As the old song goes, we all need somebody to lean on. However, we can’t always have somebody to stand with – or against – us. In administrative law matters, there are two aspects of standing. One is the ability of a decision making body to participate in or commence judicial review proceedings. The other, which is the focus of this article, is the ability of individuals or corporation to appear before a tribunal or in judicial review proceedings.
One of the fundamental tenets of natural justice and procedural fairness is the right to a hearing, whatever form that might take. This generally only extends to parties directly affected by a decision or those permitted by the statute governing the matter. In general, absent a statutory or other means of entitlement to take part, an outside party can only participate in an administrative law proceeding if granted intervener status or is granted public interest standing.
A grant of public interest standing requires three things. As set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para. 37 (“Downtown Eastside”) these are: whether there is a serious justiciable issue raised; whether the intended participant has a real stake or a genuine interest in the issue; and whether, in all the circumstances, the proceeding is a reasonable and effective way to bring the issue before the courts or decision maker. At para. 38, the court stated that this attracts considerable deference because it is a discretionary matter. The court will only interfere with this discretion if the judge (or decision maker) acted on a wrong principle or failed to sufficiently weigh all relevant considerations.
In Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 43, the court stated that the requirements for public interest standing should be addressed in a flexible and generous manner, and considered in light of the underlying purposes of setting limits on who has standing to bring an action before a court. Even if there are other plaintiffs with a direct interest in the issue, a court may consider whether the public interest plaintiff will bring any particularly useful or distinct perspective to the resolution of the issue at hand.
There have been a few appellate-level decisions in 2017 that substantively addressed the matter of standing. The first is from the Nova Scotia Court of Appeal, Miner v Kings (County), 2017 NSCA 5. This case involved a municipal rezoning decision granted upon the request of a landowner adjacent to property owned by the appellants. The appellants objected to the rezoning. The municipality had granted the appellants notice of the rezoning application as required by statute and the appellants had voiced their objections to the municipality. However, they argued the type of notice they received was unfair compared to the types of notice other landowners had received, based upon different circumstances that applied to those landowners.
One issue at the N.S. Supreme Court was the appellants’ standing to apply for judicial review. The appeal court noted that the reviewing judge had not been considering a decision maker’s discretion to grant standing to the appellants. Nor had he considered the matter on a public interest standing basis. Had he done so, the appeal court said that it would have been required to give it considerable deference.
However, the reviewing judge determined the appellants had standing as a right, under s. 189 of the Municipal Government Act, S.N.S. 1998, c. 18. The appeal court said that a decision granting a party standing by statutory means or otherwise was a question of law or, possibly, mixed fact and law. In such a case, the decision to grant standing is reviewable on a correctness standard. On the facts of this case and on a correctness standard, the appeal court determined that the appellants did not have standing as a right. The court then determined whether the appellants met the test in Downtown Eastside. In the circumstances of this case, they did not.
The takeaway is to keep in mind the basis on which standing is claimed or granted. If on a statutory basis, the standard of review will likely be correctness. If granted on a common law or public interest discretionary basis, the standard of review will be reasonableness.
The next two cases are from the Federal Court of Appeal. The first, P. & S. Holdings Ltd. v. Canada, 2017 FCA 41, (“P&S”) addressed the boundaries of the duty of fairness. An interesting aspect of this case was it was based, in part, on the constitutional division of powers. De Montigny J.A. also confirmed that the common law rules of procedural fairness can and had been ousted by clear statutory language.
In P&S, a company applied to Health Canada for a licence to produce medical marijuana. It also applied to the municipality to rezone its property so that it could be used for medical marijuana production. A union, training school, and restaurant neighboured the property and objected to the licence. De Montigny J.A. noted that the case pitted a genuine interest in the health, safety, and security of the appellant neighbours against the constitutional right medically registered persons to have reasonable access to a legal source of marijuana for medical purposes.
The appellants fully participated in the municipal rezoning process. The municipality granted the rezoning, subject to restrictive covenants meant to address concerns such as those voice by the appellants. The appellants also asked Health Canada, several times, to grant them standing in the licensing process, with no response. The appellants applied for judicial review for a declaration and order for mandamus that would entitle them to participate in the licensing process. The appellants argued that the federal regulations required Health Canada to refuse granting a license where it would likely create a risk to public health, safety, or security, which entitled Health Canada to consider the suitability of the location of the production facility.
De Montigny J.A. disagreed, noting that the federal regulations dealt solely with licensing matters within the federal government’s jurisdiction over criminal matters (i.e. illicit drugs). He also noted a foremost concern of the federal regulations was to ensure the security and safety of commercial production of medical marijuana. De Montigny J.A. stated that the location of the facility was entirely a zoning issue. For the federal government to dictate location would be an intrusion into a matter solely within provincial jurisdiction.
De Montigny J.A. also noted that the federal regulations only required that notice be given to local authorities and that they required Health Canada to defer to those authorities regarding the site of a production facility. They provided no mechanism for third parties, such as the appellants, to participate in the licensing process. By explicitly identifying those with a right to participate in the licensing process, the regulations implicitly ousted any common law entitlement to participate that the appellants might otherwise have had.
While the duty of fairness is broad, P&S examines the boundaries of that duty. The division of powers aspect of the case is also certainly interesting. De Montigny J.A. refused to allow the appellants to use the licensing scheme to bypass a matter delegated to municipalities. However, the line might not be as clear-cut as suggested by the court. Signficantly, De Montigny J.A. did not discuss the double aspect doctrine, which allows both levels of government to legislate in a given area, or the necessarily incidental doctrine as identified in General Motors of Canada Ltd. v. City National Leasing,  1 SCR 641.