Appeals of TAQ Decisions to the Court of Québec Following Vavilov: A New Beginning?

At first glance, the rules for appealing a decision of the Tribunal administratif du Québec (“TAQ”) to the Court of Québec may seem straightforward and easy to apply. Indeed, the rules set out in sections 159 to 164 of the Act respecting administrative justice^[1] (the “AAJ”) are not hard to comprehend,  on the contrary they are quite easy to grasp as will be discussed at greater length in the first part of our analysis.

Despite the simplicity of the vocabulary used by the legislature, the reader will note that in the application of that right to appeal, two divergent positions have emerged over the years, as we will demonstrate in the first part of our article. Such divergence became particularly manifest in the development of the criteria for granting leave to appeal.

In Lamarche McGuinty inc. c. Bristol (Municipalité)^[2] (“Lamarche”), Justice Jean-François Gosselin held the view that section 159 of the AAJ should apply restrictively. For convenience, we reproduce that section here:

“159. An appeal lies to the Court of Québec, irrespective of the amount involved, from decisions rendered by the Tribunal in matters heard by the immovable property division, and from decisions rendered in matters concerning the preservation of agricultural land, with leave of a judge, where the matter at issue is one which ought to be submitted to the Court of Québec.”

In Québec (Procureur général) c. Forages Garant et Frères inc.^[3] (“Forages Garant”), Justice Denis Lavergne disagreed with Justice Gosselin’s reasons. Today, these two schools of thought continue to coexist. However, as we will see, the very recent decision in Vavilov ^[4] (“Vavilov”) has changed the situation. We will begin with a brief overview of the two cases and then move on to an examination of the basic principles set out in Vavilov. We will also explore the nature and scope of the right to appeal to the Court of Québec provided by the legislature and the legislative work that paved the way for that essential mechanism. We will conclude with an analysis of recent case law to see how, and especially to what extent, the Court of Québec and the Superior Court have interpreted the principles set out in Vavilov with respect to the right to appeal and the judicial review of such appeals.

In light of this new landmark decision, we will attempt to identify the resulting principles for the Court of Québec in its appellate role with respect to TAQ decisions, particularly in matters of expropriation, property law, and the preservation of agricultural land. In this article, we use a critical analytical approach rather than a synthetic overview of case law to shed light on the main mechanisms of the appeal process, with the avowed aim of pointing out some of its dysfunctions.

Case law on appeals from TAQ decisions to the Court of Québec: Two schools of thought

As our colleagues André Lemay and Lahbib Chetaibi have rightly pointed out^[5], a review of the case law for appeals of TAQ decisions to the Court of Québec reveals the emergence of two schools of thought with respect to the Court of Québec’s role in hearing appeals from TAQ decisions. Since those two judgments still form the basis of the principal interpretations of section 159 of the AAJ, it makes sense to review them in detail. As Lemay and Chetaibi have already analyzed the two judgments in extensive detail, we will simply outline their main points.

Lamarche

Even today, this decision forms the basis of the most widely applied case law, namely a formal, strict interpretation of appeals and applications for leave to appeal. On October 29, 1998, the TAQ refused to recognize that there had been a transaction under article 2631 of the Civil Code of Québec (“CCQ”). Although the rules for leave to appeal were not contested by the respondents, the Municipality of Bristol and the Pontiac Regional County Municipality, the Court of Québec sitting in appeal held that it did not preclude it from examining these rules.

The Court began its analysis with a comparative reading of section 159 of the AAJ, section 147 of the Act respecting Access to documents held by public bodies and the Protection of personal information^[6] and section 91(1) of the Act respecting the Régie du logement.^[7] On the basis of that comparative reading, the Court held the following [translation]:

“6  It will have already been noted that, although all three are subject to the requirement of prior leave from a judge of this Court, the right to appeal from decisions of the Commission d’accès à l’information is limited to questions of law or jurisdiction, whereas the right to appeal from decisions of the Régie du logement and the Tribunal administratif du Québec is not so limited.

7  It will also have been noted that, in matters of appeal on leave from the decisions of administrative tribunals, the legislative crystallization of the judicial discretion provided by the Québec legislature is expressed in terms identical to those included in the Code of Civil Procedure in matters of appeal on leave from the decisions of courts. Article 26(2) of the Code of Civil Procedure reads as follows:

‘An appeal also lies, with leave of a judge of the Court of Appeal, when the matter at issue is one which ought to be submitted to the Court of Appeal […]’”.^[8] 

On this basis, the Court held that there should be a standardized approach to the right to appeal to the Court of Québec and concluded with the now often used phrase [translation] “leave to appeal will therefore be granted when the question submitted is serious, controversial, novel or of public interest.”^[9]

Subsequently, the Court briefly considered adopting the analytical framework proposed by Réjean Rioux and Mario St-Pierre^[10], which was formerly applicable to decisions of the former Bureau de révision de l’évaluation foncière. However, the Court ruled out using it on the grounds that the previous appeal had been by operation of law, whereas the appeal under section 159 of the AAJ was on leave [translation]:

“16  […] the authors suggest that leave should be readily granted where the issue in dispute is a pure and significant question of law. In practice, this would amount to turning an appeal on leave into a something of a de plano appeal on a pure and significant question of law.”^[11] 

Lastly, the Court criticized and rejected a broad interpretation of the AAJ’s provisions [translation]:

“24  For, despite the apparently very loose wording of section 151 of the Act respecting administrative justice and the wide latitude it seems at first glance to give to a judge of the Court of Québec who has to rule on an application for leave to appeal, the case law developed by the Court of Appeal and the Court of Québec on matters that may be appealed ‘when the matter at issue is one which ought to be submitted’ to the appeal body calls for restraint. Even greater restraint must be exercised when, as is the case here, we are dealing with a multidisciplinary, collegial, specialized tribunal of first instance that can claim a very high level of expertise on technically complex issues, unlike the Régie du logement, which is more akin to a court of law than an administrative tribunal.”^[12] (Our emphasis) 

Thus, because it is a [translation] “multidisciplinary, collegial, specialized tribunal of first instance that can claim a very high level of expertise on technically complex issues,” leave to appeal will be granted only [translation] “sparingly on the basis of the seriousness, controversiality, novelty or public interest of the question submitted.”^[13] The Court therefore refused leave to appeal, holding that the matter [translation] “does not raise a serious, controversial, novel or public-interest issue, as the status of the municipal assessor and his/her representatives and their ability to legally bind the respondents is the subject of extensive and consistent case law.”^[14]

Forages Garant

The Forages Garant decision^[15] was handed down in April 2002, about three years after Lamarche. The Attorney General of Quebec sought leave to appeal a TAQ decision awarding final compensation of $254,119 to the respondent for the purposes of expropriation.

The Court began its review with an methodical analysis of Lamarche, noting the requirement that the issue be “serious, controversial, novel or of public interest” and the “sparing” approach for granting leave to appeal. However, the Court undertook a detailed examination of the analogy drawn between section 159 of the AAJ and article 26 of the Code of Civil Procedure (“CCP”), which governs appeals to the Court of Appeal. The Court also reviewed some Court of Appeal decisions dealing with the distinction between a right to appeal conferred by a specific statute, as in the case of section 159 of the AAJ, and that of an appeal under the CCP. The Court explained its reasoning as follows [translation]:

“[14]    Justice Vallerand saw the text of section 51 as requiring greater flexibility and wrote the following [translation]:

‘Section 51 of the Transport Act and article 26(4) of the CPC are so similar that it is tempting to apply to the former the principles developed for the latter. With due respect, however, this ignores the fact that the principle of section 51 is to establish a right to appeal, whereas the principle of article 26(4) is to make an exception to the non-appealable nature of the decisions in question. In short, persons subject to section 51 have a right to appeal, which is admittedly limited but no less real, whereas persons subject to article 26 are exceptionally allowed to appeal in matters where they have no right to appeal. It therefore seems to me perfectly admissible that leave to appeal under article 26(4) is intended to serve the development of the law and not the individual whose interests are, by definition, relatively narrow, which is why the judgment in question is, in principle, a final judgment.

Section 51 gives a judge of this Court very broad discretion when he or she says, “in the opinion of this judge,” a proposition which is completely unnecessary and meaningless, except for the very fact that it grants very broad discretion. In exercising that discretion, once it has been established that the proposed appeal does indeed concern a question of law as required by section 51, the Court must then consider how serious the criticism of the decision is and, where appropriate, how serious the decision’s impact is for the litigant […].’”^[16] (Our emphasis) 

In contrast to Lamarche, which attached great importance to expertise, we note the emphasis placed on the intention of the legislature, which chose to confer a limited but real right to appeal for litigants. The Court then proceeded to distinguish between the deference that must be applied on the merits and the deference that relates to leave, with expertise applying only to the former and not to the latter, as this would [translation] “pervert the right to appeal itself”:

“[39]    First, judicial restraint is exercised as the appellate bodies consider the merits of the decision and of the findings that lead to it.

[40]     It is not appropriate for this exercise to take place at the stage where the issue is simply whether leave to appeal will be given, for doing so not only usurps the work of the Court sitting on appeal but also risks perverting the right to appeal itself.

[41]     Second, it bears repeating that section 159 of the Act imposes no limit, in terms of scope or content, on the right to appeal.

[42]     Depriving a disappointed litigant of his or her right to appeal on the ground that the contested decision was made by a specialized body within the scope of its expertise does not appear to be compatible with the right to appeal conferred by section 159. While consideration of the serious, novel, controversial or public-interest nature of the matter at issue is not ruled out, it is far from certain that it is a sine qua non condition for the right to appeal a decision of the Tribunal.

[43]     Certainly, the section 159 filter requires some scrutiny to quickly weed out the abuses of dilatory or frivolous appeals, and to see if there are coherent, arguable though contestable, legal arguments behind the application for leave to appeal, in which case leave should be granted.”^[17] (Our emphasis) 

Thus, section 159 is primarily a filter to eliminate dilatory or frivolous appeals, what might be called abuses of legal proceedings, because what is arguable and contestable would in principle be allowed. The Court therefore saw a real duty to reform in the wording of section 159 of the AAJ. In the end, as might be expected, the Court granted leave to appeal.

Although the interpretation of appeal in the latter decision is very coherent and defensible, it was the interpretation in Lamarche that was favoured in the case law. In Saint-Pie (Municipalité)^[18], the Court of Appeal finally gave its imprimatur to the interpretation in Lamarche by stating, [translation] “If the Court of Québec judge had applied the Lamarche criteria, which are universally accepted, would he not have identified a serious and controversial question?”^[19]

Windsor: Syncretism or amalgam?

Lastly, we should mention the Windsor decision^[20], which constitutes a sort of “syncretism” or amalgam of Lamarche and Forages Garant. In connection with an application for leave to appeal under section 159 of the AAJ, the Court of Québec had to determine whether the TAQ had erred in partially allowing Domtar’s applications for review by deciding to reduce the property and rental assessment values, basing its decision in part on the interpretation of the concept of economic obsolescence.

After reviewing the relevant case law on the criteria for granting leave to appeal, the Court summarized those criteria as follows [translation]:

“9  Thus, the matter will be of interest if it raises a question that is serious, controversial, novel or of public interest. The use of the conjunction ‘or’ clearly indicates that these criteria are alternative and not suppletive.

10  Examples used in case law include the following:

A serious question:

• An apparent weakness in the contested decision;
• A critical factual error;
• Failure to analyze basic evidence;
• A serious deficiency in the grounds of the contested decision which makes it impossible to understand its factual and legal basis;
• The decision’s impact on the litigant;
• The amount of money involved.

A controversial question:

• Inconsistent or contradictory case law even on technical issues;
• An isolated decision that goes against a well-established body of case law.

A novel question:

• A question that has never been brought before the Court of Québec.

A question of public interest:

• Violation of a rule of natural justice;
• A question affecting the best interests of justice;
• A question of principle of a normative nature, the stakes of which go beyond the interests of the parties;
• A clear violation of a rule of law.”

Interestingly, while agreeing with the formal criteria in Lamarche limiting leave to appeal to questions that are “serious, controversial, novel or of public interest,” the Court also endorsed the analysis presented in Forages Garant [translation]:

“14 In short, as Justice Lavergne noted in Forages Garant,

‘[…] 43 Certainly, the section 159 filter requires some scrutiny to quickly weed out the abuses of dilatory or frivolous appeals, and to see if there are coherent, arguable though contestable, legal arguments behind the application for leave to appeal, in which case leave should be granted.

[…] 47 In essence, section 159 simply requires that leave to appeal a tribunal decision be granted, not sparingly, but judiciously. Nothing more, nothing less.’”^[21] 

Finally, it should be noted that on the applicable standard of review, the Court correctly held that [translation] “Dunsmuir did not have the effect of changing the role of the tribunal responsible for ruling on an application for leave to appeal.”^[22] The Court granted leave to appeal, in part on the ground that [translation] “the question of whether the TAQ erred in finding that there was economic obsolescence is of interest and should be put before the Court of Québec.”^[23]

However, and this is not a trivial point, the Court concluded its decision by drawing a parallel between the concept of appeal under section 159 of the AAJ and the general principles of appeal before the Court of Appeal of Québec and the Federal Court of Appeal.^[24] In summary, the Court seems to be saying that the concept of appeal under section 159 of the AAJ can be modelled on that of other jurisdictions. As we shall see, the nature and scope of an appeal are in principle based on the text passed by the legislature.

Windsor has become a kind of chameleon case that almost all judgments on leave to appeal under section 159 of the AAJ have cited, either in favour of greater interventionism or, conversely, in favour of a narrow, legalistic approach.

Vavilov: A change of vocation for the Court of Québec?

Vavilov^[25]  has profoundly changed judicial review and administrative appeal. As we will see, it both establishes new guideposts and revives a convention of sorts that was based on a categorical conceptual distinction between appeal and judicial review. We will also see that, without resorting to a literal legalistic interpretation, Vavilov nevertheless relies heavily on a textual analysis of the legislative provisions in which the legislature clearly expresses its intention to grant litigants a right to appeal.

We will begin this section by exploring the nature and scope of the Court’s new analytical framework with the aim of identifying and understanding the general principles underlying it. We will then apply those principles in the context of the powers given to the Court of Québec in exercising its authority to rule on appeals from TAQ decisions.

Lastly, we will examine how those principles should lead to full and complete recognition of the legislature’s desire to give the Court of Québec a genuine appellate role and greater participation in administrative justice.

In view of the voluminous nature of the decision, our analysis will not be exhaustive and will focus primarily on the standard of review and the reasonableness of the administrative decision maker’s reasons. Moreover, we will take a prospective approach on the issue: the analysis will not focus so much on the few recent decisions that touch on Vavilov as on the main currents that emerge from Vavilov and make it possible to outline the general conclusions to be drawn from it.

Vavilov: A return to the legislature’s intent

This gigantic 250-page decision was spawned by a set of facts that was very simple, though worthy of a spy novel. Alexander Vavilov is the son of a couple of Russian agents who were on a spy mission in Canada. He was born in Canada, lives in Canada, holds a Canadian passport and never knew anything of his parents’ activities. Following their arrest by US authorities, they were sent back to Russia. When Mr. Vavilov later attempted to renew his Canadian passport, his application was denied, and his citizenship certificate, initially issued by Canadian authorities, was subsequently revoked by virtue of section 3(2)(a) of the Citizenship Act^[26], which specifies that children of diplomats cannot acquire Canadian citizenship by the law of the soil.

Mr. Vavilov then challenged that decision in the Federal Court, which dismissed his application for judicial review of the Registrar of Canadian Citizenship’s decision. However, the Federal Court of Appeal overturned that ruling on the grounds that it was unreasonable. The Supreme Court upheld the Court of Appeal’s decision and the unreasonableness of the Registrar’s decision.

Toward a simpler process for determining the standard

From the outset, the majority affirmed its desire to simplify and make more coherent the principles of judicial review, which, by its own admission, had become a maze.^[27] That desire for reform was manifested in part in the revision of two major facets of judicial review, namely the standard of review applicable to administrative decisions^[28] and the reasonableness of the decision and its outcomes.^[29] We will now examine that revision.

Preserving a degree of continuity with Dunsmuir^[30], the majority made it clear that reasonableness would be the standard on which all judicial review analysis would be based:

“[16]    In the following sections, we set out a revised framework for determining the standard of review a court should apply when the merits of an administrative decision are challenged. It starts with a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions.”^[31]

At the same time, the Court noted two exceptions to that principle, which it described as follows:

“[17]    The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. As a result, it is no longer necessary for courts to engage in a ‘contextual inquiry’ (CHRC, at paras. 45-47; see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify the appropriate standard.” [32] (Our emphasis) 

The foregoing hints at the three elements that have been at the centre of the tension in judicial review for years; on the one hand, the autonomy that administrative bodies need to ensure their promptness, flexibility and efficiency, and on the other hand, compliance with the constitutional requirements represented by the rule of law. In addition, there is the will of the democratically elected legislature, which may include administrative appeal mechanisms or privative clauses in the laws it enacts.

We can summarize the principle and the exceptions in the following broad terms:

General principle

Standard of reasonableness, with the following exceptions:

1. Exception 1: The legislature has explicitly provided for a particular standard by
   • specifying the standard of review by name (e.g., correctness), or
   • providing an appeal mechanism;
2. Exception 2: Under the rule of law, correctness will apply in the following cases:

• constitutional questions;
• general questions of law of central importance to the legal system as a whole;
• questions related to the jurisdictional boundaries between two or more administrative bodies.

The Court went on to explain the reasons for the presumption of reasonableness review. The Court’s premise was that in creating administrative bodies with a mandate to administer a particular administrative scheme, the legislature intends them to “function with a minimum of judicial interference.”^[33] Of course, that autonomy cannot shield the administrative bodies from review and monitoring by a court, which acts as the guardian of legality for the rule of law.^[34]

Moreover, the Court made a radical departure from traditional case law by removing expertise from the process of determining the standard of review. The concept of expertise, the Court noted, emerged in the wake of Bibeault^[35],in which Justice Beetz developed a pragmatic and functional approach, which essentially took into account the purpose and provisions of the statute, the nature of the questions at issue, the existence of a privative clause and the expertise of the administrative decision maker.

For the record, it should be noted that with this approach, the Court made a clear break with the concept of the preliminary question, under which the jurisdiction of an administrative tribunal depended on the correct interpretation of certain concepts that confer jurisdiction, failing which it would be assuming a power not given to it by the legislature.^[36] That silence, or omission, on the part of the Court with respect to the doctrine of preliminary jurisdiction is surprising, since the pragmatic and functional approach was developed to replace that doctrine.

Thus, noting the vagueness and uncertainty surrounding the concept of expertise, or at least the way in which some decisions characterized expertise, the Court decided to abandon that concept, but only for the purposes of determining the standard of review:

“[28]    Unfortunately, this contextual analysis proved to be unwieldy and offered limited practical guidance for courts attempting to assess an administrative decision maker’s relative expertise. More recently, the dominant approach in this Court has been to accept that expertise simply inheres in an administrative body by virtue of the specialized function designated for it by the legislature: Edmonton East, at para. 33. However, if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not.”^[37] 

Expertise is therefore incorporated within the organization itself, because of the specialized nature of administrative tribunals, whose expertise is now considered to be inherent to them. This reasoning implies that expertise is based on the specialized nature of the functions performed by the administrative body. However, are we really dealing with specialized functions in the case of a general appeal tribunal such as the TAQ, which [translation] “hears appeals under some 135 statutes […] from a large number of bodies responsible for applying government policies, including the Régie des rentes, the Société d’assurance automobile, all government departments and municipal authorities?”^[38] We leave it to readers to answer that question.

The Court also stated that, in addition to expertise, “the decision maker’s proximity and responsiveness,” flexibility, efficiency and promptness were also behind the legislature’s choice to create a special scheme and to delegate powers to such administrative decision makers.^[39]

In addition, the presumption of reasonableness review is rooted not only in a desire to respect the legislature’s choice but also in an institutional imperative that requires a sphere of autonomy necessary for the exercise of administrative powers:

“[30]    […] In other words, respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid ‘undue interference’ with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of the reasonableness standard: Dunsmuir, at para. 27.”^[40] 

Moreover, although removed from the process of determining the standard of review, “expertise remains a relevant consideration in conducting reasonableness review.”^[41] The Court thus reintroduced expertise, but only for the purpose of assessing reasonableness.

With all due respect, we believe that removing expertise from the process of determining the standard of review and then reintroducing it at the review stage is like taking something away with one hand and giving it back with the other, the only difference being that deference will be exercised afterward rather than beforehand.

For all practical purposes, the result is virtually the same. If there is a change to be observed in this approach, we believe it is primarily symbolic. Symbols matter, however, and in that respect, the move away from expertise in determining the standard marks a turning point that may pave the way for even more significant changes in the future.

Exceptions to the standard of reasonableness

There being no rule without exception, the Court, after setting out the general principle of reasonableness, described the two exceptions to it, which, as we have seen, can be summarized as follows: (1) standards of review prescribed by statute; and (2) the rule-of-law exception.^[42] Since we are concerned here only with the exception involving legislated standards, we will not be looking at the rule of law exception.

In keeping with its desire to give full weight to legislative intent, the Court made a major shift by rehabilitating statutory appeal mechanisms. We use the word “rehabilitate” because, as the reader will recall, prior to Pezim^[43], the existence of a right to appeal meant that the usual rules of appeal were applied. The Supreme Court initiated this shift by basing it on the letter of the law, that is, on the existence of “clear statutory language that prescribes the applicable standard of review.”^[44] In that case, the courts are required to apply the standard of review that is explicitly set out in the law. This implies that the legislature is in principle free to explicitly prescribe the standard of reasonableness or correctness, or even to resurrect the standard of unreasonableness simpliciter. In this area, the only limit is the Constitution.

That being said, the Court noted, the legislature may also express its intent by incorporating an appeal mechanism into the law. In that case, the existence of an appeal mechanism is no longer seen as just one element among others, as had been the case since Bibeault, but must be seen for what it is, namely the intention to entrust the appellate court with the power to “scrutinize” the decision of the administrative body subject to the appeal. In view of the importance of this passage, it is worth reproducing in extenso:

“[36]    We have reaffirmed that, to the extent possible, the standard of review analysis requires courts to give effect to the legislature’s institutional design choices to delegate authority through statute. In our view, this principled position also requires courts to give effect to the legislature’s intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that the court is to perform an appellate function with respect to that decision. Just as a legislature may, within constitutional limits, insulate administrative decisions from judicial interference, it may also choose to establish a regime ‘which does not exclude the courts but rather makes them part of the enforcement machinery’: Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, p. 195. Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis. This expressed intention necessarily rebuts the blanket presumption of reasonableness review, which is premised on giving effect to a legislature’s decision to leave certain issues with a body other than a court. This intention should be given effect. As noted by the intervener Attorney General of Quebec in its factum, [translation] ‘[t]he requirement of deference must not sterilize such an appeal mechanism to the point that it changes the nature of the decision-making process the legislature intended to put in place’: para. 2.

[37]     It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.”^[45] (Our emphasis) 

These passages illustrate the shift in the focus of the Supreme Court’s analysis back to the intent of the legislature. Moreover, the Court makes it clear that the presence of the appeal mechanism itself embodies an expressed intention to necessarily rebut the general presumption of reasonableness review through careful scrutiny of the decision under appeal. This principle is categorically reiterated when the Court writes that “the need for statutory rights of appeal to play a role becomes clearer. Eliminating the contextual approach means that statutory rights of appeal must now either play no role in administrative law or be accepted as directing a departure from the default position of reasonableness review. The latter must prevail.”^[46]

The Court provides three clarifications on the role of the appeal mechanism in relation to the applicable standard of review, namely that:

1. Even where there is a requirement to obtain leave to appeal, “it does not affect the standard to be applied if leave is given and the appeal is heard.”^[47]
2. It is important to be mindful of the wording of the provisions creating a right of appeal, as “not all legislative provisions that contemplate a court reviewing an administrative decision actually provide a right of appeal.”^[48]
3. It is important to consider the scope of the statutory right of appeal, since “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.”^[49] Where judicial review is not precluded by an appeal mechanism, the standard of reasonableness review cannot be rebutted in respect of the question and matters at issue.^[50]

Reasonableness of reasons

First and foremost, it is important to note that the Court’s review of the reasonableness of reasons was conducted within the framework of a judicial review. Therefore, since the standards of review on appeal are the ones set out in Housen, namely that questions of law, statutory interpretation and jurisdiction will be reviewed on the basis of correctness, while questions of fact will be reviewed on the basis of palpable and overriding error^[51], our consideration of reasonableness will be limited.

In particular, this means that the principle that “it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome”^[52] will not apply on appeal, since the appeal allows the court to take the place of the initial decision maker. Nevertheless, an exploration of this concept may be useful in that an understanding of what constitutes a reasonable decision can help to identify the requirements for a decision’s reasons, which are always useful in understanding any standard of review.

The Court initially noted the essential role played by the justification process by pointing out that it has a legitimizing function for public decision makers that promotes the democratic basis on which it is founded through public justification.^[53] First, the Court examined the precepts that underlie reasonableness and also constitute its main characteristics. Second, the Court noted, we need to look at the intrinsic criteria and elements that undermine the reasonableness of a decision.

The precepts and characteristics of reasonableness

In broad terms, the justification process is based on the following precepts:

1. The reasonableness standard of review focuses on the decision-making process and its outcomes;^[54]
2. The reasonableness standard is a unique context-sensitive standard;^[55]
3. Written reasons for a decision should be interpreted in light of the specific case and with due regard for the administrative context in which they are provided;^[56]
4. A reasonable decision is both based on inherently coherent reasoning and justified in light of the legal and factual constraints that affect the decision;^[57]

This last characteristic is made up of two internal and external requirements, namely its logical coherence and its justification in law and in fact. We will now take a brief look at these two categories.

The two types of fundamental flaws

The requirement of intrinsically coherent reasoning

In our view, the essential element of this requirement is the presence of clear inferences, that is, deductive or inductive relationships and connections between the propositions and conclusions that make up the reasoning and the reasons for the decision. The Court put it in the following terms:

“[102]  To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a ‘line-by-line treasure hunt for error’: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that ‘there is [a] line of analysis within the given reasons that  could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived’: Ryan, at para. 55; Southam, at para. 56. Reasons that ‘simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion’ will rarely assist a reviewing court in understanding the rationale underlying a decision and ‘are no substitute for statements of fact, analysis, inference and judgment’: R. A. Macdonald and D. Lametti, ‘Reasons for Decision in Administrative Law’ (1990), 3 C.J.A.L.P. 123 at p. 139; see also Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750, 27 Imm. L.R. (4th) 151, at paras. 57-59.”^[58] 

Hence, the mere juxtaposition of facts or legislative provisions cannot be sufficient. For the decision maker, giving reasons means reproducing the steps in his or her thinking so that the reviewing or appeal court can assess the decision maker’s understanding of the law and how he or she applied it to the facts.

The requirement for legal and factual constraints

Second, a decision must be supported by the law and the facts of the case. Without cataloguing all possible considerations, the Court suggested that the following items should be examined:^[59]

• The governing statutory scheme;
• Other relevant statutes or common law;
• The principles of statutory interpretation;
• The evidence before the decision maker;
• The submissions of the parties;
• Past practices and decisions;
• The impact of the decision on the individual involved.

In addition, we would like to point out a critical element that clearly differentiates Vavilov from Dunsmuir. In the latter, the Court recognized that “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.”^[60] Though not exactly a 180-degree turn, Vavilov, in our opinion, substantially narrows the scope of this previous assertion, particularly in paragraph 121:

“[121]  The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to ‘reverse-engineer’ a desired outcome.”^[61] 

Thus, the administrative decision maker has to engage in a process of interpretation that goes beyond what is plausible, even if it appears to be available and is expedient. In summary, without necessarily requiring a single interpretation, Vavilov restricts the administrative decision maker’s scope of interpretation. However, and this too is critical, the Court clearly recognized that there are cases in which “the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue.”^[62]

We will now consider how these principles affect the interpretation and application of the appeal mechanism under section 159 of the AAJ.

Vavilov’s impact on the appeal process under section 159 of the AAJ

To fully understand Vavilov’s consequences on the appeal mechanism prescribed in section 159 of the AAJ, we need to re-examine the essential distinction between the nature of the appeal and the nature of the judicial review. Although strictly speaking the Court of Québec has never exercised a role of judicial review, it was doing so in practice when it applied the Dunsmuir framework. Vavilov sets things straight by restoring the Court of Québec’s role as a true court of appeal in this regard.

The nature of section 159 of the AAJ and the role of the Court of Québec

As a reminder, the Québec legislature passed the Act respecting administrative justice^[63] in 1996 and supplemented it with the Act respecting the implementation of the Act respecting administrative justice^[64] the following year.

Hence, it was more than 25 years after the article by the late professor and Supreme Court Justice Jean Beetz^[65] was published that the TAQ was finally established in its current form.

While we will not go into the major steps and efforts that led to the adoption of the AAJ, we would be remiss if we did not mention the 1987 Ouellette Report, which can be described as the “spearhead” of administrative tribunal reform.

It is worth noting that in the original Bill 130 introduced by Minister Paul Bégin, the decisions of the new tribunal were final and without appeal. In the fall of 1996, Minister Bégin added a right to appeal to the Court of Québec with respect to decisions of the TAQ.

As we have seen, that appeal was not de plano. An application  to the Court of Québec for leave to appeal was and still is required. Moreover, the right to appeal is restricted to cases heard by the immovable property division and to decisions rendered “in matters concerning the preservation of agricultural land.”

In our view, two main conclusions can be drawn from Vavilov about the AAJ. The first is the Supreme Court’s stated intention to return to the old distinction between appeal and judicial review. Traditionally, judicial review is rooted in the prerogative of the superior courts, which historically exercised review through writs of certiorari and prohibition and were the emanation and embodiment of royal authority in controlling royal officers and keeping peace within the realm.^[66]

This principle was reiterated in Highwood Congregation of Jehovah’s Witnesses,^[67] in which the Supreme Court unanimously reaffirmed the cardinal principle underlying judicial review:

“[13]    The purpose of the judicial review is to ensure the legality of state decision-making: see Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 24 and 26; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220 at pp. 237-38; Knox v. Conservative Party of Canada, 2007 ABCA 295, 422 A.R. 29, at paras. 14-15. Judicial review is a public law concept that allows s. 96 courts to ‘engage in surveillance of lower tribunals’ in order to ensure that these tribunals respect the rule of law:  Knox, at para. 14; Constitution Act, 1867, s. 96.”^[68] (Our emphasis) 

Unlike judicial review, judicial or administrative appeal is derived from the law, and it is the law, and the law alone, that provides for  its existence and scope. In this regard, Professor David Mullan writes, “Just as the right of appeal is a creature of statute, so too is the scope of appeal subject to statutory definition.”^[69] Thus, depending on the intent of the legislature, appeal may sometimes give the reviewer the power to assess the appropriateness of the decision rendered and, where appropriate, to substitute itself to the original decision maker.

In light of the analytical framework set out in Vavilov, legislative intent becomes the true anchor of any analysis to determine the nature of the scheme prescribed  in section 159 of the AAJ. One of the best indicators of that intent is obviously the text itself, but the preparatory work of the parliamentary committee can also be instructive.

A review of the deliberations shows that the question of whether to provide an appeal from TAQ decisions to the Court of Québec was one of the most widely discussed and hotly debated issues among parliamentarians, as the following excerpt shows [translation]:

“For the Minister of Justice, I think it must be a fundamental part of his responsibilities to ensure that the justice system is fair and allows appeals for citizens who are dissatisfied with an administrative decision or feel their rights have been violated. This is a fundamental issue.”^[70] (Our emphasis) 

For his part, Minister Bégin explained the nature of the right to appeal to the Court of Québec under section 159 of the AAJ in the following terms [translation]:

“So, Mr. Speaker, in the matters heard by the immovable property division, first of all, there is the Bureau de révision de l’évaluation foncière, and there is also the TAPTA. These two existing bodies will be transferred to the Tribunal administratif du Québec when the Act comes into force. And we can see that some appeals that were previously planned are covered. So, to say there is a loss of appeal rights, I am sorry, but that is contrary to the very provisions of the current legislation, which provides for appeals where the right to appeal existed previously. There was also the Expropriation Tribunal, and it is also possible, and it will also be possible for appeals to be heard by that Tribunal. So, in the three cases where appeal was possible, it will also be possible in the future. The difference is that, instead of the appeal being automatic, leave to appeal will have to be granted by the Court of Québec. Unless you want to say that the Court of Québec will not exercise its judgment and its good judgment properly on appeals, well, I think we must believe that this is a good way to ensure that there will be appeals in the future where there were appeals in the past. However, to screen out dilatory or vexatious appeals, leave to appeal must be granted by a judge of the Court of Québec, and I am confident that the Court of Québec will render appropriate judgments.”^[71] (Our emphasis) 

From these excerpts, we can clearly see that the Court of Québec’s appellate power was intended to be broad. It is worth noting that the Minister mentioned screening out dilatory or vexatious appeals. This seems to be a departure from the somewhat different conception of the Court of Appeal of Québec, where the legislature specifically restricted appeals to questions of principle, new issues or issues of law that have given rise to conflicting judicial decisions, as set out in article 30 of the CCP: 

“Leave to appeal is granted by a judge of the Court of Appeal if that judge considers that the disputed issue is one that should be submitted to the Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions.” 

Interpreted in context, the phrase “for example” at the beginning of the enumeration in article 30 does not open the door to any other question, but rather, in accordance with the ejusdem generis rule of interpretation, limits the conditions and elements included in the enumeration to matters of the same order or kind.^[72] However, there is no such limitation in section 159 of the AAJ. This lack of formal limitation reflects the legislature’s intent to give the Court broad authority to intervene on questions of law. Although it is the minority view, we believe that the conception set out in Forages Garant is well founded in law.

In this regard, Bill 32, An Act mainly to promote the efficiency of penal justice and to establish the terms governing the intervention of the Court of Québec with respect to applications for appeal^[73] provides an even firmer legislative foundation. Section 84 of the Bill amends section 83 of the Courts of Justice Act^[74] by inserting the following:

“83.1 In cases where the law confers jurisdiction on the Court over an appeal of a decision made in the exercise of an adjudicative function, or over a contestation of a decision made in the exercise of an administrative function, the Court shall render its decision without being required to defer to the conclusions on issues of law ruled on by the decision under appeal or on any issues regarding the decision being contested.

Such jurisdiction shall be exercised exclusively by the judges of the Court designated by the chief judge on the basis of their notable experience, expertise, sensitivity and interest regarding the matter that is the subject of the appeal or the contestation.

Unless otherwise provided and with the necessary modifications, the appeal is governed by articles 351 to 390 of the Code of Civil Procedure (chapter C-25.01) and the proceeding to contest is governed by the rules of that Code that are applicable to a court of original jurisdiction.”  

First, we note that this provision clearly distinguishes between an adjudicative function and an administrative function. In accordance with the principles set out in Housen^[75], non-deference applies only to questions of law decided by a body exercising an adjudicative function, whereas the administrative decision will be subject to review on “all questions,” including questions of fact. The reader will recall that the adjudicative, or quasi-judicial, function is traditionally characterized by an administrative decision maker that meets the following criteria:

“It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.

1. Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
2. Does the decision or order directly or indirectly affect the rights and obligations of persons?
3. Is the adversary process involved?
4. Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?^[76]

In addition to noting that this is not an exhaustive list, the Supreme Court stated that no one of these factors is necessarily determinative.^[77] We can of course say with certainty that the TAQ exercises such adjudicative functions.^[78]

Second, the fact that the chief justice is required to designate certain judges because of “their notable experience, expertise, sensitivity and interest regarding the matter that is the subject of the appeal” indicates the intention to allow litigants to benefit from the particular skills and qualifications possessed by certain judges.

Nevertheless, while in no way impugning those judges’ thoroughness and expertise, we believe that this should not be seen as a specialization of functions similar to those found in administrative tribunals. Most of the time, those attributes are used to describe institutional expertise rather than the administrative decision makers themselves, although there are also individuals who are expert decision makers.

Lastly, the decision to have the rules for appeals to the Court of Québec largely governed by the procedures for appeals to the Court of Appeal demonstrates the intent to give the Court of Québec a greater role in its functions as an appellate court for the TAQ decisions. However, the phrase “unless otherwise provided and with the necessary modifications” also indicates that, as a general rule, and in accordance with the generalia specialibus non derogant principle, more specific legislative provisions will prevail over these rules. Therefore, the specific provisions of the AAJ should, in principle, take precedence in the event of a conflict. It is important to keep in mind, though, that harmonious interpretation should be favoured.

The case law before and after Vavilov

As we have seen, the two approaches that have continued to coexist regarding the interpretation of section 159 of the AAJ are set out in Lamarche, which represents the legalistic majority view, and in Forages Garant, which represents the more interventionist minority view.^[79]

On the same day that Vavilov was handed down, i.e., December 19, 2019, the Court of Québec rendered its decision in Lubecki^[80], which applied the interpretation espoused in Lamarche. Lubecki is a perfect example of the legalistic approach that still prevails for the interpretation of section 159 of the AAJ, as the Court did not have the benefit of the framework developed in Vavilov.

In that case, the Court of Québec had to determine whether to grant leave to appeal an expropriation compensation decision for which appellant Lubecki had initially made an application for review. In other words, it was an application for leave to appeal a review by the TAQ, which, under section 154 of the AAJ, reviewed its own decision, either because of a new fact that was unknown at the time of the original decision, because of a breach of the audi alteram partem rule, or because of a substantive defect. The Court of Québec stated that the criteria for granting leave to appeal were known and, in a footnote, referenced Lamarche and its four criteria (serious, controversial matters, novel or of public interest) [translation]:

“20  The criteria for granting leave to appeal are well-known and can be summarized, perhaps simplistically, as requiring that the question be serious, controversial, novel or of public interest.

21  Again, it is worth repeating: the proper inquiry is not whether TAQ1 made errors or could have made a different decision on the evidence before it. The real question to be decided is whether TAQ2 reviewed TAQ1 correctly.

22  Even if TAQ2 had reviewed TAQ1 incorrectly, the Tribunal must still give deference to TAQ1, a tribunal that specializes in these matters, and assess whether, again, the alleged error is one that warrants leave to appeal, i.e., whether the question is serious, controversial, novel or of public interest.

23  With all due respect to the skilful representations of the appellant, I find it impossible to see any of these matters as being questions of public interest. Only the appellant is concerned, and any errors in weighing the evidence are of concern only to him.

24  Nor is it argued that these are novel or controversial questions. The concepts of frontage, single or double, rear or side, are not new, nor is the application of deductions for various considerations, such as goodwill, the passage of a power line, or the shape of a lot making it in part of little value, to cite only these examples, which do not raise any novel or controversial questions.”^[81] (Our emphasis) 

It is worth noting that no consideration was given to whether the “concepts of frontage, single or double, rear or side” themselves were properly understood or defined, the Court merely examining whether there were any serious, controversial, novel or public-interest questions. In sum, the Court focused solely on the “serious, controversial, novel, or in the public interest” criteria and ignored the legal concepts.

In light of the pre-Vavilov criteria, however, that decision is well-founded, in our view, since the Court of Québec is acting here as the Superior Court. In St-Pie, Justice Dalphond stated the principle in the following terms [translation]:

“36  Both the Court of Québec, in the context of an appeal from a decision of the TAQ, and the Superior Court, in the context of a judicial review of the Court of Québec’s judgement, are subject to standards of review or parameters of intervention (Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., [2008] 2 S.C.R. 195; Boerboom c. C.P.T.A.Q. et autres, 2008 QCCA 241, J.E. 2008-394; Hubert-Universel inc. (Eurest) c. L’Assomption (Ville de), [2006] R.J.Q. 2391 (C.A.); Lapray Realties Ltd. c. Montréal (Ville de), J.E. 2005-1073 (C.A.)).

37  In the case of the Court of Québec, it must also respect the limits specifically prescribed by the legislature in s. 161 of the AAJ, including the fact that the remedy before it is an appeal on the record, as well as the principles of deference that apply when a court is asked to review the decision of a specialized administrative body such as the TAQ (Proprio Direct inc., supra). If its intervention is warranted, it may grant the relief expressly permitted by the statute that created the right to appeal.”^[82] (Our emphasis) 

Thus, under the analytical framework for a judicial review, which made the decision maker’s expertise central to its review, deference was due, including in respect of the leave to appeal which had quietly become a judicial review. However, as we have seen, this analytical framework has fallen out of use since Vavilov.

There are not many post-Vavilov decisions from the Court of Québec hearing appeals from TAQ decisions. A number of decisions by the Court of Québec on appeal from the TAQ did not cite Vavilov at all, even though the latter was available when the judgments were handed down.^[83] However, we have selected three detailed judgments reflecting the state of the law on this matter since the beginning of 2020.

Ville de Terrebonne

The first case is Ville de Terrebonne.^[84] In September 2015, the expropriating city served expropriation notices to the expropriated parties for over 7 million square feet of land, for the purpose of land banking for the establishment of biodiversity corridors, woodlands of interest and green space.

During the expropriation proceedings, the expropriating party acquired all of the land following payment of a provisional indemnity totalling $23,981,000 and, upon delivery of the notices of the transfer of title, the provisional indemnity was unilaterally set by the expropriating party under section 53.11 of the Expropriation Act.

According to the expropriated parties, the provisional indemnity was equal to the value of the land and did not include any amount for the loss of profits incurred by the companies that were real estate developers. For the expropriated parties, the total indemnity claimed before the TAQ was over $113 million. In September 2018, citing an additional delay, the expropriated parties asked the TAQ to grant them an additional sum of $35,120,000 based in part on section 53.13 of the Expropriation Act, since they were operating a business. On January 25, 2019, the TAQ handed down an initial decision and dismissed the motion to dismiss.

The expropriating party sought judicial review of this decision, presenting arguments based on the same grounds before the Superior Court. On July 9, 2019, the appeal for judicial review was dismissed by Justice Lamarche.

The TAQ’s decision was issued on September 11, 2019. The TAQ held that the amount that the expropriated parties had already received was sufficient pending completion of the proceedings before the Tribunal, despite the extension of the hearing. For this reason, it concluded that the expropriated parties’ request for an additional provisional indemnity (“API”) was unfounded. The expropriated parties then applied for leave to appeal the latter decision of the TAQ.

The TAQ circumscribed the debate by formulating the following issues:

• Is expropriated land covered by the concept of a business in section 53.13 of the Act?
• If so, is the provisional indemnity already paid sufficient to enable the expropriated parties to await the outcome of the deliberation on the merits without suffering undue harm to the continuity of their operations?
• If not, does this shortfall in the provisional indemnity have to jeopardize the operations of the expropriated parties in order for an API to be paid? And if so, does any such jeopardy exist?
• If an API is to be paid, what additional amount should the expropriating party pay to the expropriated parties for this purpose, and how should it be determined?

On appeal, the Court of Québec addressed the following questions:

• Is this an appealable interlocutory decision?
• Did the TAQ err in applying the calculation method used to calculate the additional provisional indemnity?
• Did the TAQ err in refusing to rule on the evidence it heard on the grounds that it wanted to avoid prejudging the final indemnity?
• Did the TAQ err in applying the wrong burden of proof as to whether the development costs of the parks in Phase 1 of Urbanova-Centre would have to be paid by 2020?

The Court of Québec noted that the application for leave was governed by section 159 of the AAJ. It also noted that Vavilov represented a dramatic shift in the standard of review for a decision for which a statutory right to appeal exists.^[85] However, it took the view that the analytical framework set out in Vavilov applied to the appeal on the merits and not at the application stage.^[86]

In summary, the Court was of the opinion that the TAQ decision was interlocutory in nature and did not have an irremediable effect on the dispute between the parties. It may be remedied by the TAQ’s final decision.^[87]

Hence, in this case, the Court held that the decision could not be appealed. In the Court’s view, it was clear that the TAQ’s decision on the API did not have a definitive effect on the dispute and that the decision on the merits of the expropriation indemnity would determine, on the basis of much more detailed evidence, the amounts to which the expropriated parties would be entitled.^[88]

The Court then addressed the issue of the application of the method used to calculate the API. It was of the opinion that the issues submitted, namely the fees of API experts and the legal fees, as well as the claims that the TAQ refused to add the value of the replacement land for the remainder of the Terres du Bas (TdB) sector, were not matters that merited the Court’s consideration [translation]:

“66  This issue does not have even one of the attributes required of issues to be submitted to the Court of Québec; its only purpose is to give the expropriated parties another opportunity to put forward the same arguments as those made before the TAQ, which do not differ from their particular interests.

67  The same reasoning applies to the TAQ’s refusal to consider the development of the parks at a cost of $1,000,000 since the evidence provided indicates that this expenditure is unlikely to be incurred before the summer of 2020.”^[89] 

With respect to the TAQ’s decision to consider the possibility of reducing cash flow requirements based on the possibility of mortgage financing, that conclusion was dependent on the summary evidence considered at the API stage and, while relevant, that evidence could be reviewed in the final judgment, in the Court’s view.^[90]

On the question of the evidence regarding the TAQ’s arbitrary choice in favouring without justification the expropriating party’s position with respect to the value of the land and of the TAQ’s alleged refusal to rule on the evidence presented and thus to have deliberately refused to exercise its jurisdiction, the Court was of the opinion that the expropriated parties were attempting to turn a question of assessment of the summary evidence submitted into a question of jurisdiction.^[91] The Court therefore held that the evidence had been considered and that the questions addressed were within the jurisdiction of the original decision maker.^[92]

Ultimately, the Court did not consider the question to be serious, controversial, novel or of public interest. There were no grounds for appeal on the questions submitted by the expropriated parties. Consequently, the application for leave to appeal the TAQ expropriation decision was dismissed.

In our view, the particular context of this case is not appropriate for an analysis under the Vavilov framework because the principles specified therein are unlikely to be applicable in the context of an interlocutory appeal, which is generally a matter for statutory proceeding. We therefore believe that the principles set out in Vergers Leahy^[93] are still applicable because of the wording of the AAJ. However, while we agree with the conclusion that the TAQ’s decision is not entitled to deference, we believe that the Court erred in law when it stated that, even after Vavilov, the criteria set out in Windsor continue to apply at the leave application stage.^[94]

As we have seen, Windsor, like Lamarche, was based in large part on an essentially formal reading of section 159 of the AAJ. However, in view of the importance that Vavilov attaches to the legislature’s intent to establish an appeal mechanism, we believe that the principles set out in Vavilov should prompt the Court of Québec to adopt the approach espoused by Justice Lavergne in Forages Garant, where the Court stated that it must take care not to limit itself with inflexible criteria that could ultimately distort the right to appeal itself.^[95] Part of Justice Lavergne’s reasoning is worth reproducing here in extenso [translation]:

“39 First, judicial restraint is exercised as the appellate bodies consider the merits of the decision and of the findings that lead to it.

40  It is not appropriate for this exercise to take place at the stage where the issue is simply whether leave to appeal will be given, for doing so not only usurps the work of the Court sitting on appeal but also risks perverting the right of appeal itself.

41  Second, it bears repeating that section 159 of the Act imposes no limit, in terms of scope or content, on the right of appeal.

42  Depriving a disappointed litigant of his or her right of appeal on the ground that the contested decision was made by a specialized body within the scope of its expertise does not appear to be compatible with the right of appeal conferred by section 159. While consideration of the serious, novel, controversial or public-interest nature of the matter at issue is not ruled out, it is far from certain that it is a sine qua non for the right to appeal a decision of the Tribunal.”^[96] (Our emphasis) 

Forages Garant now seems almost to foreshadow the desire to have the right to appeal prescribed by the legislature prevail over the expertise of the specialized administrative tribunal. Moreover, this view is consistent with the Court’s statement in Vavilov that “[w]hile the existence of a leave requirement will affect whether a court will hear an appeal from a particular decision, it does not affect the standard to be applied if leave is given and the appeal is heard.”^[97] This clarification by the Supreme Court implies that the leave process does not justify attenuating or limiting the Court’s power to intervene on the merits of the case in its appeal role.

That being said, the logical extension of this principle is the same as the one previously stated in Forages Garant, namely that the exercise of judicial restraint risks nipping in the bud the unlimited right to appeal that the legislature has given the appellant. In this regard, Minister Bégin indicated that the purpose of leave to appeal was to screen out dilatory or vexatious appeals.^[98] Accordingly, even though it concerns an interlocutory decision, we are of the opinion that the legalistic approach espoused in this decision goes against the spirit of Vavilov.

Ville de Laval

The second decision reviewed, Ville de Laval^[99], was made in the context of a judicial review of a decision of the Court of Québec, issued on January 24, 2019, by Justice Alain Trudel (the “Trudel decision”), dismissing an application for leave to appeal a TAQ decision. Needless to say, Justice Trudel could not apply the Vavilov criteria at that time because Vavilov had not yet been handed down. Nevertheless, the Superior Court based its reasons in part on the analytical framework set out in Vavilov. The issue under review was the TAQ’s decision granting an application by the Marist Brothers to prevent the assessment unit in question from being registered in the name of the tenant, 9094, rather than in the name of the owner, the Marists.

The Court of Québec had held that the decision was not one that should be brought before the Court, as it was not novel, serious, controversial or of public interest.^[100] The Superior Court first took note of Vavilov and made it clear that [translation]:

“14  In the trilogy issued by the Supreme Court in connection with Vavilov, the Court analyzes and clarifies the applicable law to the review of administrative decisions as discussed in Dunsmuir.

15  The Supreme Court adopts a revised framework of analysis based on the presumption that reasonableness is the applicable standard in all cases. It states that reviewing courts should override this presumption only where there is a clear indication of legislative intent or where the rule of law so requires.

16  This would be the case where the legislature indicates that it wishes to apply a different standard or set of standards.

17  This is the case when the legislature prescribes a right to appeal for an administrative decision: the court hearing the appeal must use the applicable appeal standards in reviewing the decision.”^[101] 

After reviewing the reasonableness criteria in Vavilov, the Superior Court mechanically reiterated the applicable criteria for leave to appeal under section 159 of the AAJ to determine whether the Court of Québec had applied them correctly and confirmed that the Court of Québec had applied consistent case law in recognizing that leave to appeal must be granted when the Tribunal is presented with serious, controversial, novel or public-interest questions.^[102]

First, the Superior Court applied the reasonableness test in accordance with Vavilov and concluded that the Court of Québec had rendered a reasonable decision when it asserted that the question submitted was not novel. Second, the Superior Court said, the Court of Québec had also considered the evidence submitted and had not confused the legal status of landlord and tenant.^[103] Third, the Superior Court held that the Court of Québec’s decision that the interpretation of the Act respecting municipal taxation was not controversial was reasonable.^[104] In summary, the Superior Court concurred with the Court of Québec’s reasons for denying leave to appeal by applying the four Lamarche criteria.

Clearly, this judgment, like the other decisions, simply parrots the principles in Lamarche, despite the clarity of the Supreme Court’s statements. The Superior Court said nothing about the radical shift that Vavilov represents regarding appeals. However, although conventional in its structure and reasons, without having taken the measure of Vavilov, this decision is nonetheless relevant because of the lucidity of its findings on the dilemma faced by any Court of Québec judge sitting in appeal of a TAQ decision [translation]:

“94.  In closing, it can be argued that the Trudel decision discusses the merits of the case when only leave to appeal is at issue. Yet it is difficult to avoid at least a cursory examination of the decision being appealed when characterizing the questions to be raised in the appeal. In the Court’s view, this is what Justice Trudel does.”^[105] 

The Superior Court is quite right to point out that any judge sitting on appeal from a TAQ decision is more or less obliged to assess the merits of the case, if only prima facie, because the approach advocated in Lamarche is so focused on limiting appeals by filtering the questions submitted that it leads the Court to rule on the merits of the dispute.