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?

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Arguing Incompetence of Counsel in an Appeal

Many lawyers when they meet with clients often find themselves reviewing rejected applications and/or hearings where it is obvious that an individual’s previous representative was incompetent.  The examples of incompetence range from missed deadlines to not understanding the law.  Some specific scenarios that clients have told me about include:

  • former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent;
  • an immigration consultant not knowing the difference between a “conviction” and a “dismissal”;
  • an immigration consultant that the “Prevailing Wage = the wage paid to Canadians at the employer’s company”; and
  • a lawyer filing late because “deadlines are policy, not statute.”

The previous representative’s incompetence may serve as a ground for relief in a judicial review.  I have made such arguments in Federal Court before.  Cases based on incompetence and/or negligence of previous counsel are exceptionally difficult cases.  The Federal Court on March 7, 2014, announced a change of Procedural Protocol which will only make these cases more challenging.   

The Law on Incompetence of Counsel

As the Supreme Court of Canada stated in R v. GDB, 2000 SCC 22, for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence.

The Federal Court has closely followed the above two requirements when determining whether an alleged incompetence is a ground for review.  In the frequently cited case of Memari v Canada (Minister of Citizenship and Immigration), 2010 FC 1196, the Court stated that:

…the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial result having been compromised, or another readily apparent form.

In the often cited case of Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 FC 51, the Federal Court explained that there must be sufficient evidence to establish the “exact dimensions of the problem.”  Where the incompetence or negligence of an applicant’s representative is sufficiently specific and clearly supported by the evidence, such negligence or incompetence is inherently prejudicial to an applicant.  For example, in Kim v. Canada, 2012 FC 687, the Federal Court held that where an officer specifically refers to the lack of evidence, and where the submissions by a consultant are limited, then the failure to submit evidence causes a prejudice to the Applicants amounting to a miscarriage of justice.

Over time, as it began to become apparent that many allegations of previous counsel’s incompetence/negligence may have been factually inaccurate the Federal Court began to develop jurisprudence that current counsel could only argue incompetence/negligence of previous counsel/representative if there was evidence that either a complaint had been filed with the previous counsel’s/representative’s licensing body, or that the current counsel notified the previous counsel/representative of an intention to make an incompetence argument.  The March 7, 2014, Procedural Protocol affirms this jurisprudence, and makes it mandatory.

March 7, 2014 Procedural Protocol

The March 7, 2014, Procedural Protocol describes the procedure that counsel must follow where an applicant alleges professional incompetence, negligence, or other conduct against an applicant’s former legal counsel, or other authorized representative, which includes consultants, within the context of an application for leave and judicial review.

To paraphrase the Procedural Protocol (which I have embedded below), the procedure is:

  1. Prior to pleading incompetence, negligence or other conduct by the former counsel/representative as a grounds for relief, current counsel must satisfy him/herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation. In addition, current counsel must notify the former counsel/representative in writing with sufficient details of the allegations and advise that the matter will be pled in an application described above. The written notice must advise the former counsel/representative that they have seven days from receipt of the notice to respond, and include a copy of the Procedural Protocol.  In cases where privilege may be applicable, current counsel must provide the former counsel/representative with a signed authorization from the applicant releasing any privilege attached to the former representation.
  2. Current counsel should, unless there is urgency, wait for a written response from the former counsel/representative before filing and serving the application record. If the former counsel/representative intends to respond he or she must do so, in writing to current counsel, within seven days of receipt of the notice from current counsel.
  3. If after reviewing the response of the former counsel/representative, current counsel believes that there may be merit to the allegations, current counsel may file the application or appeal record. Any perfected application which raises allegations against the former counsel/representative must be served on the former counsel/representative and proof of service be provided to the Court.
  4.  Where  it becomes apparent that current counsel’s pursuit of this investigation may delay the perfection of the application record or appeal record beyond the timelines provided for by the Rules, then current counsel may apply by motion for an extension of time to perfect the record.
  5. If the former counsel or authorized representative wishes to respond to the allegations made in the record, he or she may do so in writing by sending a written response to current counsel and to counsel for the government within ten days of service of the application or appeal record or such further time as the Federal Court may direct.
  6. Current counsel who wishes to respond to the communication received from the former counsel/representative must file a motion for an extension of time and for leave to file further written submissions with respect to the new material received.
  7. If no response from the former counse /representative is received within ten days of service, and no extension of time has been granted, current counsel must advise the Court and the lawyers for the government that no further information from the former counsel/representative is being submitted and the Court shall base its decision without any further notification to the former counsel/representative.

While the Procedural Protocol adds several new mandatory steps to Applications for Leave to Commence Judicial Review involving allegations of incompetence/negligence, it also removes uncertainty involving such applications.  As well, if the Procedural Protocol results in the Federal Court removing the previously developing requirement that current counsel file a complaint with the previous counsel’s/representative’s licensing body, then there may actually be less steps, and time consumed, in these applications.


Espionage and Immigrating to Canada

On July 19, 2010, the Federal Court in Peer v. Canada (Citizenship and Immigration), 2010 FC 752 certified the following question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

On March 9, 2011, the Federal Court of Appeal answered.  The answer is yes.


PRRA Officer Did not Consider Important Country Report

On June 7, the Federal Court released its decision in Ariyaratnam v. Canada (Citizenship and Immigration), 2010 FC 608 (“Ariyaratnam“) The case involved a 28 year old from Sri Lanka whose Pre-Removal Risk Assessment (“PRRA“) and Humanitarian & Compassionate applications were refused.

The appellant argued in Federal Court that the assessing officer (the “Officer“) had a duty to consider a UNHCR report that would have bolstered the applicant’s claim (the “Report“). The Report was released a few weeks before the Officer released her decision, and the Officer did not consider it.

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Spousal Sponsor is Pregnant with Someone Else’s Child

On May 27th the Federal Court (the “Court“) released its decision in Chen v. Canada (Public Safety and Emergency Preparedness), (2010 FC 584) (“Chen“)The decision involves a unique situation of someone who was sponsored by a wife who was pregnant with her lover’s baby.

Mr. C, a Chinese citizen, married Ms. Z, a Canadian Resident. She then sponsored him for permanent residence.  While Mr. C was awaiting his papers, a friend told him that his wife had been seen “in the company” of another man in Toronto.

When Mr. C arrived in Canada, he found his wife pregnant with another man’s child.  According to Justice Harrington,

He was willing to forgive, and asked her to get an abortion. She refused. On many occasions she made sexual overtures to him but he was both unwilling and unable to perform. She taunted his lack of manhood. (Paragraph 5)

As one would expect, the marriage shortly dissolved thereafter.

After the divorce, Mr. C married an old flame in China. He then attempted to sponsor her.  Unfortunately for him, Canadian immigration authorities not only disallowed this second application, but also declared him inadmissible to Canada for misrepresentation in the first application. Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. C’s first marriage to Ms. Z was not genuine, that Mr. C lied to enter Canada, and that his permanent residency should be revoked.  Specifically, the CBSA was suspicious because Mr. C did not have a wedding reception upon arriving in Canada, he did not confront his wife about the rumours before he left China, and he did not return to China once his marriage to Ms. Z dissolved.

The Court, however, noted that in determining whether a marriage is genuine for the purposes of immigration, one has to consider whether the marriage was genuine in the first place, and whether it was still genuine when the Applicant arrives at a Canadian port of entry.

Regarding Mr. C’s failure to disclose to the interviewing officer the possibility of Ms. Z having an affair, the Court noted that at the time of the interview Ms. Z having an affair was only a rumor, and that the duty of candour did not oblige Mr. C to share mere worries.

Regarding Mr. C’s failure to go back to China after the dissolution of his marriage, Justice Harrington noted that:

As to not immediately returning to China when the marriage broke down, he said that as a cuckold he would be the laughing stock of his village. There was no evidence to contradict that statement.

Chen might not set any broad new legal precedents.  However, it is a good illustration of the parameters of the duty of candour that all applicants face in their applications to enter and/or immigrate to Canada.


Immigration Appeal Division Must Address Bona Fides Before H&C

The Federal Court has confirmed that s. 65 of the Immigration and Refugee Protection Act requires that the Immigration Appeal Division determine whether an applicant is a member of the Family Class before considering humanitarian & compassionate considerations (“H&Cs“).

Accordingly, people appearing before the Immigration Appeal Division in a Family Class appeal should be prepared to prove that the applicant is a member of the family class before arguing H&Cs.  This is the case even if the visa officer did not make a determination, or made a negative determination, regarding membership in the Family Class.

For example, if a visa officer rejects a spousal-sponsorship application on the basis of criminality, then at the Immigration Appeal Division the appellant must be prepared to demonstrate bona fides of the relationship prior to analyzing the inadmissibility, and any H&Cs to overcome it.

 


Certified Question on Section 7 Charter Rights

Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life?

The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today.  The Federal Court of Appeal will soon answer the question.

The facts in Laidlow giving rise to the question were essentially that an individual had a pending H&C claim which was based on risk to life (availability of medical treatment reasons) at the time that he appeared for his refugee hearing.  He asked that the refugee hearing be adjourned until the H&C application was determined.  The IRB refused to do so, and heard the refugee claim, which was dismissed.

The Court’s answer to the question was that refusing to adjourn the hearing did not breach section 7 of the Charter.  Relying on Poshteh v. Canada, [2005] 3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada), [2005] 4 SCR 429, the Court articulated the following principles:

  • A finding of inadmissibility does not engage an individual’s section 7 Charter rights.  The reason is because a number of proceedings may take place before an individual reaches the stage at which his deportation from Canada may occur.
  • Section 7 does not place upon the state a positive obligation to ensure that each persons enjoys life, liberty or security of the person.  Rather, it restricts the state’s ability to deprive people of these.

Considering that the jurisprudence is fairly settled on the first point, I find it surprising that the Court certified the question that it did.  I also do not see how from a practical standpoint the question can be answered in the affirmative.  Requiring that the IRB postpone refugee hearings every time a claimant files an H&C application based on risk to life would create a scheduling nightmare for the Division.  You could forget about the soon to be introduced 60 day and 90 day deadlines for refugee hearings.  Everyone would take advantage of this.  Indeed, I would probably consider a representative who did not encourage a refugee claimant to file an H&C application in order to buy more time to prepare for the hearing to be negligent.  And it wouldn’t just be limited to medical availability… Lawful sanctions… Generalized risk.. any H&C claim really could be used to buy time.

And that, combined with the established jurisprudence that the existence of further avenues to stay in Canada, and that s. 7 of the Charter does not create positive obligations on the state, is why I would be stunned if the Federal Court of Appeal answered the above question in the affirmative.