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presumptively define the minimum content of Charter guarantees (Alberta Reference).

Third, the Court has not clearly expressed the difference between the roles played in Charter
interpretation by non-binding and binding international human rights normsthough its
decision in Fraser clearly recognizes that such a difference exists. Finally, the Court has frequently not distinguished between the role played in Charter interpretation of international
norms related to human rights and that played by norms unrelated to human rights.161
Currie has remarked that the Courts approach to the role of international human rights
norms in Charter interpretation is in a continual state of upheaval, appears confused or
arbitrary, silences informed discussion of the principles governing this area as there are
no such clearly governing principles,162 and may dissuade litigants and their counsel from
appealing to international human rights norms and trial courts from relying on them.163
Currie suggests that the Court should always presume that Canadas international human
rights obligations define the minimum content of the Charters guarantees and that it should
afford non-binding international rights norms relevant and persuasive interpretive status.
His suggestion would both foster coherence in Canadian courts approach to international
human-rights norms and tend to maximize the domestic protection of human rights.164

161 See Hape, supra note 38 at para. 55: the Court has sought to ensure consistency between its interpretation
of the Charter and Canadas international obligations and the relevant principles of international law.
However, Currie observes that the Courts recognition in Hape, at para. 101, reiterated in Canada (Justice) v.
Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 at para. 2, that the principles of international law and comity of
nations, which normally require that Canadian officials operating abroad comply with local law, do not extend to participation in processes that violate Canadas international human rights obligations might reflect
the Courts view that norms of a human rights character rank higher than other international law norms on
a spectrum measuring their normative influence on Charter interpretation: Currie, Commitment, supra note
129 at 448-49. Such an approach would be consistent with Scotts reading of Baker (supra note 69)that the
normative force of an international commitment varies with its subject matter.
162 Currie, Commitment, supra note 129 at 453-54.
163 Ibid. at 457. This may be illustrated in Adams, supra note 81, where the B.C. Supreme Court determined that
a municipal bylaw prohibiting the erection of temporary shelter on public property infringed the s. 7 Charter
rights of homeless persons evicted from a tent city set up in a Victoria city park. The trial judge accepted, over
the objections of British Columbias attorney general, that international instruments relating to the right to
adequate housing and to an adequate standard of living should inform the courts interpretation of the
scope and content of s. 7. However, she made no distinction between the degree of influence attributable to
international instruments binding on Canada (e.g., the ICESCR) and those that are not (e.g. the Istanbul
Declaration on Human Settlements and Habitat Agenda adopted by the UN Conference on Human Settlements (Habitat II) in Istanbul (Turkey) in 1996 (UN Doc. A/CONF. 165/14) later endorsed by the UN General Assembly (U.N. Doc. A/RES/51/177 (11 Feb. 1997)). Moreover, the trial judge made no further mention
of these norms in her legal analysis finding a breach of s. 7.
164 Currie, Commitment, supra note 129 at 460-65. But see Graham Hudson, who argues, on the basis of a review of South African jurisprudence, that the presence of clear and robust rules in South Africas Constitution governing the applicability of international law has not resulted in courts more principled use of
international norms. Hudson concludes that formal rules, procedures and principles cannot alone engender
living respect for international legal authority and there are good grounds for believing that formally nonlegal factors such as political economy, ideology and judicial personality obstruct the full realization of international law: Graham Hudson, Neither Here Nor There: The (Non-)Impact of International Law on Judicial
Reasoning in Canada and South Africa (2008) 21 Can J. L. & Juris. 321 at 352.

IV. International Human Rights Norms and Substantive Review of Decision Making 517

E. Discretion and Rights of Access to International Human Rights Bodies

Should administrative decision-makers, in exercising discretionary powers, take into account proceedings pending before an international human rights body that may bear on the
validity of their decision at international law?165 This question was raised before the Ontario
Court of Appeal in Ahani.166 The Canadian government considered that Ahani, like Suresh,
was a danger to the public and wished to deport him. Unlike Suresh, Ahani had not made
out a prima facie case that there may be a substantial risk of torture upon his removal to
Iran. Having exhausted all domestic remedies in resisting deportation, Ahani petitioned the
UN Human Rights Committee, claiming that his removal by Canada violated several provisions of the ICCPR, including his right not to be returned to a state where he could be tortured, his right to a fair hearing, and his right to a review of the legality of his detention
without delay. The committee made an official request to the government of Canada to stay
the deportation until it could consider Ahanis petition. Ahani contended that by adhering
to the ICCPR and Optional Protocol, Canada had granted individuals like him the limited
right to obtain the committees views on whether their ICCPR rights had been breached.
Ahani further argued that it was a principle of fundamental justice that Canada also provide
him with a fair process and effective means to ensure that he could exercise this limited
right. In particular, Ahani claimed the right to an injunction prohibiting his removal to Iran
until the committee considered his communication and expressed its views thereon. He
argued that while not binding on Canada, the committees views had moral suasion, and the
petition process should be allowed to run its course.
A majority of the Ontario Court of Appeal rejected Ahanis argument because, in its
view, the ICCPR and the petition procedure under the Protocol were not legislatively incorporated into Canadian law. Neither had any legal effect beyond informing the content of
the principles of fundamental justice under s. 7.167 Ahani could thus not enforce Canadas
international obligations in a domestic court. Further, these obligations were limited; Canada
had not committed to be bound by the final views of the committee or to stay its domestic
proceedings until the committee delivered its views. Acceding to Ahanis request for a stay
would convert a non-binding request in a Protocol, which has never been part of Canadian
law, into a binding obligation enforceable in Canada by a Canadian court, and more, into a
constitutional principle of fundamental justice.168 By signing the Protocol, Canada had
provided Ahani and others a right to seek the committees views qualified by Canadas right
to reject these views and to enforce its own laws before they were delivered.169

165 For an extensive discussion of the role of discretion in administrative law, see Genevive Cartier, Chapter 11,
Administrative Discretion: Between Exercising Power and Conducting Dialogue.
166 Supra note 50. For a complete discussion of this question, see Heckman, Recent Developments, supra note
137.
167 Arguably, the ICCPR and the Protocol were implemented in Canadian law: de Mestral & Fox-Decent Implementation and Reception, supra note 37 at 54-55.
168 Ahani (C.A.), supra note 50 at para. 33.
169 Ibid. at para. 42.

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Dissenting, Rosenberg J. would have recognized Ahanis right to seek an injunction preventing his removal until the committee had presented its views on his communication.
RosenbergJ. held that if Parliament created a statutory right to review a decision that could
affect an individuals security of the person, it was a principle of fundamental justice that the
state could not unreasonably frustrate that right or render it practically illusory, a principle
he was prepared to extend to the petition process under the Protocol.170 In his view, the principle that international conventions could not bind Canada unless they were incorporated
into Canadian law was intended to protect Parliament and the people of Canada from executive law making; the executive could not rely on that principle to shield it from the consequences of its voluntary ratification of the ICCPR and the Protocol,171 including Canadas
conferral on the committee of jurisdiction to receive and consider communications from
individuals claiming to be victims of violations by Canada of their rights under the ICCPR:
[Ahani] does not claim that the views of the Committee about our process for removing him
would create legal rights that could be enforced in a domestic court. He claims only the limited
procedural right to reasonable access to the Committee upon which the federal government has
conferred jurisdiction. He submits that the government having held out this right of review,
however limited and non-binding, should not be entitled to render it practically illusory by
returning him to Iran before he has a reasonable opportunity to access it. I agree with that
submission and that it is a principle of fundamental justice that individuals in Canada have fair
access to the process in the Protocol. By deporting [Ahani] to Iran, the government will
deprive [him] of this opportunity.172

Canada is clearly not bound to comply with the committees views,173 but on a fair reading,
the Protocol contemplates that individuals be afforded an opportunity to submit communications to the committee and, if these are deemed admissible, to have the committee review
the communications and deliver its views to the petitioners and to Canada for consideration. This interpretation is consistent with the principle of effectiveness in international law
that human rights instruments like the ICCPR and the Protocol should be interpreted to
170 Ibid. at paras. 86-89.
171 Ibid. at para. 92.
172 Ibid. at para. 93. Ahani was owed only a right of reasonable access to the committee, because fundamental
justice, according to the Suresh decision, required that the protection of society be balanced against the individuals interest to security of the person. Such balancing could be performed by a court as part of the test for
granting an interlocutory injunction: ibid. at para. 107.
173 See Dadar v. Canada (Minister of Citizenship and Immigration), 2006 FC 382. Canadian authorities had determined that Dadar, a permanent resident and refugee, was a danger to the public in view of his criminal
convictions and issued an order for his removal. Dadar petitioned the United Nations Committee Against
Torture, which concluded that there were substantial grounds for believing that [Dadar] may risk being
subjected to torture if returned to Iran (Dadar at para.10). Nevertheless, the Federal Court refused Dadars
application for a stay of deportation. After carefully examining the committees decision, the Court held, at
para.27, that it contained no evidence that suggested that a ministerial delegates conclusion that the Iranian
regime posed no risk to Dadar (a decision upheld on judicial review) was anything other than accurate.
Noting that the committees decision was not binding on Canada, the Court held, at para. 23, that: it is not
for the judiciary to second guess Canadas decision not to adopt the UNCAT decision. Rather, it is a matter
for a court of public or international opinion, not for a court of law.

IV. International Human Rights Norms and Substantive Review of Decision Making 519
make their safeguards practical and effective.174 A corollary to this principle is that states
may not, and should not, be presumed to intend to take steps that would render the rights
recognized in a treaty that they have ratified nugatory or ineffective. If a petitioner establishes that his or her deportation would prevent him or her from submitting a communication or prevent the committee from considering it and delivering its views to the petitioner
and Canada, deportation would not be consistent with the purpose of the Protocol. Without
reasonable or fair access to the process in the Protocol, it would be nothing more than a
hollow sham or cruel charade.175 In its views on Ahanis communication, the committee determined that Canada had breached its obligations under the Protocol by deporting
Ahani in the face of its request that he not be removed until it had dealt with his petition. It
held that flouting the committees authority to request interim measures, especially by irreversible measures such as deportation to face torture or death in another country, undermined the protection of Covenant rights through the Optional Protocol.176
The Immigration Act conferred on the minister a broad discretion to deport individuals
determined to be a danger to the security of Canada, but was silent as to the timing of the
deportation. Under the Baker approach, which recognized that discretionary powers are
constrained by the values and principles contained in international law, the adverse impacts
of deportation on the effectiveness of Ahanis limited right to communicate with the committee should have been a mandatory relevant consideration in the exercise of the ministers
discretion. Failure to consider this factor should have rendered her decision to deport Ahani
without delay unreasonable. Moreover, the minister was bound to exercise her discretion to
deport Ahani consistently with the principles of fundamental justice under s. 7 of the Charter, whose content, according to Suresh, is informed by Canadas international obligations.
Rosenberg J.s recognition that fundamental justice does not countenance executive acts that
frustrate even a limited right to review the legality of a decision that affects an individuals
security of the person is entirely consistent with the principle of effectiveness in international human rights law. Here, fundamental justice arguably required that the merits of
Ahanis communication (whether it raised a serious question) and the magnitude of the
harm to Ahani caused by his deportation (whether the harm was irreparable) be balanced
against the governments interest in deporting him before the committee released its views
on the merits of his communication.
International human rights norms clearly have a role to play in the substantive review of
administrative decision making. Administrative decisions based on the interpretation of
statutory powers or discretions intended to implement an international human rights treaty
obligation may be reviewed on the basis that the decision-maker incorrectly or unreasonably interpreted the statute by giving it a meaning inconsistent with the international treaty
174 M.N. Shaw, International Law, 4th ed. (Cambridge: Cambridge University Press, 1997) 660.
175 Ahani, supra note 50 at para. 98, citing Briggs v. Baptiste, [2000] 2 A.C. 40 at para. 47 (P.C.). See also Barbados
(A.G.) v. Boyce (2006), CCJ (8 November 2006), where the court gave effect to convicted murderers legitimate expectation that Barbados would not execute them before considering the views of a treaty body regarding their complaint that mandatory capital punishment infringed their rights under an international treaty.
176 Ahani v. Canada, Communication No. 1051/2002, UN Doc. CCPR/C/80/D/1051/2002 (2004) at paras. 8.18.2. For a full discussion of the committees views, see Gerald Heckman, International Law and Procedural
Safeguards in Deportation Proceedings: Ahani v. Canada (2004) 17 R.Q.D.I. 81.

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norm. Canadian courts would be justified to intervene on judicial review where an administrative decision-maker fails to apply the presumption of conformity and interpret statutory powers in a manner consistent with international human rights obligations set out in a
binding but unimplemented treaty. Instead, Canadian courts have followed the Baker approach: international human rights norms from ratified but unimplemented treaties,
though binding on Canada at international law, may be considered as persuasive and contextual factors in interpreting and applying statutory provisions. Accordingly, administrative decisions, including discretionary decisions, may be challenged on the ground that they
are inconsistent with the values behind such international human rights norms. Whether
such a challenge will succeed may depend on how deeply these international norms resonate with fundamental values of the Canadian legal system. Courts have also applied the
Baker approach to norms of customary international law,177 even though they are, as confirmed in Hape, directly applicable in Canadian law. Discretionary decisions may be challenged if they are inconsistent with Charter rights. Canadas international human rights
obligations are relevant to such challenges because they, arguably, presumptively define the
minimum content of Charter protections or, at the very least, serve as evidence of their
meaning. Finally, although it may be possible to challenge a decision-makers exercise of
discretionary power on the basis that he or she failed to consider the impact of the decision
on an affected individuals access to an international human rights remedy, such challenges
have so far not succeeded.178
The following section shows that many international human rights norms guarantee
basic procedural safeguards in the context of state decision making affecting fundamental
interests, including the rights to life, liberty, and security of the person. As explained in the
following section, they may also serve to challenge administrative decision makingbut on
procedural rather than substantive grounds.

V. The Role of International Human Rights Norms in the

Procedural Review of Administrative Decisions
The procedural fairness norms set out in international human rights treaties resonate deeply
with Canadian legal values. As Grant Huscroft discusses in Chapter 5, From Natural Justice
to Fairness: Thresholds, Content, and the Role of Judicial Review, procedural fairness is a
basic tenet of Canadas legal system and a principle of fundamental justice under s. 7 of the
Charter. Consistent with the previous discussion in the context of substantive review, international norms could also be called upon to influence the development of procedural safe-

177 See Spraytech, supra note 115.

178 For a recent example, see Mugesera c. Kenney, 2012 QCCS 116 (CanLII). Mugesera, a Rwandan national, was
found to be inadmissible to Canada because he had, on the balance of probabilities, given a speech that constituted an incitement to murder, genocide, or hatred and which (there were reasonable grounds to believe)
constituted a crime against humanity. He filed a petition with the United Nations Committee Against Torture
claiming that he would be tortured upon his return to Rwanda. The committee issued a request for interim
measures asking Canada to stay removal until it could consider Mugeseras petition. Relying on the reasoning
set out by the Ontario Court of Appeal in Ahani, the Quebec Superior Court denied Mugeseras application
for a stay of his removal.

V. The Role of International Human Rights Norms in Procedural Review

521

guards in Canada. In Baker, the applicant had invited the Federal Court of Appeal and the
Supreme Court to find that she had a legitimate expectation, based on the terms of the CRC,
that her children would be afforded a hearing by the immigration officer considering her
humanitarian and compassionate application. In particular, article 12 of the CRC provides
that children have the right to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body. This provision appeared to entitle Bakers children to participate directly in the humanitarian and
compassionate application process. In fact, the interests of Bakers children had only been
considered through the written submissions of Bakers own counsel. The Supreme Court
decided that the CRCs terms did not give rise to a legitimate expectation on Bakers part
that specific procedural rights above what would normally be required under the duty of
fairness would be accorded.179 The CRC was not the equivalent of a government representation about how [humanitarian and compassionate] applications will be decided, nor does
it suggest that any rights beyond the participatory rights [afforded by common-law procedural fairness] will be accorded.180 The Federal Court of Appeal more clearly explained its
concerns at the prospect of giving effect to the right of Bakers children to direct representation in the humanitarian and compassionate application. It warned that giving judicial force
to the procedural provisions of the CRC, a treaty ratified by the federal executive but not
formally implemented by the legislative branches, would have a significant impact on decision making by provincial authorities involving children, notably the administration of
family law and the provision of legal aid for family law and child custody proceedings
matters of provincial jurisdiction.181
Curiously, in rejecting Bakers legitimate expectations argument, the Supreme Court
made no mention of the High Court of Australias judgment in Minister for Immigration and
Ethnic Affairs v. Teoh,182 which was raised by the applicant and discussed at length by the
Federal Court of Appeal. In Teoh, the High Court had recognized that ratified but unimplemented international treaties could influence administrative decision making through the
doctrine of legitimate expectations. The ministers delegate had decided that there were insufficient compassionate grounds to allow Teohs application for a permanent entry permit,
despite the fact that his deportation jeopardized the livelihood of his Australian children. A
majority of the High Court decided that Australias ratification of the CRC gave rise to a
legitimate expectation that the ministers delegate would, in conformity with the CRC, treat
the best interests of Teohs children as a primary consideration in his decision. His failure to
do this, or to allow Teoh to argue against a decision inconsistent with his legitimate expectation, breached procedural fairness. The majority held that Australias ratification of the
CRC was
not to be dismissed as a merely platitudinous or ineffectual act, particularly when the [CRC] evidences internationally accepted standards to be applied by courts and administrative authorities

179 The doctrine of legitimate expectations is discussed further by Grant Huscroft in Chapter 5.
180 Baker, supra note 1 at para. 29.
181 Baker (FCA), supra note 43 at para. 30.
182 (1995), 183 C.L.R. 273 [Teoh].

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Chapter 14 The Role of International Human Rights Norms

in dealing with basic human rights affecting the family and children. Rather, [it] is a positive
statement by the executive government of this country to the world and to the Australian
people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent
statutory or executive indications to the contrary, that administrative decision-makers will act
in conformity with the Convention and treat the best interests of the children as a primary
consideration.183

Dissenting, McHugh J. complained that the majoritys ruling effectively allowed the executive to amend Australian law by ratifying an international convention without involving
the political branches of government, a view accepted by the Federal Court of Appeal in
Baker.184 For this reason, successive Australian governments rejected Teohs holding,185 and
publicly declared that the act of entering into a treaty did not give rise to legitimate expectations that could form the basis for challenging administrative decisions.186 Several High
Court judges have since hinted that Teoh should be revisited.187
Although the Supreme Court dismissed Bakers legitimate expectations argument, it left
open the possibility that an international instrument ratified by Canada could, in other circumstances, give rise to a legitimate expectation.188 In Suresh, the Court took into account
the legitimate expectation raised by the terms of the Convention Against Torture in determining that Suresh was owed more procedures under the principles of fundamental justice
in s. 7. To determine the procedural requirements of fundamental justice, it applied the
common-law approach to determining the content of the duty of procedural fairness.189
Several factors weighed in favour of substantial procedural safeguards, including the absence of any appeal procedure, the determinative nature of the ministers decision, and the
serious personal, financial, and emotional consequences for Suresh of deportation from
Canada. The Court also considered whether Suresh had a legitimate expectation of additional procedure. It noted that the CAT prohibits the deportation of persons to states where
there are substantial grounds for believing they would be in danger of being subjected to

183 Ibid. at 291.

184 Ibid. at 316. See Baker (FCA), supra note 43 at para. 39.
185 H. Charlesworth et al., Deep Anxieties: Australia and the International Legal Order (2003) 25 Sydney L.
Rev. 423 at 437 [Anxieties].
186 Attempts to enact legislation to counteract Teoh have been unsuccessful: Anxieties, ibid. at 449. However,
controversy over the decision led to important reforms to enhance parliamentary participation in the treatymaking process: Harrington, supra note 45 at 491-97.
187 Re Minister for Immigration and Multicultural Affairs; ex parte Lam, [2003] H.C.A. 6 at para. 102, per
McHugh and Gummow JJ., and para. 145 per Callinan J. Academics have also criticized Teoh as a disingenuous application of the legitimate expectations doctrine: Michael Taggart, Legitimate Expectation and Treaties in the High Court of Australia (1996) 112 L.Q.R. 50; Murray Hunt, Using Human Rights Law in English
Courts (Oxford: Hart Publishing, 1997) at 251-59.
188 Baker, supra note 1 at para. 29.
189 Suresh, supra note 6 at paras. 113-15. For a description of the common-law approach, see Grant Huscroft,
Chapter 5, and for a detailed discussion of the interface between s. 7 and administrative law, see Evan FoxDecent and Alexander Pless, Chapter 12.

VI. Conclusion

523

torture. In the Courts view, it was only reasonable that the same executive that bound itself
to the CAT intends to act in accordance with the CATs plain meaning.190 Given Canadas
commitment to the CAT, and the requirement of substantial grounds to trigger the obligation of non-refoulement, the Court found that Suresh was entitled to an opportunity to
demonstrate and defend those grounds.191 Suresh was not owed a full hearing or complete
judicial process, but was entitled to examine the material upon which the minister based her
decision to deport (subject to claims of privilege); respond to the ministers case and challenge her information regarding the threat he posed to national security, the risk of torture,
and the value of assurances from foreign governments that he would not be tortured; and
obtain written reasons from the minister justifying her final decision.192
Although Suresh indicates that it is possible to seek procedural review of administrative
decisions on the grounds that the procedures provided by the decision-maker did not live
up to the legitimate expectations of the applicant based on the terms of a ratified international treaty, it is unclear when such an argument will be successful given its dramatically
different treatment by the Court in Baker and Suresh. More guidance is needed from the
courts as to when state obligations in ratified conventions can or cannot raise legitimate
expectations.

VI. Conclusion
There is no doubt that international human rights norms from binding international treaties, customary international law, or non-binding international instruments can play an
important role in the substantive and procedural review of administrative decisions. It is
also obvious that much work remains to be done to precisely delineate what that role is and,
one hopes, to strengthen it. Much of the theoretical groundwork has already been laid in the
burgeoning academic commentary on this subject. It is now incumbent on public lawyers
to familiarize themselves with the international human rights norms that are relevant to
their area of practice and raise them in individual cases. Administrative decision-makers,
reviewing courts, and, ultimately, the Supreme Court of Canada must seize the opportunities so created to bring clarity and certainty to the relationship between international law
and Canadian administrative and constitutional law: no less than the effective domestic
enforcement of significant international human rights depends on it.

190 Ibid. at para. 119.

191 Ibid.
192 Ibid. at paras. 121-27.

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Chapter 14 The Role of International Human Rights Norms

SUGGESTED ADDITIONAL READINGS

BOOKS AND ARTICLES

Brunne, Jutta, & Stephen Toope, A Hesitant Embrace: Baker and the Application of International Law by Canadian Courts in David Dyzenhaus, ed., The Unity of Public Law
(Oxford: Hart Publishing, 2004).
Currie, John H., International Human Rights Law in the Supreme Courts Charter Jurisprudence: Commitment, Retrenchment and RetreatIn No Particular Order (2010),
50 S.C.L.R. (2d) 423.
de Mestral, Armand & Evan Fox-Decent, Rethinking the Relationship Between International and Domestic Law (2008) 53 McGill L.J. 573.
Fitzgerald, Oonagh E., ed., The Globalized Rule of Law (Toronto: Irwin Law, 2006).
Freeman, Mark, & Gibran van Ert, International Human Rights Law (Toronto: Irwin Law,
2004).
Heckman, Gerald, International Human Rights Law Norms and Discretionary Powers:
Recent Developments (2003) 16 Can. J. Admin. L. & Prac. 31.
Schabas, William A., & Stphane Beaulac, International Human Rights and Canadian Law
Legal Commitment, Implementation and the Charter, 3d ed. (Thomson Carswell, Toronto:
2007).
van Ert, Gibran, Using International Law in Canadian Courts, 2d ed. (Toronto: Irwin Law,
2008).
CASES

Ahani v. Canada (Minister of Citizenship and Immigration) (2002), 58 O.R. (3d) 107 (C.A.).
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436.
Health Services and SupportFacilities Subsector Bargaining Assn. v. British Columbia, 2007
SCC 27, [2007] 2 S.C.R. 391.
Minister for Immigration and Ethnic Affairs v. Teoh (1995), 183 C.L.R. 273.
R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292.
Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3.

CHAPTER FIFTEEN

Making a Federal Case Out of It:

The Federal Court and
Administrative Law
CRAIG FORCESE
Faculty of Law, University of Ottawa
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. Structure and Jurisdiction of the Federal Courts . . . . . . . . . . . . . . . . . . . . . . . . .
A. Federal Courts as Statutory Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Administrative Law Jurisdiction of the Federal Courts . . . . . . . . . . . . . . . .
1. The Federal Court of Canada and the Federal Court of Appeal . . . . . . .
2. The Federal Courts Exclusive Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . .
III. Judicial Review Before the Federal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Statutory Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Section 18.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. The Sometimes Tricky Operation of Section 18.5 . . . . . . . . . . . . . . . . . . .
3. Leave Requirements and Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Limitation Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Grounds of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Acting Without Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Procedural Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Error of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Erroneous Finding of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Other Way Contrary to Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Chapter 15 The Federal Court and Administrative Law

I. Introduction
Earlier chapters in this book have focused on the broad sweep of administrative law. This
chapter shifts focus and concentrates instead on one particular venue of administrative law
practice: the Federal Courts of Canada. It is, of course, true that the Federal Courts of Canada are not the only superior courts in which administrative law issues arise. The provincial
superior courts and the Supreme Court of Canada are generalist courts and have jurisdiction to deal with administrative law matters.
The Federal Courts, however, are distinguished by two qualities. First, they exercise a
virtual monopoly on the administrative judicial review function in relation to the federal
executive. Second, because of the narrowness of their jurisdiction, that monopoly makes
Federal Courts mostly administrative law courts. Federal Court judges are, in other words,
the closest things to administrative law specialists in the Canadian judicial system. For both
these reasons, Federal Courts deserve special attention in a volume on administrative law.
The chapter begins with a review of the structure and jurisdiction of the Federal Courts.
It then canvasses a series of fundamental issues related to federal judicial review, including
basic judicial-review procedure and issues surrounding the grounds of review and remedies
at the federal level.

II. Structure and Jurisdiction of the Federal Courts

A. Federal Courts as Statutory Courts
The Federal Courts are statutory courtsthat is, they are created by federal statute and
have only the jurisdiction conferred on them by that statute. Constitutionally, the authority
to create the Federal Courts lies in Parliament by virtue of s.101 of the Constitution Act,
1867.1 In addition to authorizing a national supreme appeal court, that provision empowers
Parliament to provide for the Constitution, Maintenance, and Organization any additional Courts for the better Administration of the Laws of Canada.2
As s. 101 statutory courts, the Federal Courts differ from the provincial superior courts.
The latteralso known as s.96 courts, in reference to s.96 of the Constitution Act, 1867
are courts of inherent jurisdiction. Jurisdiction is shorthand for the collection of attributes that enables a court or tribunal to issue an enforceable order or judgment.3 Inherent,
in this context, means automatic or default jurisdiction. Although provincial statutes may
prescribe their structural attributes, the ultimate origin of s.96 courts lies in the Constitution Act, 1867 and their jurisdiction is inherited from courts in the United Kingdom. In an
ancient maxim recently cited with approval by the Supreme Court of Canada, nothing shall
1 30 & 31 Vict., c. 3. (U.K.).
2 Ibid., s. 101. Other s.101 courts include the Tax Court of Canada and the Court Martial Appeal Court of
Canada. The first court deals with tax matters and is, essentially, a special, tax-specific, administrative court.
The second hears appeals from court martials applying the Code of Service Discipline to members of the
Canadian Forces. As such, it is principally a criminal law court, albeit one that applies rules more extensive
than those applicable to civilians. This chapter does not deal with either of these specific bodies.
3 Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 at para. 44 [TeleZone].

II. Structure and Jurisdiction of the Federal Courts

527

be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction
of an Inferior Court [in this context, courts other than the Royal Courts and their successors] but that which is so expressly alleged.4
Thus, while the Federal Courts have only those powers given to them by their constituting (or other) federal statute, the provincial superior courts have all judicial powers not
expressly removed from them. Moreover, it is no small thing to strip judicial powers from
provincial superior courts. Parliament does have the power to give exclusive federal administrative judicial review jurisdiction to the Federal Courts.5 However, in the Supreme
Courts words, the ouster of jurisdiction from the provincial superior courts in favour of
vesting exclusive jurisdiction in a statutory court requires clear and explicit statutory
wording to this effect.6
In the result, the actual jurisdiction of the Federal Courts is anemic relative to that of the
provincial superior courts, and the Federal Courts must have particular regard to statutory
authorization in the exercise of their judicial powers. As the Federal Court has itself warned
repeatedly: The Federal Court is a statutory court whose jurisdiction cannot be presumed,
unlike provincial superior courts, whose jurisdiction is both general and inherent. There
must be a statutory basis for the Federal Court to have jurisdiction in a given case.7 As discussed below, the key statutory basis for Federal Court jurisdiction is the Federal Courts Act.8

B. Administrative Law Jurisdiction of the Federal Courts

1. The Federal Court of Canada and the Federal Court of Appeal
The Federal Courts Act 9 constitutes the Federal Courts. Specifically, it creates both a Federal
Court of Canada (FCC), once known as the Federal CourtTrial Division, and a Federal
Court of Appeal (FCA). The FCC is principally a court of first instancethat is, it is the first
court that hears a particular dispute. The FCA is an appellate court, hearing appeals from
the FCC and other federal judicial bodies, such as the Tax Court of Canada.
In some areas of Federal Courts jurisdiction, this pattern of trial court and court of appeal operates much as it would in any superior court. Thus, the FCC has concurrent jurisdiction with the provincial superior courts to hear civil claims brought against the federal
government. This means that plaintiffs may choose to bring their action before either the

4 Peacock v. Bell (1667), 1 Wms. Saund. 73, 85 E.R. 84 at 87-88, cited with approval in TeleZone, supra note 3 at
para. 43.
5 TeleZone, supra note 3 at para. 45, citing Canada Labour Relations Board v. Paul LAnglais Inc., [1983] 1 S.C.R.
147 at 154.
6 Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at para. 46, cited with approval in TeleZone, supra note 3 at para.42.
7 Pontbriand v. Federal Public Service Health Care Plan Administration Authority, 2011 FC 1029, [2011] 4 F.C.R.
D-11 at para. 2. See also DRL Vacations Ltd. v. Halifax Port Authority, 2005 FC 860, [2006] 3 F.C.R. 516 at
para 6.
8 R.S.C. 1985, c. F-7.
9 Ibid.

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Chapter 15 The Federal Court and Administrative Law

FCC or a s.96 court. If they opt for the FCC as the court with original jurisdiction, any appeal from the trial of that action is to the FCA and, from there, with leave, to the Supreme
Court of Canada.
This simple description does not, however, adequately capture the jurisdictional division
of labour between the FCC and the FCA. In the administrative law area, it is not always the
case that the FCC is inevitably the court of first instance. Most notably, there are a number
of administrative tribunals enumerated in s.28 of the Federal Courts Act for whom the FCA
is the court of first instance on judicial review. These special tribunals include, among
others, the Canadian International Trade Tribunal, the Public Service Labour Relations
Board, the Copyright Board, and the Competition Tribunal.
Any applicant must be attentive to s.28, or risk filing their application for judicial review
in the wrong court. That said, the vast majority of applications for judicial review are not
against decisions by administrative bodies listed in s.28, and thus the FCC has the original
jurisdiction. The balance of this chapter focuses on this more commonplace route.

2. The Federal Courts Exclusive Jurisdiction

Section 18 of the Federal Courts Act specifies that, subject to the above-discussed s.28, the
FCC has exclusive original jurisdiction:
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ
of quo warranto, or grant declaratory relief, against any federal board, commission or other
tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of
relief contemplated by paragraph (a), including any proceeding brought against the Attorney
General of Canada, to obtain relief against a federal board, commission or other tribunal.

Section 18 is the source of the FCCs vast role in Canadian administrative law. It purports to
give the FCC exclusive powers to issue classic administrative law remedies (and hear any
application in relation to these) for any federal board, commission or other tribunal. Exclusive means, in essence, a monopoly, subject to considerations discussed below.
For its part, federal board, commission or other tribunal is expansively defined in s.2
of the Act as:
any body, person or persons having, exercising or purporting to exercise jurisdiction or powers
conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed
under or in accordance with a law of a province or under s.96 of the Constitution Act, 1867.

Note the sweep of this paragraph. Somewhat counterintuitively, board, commission or

other tribunal need only be a single person. So long as that person is deploying powers
conferred by a federal statute or under the royal prerogative, administrative judicial review
jurisdiction lies with the FCC.
Because, as a practical matter, all the powers that matter in federal administrative action
are conferred by statute or under royal prerogative, the FCC has administrative judicial review authority over all federal administrative action. As the Supreme Court noted recently,

III. Judicial Review Before the Federal Courts

529

[t]he federal decision makers that are included [by s.2] run the gamut from the Prime
Minister and major boards and agencies to the local border guard and customs official and
everybody in between.10
The question has occasionally arisen as to how exclusive the FCC exclusive jurisdiction
really is. As already noted, s.96 courts guard their jurisdictional prerogatives closely. It is
clear that Parliament can assign federal courts powers to conduct administrative judicial
review authority. It is also clear that Parliament cannot assign federal courts exclusive federal constitutional judicial review authority: as the Supreme Court noted recently, Parliament cannot operate to prevent provincial superior court scrutiny of the constitutionality
of the conduct of federal officials.11 At best, constitutional review jurisdiction is concurrent,
shared by both provincial superior and federal courts. Accordingly, an attack on administrative action that is, in turn, grounded in an attack on an allegedly unconstitutional statute
can be brought in either s.96 or federal courts.
Further, the Federal Courts s.18 jurisdiction does not include issuance of the remedy of
habeas corpus, except in narrow circumstances.12 For this reason, the provincial superior
courts retain habeas corpus jurisdiction in relation to federal administrative action in circumstances where that remedys own requirements are met.13

III. Judicial Review Before the Federal Courts

In addition to defining the Federal Courts jurisdiction, the Federal Courts Act creates a relatively comprehensive guide to the manner of, and basis for, judicial review of federal administrative action. This includes special rules relating to certain types of statutory appeals,
standing, limitation periods, grounds of review, and remedies.

A. Statutory Appeals
As discussed earlier by Cristie Ford in Chapter 3, Dogs and Tails: Remedies in Administrative Law, applicants must exhaust all other remediessuch as statutory appealsbefore
applying for judicial review. Failure to exhaust this administrative appeal option may be a
basis for the denial of a remedy on judicial review, a concept as true at the federal level as it
is at the provincial.14

10 TeleZone, supra note 3 at para. 3. Section 2 does exempt other judges from FCC supervision and those provincial agencies constituted by a provincial law who might have occasion to apply federal law. But these are
limited exceptions.
11 Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626 at para. 14.
12 Section 18 also gives the FCC exclusive original jurisdiction to hear and determine every application for a
writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation
to any member of the Canadian Forces serving outside Canada. This power is obviously less sweeping than
that found in other parts of s.18, being limited to members of the Canadian Forces overseas.
13 May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 32.
14 See e.g. Fast v. Canada (Minister of Citizenship and Immigration), 2001 FCA 368.

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Chapter 15 The Federal Court and Administrative Law

1. Section 18.5
The Federal Courts Act adds a more robust bar to judicial review in the face of at least some
forms of statutory appeal:
if an Act of Parliament expressly provides for an appeal to the Federal Court, the FCA, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission
or other tribunal made by or in the course of proceedings before that board, commission or
tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review
or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance
with that Act.15

Put simply, where a statutory appeal from an administrative decision-maker lies in one of
the bodies listed in the section, there can be no judicial review of the same subject matter
covered by that appeal.
A point to be carefully underscored: s. 18.5 is a rigid bar on judicial review. Where it applies, there is no further analysis required. As the Federal Court has noted, Parliaments
clear intention ousts judicial review by the Federal Court under s. 18.1 of the Federal Courts
Act and this intention also removes the necessity for this Court to test whether the prescribed review route provides for an adequate alternative remedy.16
This is a sensible and unsurprising limitation for those statutory appeals that go from an
administrative body to a court itself. It would make little sense, for example, for judicial
review to be available before the Federal Court when the same issue may be statutorily appealed to the FCA. Section 18.5 also reaches more than courts, however, and includes circumstances where an appeal lies to the governor in council (GIC) or the Treasury Board.
The result may create some confusing patterns.

2. The Sometimes Tricky Operation of Section 18.5

There are circumstances where statutory appeals may be available to both the FCA and the
GIC. The Telecommunications Act authorizes the GIC to vary or rescind a decision of the
Canadian Radio and Telecommunications Commission (CRTC) made under that statute.17
That same Act creates an appeal from the CRTC to the FCA on any question of law or of
jurisdiction.18
Both the common-law doctrine of exhaustion and s.18.5 demand that any challenge to
a decision of the CRTC under the Telecommunications Act must come in the form of an

15 Federal Courts Act, supra note 8, s. 18.5.

16 Abbott Laboratories, Ltd. v. M.N.R., 2004 FC 140, [2005] 1 F.C.R. D-40 at para. 40.
17 S.C. 1993, c. 38, s. 12.
18 Ibid., s. 64.