Oireachtas, having created a right of appeal, intended to vest the High Court with powers in addition to, and distinct from, the inherent powers of judicial review which it enjoys at common law” (Administrative Law in Ireland, para. 11-47).

Indeed, this point was made by the dissenters in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, at para 78:

The legislature must have known that judicial review is available for any question not covered by a limited right of appeal (Habtenkiel v. Canada (Citizenship and Immigration)2014 FCA 180, [2015] 3 F.C.R. 327, at para. 35; see also D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-9), given that the legislature is presumed to know the law: R. v. D.L.W.2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21, per Cromwell J.; Townsend v. Kroppmanns2004 SCC 10, [2004] 1 S.C.R. 315, at para. 9.

In considering the constitutional foundations of Vavilov, I noted ways in which a legislature might restrict access to judicial review and namechecked limited rights of appeal. But I might have been wrong to frame it this way. Once one adopts the proposition that appeal rights expand judicial oversight as a starting point, quite a few features of contemporary administrative law begin to make a good deal more sense.

Consider the Customs Act, RSC 1985, c 1. In a pair of recent Federal Court of Appeal cases, AGC v. Pier 1 Imports (US) Inc. (A-60-22) and AGC v. Pier 1 Imports (US) Inc. (A-17-22), the parties were directed to consider, as a preliminary point, whether judicial review is available given the right of appeal on questions of law in s. 68(1) of the Customs Act. This direction was presumably made on the assumption that a limited right of appeal is designed to contract judicial oversight.

But s. 68 of the Customs Act might not be a bad example of how limited rights of appeal can be understood to expand judicial oversight. It gives the President of the CBSA the ability to appeal decisions of the Canadian International Trade Tribunal. It is not clear, historically, that the executive can appeal taxation decisions that are favourable to the taxpayer (see the dissent in Edmonton East at para. 95). And s. 68 also gives the ability to appeal to any bystander who has entered a notice of appearance with the CITT under s. 67. Again, historically, it is not clear that such a person would have had standing to appeal a CITT decision. Interestingly, the Customs Act does not have any provision declaring the CITT decision to be final and binding, which throws further doubt on the assumption that Parliament intended a contraction of judicial oversight.

Even the classic appeal ‘on a question of law or jurisdiction’ provisions common in federal regulation might lend themselves to a similar analysis (see the erudite discussion in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79). In the old days, judicial review of federal tribunals was restricted to quasi-judicial decisions. Not all regulatory decisions would have met this test: granting an appeal on a question of law or jurisdiction would have been a means of ensuring that matters got before the courts. In a similar way, restrictions on the record for judicial review might have prevented those who suffered breaches of procedural fairness from making out their case on judicial review (see e.g. Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, at para. 20), whereas fresh evidence would (in principle at least) be admissible on an appeal (Administrative Law in Ireland, at para. 11-49). As it happens, the upshot of Emerson Milling is that breaches of procedural fairness (inevitably, nowadays, fact-sensitive and context-specific) can be appealed as they raise questions of “jurisdiction” (2017 FCA 79, at para. 19).

It is also worth highlighting Professor Mullan’s observation in his analysis of the Federal Court Act that Parliament seemingly sought to expand judicial oversight by expressly providing for error of law and error of jurisdiction as grounds of review (though he thought that the common law had more or less outrun the drafter and that the drafter was rather confused about the objectives of the statutory reform exercise): “The Federal Court Act: A Misguided Attempt at Administrative Law Reform?” (1973) 23 UTLJ 14, at pp. 36-40.

As for provincial statutes creating rights of appeal on questions of law or jurisdiction (often to the province’s Court of Appeal), these might simply be useful mechanisms for having important questions of principle resolved rapidly by the courts. And, of course, on a statutory appeal, there is no discretion to refuse to grant a remedy on the basis of the established, principled grounds for doing so (Administrative Law in Ireland, at para. 11-49).

Ultimately, then, the relevant question might not be what the legislature has sought to take away by creating a right of appeal, limited or otherwise, but rather what the legislature sought to create in addition to the constitutional guarantee of judicial review.

This content has been updated on October 3, 2023 at 14:27.