You don’t get a second kick at the can – all evidence and issues one wishes to raise within administrative proceedings should be raised with the administrative decision-maker and may be disregarded by reviewing courts

Federal Court of Appeal upholds Federal Court decision dismissing an application for judicial review of an Order in Council terminating the appellant’s good behavior appointment as a Canadian Radio-television and Telecommunications Commissioner.

Administrative law – Legislative Assembly – Judicial review application – Official appointments – Appeal – Fresh evidence, admissibility – Procedural requirements and fairness – Natural justice – Standard of review – Reasonableness – Legislation – Orders-in-council

Shoan v. Canada (Attorney General), [2020] F.C.J. No. 1009, 2020 FCA 174, Federal Court of Appeal, October 19, 2020, D.W. Stratas, W.W. Webb and D.J. Rennie JJ.A.

On May 7, 2018, the Federal Court dismissed the appellant’s judicial review application of an Order in Council terminating with cause the appellant’s good behaviour appointment as a Canadian Radio-television and Telecommunications Commissioner (the “Order”).  This was an appeal of the Order.  The appeal was dismissed with costs.

In making the Order, the Federal Court rejected large portions of the appellant’s affidavit evidence as inadmissible.  It found the process leading up to the Order in Council was procedurally fair.  Lastly, it found the Order in Council was substantively reasonable.

The appellant sought to admit fresh evidence into the appeal, and to raise a new issue on appeal that was not raised in his notice of application in the Federal Court.  The Court of Appeal did not allow either.  It found the fresh evidence could not reasonably be expected to affect the result of the appeal, and that much of it could have been adduced earlier.  It held new issues should not be heard by a reviewing court, especially in an appeal from a judgment of a reviewing court.

With respect to the rejection of large portions of affidavit evidence, it was found on appeal the Federal Court did not commit any reviewable error.  The Federal Court had found the affidavit contained irrelevant evidence, inadmissible argument and opinion evidence, and attempts at supplementing the initial submissions made to the Minister.  The Court of Appeal upheld those findings, and noted in particular that evidence going to the merits of the administrative matter is to be adduced before the administrative decision-maker.  That inadmissible evidence put forth by the appellant was disregarded on appeal.

With respect to procedural fairness, it was found on appeal there was no violation.  The Court of Appeal noted that a number of the appellant’s procedural fairness concerns were not raised with the Governor in Council and therefore could not be raised on judicial review.  The appellant argued the Order in Council was made in haste.  The Court of Appeal found a lack of evidence to support an allegation of haste, and that, in any event, haste by itself is insufficient.

The appellant argued the standard of review of the substance of the Order in council is correctness, as the issues concerning it are of general importance.  The Court of Appeal disagreed, finding that a dispute being of “wider public concern” is insufficient to trigger that “very narrow” exception to reasonableness review.

Lastly, the Court of Appeal found the Order in Council reasonable, agreed with the Federal Court, and dismissed the appeal with costs.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at mclark@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.