Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684.

1. 65 of The Public Utilities Board Act entitled the Alberta Public Utilities Board "to be heard ... upon the argument of any appeal"

In his reasons, Estey J. held at pages 708-9:

Under s. 63(2) a distinction is drawn between "parties" who seek to appeal a decision of the Board or were represented before the Board, and the Board itself. The Board has a limited status before the Court, and may not be considered as a party, in the full sense of that term, to an appeal from its own decisions. In my view, this limitation is entirely proper. This limitation was no doubt consciously imposed by the Legislature in order to avoid placing an unfair burden on an appellant who, in the nature of things, must on another day and in another cause again submit itself to the rate fixing activities of the Board. It also recognizes the universal human frailties which are revealed when persons or organizations are placed in such adver­sarial positions.

This appeal involves an adjudication of the Board's decision on two grounds both of which involve the legality of administrative action. One of the two appellants is the Board itself, which through counsel presented detailed and elaborate arguments in support of its decision in favour of the Company. Such active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tri­bunal either in the case where the matter is referred back to it, or in future proceedings involv­ing similar interests and issues or the same parties. The Board is given a clear opportunity to make its point in its reasons for its decision, and it abuses one's notion of propriety to countenance its partici­pation as a full-fledged litigant in this Court, in complete adversarial confrontation with one of the principals in the contest before the Board itself in the first instance.

It has been the policy in this Court to limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction…. Where the right to appear and present arguments is granted, an administrative tribunal would be well advised to adhere to the principles enunciated by Aylesworth J.A. in International Association of Machinists v. Genaire Ltd. and Ontario Labour Relations Board, at pp. 589, 590:

Clearly upon an appeal from the Board, counsel may appear on behalf of the Board and may present argu­ment to the appellate tribunal. We think in all propriety, however, such argument should be addressed not to the merits of the case as between the parties appearing before the Board, but rather to the jurisdiction or lack of jurisdiction of the Board, If argument by counsel for the Board is directed to such matters as we have indicated, the impartiality of the Board will be the better empha­sized and its dignity and authority the better preserved, while at the same time the appellate tribunal will have the advantage of any submissions as to jurisdiction which counsel for the Board may see fit to advance.

Where the parent or authorizing statute is silent as to the role or status of the tribunal in appeal or review proceedings, this Court has confined the tribunal strictly to the issue of its jurisdiction to make the order in question. (Vide Central Broadcasting Company Ltd. v. Canada Labour Rela­tions Board and International Brotherhood of Electrical Workers, Local Union No. 529.)

In the sense the term has been employed by me here, "jurisdiction" does not include the transgres­sion of the authority of a tribunal by its failure to adhere to the rules of natural justice. In such an issue, when it is joined by a party to proceedings before that tribunal in a review process, it is the tribunal which finds itself under examination. To allow an administrative board the opportunity to justify its action and indeed to vindicate itself would produce a spectacle not ordinarily contem­plated in our judicial traditions.

Canadian Assn. of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983:

LaForest J.:

Standing of the Industrial Relations Council

The union argued that the Industrial Relations Council, having had the opportunity in two lengthy sets of reasons to offer a rational basis for its conclusion, has no standing to make submissions before this Court in support of the reasonableness of its decision.  It takes the position that while the Board could legitimately show that it had jurisdiction to embark upon the enquiry it did, a point the union concedes in any event, it cannot argue that it has not subsequently lost that jurisdiction through a patently unreasonable decision.  With respect, I cannot accept this argument.  In my view, the Industrial Relations Council has standing before this Court to make submissions not only explaining the record before the Court, but also to show that it had jurisdiction to embark upon the inquiry and that it has not lost that jurisdiction through a patently unreasonable interpretation of its powers.

In Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684, Estey J., for a unanimous Court, commented on the right of an administrative tribunal to make submissions before the Court.  In that case, the Public Utilities Board Act, R.S.A. 1970, c. 302, s. 65, conferred on the Public Utilities Board a specific right to be heard on the argument of any appeal from its decisions, but by implication in s. 63(2), it was precluded from bringing an appeal….

In these circumstances, the tribunal is limited to an explanatory role and "to the issue of its jurisdiction to make the order in question".

Estey J. then, however, limited the meaning of jurisdiction so as not to "include the transgression of the authority of a tribunal by its failure to adhere to the rules of natural justice".  He continued (p. 710):

In such an issue, when it is joined by a party to proceedings before that tribunal in a review process, it is the tribunal which finds itself under examination.  To allow an administrative board the opportunity to justify its action and indeed to vindicate itself would produce a spectacle not ordinarily contemplated in our judicial traditions.

At first sight, this may seem to conflict with Lamer J.'s comments in Bibeault v. McCaffrey, [1984] 1 S.C.R. 176, at p. 191, that:

. . . an infringement of the audi alteram partem rule in the case at bar postulates a patently unreasonable interpretation of s. 32 L.C.  Such an interpretation by the commissioners, the judge or the Labour Court would in itself be an excess of jurisdiction of the kind recognized by the above-cited decisions of this Court as conferring on the [commissioners] the necessary interest (locus standi) to be appellants.

There is, however, no conflict between these two decisions if it is recognized that the right to be heard was, in that case, a statutory right, and the issue for decision by the Labour Commissioners was as to the scope of that right.  It is not every case in which a denial of natural justice will flow from a patently unreasonable interpretation of a statute.  In the latter case, however, the administrative tribunal will be able to make certain limited submissions.

In British Columbia Government Employees' Union v. Industrial Relations Council (unreported, B.C.C.A., May 24, 1988), the British Columbia Court of Appeal held that the Industrial Relations Council had the right to make the submissions that the court below had erred in substituting its judgment for that of the Industrial Relations Council, and that the court erred in finding the Council's interpretation of the Act to be patently unreasonable.  In the course of his judgment, Taggart J.A. for the court made the following statement with which I am in complete agreement, at p. 13:

                    The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position.  But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions.  That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area.  In some cases, the parties to the dispute may not adequately place those considerations before the court, either because the parties do not perceive them or do not regard it as being in their interest to stress them.

 Before this Court, the Industrial Relations Council confined its submissions to two points.  It first argued that the Court of Appeal erred in applying the wrong standard of review to the decision of the Board.  It submitted that the Court of Appeal reviewed for correctness instead of for reasonableness.  As I have already indicated, I agree that the Court of Appeal erred in adopting such an approach.  The second branch of the Council's submissions was to show that the Board had considered each of the union's submissions before it, and had given reasoned, rational rejections to each of the arguments.  The argument before us emphasized that the Council had made a careful review of the relevant authorities and had made a decision that was within its exclusive jurisdiction.  At no point did it argue that the decision of the Board was correct.  Rather it argued that it was a reasonable approach for the Board to adopt.  The Council had standing to make all these arguments, and in doing so it did not exceed the limited role the Court allows an administrative tribunal in judicial review proceedings.

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), [2005] 75 O.R. (3d) 309 (CA):

[25] Against this rather clouded jurisprudential backdrop, I think the analysis of the scope of standing to be accorded to the Commissioner in this case must begin with the relevant legislation. Section 9(2) of the Judicial Review Procedure Act reads:

9(2) For the purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application.

[26] The ordinary meaning of this provision gives the administrative tribunal the right to be a party to the proceeding if it chooses to do so. It leaves to the tribunal rather than the court the decision of whether to become a party to the application for judicial review.

[27] However, once a party, the scope of a tribunal's standing is a subject not addressed by the legislation. Although the legislature could have pre-empted the debate by spelling out precise limits to a tribunal's participation, it has chosen not to do so. The legislation's silence necessarily leaves this issue to the court's discretion, as part of its task of ensuring that its procedures serve the interests of justice. Where the issue arises, the court must exercise this discretion to determine the scope of standing to be accorded to a tribunal that is a party to a judicial review proceeding.

…

[33] As I have said, s. 9(2) of the Judicial Review Procedure Act entitles the administrative tribunal to be a party to the proceedings but leaves to the court's discretion the scope of its standing. Given the wide variety of administrative tribunals and types of decisions that are today subjected to judicial review, I agree that the court should exercise this discretion paying attention to the context presented in the particular application. However, I think it is both unnecessary and confusing to use the "pragmatic and functional" label. This phrase has developed a strong association with the quite different task of determining the proper standard of review and with the well-known factors embodied in that approach, which will not automatically be useful in determining the scope of standing.

[34] However, I agree with the parties that a context-specific solution to the scope of tribunal standing is preferable to precise a priori rules that depend either on the grounds being pursued in the application or on the applicable standard of review. For example, a categorical rule denying standing if the attack asserts a denial of natural justice could deprive the court of vital submissions if the attack is based on alleged deficiencies in the structure or operation of the tribunal, since these are submissions that the tribunal is uniquely placed to make. Similarly, a rule that would permit a tribunal standing to defend its decision against the standard of reasonableness but not against one of correctness, would allow unnecessary and prevent useful argument. Because the best argument that a decision is reasonable may be that it is correct, a rule based on this distinction seems tenuously founded at best as Robertson J.A. said in United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd., [2002] N.B.J. No. 114, 249 N.B.R. (2d) 93 (C.A.), at para. 32.

[35] Nor do I think cases like Northwestern and Paccar, supra, dictate the use of precise rules of this sort. Particularly in light of the recent evolution of administrative law away from formalism and towards the more flexible practical approach exemplified by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, I think these cases are best viewed as sources of the fundamental considerations that should inform the court's discretion in the context of a particular case. Resolving the scope of standing on this basis rather than by means of a set of fixed rules is likely to produce the most effective interplay between the array of different administrative decision-makers and the courts.

         …

[42] In this case the Children's Lawyer raises such a consideration. She says that the tribunal's standing should not extend to defending its decision on a ground that it did not rely on in the decision under review. The argument is that this "bootstrapping" undermines the integrity of the tribunal's decision-making process. It is akin to the impartiality concern in that a tribunal seeking to justify its decision in court on an entirely different basis than that offered in its reasons may well cause those adversely affected to feel unfairly dealt with. However, it goes beyond impartiality. The importance of reasoned decision making may be undermined if, when attacked in court, a tribunal can simply offer different, better, or even contrary reasons to support its decision. Where a tribunal takes such a course, this will become an important consideration in determining the extent of the tribunal's standing.

[43] Ultimately, if the legislation does not clearly articulate the tribunal's role, the scope of standing accorded to a tribunal whose decision is under review must be a matter for the court's discretion. The court must have regard in each case, to the importance of a fully informed adjudication of the issues before it and to the importance of maintaining tribunal impartiality. 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.

[44] The last of these factors will undoubtedly loom largest where the judicial review application would otherwise be completely unopposed. In such a case, the concern to ensure fully informed adjudication is at its highest, the more so where the case arises in a specialized and complex legislative or administrative context. If the standing of the tribunal is significantly curtailed, the court may properly be concerned that something of importance will not be brought to its attention, given the unfamiliarity of the particular context, something that would not be so in hearing an appeal from a lower court. In such circumstances the desirability of fully informed adjudication may well be the governing consideration….

[47] Several aspects of this case clearly demonstrate the importance of full tribunal participation in the judicial review to ensure a fully informed adjudication of the issues.

[48] From the beginning, the requester has played no part in the proceedings. As the Divisional Court noted, it would be left with only one party, the Children's Lawyer, if the tribunal were denied standing. There would be nobody charged with defending [page322] the decision under review, a problem not solved by the appointment of the amicus, whose appointment was for the purpose of making the submissions it deemed appropriate. Traditionally, an amicus does not act on behalf of any party nor is it meant to defend the position of the tribunal.

[49] As well, the specialized nature of the statutory scheme administered by the Commissioner has long been recognized by this court. See Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464, [1998] O.J. No. 3485 (C.A.), at pp. 472-73 O.R. The issues raised in the judicial review require the court to understand two specific provisions in that scheme (s. 13 relating to the advice of a public servant and s. 19 relating to Crown litigation privilege). With full standing, the Commissioner's expert familiarity with the statute provides an important assurance of a fully informed adjudication. This is not a role that an amicus could be expected to fill.

[50] On the other hand, both the nature of the tribunal here and the nature of the issues suggest that the impartiality consideration is not a significant brake on full standing for the Commissioner.

[51] Under FIPPA, the Commissioner sits on the appeal from a decision of the head of a government institution about whether the legislation requires disclosure of records to the public at the behest of a requester. On appeal, the head is not defending his or her private interest, or that of the institution, but his or her decision interpreting the legislation and applying it to the circumstances. Nor is the requester seeking private access but access for the public. FIPPA provides that the process used by the Commissioner to decide the appeal is inquisitorial, not simply adversarial. All of this shifts the nature of the tribunal somewhat away from a court-like model and mutes the impartiality concern.

[52] Similarly the issues raised by this judicial review application are fundamentally ones of statutory interpretation. Although they arise in a particular factual context, they are not applicable only to the Children's Lawyer and the requester. If the Commissioner were to address the court on these issues, its ability to act impartially in future cases, even ones involving this government head and this requester, would not be adversely affected any more than its original decision on the same issues could be said to carry that consequence.

[53] The final consideration in this case is the importance of preserving the integrity of the administrative tribunal's decision making. The appellant argues that this is undermined if the Commissioner is given standing to defend her decision in court on an entirely different basis than that offered in her reasons for decision. There is no doubt that this is a valid consideration. The only question is whether in this case it warrants curtailing the scope of the Commissioner's standing.

Brewer v. Fraser Milner Casgrain, 2008 ABCA 160:

33     The helpful and thorough factum and supplementary argument by Ms. Brewer's counsel fairly point out some other cases. Some more recent decisions of some other courts of appeal would expand the Northwestern Utilities rule a little, and suggest that the statutory tribunal's counsel can also argue before the superior court the topics such as the standard of review. How courts of appeal can contradict the narrower test in the Supreme Court's Northwestern Utilities case is obscure.

34     Some dicta let counsel for the tribunal argue the standard of review (on someone else's appeal), e.g. La Forest J. in Cdn. Assn. of Ind. Mechanics and Allied Workers v. Paccar of Can. (Cdn. Kenworth) [1989] 2 S.C.R. 983, 1016, 102 N.R. 1, 62 D.L.R. (4th) 437. That is a judgment by only two of the six judges deciding (though one dissenter took a similar view). The rest of the Court did not mention the topic, which was in no way necessary to the decision. Not every Supreme Court of Canada dictum binds, especially when it is inconsistent with another Supreme Court of Canada decision, still less when the dictum is not in a majority decision. Still weaker is the implied distinction between standard of review and explaining the decision (on the one hand) and merits (on the other). I find that more than one-half the way down a slippery slope, in many cases.

37     The policy of Canadian law (and doubtless English law) is plain. The statutory tribunal should be patently neutral. It cannot do that if it dons the uniform of one army, still less if it enters that army's front line and joins its bayonet charge.

38     Most statutory tribunals (unlike a commission of inquiry) are permanent bodies. So these same parties may well be back before the same tribunal with a similar dispute. Worse still, they may well soon be back before the same tribunal with this identical case. Judicial review merely lets the Court of Queen's Bench quash or not quash; its modern power to amend (R. 753.07) is extremely limited. Therefore, very often the Court of Queen's Bench sends the matter back to the tribunal to try again: see R. 753.06. In effect that is what Queen's Bench did here. See Edm. v. Northwestern Utilities, supra, at 709 (S.C.R.); Bell Can. v. Communication etc. Union (1996) 121 F.T.R. 42, 44 Admin L.R. (2d) 250 (paras. 8, 10). On the danger of bias thereby created, see Clayre v. Assn. of Prof. Eng. etc., 2005 ABCA 59, 363 A.R. 114.

39     These restrictions on the scope of any role of the statutory tribunal in the superior court must influence any decision of the right of the statutory tribunal to appeal. We cannot have inconsistent rules on the two related subjects: see Part G. Indeed, the Supreme Court of Canada decisions on the two subjects are consistent, as we will see in Part H.

53    … It is one thing to let the tribunal submit some argument on a topic like jurisdiction when someone else is pursuing a valid appeal. The role of that argument is directed only to the Court of Appeal's law-making (precedential) powers, not to the result in the particular case. That extra argument costs the other parties little. It is very different to let a tribunal itself appeal when no one else wants to appeal. That appeal would be directed at changing the result in this case, and would create litigation, delay, uncertainty, and expense. It would turn the tribunal into a litigant pure and simple, the enemy of a citizen (or government), just because he or she won in the superior court.

Section 15 of the Judicial Review Procedure Act, [RSBC 1996] C. 241 provides:

Notice to decision maker and right to be a party

15  (1) For an application for judicial review in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power

(a) must be served with notice of the application and a copy of the petition, and

(b) may be a party to the application, at the person's option.

(2) If 2 or more persons, whether styled a board or commission or any other collective title, act together to exercise a statutory power, they are deemed for the purpose of subsection (1) to be one person under the collective title, and service, if required, is effectively made on any one of those persons.

British Columbia (Securities Commission) v. Pacific International Securities Inc., [2002] B.C.J. No 1480 (C.A.):

39     The vitality of the rule in Northwestern Utilities has been sapped only slightly in the intervening years.

40     In Bibeault v. McCaffrey, [1984] 1 S.C.R. 176, the court made an exception where the right to be heard was a statutory right and the question was whether the tribunal had made a patently unreasonable interpretation of the statute in deciding the scope of the right. Similarly, in CAIMAW v Paccar of Canada Ltd., [1989] 2 S.C.R. 983, a specialized tribunal was permitted to argue that the standard of review was reasonableness, not correctness, and that it had made a rational decision within its exclusive jurisdiction without arguing that its decision was correct. La Forest J., writing for the majority, expressed agreement, at 1016, with Taggart J.A. in BCGEU v British Columbia (Ind. Relations Council) (1988), 26 B.C.L.R. (2d) 145 at 153 (C.A.), where he said per curiam:

The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position. But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area. In some cases, the parties to the dispute may not adequately place those considerations before the court, either because the parties do not perceive them or do not regard it as being in their interest to stress them.

45     This proceeding is a statutory appeal, not a judicial review, and there is no common-law principle that can be invoked to confer standing on an administrative tribunal in a statutory appeal from one of its decisions conducted between the parties to the dispute. The parties may, however, raise issues touching on the jurisdiction of the tribunal, and it would be a "curious anomaly" if such tribunals were precluded from appearing on issues concerning their jurisdiction in statutory appeals when they may do so in ancillary judicial review proceedings...

46     Accordingly, it is my view that the legislative intent underlying the enactment of s. 167(5) of the Securities Act was to confer on the Securities Commission the same rights of appearance in statutory appeals from its decisions as are enjoyed by administrative tribunals in judicial review proceedings. In other words, the Commission is governed by the rule in Northwestern Utitilities.

47     None of the encroachments on the rule that I have identified is applicable here. To permit the Commission to argue the merits on the question of whether it has failed to afford procedural fairness would be to permit the "spectacle" described by Estey J. in Northwestern Utilities at 710. These parties must return to the Commission for the hearing pursuant to s. 161. Consequently, the Commission ought not to have appeared before us to defend the merits of its decision.

Global Securities Corp. v. British Columbia (Executive Director, Securities Commission), 2006 BCCA 404:

60     I conclude with the following observation, prompted by some of the submissions of the Intervenors. What was said in Northwestern Utilities, to the extent that it has been taken as an invariable rule, may be due for a re-evaluation. The decision of the Ontario Court of Appeal in Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner) (2005), 253 D.L.R. (4th) 489 provides support for that view. In that case, Goudge J.A. expressed the opinion that the standing of administrative tribunals on reviews of their own decisions must be considered contextually rather than by reference to an a priori rule.

61     There are a number of different regulators within the securities industry. Each of these regulators is positioned differently and has a separate and distinct role in securities regulation. As the Supreme Court of Canada in Pezim observed (at para. 60), securities regulation in Canada is comprised of a large and elaborate framework of inter-connected agencies that perform different functions. In this case, the decision of the Commission Panel on the merits issue in relation to the Exchange turned on the functional differences between the Exchange and the Hearing Panel which were grounded in the provisions of the Exchange Rules. For that reason, other self-regulatory organizations, such as the Intervenors in this case, should not assume that the Commission Panel's decision will necessarily apply to them should they seek to make submissions on the merits of a decision made by the self-regulatory organization. Nothing said in the decision of the Commission Panel can be taken to undermine the requirement for impartiality and procedural fairness which underpin the decision in Northwestern Utilities.

Pacific Newspaper Group Inc., a Division of CanWest Mediaworks Publications Inc. v.

Communications, Energy and Paperworkers Union of Canada, Local 2000, 2009 BCSC 962:

40. In my view, the factors ⎯ such as lack of representation, specialized knowledge and expertise of the tribunal, the necessity to ensure a fully informed adjudication and no real concern over impartiality ⎯ that favoured full or increased participation by the tribunals in Children's Lawyer and Teachers are not present in this case. On the other hand, factors that support limiting the Board’s participation are present. In my view, the recent rejuvenation of Northwestern Utilities, seen in O’Donnell and Manz, heightens the importance of maintaining tribunal impartiality in the circumstances of this case.

Harrison v. British Columbia (Information and Privacy Commissioner), 2009 BCCA 203

77. Furthermore, we are of the opinion that the Commissioner’s submissions in respect of the issues we have decided do not offend the established ambit enunciated in Northwestern Utilities Ltd. v. Edmonton (City) (1978), [1979] 1 S.C.R. 684 at 709-710, 89 D.L.R. (3d) 161:

It has been the policy of this Court to limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction. While the rule in Northwestern Utilities Ltd. has been slightly modified in recent years (see the discussion of this Court in British Columbia (Securities Commission) v. Pacific International Securities Inc., 2002 BCCA 421, 215 D.L.R. (4th) 58 at paras. 36-44, 2 B.C.L.R. (4th) 114), we are satisfied the Commissioner's submissions were within the appropriate scope.

Buttar v. British Columbia (Workers’ Compensation Appeal Tribunal), 2009 BCSC 129.

31     Mr. Webster for the petitioner argues that because this case involves a true adversarial relationship with the lis between the parties-that is, there are opposing parties in the form of the petitioners and the respondent Galeto-WCAT's role must be circumscribed so that it does not cross the blurry line of reviewing the record and descending to advocacy addressing the merits of its own decision.

32     Moreover, he argues that as there are opposing parties here, the respondent Galeto has the ability and opportunity to defend the decision of WCAT. As there is an opposing party he argues that the court's adjudication of the issue on judicial review will be fully informed. Accordingly, the need for an expanded role in the proceedings by WCAT is unnecessary.

33     While the case before me falls at the adversarial instead of the inquisitorial end of the spectrum, that is not determinative of the matter. WCAT does have standing as a party both by statutory provisions and the jurisprudence that outlines what role a tribunal may take in a judicial review of its own decision. Certainly the special knowledge and expertise of the tribunal in this case weighs in favour of greater, albeit not unfettered, participation in the judicial review proceedings.

46. Moreover, to paraphrase the concluding observations of Mr. Justice Taggart of the Court of Appeal in BCGEU v. British Columbia Industrial Relations Council, 33 B.C.L.R. (2d) 1, it would be of little assistance to the court to have counsel for WCAT to appear simply to recite what the relevant test for judicial review is in this case, be it unreasonableness or patent unreasonableness, but not to permit her to illustrate from the facts of the case why this decision is not patently unreasonable.

61        To put it another way, the written submissions filed by counsel for WCAT are meant to show that the vice-chair of WCAT considered each of the petitioner’s submissions before it and provided reasoned, rational rejections to each of the arguments. The argument before this court emphasizes that WCAT made a careful review of the relevant authorities and made a decision that was within its exclusive jurisdiction. At no point does counsel for WCAT argue that the decision in issue is correct; rather counsel argues that it was a reasonable approach for the tribunal to adopt. WCAT has standing to make all these arguments, and in doing so does not exceed the limited role an administrative tribunal is permitted to take in a judicial review of its own decision.

Henthorne v. British Columbia Ferry Services Inc., 2011 BCCA 476.

[33]           Northwestern Utilities has come into question in recent years, partly as the result of a decision of three of six judges of the Supreme Court of Canada in Canadian Association of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983….

[35]           Northwestern Utilities and Paccar were considered in 2005 by the Ontario Court of Appeal in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) 75 O.R. (3d) 309.  There the Court noted that it is preferable to consider the scope of the standing of a tribunal in a “context-specific manner” rather than according to “precise a priori rules that depend either on the grounds being pursued in the application or on the applicable standard of review.”  (Para. 34.)  Insisting that a tribunal may make submissions to defend its decisions against a standard of reasonableness but not against one of correctness, the Court observed, would “allow unnecessary and prevent useful argument.”  More generally, it was said the evolution of administrative law “away from formalism and towards the more flexible practical approach” exemplified by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 should inform a court’s discretion in each case….

[40]           The foregoing authorities and others are reviewed in an article by Mr. F. Falzon, Q.C., Tribunal Standing on Judicial Review, (2008) 21 C.A.L.T. 21.  The author observes that “judges are not necessarily of like mind regarding the extent to which tribunal participation in court truly discredits a tribunal’s impartiality” and points out at 35 that the Supreme Court of Canada has itself, without objection or comment, permitted administrative tribunals to participate fully in court hearings on natural justice issues.  (See e.g., Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221.)  Elsewhere, the author refers to “confusion” in the law on this matter and suggests that a “categories and exceptions” approach to the issue of tribunal standing is, like Northwestern Utilities itself, “due for re-evaluation”.  (At 38.)  He urges that the matter be clarified by the Supreme Court of Canada.

[41]           In the meantime, the authorities in this province are in my opinion clearly in favour of applying Northwestern Utilities, subject to some exceptions (or “encroachments”) arising from Paccar.  But even if a more nuanced ‘balancing’ approach like that suggested in Children’s Lawyer were to be mandated in British Columbia, that approach would not in my view militate in favour of permitting WCAT to make the submissions it has in the case at bar.

Western Forest Products Inc. v. Sunshine Coast (Regional District), 2008 BCSC 1070:

[5]               Generally, an administrative tribunal will not be entitled to, nor ordered to pay, costs.  There are two exceptions to this rule:  (1) where the tribunal exhibited misconduct or perversity in the proceedings before it; or (2) where the tribunal argued the merits of the judicial review application rather than its own jurisdiction:  Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244 (CanLII), 2005 BCCA 244, 43 B.C.L.R. (4th) 65.  The first exception is not an issue in this case.  The question arising here is whether the SCRD argued the merits of the appeal.

[6]               During the hearing, Western applied to have portions of the SCRD’s argument disregarded on the basis that the argument was a vigorous defence of the order of the SCRD, and an attempt at a point-by-point rebuttal of Western’s argument….

[17]           It was, perhaps, not surprising that the SCRD took the position that it did on the appeal.  The SCRD had made no secret of its opposition to logging in the watershed.  The SCRD’s stated position formed the basis for Western’s bias argument at the hearing of the appeal.  I did not rule on that issue and make no comment on it here.  However, both in its written and oral submissions on the appeal, the SCRD did actively engage in arguing the merits of the appeal.  It did not limit its submissions to matters relating to jurisdiction.  It took on a classic adversarial role with Western, one of the parties that had appeared before it at the hearing.