Permission to Appeal Administrative Decisions

There's an increasing phenomenon in administrative law frameworks: Rather than allowing judicial review to a trial-level court, legislatures create statutory appeals to higher courts - but only with permission (or 'leave') of the court.

The higher courts then create a test to determine whether to grant leave, which often includes a factor such as 'public interest' - whether the question being appealed has significance beyond the interests of the affected parties.

These tests for leave aren't unheard of in other contexts: The Supreme Court of Canada applies a similar test to nearly all cases brought before it. Some appeals from lower courts to Provincial appellate courts, on specific types of questions, have similar features.

In Ontario administrative law, your initial application for judicial review goes to the Divisional Court, and you can't appeal from there to the Ontario Court of Appeal without leave. So this isn't unheard of.

But when the test for leave is applied directly from the administrative tribunal itself, I find this problematic.

As background, while legislatures have broad authority to delegate decision-making authority, this is largely subject to a relatively immutable constitutional requirement that these decisions be subject to judicial review.

There's a lot of complicated discussion regarding 'standard of review' - how much to defer to administrative decision-makers, etc. - but parties unhappy with the process or outcome of an administrative process are constitutionally entitled to ask the courts to have a look and ensure that the decision-maker acted properly within the authority conferred by the legislature. That doesn't generally mean that courts are going to second guess the discretion or judgment of the administrative tribunal, but they look at the process to make sure it was fair, and they ensure that the decision was within the range of decisions that were available in the circumstances.

In short, legislatures cannot create an administrative process that's immune from that type of judicial review. Privative clauses that purport to do so are unconstitutional.

Some Recent Cases

In a very recent decision, the University of Athabasca Faculty Association tried unsuccessfully to appeal a Labour Board decision that upheld an arbitrator's decision. (It's a politically controversial case, and I have no sympathy for the Grievor's ideology. But that is, and I can't stress this enough, not the point.)

This is a relatively new process in the labour relations context, but it's a bit convoluted:

• First, your Grievance goes to an arbitrator, who conducts a hearing and renders a decision. (This is not new.)
• Then, you can review that decision at the Labour Board, which takes a very deferential standard of review. (This is new-ish, and the deferential standard is designed to mimic the standard that the courts would have applied on judicial review. However, and this is another point I can't emphasize enough, members of the Alberta Labour Relations Board are categorically not Superior Court Justices.)
• Then, after that, if you're still not happy, you apply to the Court of Appeal for permission to appeal.

There used to be a right of appeal from the Court of Queen's Bench to the Court of Appeal on these matters, and the Court of Appeal would conduct it as a hearing de novo of the original judicial review - so still deferring to the arbitrator, but not to the court.

But with the test for permission to appeal, there is no longer a clear right to go upstairs from that first review at the ALRB - you're no longer entitled to have the Court of Appeal scrutinize the first-level review on a standard of 'correctness'. This sort of mimics the Ontario process, except that in Ontario the first-level review occurs before judges.

In a particularly absurd application of this approach last year, in Ahlstrom, a case where the Edmonton Police were trying to appeal the reinstatement of a police officer who engaged in misconduct, the Court of Appeal was persuaded that the Law Enforcement Review Board had taken a problematic approach to its decision - but because the ways in which they were wrong were "well settled" questions of law, it didn't raise issues of sufficient public importance for the Court of Appeal to grant permission to appeal.

In other words, because the LERB was inarguably wrong, their decision was insulated from appeal.

A Lingering Right of Judicial Review?

There is recent authority from the Supreme Court of Canada, Yatar v. TD, that reaffirms the constitutional nature of the right to judicial review, and that where a statutory appeal mechanism limits the right of appeal to specific types of questions (e.g. questions of law), there remains a residual right to apply for judicial review (in the conventional sense) on other types of reviewable questions that can't be brought through the statutory appeal process.

This isn't all that surprising, nor is it entirely novel. It's been common to create a two-tier administrative structure - where the initial administrative decision is subject to an appeal before an appeals tribunal of some sort. Sometimes the appeals tribunal is only tasked with hearing certain types of appeals, and it's fairly straightforward that other types of processes go straight to JR.

If your statutory appeal framework takes matters that otherwise could have been subject to JR, and imposes limits on which of those matters actually get to be appealed, it's a good bet that the remainder of matters still get to go to JR. (Technically, the courts still can hear JR applications from the first-level decision that are eligible for second-level appeal, but - as a pretty firm rule - they don't.)

I believe that the same logic applies here. This isn't a sure thing - there's an argument that providing a statutory appeal mechanism to the Court of Appeal is a wholly adequate substitute for judicial review, but I would argue that Ahlstrom demonstrates why this isn't the case. Where a party can be denied the right to have their statutory appeal heard, on some basis other than being devoid of merit, it stands to reason that their constitutional right to judicial review has not been satisfied.

(The alternative argument would have to be that a case like Ahlstrom is wrong - that the Alberta Court of Appeal's test for permission to appeal is improper and inconsistent with its mandate. However, the Court of King's Bench probably isn't at liberty to reach that conclusion. Which, honestly, is a pretty weird feature of an interpretation issue of a statutory administrative framework.)

But even assuming that I'm right about that, the availability of a conventional JR - in concert with a statutory appeal mechanism to the Alberta Court of Appeal - creates several practical problems and absurdities.

Firstly, timing is a problem. JR has a narrow limitations period, and you realistically have to file it before your application for permission to appeal has run its course. This creates a multiplicity of proceedings - in theory, in every case. (If the courts were to conclude that there is, indeed, a residual JR right, then anybody to ever apply for leave to appeal would also file a JR application in an abundance of caution and keep their rights alive.)

This was an issue in the CleanIt GreenIt case I wrote about a couple years ago: They tried to go through an EPEA statutory appeal (to an appeals tribunal) first, and by the time they lost that process (because the appeals tribunal found, quite properly, that the question being appealed shouldn't have come to them), CiGi was out of time to seek JR on the original decision. (I'm less sympathetic to CiGi here than I might be in other situations, largely because the appeals tribunal immediately warned them that their appeal seemed to be outside the scope of the statutory appeal mechanism, and that interpretation wasn't at all a stretch.) If CiGi wanted to preserve its rights, it should have filed a JR application 'just in case'.

Secondly, it's prejudicial to an applicant to go to a King's Bench Justice on a JR application after the Court of Appeal has shut down the application for permission to appeal. The test may be different and non-binding, but the respective roles of the courts still mean that a King's Bench justice may be more inclined to be deferential to the underlying decision because the Alberta Court of Appeal declined to hear it.

Thirdly, and perhaps most critically, as I noted above, the traditional JR process has an appeal to the Alberta Court of Appeal as of right. So if the practice becomes "Apply to the Court of Appeal for permission to appeal and get denied; apply to King's Bench for JR; appeal to the Court of Appeal", then a denial of 'permission' only creates an absurd circuit that still comes back around to the Court of Appeal for an appeal as of right. Basically, the matter will still end up getting decided by the Court of Appeal, but without the constraints and gatekeeping of the statutory appeal process.

While there are compelling reasons to create alternative streams around JR processes, to protect the allocation of judicial resources, I'd argue that this has to be done carefully. Creating multiple different streams for appeals/reviews puts parties into the sometimes-difficult position of assessing which stream is the 'right' one, and they can be significantly prejudiced if they get it wrong. Which tends to result in well-resourced litigants choosing to avail themselves of both streams (and defeating the point of trying to stream matters away from JR).

If the non-JR stream (say, a statutory appeal to the Alberta Court of Appeal) has guardrails, those guardrails should be clear and objective, with no question as to whether a JR can be brought for matters not meeting those criteria.

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The author is an in-house lawyer in Alberta. Views are the author's alone. This article does not contain legal advice, but general legal information. If you have a legal issue, consult a lawyer.