Addressing Newfoundland Nurses

On December 15, 2011 the Supreme Court of Canada (“Supreme Court“) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 (“Newfounland Nurses“).

In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review.  Rather, the Supreme Court stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.  The Supreme Court further stated that (citations removed for ease of reading):

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.

As one immigration lawyer put it, the Department of Justice (the “DOJ“) has since argued that under the Newfoundland Nurses reasonableness standard the Federal Court must uphold a tribunal’s decision as long as it falls within the most extremely close to unreasonable range of possibilities that the most extreme officer dictates.  In one case of mine, the DOJ even argued that there could basically be no reasons so long as the Federal Court thought that the decision was a possibly correct one that the tribunal could reach.  But is this really the case?

Continue reading “Addressing Newfoundland Nurses”

Grounds for Judicial Review – Findings of Fact in a Perverse or Capricious Manner

Section 18.1(4) of the Federal Court Act, RSC 1985, c F-7, states that the grounds for judicial review are:

The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

Based its Decision or Order on an Erroneous Finding of Fact in a Perverse or Capricious Manner

In Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, Justice Gleason provided the following guidance on interpreting s. 18.1(4): 

In the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas, Chief Justice Jacket defined “perversity” as “willfully going contrary to the evidence” (at para 6). Thus defined, there will be relatively few decisions that may be characterized as perverse.

The notion of “capriciousness” is somewhat less exacting. In Khakh v Canada (Minister of Citizenship and Immigration), (1996), 116 FTR 310, [1996] FCJ No 980 at para 6, Justice Campbell defined capricious, with reference to a dictionary definition, as meaning “marked or guided by caprice; given to changes of interest or attitude according to whim or fancies; not guided by steady judgment, intent or purpose”. To somewhat similar effect, Justice Harrington in Matondo v Canada (Minister of Citizenship and Immigration), 2005 FC 416 at para 1, [2005] FCJ No 509, defined “capricious” as being “so irregular as to appear to be ungoverned by law”. Many decisions hold that inferences based on conjecture are capricious. In Canada (Minister of Employment and Immigration) v Satiacum (1989), 99 NR 171, [1989] FCJ No 505 (FCA) at para 33, Justice MacGuigan, writing for the Court, stated as follows regarding conjecture:

The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. [citation omitted]:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. …

Turning, finally, to the third aspect of section 18.1(4)(d), the case law recognizes that a finding for which there is no evidence before the tribunal will be set aside on review because such a finding is made without regard to the material before the tribunal (see e.g. Canadian Union of Postal Workers v Healy, 2003 FCA 380 at para 25, [2003] FCJ No 1517). Beyond that, it is difficult to discern a bright-line. The oft-cited Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425) [Cepeda-Gutierez] provides a useful review of the sorts of errors that might meet the standard of a decision made “without regard to the material” before the tribunal which fall short of findings for which there is no evidence. There, Justice Evans (as he then was) wrote at paragraphs 14 – 17:

… in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made “without regard to the evidence” …

The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency’s interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency’s factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court [citations omitted]… nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it … That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: … In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

SCC Replaces the Oakes Test with the Reasonableness Standard

Over the last several years, the Supreme Court of Canada has released numerous administrative law decisions where it found that the reasonableness standard of review should replace other standards.  On March 22nd 2012, in Dore v. Burraeu du Quebec, 2012 SCC 12, the Court extended this trend to proclaiming that the reasonableness standard should replace the Oakes test when determining whether an administrative tribunal’s action which limited a right under Canada’s Charter of Rights and Freedoms could nonetheless withstand s. 1 analysis.

Section 1 analysis refers to the judicial process of determining whether a government’s breach (or limitation) of a Charter right is nonetheless constitutional pursuant to s. 1 of the Charter, which states that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In 1985, the Supreme Court of Canada created the Oakes test for determining whether a Charter breach is reasonable and justifiable in a free and democratic society.  The Oakes test first involves determining whether the government’s limitation of a Charter right is the result of a pressing and substantial objective.  If it is, then the government must demonstrate that the means to achieve its objective are proportional.  Proportionality requires that:

  1. The means be rationally connected to the government’s pressing and substantial objective;
  2. That the means to achieve the objective involve a minimal impairment of Charter rights; and
  3. There must be proportionality between the infringement and the objective.

As the Court noted in Dore, the judiciary has had difficulty applying Oakes in a non-legislative context.  What, for example, is the pressing and substantial objective of an administrative decision?  Who has the burden of defending that decision?  The difficulty is further exemplified in immigration law by the fact that it is often not the tribunal itself that is a party to a proceeding.

Accordingly, the Supreme Court has proclaimed that in administrative law decisions, the reasonableness standard should apply to determining whether a Charter limitation is justified.  The Court adopted the reasonableness standard over the correctness standard because a) it reiterated that administrative law involves a tribunal’s complex interpretation of its enabling statute, of which the tribunal is the most familiar, and b) because the Court was concerned that adopting the correctness standard would lead to judicial review becoming a hearing de novo.

As such, where an administrative tribunal limits a Charter right, then the reasonableness standard will apply to determine whether that limitation is nonetheless constitutional.  The reasonableness analysis will center on proportionality, or ensuring that a tribunal interfere with a Charter guarantee no more than is necessary given a statutory objective.

It may be that the change does not result in any practical difference.  As the Court noted, “a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality…… in both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.”

On the other hand, moving away from a rigid formula to a more flexible reasonableness standard may actually lead to a flurry of Charter challenges, as reasonableness decisions are inherently factually and contextually based.

Indeed, I can think of a few areas that I think may be ripe for some Charter challenges under the new test.

Converting from Judicial Review to an Action

Clients often ask me why federal court actions are limited to judicial reviews.  They want to know why it is that they can introduce new evidence and call witnesses at the Immigration Appeal Division, an administrative tribunal, but not in court.

There are numerous reasons why federal court actions are limited to judicial review.

The first is because immigration decisions take place in the context of administrative law.  Because the court is simply reviewing the reasonableness of an administrative tribunal’s decision (be it a visa officer or the Immigration Appeal Division), it is not necessary to hear fresh evidence.  The second is to facilitate access to justice and avoid unnecessary cost and delay.  The third is that many people who would be called as witnesses in a normal action are not eligible to enter Canada.  Finally, applicants are always able to re-apply.

Converting to an Action

Although federal court actions for immigration decisions generally occur in the context of judicial review, s. 18.4(2) of the Federal Court Act provides that the court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.

Section 18.4(2) is a response to concerns that judicial review does not always provide appropriate procedural safeguards where declaratory relief is sought.  It addresses not only the procedural shortcomings of an application, but also the remedial ones including the inability to claim damages on judicial review.

There are no limits on the considerations which may be taken into account in deciding whether to allow a judicial review application to be converted into an action.  The test of whether to convert to an action is whether affidavit evidence will be adequate, and not whether trial evidence might be superior.

Examples of Cases that were Converted

As shown below, the facts of a case must be particularly spectacular for an immigration judicial review to be converted into an action.

Sivak v. Canada (2011 FC 402)

  • There were serious concerns of institutional bias.  The rules of cross-examination of affidavits had not produced the evidence that was required to determine whether there was such a bias.  Judicial review did not contain any procedures to address this issue.