The Litigator

THE LITIGATOR

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The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
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What standing does an administrative tribunal have when its decision is under review?

The Ontario Court of Appeal provided much needed guidelines on the scope of an administrative tribunal’s standing in a judicial review of its decision in Children’s Lawyer for Ontario v. David Goodis ,[1] released in April. This decision will likely have a very broad impact, given the prominence of administrative decision-makers in so many sectors of the economy.

Even more recently, the Federal Court applied similar guidelines in granting only limited standing to Justice Gomery to participate in former Prime Minister Jean Chrétien ’s attempt to unseat him from the inquiry into the sponsorship scandal.[2]

The Children’s Lawyer case

In its April 18, 2005 , decision, the Court agreed with the Divisional Court ’s dismissal of the Children’s Lawyer’s application for judicial review of a decision by the Information and Privacy Commissioner. The Commissioner`s decision had ordered her to disclose documents to a party she had previously represented.

In opposing the application for judicial review, the Commissioner relied on a ground that was not expressly set out in his original decision. The Children’s Lawyer countered that the Commissioner should not have standing to defend his decision on a ground that he did not rely on in making the decision in the first place. This, the Children’s Lawyer said, amounted to “bootstrapping” and undermined the Commissioner’s integrity and the appearance of impartiality. Further, the Children’s Lawyer argued that the importance of reasoned decision making could be undermined “if, when attacked in court, a tribunal could simply offer different, better, or even contrary reasons to support its decision”.

Two-step test to determine scope of standing

After examining the “clouded jurisprudential backdrop” to the question of the scope of standing, the court developed a two-step analytical framework.

The first step is to see whether the tribunal’s governing legislation articulates the tribunal’s role in any judicial review. The Judicial Review Procedure Act , which applies to virtually all administrative decision-makers in Ontario , including the Info rmation and Privacy Commissioner, simply says that an administrative tribunal can be a party to any application for judicial review of its decision. Because it does not clearly articulate the tribunal’s role, it is left to the court’s discretion to define that role.

The second step is to find a “context specific solution to the scope of standing”. There are no categorical rules. Two major policy considerations guide this exercise:

  • The importance of fully informed adjudication ; and
  • The importance of maintaining tribunal impartiality .

Participation by the tribunal will be important to ensure fully informed adjudication where:

  • The case arises in a specialized and complex legislative or administrative context;
  • the tribunal has specialized expertise that would not otherwise be available to the court
  • there is otherwise no party to defend the tribunal’s decision

But participation by the tribunal in a judicial review of its own decision risks undermining the impartiality of that tribunal. The risk is greater – and the court will constrain the scope of standing – where:

  • the case is likely to be referred back to the tribunal;
  • future cases are likely to involve similar interests;
  • the tribunal serves a defined and specialized community;
  • the tribunal resolves private disputes between litigants ; or
  • the issue is whether the applicant has been treated fairly by the tribunal.

Information and Privacy Commissioner granted full standing

The court granted the Commissioner full standing. The court’s main consideration seems to have been that if the tribunal could not participate fully, the appeal would be unopposed. As well, the Commissioner administers a specialized statutory scheme; his expertise in privacy legislation would provide an important assurance of a fully informed appeal process. The impartiality consideration was muted by the fact that the Commissioner was not defending his own interest, but a decision interpreting and applying privacy legislation.

The tribunal sought to rely on a new ground in defending its decision was a valid consideration, the court noted. But the new ground was not inconsistent with the Commissioner’s decision and was, arguably, implicit in it.

The court concluded by advising administrative tribunals to pay careful attention to the tone in which they deliver submissions on judicial review of their decisions: “A tribunal that seeks to resist a judicial review application will be of assistance to the court to the degree its submissions are characterized by the helpful elucidation of the issues, informed by its specialized position, rather than by the aggressive partisanship of an adversary”.

Gomery granted limited standing

In the sponsorship scandal case, Mr. Chrétien alleges that remarks Justice Gomery made in an interview raise a reasonable apprehension that Justice Gomery is biased. Mr. Chrétien asked Justice Gomery to recuse himself; he refused . Now Mr. Chrétien is seeking judicial review to remove Justice Gomery as Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities .

Justice Gomery sought broad intervenor status in the judicial review.

Prothonotary Aronovitch applied a similar analytical framework to that developed by the Court of Appeal in Goodis. She focussed on the importance that Justice Gomery appear to be impartial and independent. The fact that the application concerned whether Justice Gomery had treated Mr. Chrétien fairly suggested more limited standing. Prothonotary Aronovitch disagreed with Justice Gomery’s suggestion that the Attorney General, who was a party, would not oppose Mr. Chrétien’s application. Finally, she doubted that Justice Gomery’s submissions would be able to add anything new or helpful.

Published May 16, 2005

 

 

[1] Ontario (Children’s Lawyer) v. Ontario ( Info rmation and Privacy Commissioner) , [2005] O.J. No. 1426 ( C.A. )

[2] Chrétien v. Canada (Attorney General), [2005] F.C.J. No. 684 (F.C.C.)

 

W. Michael G. Osborne
Affleck Greene McMurtry LLP

W. Michael G. Osborne

Michael Osborne is a former Partner of Affleck Greene McMurtry LLP

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