Docket: A-281-15
Citation:
2016 FCA 143
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CORAM:
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DAWSON J.A.
STRATAS J.A.
NEAR J.A.
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BETWEEN:
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HER MAJESTY THE
QUEEN
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Appellant
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and
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KABUL FARMS
INC.
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Respondent
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REASONS
FOR JUDGMENT
STRATAS J.A.
A.
Introduction
[1]
The Crown appeals from the judgment dated May
15, 2015 of the Federal Court (per Fothergill J.): 2015 FC 628. The
Federal Court quashed penalties totalling $6,000 assessed by the Director of
the Financial Transactions and Reports Analysis Centre of Canada for three
violations by the respondent of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, S.C. 2000, c. 17.
[2]
The three violations were the respondent’s failures
to develop and apply written compliance policies and procedures, to perform a
risk assessment, and to create a written training program for its employees and
agents.
[3]
The Federal Court quashed the penalties because
of the inadequacy of the Director’s reasons. That inadequacy prevented the Federal
Court from assessing the reasonableness of the penalties.
[4]
On appeal to this Court, the appellant submits
that the Federal Court erred: the Director’s reasons were adequate and so his
assessment of penalties was reasonable. For the reasons that follow, I reject the
appellant’s submission. Therefore, I would dismiss the appeal.
B.
Standard of review
[5]
Before us is a statutory appeal from an
administrative decision-maker. Therefore, in considering this appeal, we are to
apply administrative law principles including the usual law governing the
standard of review: Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339.
[6]
Thus, on appeal, we are to assess whether the
Federal Court chose the proper standard of review and then applied it properly:
Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC
36, [2013] 2 S.C.R. 559 at paras. 45-47. In other words, review in this Court
is de novo.
[7]
The Federal Court applied the standard of
reasonableness to the Director’s assessment of penalties. I agree with the
Federal Court. The Director’s assessment of penalties is fact-based and
discretionary, governed by legislation he often applies. Decisions of that sort
are subject to reasonableness review: Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 at paras. 53-54.
[8]
Exercising de novo review on the issue of
reasonableness, I reach the same conclusion as the Federal Court: the Director’s
assessment of penalties was unreasonable. I would articulate the reasons
slightly differently though, relying primarily upon this Court’s decision in Leahy
v. Canada (Citizenship and Immigration), 2012 FCA 227, [2014] 1 F.C.R. 766,
and offering some additional reasons.
C.
The legislative scheme for determining the size
of the penalty
[9]
When assessing penalties for violations under
the Act, the Director must take into account three mandatory criteria “in each case”: penalties are to encourage “compliance with [the] Act rather than to punish,”
address the “harm done by the violation,” and satisfy
“any other criteria that may be prescribed by
regulation”: Act, section 73.11. Regulations have been enacted and they
prescribe one additional criterion, the violator’s history of compliance with
the Act and related legislation: see Proceeds of Crime (Money Laundering)
and Terrorist Financing Administrative Monetary Penalties Regulations,
SOR/2007-292, section 6.
[10]
The Regulations also set out a three-step methodology
for the Director to follow when assessing penalties for a violation. First, the
Director must examine whether the violation is “minor,”
“serious,” or “very
serious”: Regulations, section 4 and the Schedule to the Regulations. Then
the Director must examine section 5 of the Regulations to see the range of
penalty that can be applied for the violation in issue. The ranges are $1 to
$1,000 for a minor violation, $1 to $100,000 for a serious violation and $1 to
$500,000 in the case of a very serious violation. Finally, the Director is to
select a figure within the proper range for each violation. That selection is
to be based on the criteria set out in section 73.11 of the Act and the
additional criterion prescribed by section 6 of the Regulations.
D.
The relevance of the legislation to
reasonableness review
[11]
If the Director does not follow that three-step methodology
for assessing penalties under the Regulations or does not apply the criteria
under section 73.11 and section 6 of the Regulations, his decision can be neither
acceptable nor defensible. In this case, the methodology and the criteria
constitute a mandatory recipe that the Director must follow. Any deviation from
this recipe renders his decision unreasonable: see, for example, Canada
(Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4
F.C.R. 203 where an administrative decision-maker’s failure to apply legislatively-mandated
criteria led to a finding that its decision was unreasonable.
[12]
In determining whether the Director followed the
mandatory recipe supplied by the Act and the Regulations, we may look at
whatever written reasons he gave. We may also examine the evidentiary record
before him because that can supply a rationale for the decision he made: Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 at paras. 14-15.
E.
What the Director did in this case
[13]
After investigating the matter, inviting the
respondent to provide submissions, and considering those submissions, the
Director decided the matter. He found that the respondent committed three
violations. He assessed a penalty for each one.
[14]
The record before us, in particular a document
entitled “Administrative Monetary Penalty Calculation
[under the Act],” shows the methodology the Director used to assess the
penalties. In substance, it is the methodology set out in paras. 9 and 10,
above.
[15]
Specifically, the Director did the following:
•
He noted that each violation is classified as a
serious violation under the Schedule to the Regulations.
•
He observed that each serious violation attracts
a penalty in the range of $1 to $100,000 under section 5 of the Regulations.
•
For each violation, he conducted a three-step
calculation to take into account the criteria under the legislation. He chose
an amount within the range to reflect the criterion of harm—here, $50,000,
$75,000 and $25,000 in the case of the three violations. Then he reduced each
amount by 20% to take into account the criterion of the respondent’s compliance
history, and further adjusted that amount by 95% to reflect the criterion of
encouraging the respondent to comply, not to punish the respondent. Here,
appropriately, the Director considered the respondent’s ability to pay.
As a result, the Director assessed the
penalties for the three violations at $2,000, $3,000 and $1,000 for a total of
$6,000.
F.
The Federal Court
[16]
The Federal Court took no issue with the Director’s
methodology. It also recognized that the Director followed that methodology in
order to apply the legislative criteria to the facts before him. However, the
Federal Court could see nothing in the record that could shed light on why the
Director selected the figures he did.
[17]
The Federal Court quashed the penalties. It found
that “[t]here was no analysis of the objectives of the Act
or how the statutory criteria for the imposition of administrative monetary
penalties applied to the particular facts of the case” (at para. 51). It
returned the violations back to the Director to redetermine whether penalties
should be imposed upon the respondent and, if so, the amount of the penalties.
G.
Analysis
[18]
Relying primarily on the methodology followed by
the Director—a methodology that is consistent with the Act and the
Regulations—and stressing the discretionary, fact-based nature of the
Director’s assessment of penalties, the appellant submitted that the Director’s
decision was reasonable and so we should allow the appeal.
[19]
The appellant’s submission is fine as far as it
goes. But it is incomplete. Before concluding that a decision is reasonable, at
some point in its analysis a reviewing court must go further than the appellant
suggests. A fact-based, discretionary decision made on the basis of proper
methodology is not automatically reasonable. The reviewing court must also be
satisfied that the administrative decision-maker has made an acceptable and
defensible decision on the particular evidence before it. Specifically, in the
case before us, in order to conclude that the penalties the Director assessed
are reasonable, we must be satisfied, among other things, that the numbers the
Director plugged into his calculation of the penalties are supportable on the
evidence before him.
[20]
Just how satisfied must we be that the penalties
are supportable on the evidence? That depends on the margin of appreciation we should
afford to the Director under reasonableness review.
[21]
As the Federal Court recognized in this case and
as it has recognized in two previous cases reviewing decisions of the Director,
when we review the Director’s assessment of penalties for reasonableness, he
deserves a margin of appreciation: Max
Realty Solutions Ltd v Canada (Attorney General), 2014 FC 656, 458 F.T.R. 160; Homelife/Experience
Realty Inc. v Canada (Finance), 2014 FC 657, 458 F.T.R. 180.
[22]
The Director deserves a margin of appreciation
because of the nature of his task. When he selects the base amounts from the
range and applies percentage reductions of the base amounts, he must evaluate
the evidence before him against the legislative criteria. This is an imprecise,
fact-based task that calls for subjective judgment informed by experience regulating
this specialized field and knowledge about it.
[23]
But the Director’s task must be seen in its
wider context. The Director is operating under an administrative monetary
regime where violators face potentially significant monetary penalties.
[24]
Decisions under administrative
monetary penalty regimes are not “criminal” decisions and so courts do not scrutinize them strictly
using section 11 of the Charter: see Guindon
v. Canada, 2015 SCC 41, [2015] 3
S.C.R. 3. But that does not mean they always escape strict scrutiny. As
administrative decisions, they can be challenged by way of judicial review or (where
available) statutory appeal, and administrative law principles apply. Sometimes
those principles lead to strict scrutiny, other times less intensive scrutiny.
Put in the language of some cases, reviewing courts can afford the
administrative decision-maker hardly any margin or no margin of appreciation, a
moderate margin, or a broad margin: Canada (Attorney General)
v. Boogaard, 2015 FCA 150, 474 N.R. 121 at para. 36, citing Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1
S.C.R. 5 at paras. 17-18 and 23, Khosa, above at para. 59 and McLean v. British
Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at para.
37-41. The margin of appreciation
depends on various factors animated by two conflicting principles, the
reviewing court’s obligation to respect legislative intention and its
obligation to defend and, where necessary, to vindicate the rule of law: Canada
(Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014
FCA 56, [2015] 2 F.C.R. 1006 at paras.
90-99.
[25]
How this
plays out depends on the facts of particular cases. For present purposes, one might
usefully contrast two types of administrative proceedings. At one end are matters
where an administrative decision-maker assesses the conduct of an individual or
known group of individuals against concrete criteria, the potential effects
upon the legal or practical interests of the individual(s) are large, and the
matters lie somewhat within the ken of the courts. A good example is a
professional disciplinary proceeding where an individual is charged with
violations of a disciplinary code and the individual faces serious legal or
practical consequences such as restrictions, prohibitions or penalties. At the
other end are matters where an administrative decision-maker assesses something
broader and more diffuse, using polycentric, subjective or fuzzy criteria to
decide the matter, criteria that are more typically within the ken of the executive
and less so the courts. A good example is a decision regarding which of several
qualified, closely-placed candidates should receive a job promotion having
regard to what is best to advance the objectives of a governmental institution.
All things considered, the margin afforded to the administrative decision-maker
under reasonableness review will be more constrained in the former than the
latter: see the discussion in Boogaard, above at paras. 38-52.
[26]
In this
case, the dominant consideration is that this administrative monetary penalty proceeding is akin to a disciplinary proceeding where the potential
significance to the person accused of misconduct is high. However, the particular task of the Director we are
reviewing, his selection of a penalty amount, is imprecise and
fact-based, guided in this case only by general criteria rather than a rigid mathematical
formula. It calls for an exercise of subjective judgment informed by experience
and knowledge in a specialized field of regulation. In light of this, I conclude
that we must be satisfied the sorts
of figures the Director chose at each step in his methodology are underpinned
or justified by some reasoning or evidence in the record.
[27]
In this case, I am not so satisfied.
[28]
The first step for the Director was to choose a base
amount within the $1 to $100,000 range to reflect the harm, potential or
actual, caused by the particular violation. He chose the figures of $50,000,
$75,000 and $25,000 for the three violations. There is nothing in his summary
of calculation or any of the letters he wrote to tell us why those figures
reflect the actual or potential harm. We may presume that the Director
considered the actual or potential harm to be at the mid-range, upper-end and
lower-end of the range, respectively. But we simply do not know what evidence
or analysis of harm he relied upon. For all we know, the Director might have
selected these numbers in order to raise revenue, an improper purpose under
this legislation. Or he might have plucked the numbers from the air, equally
improper.
[29]
Let’s now examine the 20% and the 95% reductions
the Director applied to the base amounts. He chose those percentages to reflect
the legislative criteria of compliance history and need to encourage compliance
and not to punish. But we must go further and ask about the precise percentages—20%
and 95%—he chose. Are those acceptable and defensible percentages based on the
evidence before the Director? Was there evidence capable of underpinning or justifying those numbers?
[30]
First, the 20% reduction. Like the Director’s
selection of the base amounts, the Director provided no justification for the
20% figure. The record before the Director and now before us on judicial review
shows that the respondent reported the issues involved in this matter to this
regulator, suggesting a good degree of commitment to compliance. This supports
a lenient approach to the respondent. But the record also shows that while the
respondent worked with the Director to remedy the problems identified, it did
not do so, showing itself in need of behavioural modification. This supports a
less lenient approach to the respondent. The evidence goes both ways. So why
was 20% chosen, as opposed to 5% or 60%? We have no idea.
[31]
Next, the 95% reduction. Here again, the
Director supplied no justification for it. The record shows that in determining
what was needed to encourage the respondent to comply and not to punish, the Director
took into account that the respondent operated a relatively small business, not
a large, profitable financial institution. However, again, the respondent’s
inability to remedy the problems identified suggests a need to adjust the
respondent’s attitude to compliance. So like the 20% reduction, the evidence
goes both ways. So why was 95% chosen? Why not 30% or 65%? We have no idea.
[32]
For all we know, the 20% and 95% percentages might
have been plucked out of the air or adopted for reasons extraneous to the
legislation. Maybe the Director did not investigate the case enough to gather
the evidence necessary to support a decision. We simply cannot tell. We are
left in the dark. In this case, we are a reviewing court that cannot review.
[33]
This Court found itself in a similar position in
Leahy, above. There, a government institution refused to disclose
information under the Access to Information Act, R.S.C. 1985, c. A-1. It
asserted exemptions without any explanation. This Court could not discern the
reasons from the record placed before the Court. In those circumstances, this
Court could not assess whether the refusal to disclose was acceptable and
defensible on the facts and the law. Accordingly, this Court quashed the head’s
decision and remitted it back for redetermination. See also, to similar effect,
Wall v. Office of the Independent Police Review Director, 2014 ONCA 884,
378 D.L.R. (4th) 589 at paras. 57-59, where the Court of Appeal for Ontario
could not conduct reasonableness review because there it could not ascertain the
basis on which the administrative decision-maker decided the matter.
[34]
The case before us is on all fours with Leahy.
Here, the Director has provided no rationale for the base amounts or reductions
he chose. The evidentiary record before the Director also sheds no light on the
matter. To conduct reasonableness review here, we would have to simply assume
or trust that the Director had good reasons for the numbers he chose. As this
Court said in Leahy (at para. 137), that
“is inconsistent with our role on judicial
review.” We are to review, not trust
or assume.
[35]
One commentator has put it this way:
Without knowing
the reasoning behind a decision, it is impossible for a judge to determine if
it is founded upon arbitrary reasoning. Thus, in order for a judge to determine
whether a decision maker acted lawfully, the decision maker must provide
reasons adequate to allow a reviewing judge to determine why the decision maker
made the decision they did and whether it followed explicit statutory
requirements [or the basis for the decision must be apparent in the record]. If
the judge cannot ascertain how the decision was made, then the court cannot
fulfill this role and decisions made in violation of the rule of law may be
sanctioned by the court.
(Paul A. Warchuk, “The
Role of Administrative Reasons in Judicial Review: Adequacy and Reasonableness”
(2016), 29 C.J.A.L.P. 87 at p. 113.)
[36]
The appellant gamely attempted to support the
Director’s selection of the figures of $50,000, $75,000 and $25,000 as the base
amounts by resorting to material not before us. In this Court, as he did in the
Federal Court, the Crown stated that the Director relied upon an “unpublished formula” setting out criteria for
determining what base amount to select from the prescribed range. Apparently under
this unpublished formula, for each violation the Director applies a specific
percentage to the maximum amount of the range to determine the base amounts.
So, to illustrate, a failure to develop and apply compliance policies and
procedures will always result in the selection of a base amount that is 50% of
the top of the range, a failure to perform a risk assessment will always result
in the selection of a base amount that is 75% of the top of the range, and a
failure to develop a written training program will always result in the
selection of a base amount that is 25% of the top of the range.
[37]
This unpublished formula—more of a secret
guideline—is not in evidence before us. Accordingly we cannot consider it. The
appellant says that the Director relied upon it, but there is no evidence in
the record before us to suggest that that is so.
[38]
The general rule is that this Court can only act
on evidence in the record before it unless some exception applies. Two
exceptions are legislative provisions that create factual presumptions and the
doctrine of judicial notice as discussed in authorities such as R. v.
Spence, 2005 SCC 71, [2005] 3 S.C.R. 458. Here, neither exception applies.
[39]
In any event, even if the unpublished formula was
before us and even if we had evidence or reasons suggesting that the Director
relied upon it in selecting the base amounts, the percentage reductions applied
by the Director remain unsupported and unexplained. And I have two further serious
concerns.
[40]
First, the unpublished formula appears to
conflict with section 73.11, a section that the Director must always follow. Section
73.11 provides that the Director must take into account, among other things,
the criterion of harm “in each case.” The
unpublished formula, as described by counsel for the appellant, does something
quite different. It sets a rigid formula for choosing the base amount from the
$1 to $100,000 range to take into account the legislative criterion of harm. That
formula is based only on the type of violation, not the particular mitigating
or aggravating facts underlying it relating to harm.
[41]
To illustrate this, take one of the violations
in this case, the failure to develop and apply compliance policies. The formula
apparently requires the Director to select a base amount right at the middle of
the range regardless of any facts that might drive the actual or potential harm
higher or lower. So if the Director uses the formula in this case, he cannot
consider some facts that might mitigate the penalty, for example the relatively
small individual amounts and total amounts sent abroad by the respondent. Using
the words of section 73.11, the formula apparently prevents the Director from
considering the facts of “each case.” Or, put
another way, by using the formula he is fettering his discretion.
[42]
Without the unpublished formula formally before
us, I do not wish to be definitive on this point. Perhaps the Director has somehow
interpreted section 73.11 in a way that would support the sort of blanket
assessment of harm that the formula encourages. Perhaps the Director has some experiential
or expert analysis of the harm associated with different types of violations
regardless of the particular facts of cases, something he might contend meshes
with a reasonable interpretation of section 73.11. Intriguingly, at one point during
argument counsel for the appellant referred to the unpublished formula as an “analysis”. But neither the formula nor any supporting
analysis to support the formula or the selection of the base amounts has been
disclosed to us. As I have explained, this disables us from assessing the
acceptability and defensibility of the Director’s penalty assessments.
[43]
My second serious concern about the Director’s apparent
use of an unpublished formula is procedural fairness. In a case such as
this—the potential imposition of a monetary penalty against a party for a
regulatory violation—the party has a right to know the case to meet and to make
informed submissions on it: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193. In this case, the
Director is aware of the obligation to some extent: he afforded the respondent
an opportunity to respond to many aspects of the case against him. But the apparent
existence and non-disclosure here of an unpublished formula and perhaps more—material
counsel for the appellant advises was relied upon by the Director to select the
base amounts—worked unfairness to the respondent.
[44]
As part of procedural fairness, a party potentially
liable for an administrative monetary penalty, such as the respondent, needs to
know about any formula, guideline or supporting analysis the Director will rely
upon in his assessment of penalties. In response, that party is entitled to suggest
that any formula, guideline or supporting analysis is wrong, inappropriate,
unacceptable or indefensible on the facts, or inconsistent with legislative
provisions supplying decision-making criteria, such as section 73.11 of the
Act. A formula, guideline or supporting analysis might also show that the Director
is adopting a particular interpretation of the legislation, and the affected party
is entitled to make submissions on that too. Here, the unpublished formula and
perhaps more was withheld from the respondent, leaving him in the dark.
[45]
In the course of argument before us, the appellant
urged us to supplement the Director’s reasons in order to sustain the penalties
he awarded. He submitted that on judicial review, we are obligated to assess an
administrative decision not just on the reasons given but on the reasons that
could have been given. Certainly there are Supreme Court authorities that, read
literally, say we are supposed to do just that: Newfoundland Nurses, above at para. 12; Dunsmuir, above at para. 48.
[46]
However, those authorities do not stand alone.
In Alberta (Information and
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R.
654 at para. 54, the Supreme Court held that a reviewing court does not have free rein to come up
with reasons in order to save the decision. There are limits. See also Lemus
v. Canada (Citizenship and Immigration), 2014 FCA 114, 372 D.L.R. (4th) 567
at paras. 27-37.
[47]
I
decline the appellant’s invitation to supplement the Director’s reasons in
order to save the penalties he assessed. There is nothing in the record I can
use to try to support the Director’s selection of the base amounts from the $1
to $100,000 range and the percentage reductions. Further, in a case like this,
fashioning reasons that might have been given in order to save the decision
would turn a blind eye to our role as a reviewing court. For all we know, we
might be working to cooper up a decision where the Director arbitrarily plucked
figures from the air, relied upon an unpublished guideline or analysis of
questionable legality or worse, in circumstances of procedural unfairness to
the respondent.
[48]
Finally, the appellant urged us to reach a
different result from the Federal Court, stressing the need to leave the
Director free to carry out his important responsibilities under this legislation
and other legislation.
[49]
From a reading of this legislation, this Court
can appreciate the importance of the Director’s responsibilities. But nothing
said above comes even close to hindering the Director in his work. In this case,
jotting down a few words of explanation in the Director’s summary of
calculation about why he chose the figures for the base amounts and reductions—something
that would perhaps have taken a few seconds—probably would have sufficed as far
as enabling this Court to review the Director’s assessment of penalties is
concerned. It would have sufficiently informed the respondent so that he could
decide knowledgeably whether to appeal. More broadly, it would have fulfilled the
Director’s responsibility as a public decision-maker and as part of our democratic
governance structure to explain to the public how and why he is exercising the
public powers entrusted to him.
[50]
Further,
with minimal effort, the Director could have disclosed any
formulas, guidelines, or supporting analyses to the affected party, thereby
fulfilling another of the Director’s important responsibilities—to act in
accordance with procedural fairness.
[51]
Certainly some of the Director’s tasks can be
sensitive. To the extent that something must be kept confidential, the
Director, like any other administrative decision-maker or public authority, can
assert a privilege known to law such as public interest privilege, subject to
review (see, e.g., Slansky v. Canada (Attorney General), 2013 FCA
199, 364 D.L.R. (4th) 112 and, semble, Pritchard v. Ontario (Human
Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809). On judicial review,
if something must be kept confidential, the Director can apply for portions of
the record to be sealed in accordance with the test in Sierra Club of Canada
v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, as was
in fact done for part of the record in this case: see, e.g., Lukacs
v. Canadian Transportation Agency, 2016 FCA 103.
H.
Remedy
[52]
The normal remedy in a case like this is to
order that the matter go back to the Director to reassess the penalties, this
time with adequate reasons. The Federal Court gave that remedy. However, it
went further. It added that the Director could reassess whether any penalties should
be imposed at all.
[53]
That possibility is indeed open to the Director
in this case. In reassessing the penalties, the Director could theoretically apply
the criteria prescribed by the legislation and assess these penalties at zero.
[54]
In my view, however, it would have been better
if the Federal Court simply remitted the matter to the Director to reassess the
penalties and said nothing more. Although not meant as such, the Federal Court’s additional words might be
taken as a hint or suggestion that the penalties the Director originally
assessed were too high. Under the Act, the Director—not this Court, nor the
Federal Court—is Parliament’s designated assessor of penalties for violations
under the Act. Absent circumstances where mandamus or a mandatory
direction from the Court is legally warranted—and there are no such
circumstances here—the Director is entitled to reassess the penalties himself,
applying the criteria under the legislation to the evidence before him and
supplying an adequate rationale.
[55]
I wish to remind the Director that in conducting
his reassessment he must keep front of mind his obligations of procedural
fairness. Among other things, he must ensure that the respondent is made aware
of the case to meet, including any formulas, guidelines and analyses he intends
to rely upon, and he must give the respondent an opportunity to address that
case.
I.
Proposed disposition
[56]
Therefore, I would dismiss the appeal.
[57]
On the issue of costs, I note that the
respondent did not file a notice of appearance under Rule 341(1) and never
sought to do so. Thus, it was not allowed to file a memorandum of fact and law.
At the hearing of the appeal, we exercised our direction to allow the
respondent to make brief oral submissions. But given the respondent’s limited
participation in this appeal, I would not award it any costs.
“David Stratas”
“I agree
Eleanor R.
Dawson J.A.”
“I agree
D.G. Near J.A.”
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