A freedom of information request led to a consideration of how the scope of standing of a tribunal in a judicial review of its own decision should be determined

Administrative law – Freedom of information and protection of privacy – Disclosure – Standing in judicial review – Decisions of administrative tribunals – Hearings – Parties – Judicial review – Jurisdiction of tribunal

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), [2005] O.J. No. 1426, Ontario Court of Appeal, April 18, 2005, R.R. McMurtry C.J.O., S.T. Goudge and R.A. Blair JJ.A.

The Ontario Children’s Lawyer (“OCL”) had acted for the requester in three matters. The requester was dissatisfied with that representation and obtained disclosure of some documents in possession of the OCL. The OCL refused disclosure of certain documents based on ss. 13 and 19 of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31 (“FIPPA”). The OCL contended the documents would reveal the advice and recommendations of a public servant, they were documents prepared by Crown counsel in contemplation of litigation, and they were documents protected by solicitor-client privilege. The requester appealed to the Information and Privacy Commissioner (“IPC”). The IPC allowed the appeal and ordered disclosure of the documents. The OCL sought judicial review of the IPC’s decision. OCL sought to limit the standing of IPC, and the Divisional Court refused to do so and upheld the IPC decision. The OCL appealed, arguing that the Court erred in granting IPC standing and in permitting the tribunal to raise the Crown counsel argument where that had not been mentioned in the original reasons for the decision.

The main question on appeal was how to determine the scope of standing of an administrative tribunal in a judicial review application in respect of the tribunal’s own decision. The Court discovered that this question was fraught with difficulty and proceeded to review the jurisprudence.

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684, was a statutory appeal of a decision of the Public Utilities Board for Alberta. The Supreme Court of Canada held that a tribunal is given an opportunity to make its point in the reasons for a decision, and that to have it then participate as a litigant in adversarial confrontation with one of “the principals in the contest before the Board itself in the first instance” interferes with the maintenance of tribunal impartiality. The Court also held that although the governing legislation would be determinative if it defined the tribunal’s role, if its role was not defined then a tribunal could only explain the record and make representations supporting its jurisdiction to make the order being contested.

Ten years later the Supreme Court of Canada issued a decision in CAIMAW Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983. In considering judicial review of a BC Labour Relations Board decision, two members of the Court held that a tribunal had standing to explain the record, to advance its position about the standard of review and to explain to the Court why its decision was a reasonable, rather than a patently unreasonable one. The tribunal was not permitted to defend the correctness of its own decision.

Since the Paccar and Northwestern decisions, some cases have followed one or the other, while a third group of cases has granted the tribunal full standing to defend its decisions.

The Court of Appeal then moved on to consider the relevant legislation – s. 9(2) of the Judicial Review Procedure Act which appears to accord a tribunal the right to be a party to the proceeding if it so chooses, but leaves the scope of its standing to the court. Under the Consolidated Bathurst decision, the scope of standing of the tribunal is best left to judicial discretion.

The Court accepted that a flexible, context-specific solution to the scope of tribunal standing is the preferred approach. The Court considered Paccar and Northwestern again in determining that the criteria to be considered should include the importance of having a fully informed adjudication of the issues before the Court, and the importance of maintaining tribunal impartiality. In addition, “the nature of the problem, the purpose of the legislation, the extent of the tribunal’s expertise, and the availability of another party able to knowledgeably respond to the attack on the tribunal’s decision, may all be relevant in assessing the seriousness of the impartiality concern and the need for full argument”.

Applying this approach, the Court held that the Freedom of Information requester’s lack of participation in the proceeding and the specialized nature of the statutory scheme being considered militated in favour of granting broad standing to the Tribunal. However, the nature of the tribunal and the issues raised, namely the tribunal is not as court-like as some, and that the issues are chiefly those of statutory interpretation, weighed against full standing for the Tribunal.

Ultimately the appeal Court upheld the decision that, in these circumstances, the tribunal has full standing in the judicial review proceedings, including the ability to make the argument that under s. 19 of the FIPPA there was a “Crown counsel” argument, even though that argument had not explicitly been provided in the tribunal’s decision.

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