“A remedy of last resort”: Federal Court of Appeal confirms administrative processes must be exhausted before judicial review

In Viaguard Accu-metrics Laboratory v. Standards Council of Canada, the Federal Court of Appeal recently confirmed that parties unsatisfied with an administrative decision must exhaust all adequate administrative processes available before applying for judicial review¹.

What you need to know

• Judicial review remains a remedy of last resort. Parties unsatisfied with an administrative decision must exhaust the decision-maker’s administrative processes (administrative appeals, reconsiderations, etc.) before turning to the court for judicial review.
• The bar against premature judicial review is “next to absolute”. Courts have little flexibility when enforcing the bar against premature judicial reviews.
• Concerns with an administrative process should be raised with the decision-maker first. Even if a party has concerns as to whether an administrative process has jurisdiction to provide an effective remedy, they must first raise this argument with the decision-maker before applying for judicial review.

Background

The Standards Council of Canada (the Council) is a federal Crown corporation dedicated to promoting standardization in Canada. In 2014, a biometric testing company, Viaguard Accu-metrics (Viaguard), entered into a license agreement with the Council that permitted Viaguard to display the Council’s accreditation symbol. The agreement incorporated by reference the Council’s “Policy for the suspension and withdrawal of accreditation and the resolution of complaints and appeals” (the Appeal Policy). The Appeal Policy provided that if, following an appeal to the Council, a party is still unsatisfied with a final decision, it could file a complaint with the International Laboratory Accreditation Corporation (ILAC). The ILAC has a detailed complaint procedure that provides for independent investigation and the completion of a final report that may include recommendations and corrective actions that the Council is required to abide by.

In September 2017, the Council suspended Viaguard’s accreditation. Viaguard appealed this decision to the organizations’ s Governing Council and was unsuccessful. However, instead of filing a complaint with the ILAC, Viaguard applied to the Federal Court for judicial review. The Court struck Viaguard’s application on the grounds that it was premature.

Viaguard took no other steps after the Federal Court’s decision except to apply for reinstatement with the Council in February 2018. While awaiting their decision, Viaguard wrote to ILAC to confirm whether ILAC could order the reversal of the Council’s decision to suspend Viaguard’s license. ILAC replied that it did not reverse accreditation decisions.

The Council ultimately refused to reinstate Viaguard in June 2019. After Viaguard’s appeal to the Council’s Governing Body was dismissed, Viaguard brought another application for judicial review in November 2019, once again sidestepping the procedures set out in the Appeal Policy. 

On a motion by the Council, the Court struck Viaguard’s application a second time, finding Viaguard had failed to pursue all available administrative remedies before seeking judicial review. Viaguard appealed the Federal Court’s decision to the Court of Appeal.

The Court of Appeal’s decision

The Federal Court of Appeal dismissed Viaguard’s appeal, confirming that judicial review is a remedy of last resort: Viaguard needed to exhaust all available administrative processes by filing a complaint with ILAC and seeing it through before applying for judicial review. The Court confirmed that the bar against premature judicial reviews must be kept “next to absolute”, and that there is little flexibility for courts in enforcing this bar.

Viaguard had argued that it would not have been able to adequately raise its concerns in the complaint process to ILAC because ILAC had advised it that it would not reverse the Council’s decision. The Court rejected that argument, explaining that the administrative decision-maker must decide whether it has the jurisdiction to grant the remedy requested. It noted that “[w]e cannot say with certainty that the appellant would be unable to raise, as part of that procedure, any of the issues raised in its notice of application or that there would be no room for reasonable debate before the administrative decision-maker”. The Court further noted that unless the reviewing court finds that the administrative decision-maker could not reasonably take jurisdiction, it cannot intervene.

This decision confirms that when there is uncertainty over whether to pursue an administrative remedy or bring an application for judicial review, parties should always ensure that all administrative processes are exhausted before heading to court. Moreover, the decision further confirms that this applies even when it appears doubtful that the administrative decision-maker has jurisdiction to grant requested remedy.