Statutory Appeals Flashcards
Main Q to ask?
Can statutory appellate clauses limit applicants to only raising issues specified in those clauses (such as questions of law or jurisdiction), or is there a basic constitutional right that allows challenges on other grounds outside the appeal clause’s scope?
Context for the debate
A legislature cannot completely oust judicial review.
Legislative intent is subordinate to the constitution, ie s96 and the RoL.
S96 State cases
Creview
Dunsmuir
Crevier
Section 96 is also the source of the superior courts’ power to engage in judicial review.
Dunsmuir
The courts have a constitutional duty to ensure that public authorities don’t overreach their lawful powers.
Judicial v Appellate review
JR looks to see if the person designated authority acted within the scope of power
Appellate- can make its own assessment of the legal issues
Statutory appeals
State cases
Dunsmuit
Vavilov
Dunsmuir
it is assumed that the legislature intended for that decision-maker to interpret the law and handle all related issues
If the legislature hasn’t specifically stated that courts should review the decision-maker’s decisions, it’s assumed that minimal judicial interference is desired.
However, because judicial review is guaranteed by Section 96 of the Constitution Act, 1867, legislatures cannot completely prevent judicial scrutiny of administrative decisions.
Vavilov
P44: There is a new focus on legislative intent, meaning “appeal” should be understood as an appeal.
P17: Any framework based on legislative intent must respect clear statutory language.
If the legislature creates a statutory appeal mechanism, it signals its intent for appellate standards to apply when a court reviews an administrative decision.
Standard of review for appeals
Housen
Correctness for q of law
Palpable and overriding error for q of mix law and fact or q of fact
What if a statute only allows for a limited right of appeal
State case
Vavilov
Held: A limited right of appeal in a statutory scheme does not automatically prevent judicial review of decisions or parts of decisions not covered by the appeal process, or for individuals who cannot appeal.
However, judicial review is different from an appeal, and the reasonableness standard for judicial review cannot be overridden by the existence of the statutory appeal mechanism.
Discretionary nature of JR
State case
Strickland
JR is discretionary
Even if merits for claim of JR have been made out, the courts can refuse to have JR
Must see if there are any available adequate alternatives
The alternatives dont need to be identical or provide the same remedy as JR
Must determine if JR is the most appropriate and suitable thing to do
State provision that highlights discretionary natuee
s18(1)(3) of federal Courts Act
‘may’
State main cases on stat appeal mechanism
Yatar v TD
Best buy
Democracy
Yatra v TD
Held:
The Ontario Court of Appeal also erred by stating that judicial review would only be used in “rare cases” and that Ms. Yatar had an adequate alternative remedy.
Both courts wrongly relied on a statutory right of appeal for legal questions to limit access to judicial review for factual or mixed questions of fact and law.
Following Strickland correctly, the Divisional Court should have used its discretion to review issues not covered by the statutory appeal.
The provision for an appeal on legal questions only indicates that such questions should be reviewed for correctness, but it does not mean that other issues, like facts or mixed questions, are immune from judicial review.
