Limited Rights of Appeal: Legislative Intentionalists

For the opening post in this series, see here.

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.,[1] 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[2] and the Tribunal’s decisions are otherwise protected by a privative clause.[3]

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” (at para. 46). 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” (at para. 59[4]).

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?” (at para. 60). 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.[5]

More recently, Slatter JA reasoned along similar lines in Georgopoulos v Alberta (Appeals Commission for Alberta Workers’ Compensation).[6] 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 (at para. 22), 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” (at para. 24). 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” (at para. 16) 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” (at para. 13).

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”.[7] 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”.[8] 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[9] or factually suffused determinations.[10] 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.[11] Clauses that might restrict access to the courts have been narrowly construed for eons.[12]

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” (at para. 17).

With respect, I do not think this is correct. Certiorari has long been available to correct errors on questions of jurisdictional fact.[13] 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.[14]

As to the general rule of exhaustion of remedies, this rule has only ever applied to remedies that are adequate and effective.[15] An appeal that is limited to questions of law cannot, evidently, be an adequate and effective remedy for alleged factual errors.[16] 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.[17] Furthermore, even exercising the right of appeal did not prevent an applicant from seeking certiorari in respect of a defect going to jurisdiction.[18]

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 (Vavilov, at para. 68).

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.

[1] 2021 FCA 161.

[2] Customs Act, RSC 1985, c 1 (2nd Supp), s. 68(1).

[3] Id. s. 67(3)).

[4] 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.

[5] Democracy Watch v. Canada (Attorney General), 2022 FCA 208, at para. 45.

[6] 2023 ABCA 285.

[7] Crevier, at p. 234.

[8] Crevier, at p. 238.

[9] See e.g. Blanchard v. Control Data Canada Ltd., [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 pp. 905-907.

[10] See e.g. Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at paras. 7-9.

[11] See e.g. Boston v. Lelievre, 1864 CarswellQue 4, at para. 15.

[12] See e.g. R. v. York Justices (1827), 1 N.B.R. 108; Ex Parte McNeil (1857), 8 N.B.R. 493.

[13] 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.

[14] 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] 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.

[15] Fooks v. Alberta Association of Architects (1982), 139 DLR (3d) 445.

[16] Legal Profession Act (Re) (1967), 64 DLR (2d) 140, at p. 146 (Alta SC App Div).

[17] Harris v. The Law Society of Alberta, [1936] SCR 88, at pp. 92, 102-103; see also Dierks v. Altermatt, [1918] 1 W.W.R. 719, at p. 724 (Alta SC App Div).

[18] Hespeler v. Shaw (1858), 16 U.C.Q.B. 104, at para. 6.

This content has been updated on March 12, 2024 at 12:20.