Limited Rights of Appeal: Three Camps

The Supreme Court of Canada announced yesterday that it will release its reasons for judgment in the appeal from Yatar v. TD Insurance Meloche Monnex,2022 ONCA 446 on Friday. This decision is coming sooner than I expected based on the average time administrative law matters have spent on reserve: this one was heard in November and the reasons are arriving much more quickly than the 10-or-so months we have become accustomed to.

As ever, one should apply Daly’s Iron Law about the inverse correlation between expectations and impact: the more you look forward to a Supreme Court of Canada decision on administrative law, the less consequential it is likely to be.

But there is at least a chance that the Court will grapple with the constitutional foundations of judicial review. To that end, I thought it would be useful to reproduce, in a series of posts an extract from a forthcoming piece in the Energy Regulation Quarterly. Here is my opening salvo:

In Vavilov, the Supreme Court of Canada referred on two occasions to the effect of a limited right of appeal. At paragraph 45, the majority viewed it as self-evident that a right of appeal limited to questions of law, or limited to questions of law or jurisdiction does not preclude judicial review. This is of a piece with the view expressed by four dissenting judges in the pre-Vavilov case of Edmonton East that the legislature “must have known that judicial review is available for any question not covered by a limited right of appeal”.[1] Later, at paragraph 52, the majority repeated the point but added that a limited right of appeal does not “on its own” preclude judicial review. Looming over these paragraphs is the Supreme Court’s 1980s decision in Crevier, which invalidated a privative clause that would have, if given effect, prevented the courts from correcting ‘jurisdictional’ errors. However, jurisdiction is “not so much in vogue today”[2] and, indeed, does little or no work any more in the common law of judicial review.[3] We now find ourselves in a position where the leading authority – Crevier – speaks in terms of ‘jurisdiction’, a concept that is largely defunct and it is necessary to figure out what to do.

Since 2019, a great deal of ink has been spilled by lower courts and commentators on the meaning to be given to these statements in paragraphs 45 and 52 of Vavilov. These courts and commentators can be grouped into three camps: legislative intentionalists, discretion advocates and constitutional traditionalists. As Stratas JA observed in a characteristically colourful analysis, it can be said to be an “open question” which of these camps is right (Democracy Watch v. Canada (Attorney General), 2022 FCA 208, at para. 45).

I will describe these camps in turn but I should warn the reader in advance that I am a constitutional traditionalist. In my view, the principle from Crevier is that the superior courts must be able to keep administrative decision-makers within the proper boundaries of their authority by applying the common law principles of judicial review.[4] Indeed, I was one of the first to stake out that particular ground. Everything I have read since has, however, only strengthened my conviction that constitutional traditionalism is consistent with Vavilov and with the fundamentals of Canada’s public law tradition. By contrast, the position of the legislative intentionalists is – with respect – impossible to reconcile with first principles of Canadian public law. As for the discretion advocates, their emphasis on judicial discretion would require developments in the law of judicial review of administrative action that are as novel as they are problematic and must be rejected. Discretion can be useful in some circumstances but it cannot provide a complete answer to the questions posed by those paragraphs of Vavilov.

[1] Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, at para 78, citing Habtenkiel v. Canada (Citizenship and Immigration)2014 FCA 180, [2015] 3 F.C.R. 327, at para. 35.

[2] Democracy Watch v. Canada (Attorney General), 2022 FCA 208, at para. 39.

[3] Vavilov, at paras. 65-68.

[4] Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 SCR 326, at p. 360.

Stay tuned!

This content has been updated on March 12, 2024 at 10:27.