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?

The Federal Court has pushed back against this rigid interpretation of Newfoundland Nurses.

In Komolafe v. Canada (Citizenship and Immigration Canada), 2013 FC 431,Justice Rennie stated that:

Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page.

In Benoit v. Canada (Citizenship and Immigration Canada), 2013 FC 185, the Federal Court further held that:

In my view, no amount of “supplement[ing],” to quote Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12, salvages the officer’s decision. The Regulations clearly require that only a “substantial” number of the duties be performed. That is the test. The officer in this case singles out only parts of two of the eight main duties from NOC 6211 and on that basis concluded that Ms. Benoit’s experience at the Granite did not qualify.

In Canada (Citizenship and Immigration) v. Grdan, 2014 FC 187, Justice Roy reiterated that the Federal Court is not there to pore through tribunal records to reach its own conclusion, stating that:

In the case at bar, we ended up at the hearing looking for evidence in the record and speculating as to what the Board may have meant. The reviewing court is not there “to supply the reasons that might have been given or make findings of fact that were not made”. It does not matter that the decision is rendered orally or after deliberations.

In Roshan v. Canada (Citizenship and Immigration), Justice Bell overturned a decision, stating that:

These unanswered questions lead me to conclude that, while the decision may be within a range of possible, acceptable outcomes, it is not defensible in respect of the facts and law. Furthermore, in my view, while there may be some degree of transparency in the Officer’s approach, I find the reasons neither justifiable, nor transparent.

In reaching this conclusion, I am mindful of the fact that this Court should not unnecessarily parse the Officer’s decision and that I should consider whether there is, in the record, evidence upon which the Officer could have reasonably reached the conclusion she did.  Because of my unanswered questions and my inability to divine how the Officer chose to disregard key evidence from Mr. Onley and the Department of State, I am unable to apply Newfoundland Nurses to save the impugned decision.

In Chakanyuka v. Canada (Immigration, Refugees, and Citizenship), Justice Southcott stated:

The Applicants rely on the jurisprudence of this Court, in which judicial review has been granted in the absence of reasons justifying a decision (see Jasim v Canada (Minister of Citizenship and Immigration), 2003 FC 1017, at paras 18-19; Bajraktarevic v Canada (Minister of Citizenship and Immigration) 2006 FC 123, at para 18; Cobham v Canada (Minister of Citizenship and Immigration), 2009 FC 585, at para 26; Webb v Canada (Minister of Citizenship and Immigration), 2012 FC 1060, at para 31) and in particular Adu v Canada (Minister of Citizenship and Immigration), 2005 FC 565 [Adu], where Justice Mactavish held as follows at paragraph 14:

In my view, these ‘reasons’ are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.

I am conscious that adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 14, [Newfoundland Nurses]). However, I do not consider these principles to detract from the reasoning in Adu, that a decision must contain analysis, explaining how the decision-maker arrived at his or her conclusion. Otherwise, the applicant has not received reasons at all.

The list of cases in which the Federal Court has held that the decisions of visa officers must still be intelligible despite Newfoundland Nurses goes on, and covers a wide variety of areas of immigration law.  As a result of numerous Federal Court cases, including those mentioned above, the current state of the application of Newfoundland Nurses is perhaps best summarized in two paragraphs of the Federal Court’s recent decision in Millik v. Canada (Citizenship and Immigration Canada), 2015 FC 82, where Justice Boswell stated (citations removed):

Visa officers render discretionary decisions which are reviewable on the standard of reasonableness. The Supreme Court has stated that reasonableness requires “justification, transparency and intelligibility within the decision-making process” as well as a decision which falls “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

The insufficiency of reasons is not “a stand-alone basis for quashing a decision.” However, reasons must “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 Court does not have a licence to fill in the gaps in a decision or to speculate as to what the decision-maker was thinking.

As well, the Supreme Court of Canada has explicitly stated that Newfoundland Nurses does not stand for the proposition that judges can replace reasons. In Delta Air Lines Inc. v. Lukács, [2018] 1 SCR 6, 2018 SCC, the Supreme Court of Canada stated that reviewing courts cannot make findings that the decision-maker chose not to make.

As well, in Kupriianova v. Canada (Citizenship and Immigration), 2021 FC 958, Justice Pamel noted that it was improper for the Department of Justice to “pick through the evidence in what often seem[s] like a desparate attempt at finding justification for the visa officer’s decision.”

In Ohakwe v. Canada (Citizenship and Immigration), 2021 FC 807, Justice Sadreshami reitered that it is impermissable for a visa officer to simply list a series of facts and then a conclusion without explaining how the facts connected to the conclusion. She stated:

Justice Zinn, in Groohi v Canada (Citizenship and Immigration), 2009 FC 837 at paragraph 14, explained that it is difficult for reviewing courts to evaluate a decision-maker’s reasoning where they have only listed a number of considerations and then their ultimate conclusion, without an explanation of how they got there:

It is a trite law that simply listing a series of factors, and stating a conclusion, is generally insufficient to meet the test of reasonableness, the reason being that it is impossible for a reviewing Court to appreciate and assess the train of thought or logical process engaged in by the decision-maker.

The Officer’s reasons for refusal consist of a list of facts about Ms. Ohakwe’s application and then a conclusion that they are not satisfied that Ms. Ohakwe has a legitimate business purpose in Canada. Without an explanation for how the various facts are weighed, the inferences that are being drawn about particular facts, or some explanation as to how particular facts lead to the refusal, I find that the Officer’s decision is not transparent, intelligible or justified.

In Mohammadi v. Canada (Citizenship and Immigration), 2022 FC 127, the Chief Justice stated:

The Respondent insists that the remaining evidence was more than sufficient to support the conclusion that was ultimately made. However, this conflates the important distinction between justifiable and justified: see paragraph 14 above. The Decision may well have been reasonably justifiable based on the remaining evidence. But that is not sufficient. To survive review on a standard of reasonableness, the Decision also had to be appropriately justified by reference to the evidence that was adduced: see paragraph 15 above and Vavilov, above, at para 126. A failure to engage with important evidence that is inconsistent with the conclusion ultimately reached is unreasonable: Canada (Attorney General) v Fauteux, 2020 FCA 165, at paras 17 and 24.

In Zibadel v. Canada (Citizenship and Immigration), 2023 FC 285, Justice Little stated:

In this case, the reasoning in Zeifmans does not assist the respondent. The officer’s GCMS notes confirm a review of “the application”. However, the rest of the entry does not mention expressly or refer impliedly to the Study Plan or submissions, or to their contents (i.e., the reasons advanced by the applicants to justify the proposed study for T in Canada). From reading the GCMS notes alongside the record, I am not confident that the officer considered the contents of the Study Plan and meaningfully grappled with the corresponding submissions in the immigration consultant’s letter. In other words, I have material doubt that the officer was alive to the key concerns raised by the Applicant in those documents given the submitted differences between the education opportunities in Iran and Canada. I cannot impose my own view of the circumstances, buttress the reasons with my own, or guess what the officer must have been thinking. Nor will I engage in a form of judicial pareidolia using the contents of the factual record before the officer.

This principle was reiterated in Abdul Rahim v. Canada (Citizenship and Immigration), 2024 FC 2065, where Justice Little stated: