Limited Rights of Appeal: Constitutional Traditionalists

For the opening post in this series, see here.

Constitutional traditionalists take a broad view of Crevier and a narrow view of legislative intent. For members of this camp, judicial review for substantive reasonableness and procedural fairness must always be available, on issues of law and issues of fact alike. The only situation in which judicial review can be precluded is where the legislature has provided for appellate-style or equivalent review in an independent body. Constitutional traditionalists might also be apt to think that a statutory right of appeal, because it is drafted against the well-accepted backdrop that judicial review is always available, must be interpreted to give a prospective appellant something more than that available by way of judicial review.

As will be clear from my critique of legislative intentionalism, I believe that history firmly supports the constitutional traditionalist position. Judicial review has changed in many ways over the centuries, with the prerogative writs latterly displaced by a law of general principles of administrative action. But there are some fundamentals. Judicial review is distinct from an appeal on the merits. Clauses interfering with the ability to seek judicial review are narrowly construed. And the function of the superior courts, as constitutionalized by Crevier, is to keep administrative decision-makers within the boundaries of legality. These days, as the Supreme Court put it in Vavilov, the courts must apply the reasonableness standard “to ensure that administrative bodies have acted within the scope of their lawful authority”.[1] Similarly, when monitoring compliance with procedural fairness, the courts may imply additional protections into statutory schemes to ensure lawful decision-making.[2]

The leading member of the constitutional traditionalists is Gleason JA, who wrote the majority reasons for the Federal Court of Appeal in Best Buy. For her, at least some factual errors must be reviewable regardless of Parliament’s institutional design choices. Based on a magisterial review of the development of the “standard of review analysis” in Canadian law, culminating in Vavilov, she identified three fundamental propositions. First, the Supreme Court determined in Vavilov that “as a matter of principle, the availability of limited appellate review does not foreclose the availability of judicial review” (at para. 111). Second, there is no indication in Vavilov that privative clauses such as s. 67(3) of the Customs Act bar access to judicial review or curial oversight of any types of errors:

A complete bar on the availability of judicial review for any type of issue would offend the rule of law as the Supreme Court noted in Dunsmuir, a holding that was specifically endorsed in Vavilov at para. 24. Further, the Court in Dunsmuir and Vavilov did not overturn the previous decades-old case law determining that what were previously characterized as patently unreasonable factual errors, formerly called jurisdictional, remain reviewable, albeit now under the reasonableness standard (at para. 112. See also at paras. 82-87, discussing how “seriously erroneous factual determinations [can] constitut[e] patently unreasonable error”, and at para. 116).

Third, Vavilov expressly contemplates that “factual issues may give rise to unreasonable decisions” (at para. 113). As a result, a privative clause cannot be read “as barring access to judicial review for all factual issues” (at para. 116). Institutional design considerations are “part of the relevant statutory framework – an important contextual factor in determining the parameters of a reasonable decision according to Vavilov and the case law of this Court” (at para. 117[3]).

Gleason JA also cited with approval the following piece of academic commentary:

First, in the same paragraph [of Vavilov] that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.” The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.

Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’” If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov.

The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review.[4]

This position has also been adopted in Manitoba.[5]

This still leaves the question of when exactly judicial review can be precluded. Recall that in paragraph 52 of Vavilov the proposition is that a limited right of appeal cannot “on its own” prevent a superior court from performing its reviewing function. What does this mean?

The answer I give (and presented to the Supreme Court in Yatar) is that this is permissible where the reasonableness (and, for that matter, procedural fairness) of all aspects of a decision can be assessed by an independent body in appellate-style review: “Where the judicial review jurisdiction of the courts has been successfully ousted by statute, one finds more than a simple clause with privative language: the legislature has provided a particular channel for oversight of the legality, rationality and procedural fairness of administrative action”.[6] One early Supreme Court of Canada case provides a nice example. In Kelly v. Sulivan,[7] a landowner sought judicial review (via a writ of certiorari) of a decision of the Commissioner’s Court, an administrative tribunal established under the Prince Edward Island Land Purchase Act, 1875, the effect of which was to acquire all her township lands in PEI. The Court held that a writ of certiorari was not available, but only because the statute precluding access to certiorari also provided that an application could be made to the superior court, within 30 days, to correct any error, informality or omission in the award.[8] This covered the same ground as certiorari and was, accordingly, capable of ousting the superior court’s jurisdiction. But only because it covered the same ground as certiorari.[9]

This may also occur where there is a limited right of appeal to the courts (perhaps on questions of law) and provision for appellate-style review of remaining aspects of the decision. Quite what appellate-style review means, and in particular whether an appeal to the federal or provincial cabinet meets the standard, has been debated before the courts previously[10] and may become relevant again in the near future.

Whether the Supreme Court will tell us in Yatar which of these camps has it right remains to be seen. The statute at issue there specifically provides that the right to seek judicial review is not precluded.[11] The legal significance of this fact is unclear, however. Whether the statute said so or not, judicial review would be available as a matter of common law.[12] Then, the question becomes whether a limited right of appeal can function as a limitation on the scope of judicial review, either by discretion (as the courts below held in Yatar) or in some other way. Personally, I find it difficult to see a distinction of principle between preclusion of judicial review arising from discretion and preclusion of judicial review arising from statute: in both instances, it is necessary to clarify the extent to which judicial review is constitutionally entrenched (especially on questions of fact) in order to explain why it cannot be precluded. Unless the Supreme Court puts itself in the discretion camp, its disposition of Yatar will be telling.

[1] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [“Vavilov”], at para. 67.

[2] Innisfil Township v. Vespra Township, [1981] 2 SCR 145, at p. 169, citing Cooper v. Wandsworth Board of Works (1863), 14 C.B. (n.s.) 180.

[3] See also  Koebisch v. Rocky View (County), 2021 ABCA 265, at para. 24.

[4] Paul Daly, “Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review”, 17 November 2020.

[5] Smith v. The Appeal Commission, 2023 MBCA 23, at paras. 43-44.

[6] Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), at p. 188, emphasis original.

[7] (1877), 1 SCR 3.

[8] Though even here there was at least a suggestion that certiorari remained available to correct jurisdictional errors: “The view I take is that the mode pointed out by the Statute is the one which should have been pursued by the proprietor in this matter if there were any error, informality or omissions in the award made, and that the Court had no other authority to enquire into the proceedings of the Commissioners further than to see if the subject matter was properly before them, and, perhaps, to see if they had been guilty of any fraud in their proceedings” (at p. 37). Underlined emphasis is mine and captures the old idea that a decision-maker must have ‘jurisdiction to enter on the inquiry’.

[9] See similarly, Federal Courts Act, RSC 1985, c F-7, s. 18.5. Kelly is cited by Mark Mancini in “Foxes, Henhouses and the Constitutional Guarantee of Judicial Review” (2024) Canadian Bar Review (forthcoming) as an example of the permissibility of legislation precluding judicial review. However, the scope of Kelly is plainly quite limited: the comments about excluding judicial review were made in a context where – in fact – judicial oversight was not excluded at all on the Supreme Court’s interpretation of the statutory scheme. Kelly does not stand for the bald proposition that judicial review can be precluded by statute.

[10] See e.g. Canadian National Railway Company v. Scott, 2018 FCA 148.

[11] Insurance Act, RSO 1990, c I.8, s. 280(3).

[12] Edmonton East, at para. 78.

This content has been updated on March 14, 2024 at 12:40.