Another year older, another year wiser. Or so we hope.
As I pointed out last week, the story of Canadian administrative law has been genuinely good for the last few years. This year, the Supreme Court’s decisions may have thrown a monkey wrench in the machinery. How far the wrench gums up the machine remains to be seen, and perhaps the distortions won’t have any effect at all. Nonetheless, I aim to point out some of these potential issues for your consideration.
One of the issues, judicial review of regulations, will receive a hearing in the Supreme Court in 2024. It is an issue I have covered in this newsletter for some time. I now have a paper coming out on that issue in the Ottawa Law Review.
A Merry Christmas and Happy New Year, to you and yours. The newsletter will resume on January 7, 2024.
Charter Values
The late-breaking story of 2023 was the Supreme Court’s decision in CSFTNO v Northwest Territories (Education, Culture and Employment), 2023 SCC 31. I considered the case (critically), last week. The decision has been described as an affirmation of the Charter values approach in administrative decision-making, which asks administrators to weigh Charter values—not rights—against statutory objectives when faced with a constitutional argument in the exercise of their discretion. CSFTNO, though, could be seen as an extension of the values framework, with an odd simulacrum of reasonableness review attached to it.
CSFTNO involved s.23 of the Charter, which guarantees minority language education to certain qualified rights-holders. This case involved families that, admittedly, did not have a constitutional right to this education. Nonetheless, Côté J for a unanimous bench of seven concluded that, in deciding whether to admit the non-rights holder families, the Minister needed to consider the Charter values underpinning s.23. In other words, the Minister was under an obligation to consider the Charter value even though the Charter did not strictly apply (CSFTNO, at para 64). Additionally, Côté J attempted to integrate the Charter values framework with Vavilov’s more robust reasonableness standard. Decision-makers must meaningfully grapple with relevant Charter values, reflected in the governing statutory scheme, the parties’ submissions, or “because of the link between the value and the matter under consideration” [66]. But this raises the prospect—remote as it may or may not be—that parties can raise new Charter values on judicial review, and that decision-makers may be required to undertake a Charter values analysis even when not argued.
The values framework is a matter of some conceptual debate, which I do not want to rehash here, in part because I covered this territory last week. Suffice it to say that I believe there will be confusion about (1) when decision-makers themselves will have to, of their own accord, conduct a Charter values analysis—and the scope of this obligation; and (2) when courts can hear new Charter values arguments on judicial review. And there will be conceptual battles to come—for example, can a decision-maker’s reliance on a Charter value (untethered to a right) to justify a decision defeat a claim of Charter right? The relationship between Charter rights and values has not been settled by CSFTNO, at least in terms of which—if any—has primordial status. Coupled with the Supreme Court’s recent statements in constitutional law putting special emphasis on the text as the starting point for interpretation, fair questions can be raised about what the Constitution protects—(1) the text, agreed upon by the framers, (2) values, or (3) both, and to what extent.
One of the tricky parts of CSFTNO, from an administrative law perspective, is the “funhouse mirror” approach to reasonableness review. Under Vavilov, and as I note below in relation to Zibadel v Canada (Citizenship and Immigration), 2023 FC 285, Vavilovian reasonableness is robust in the sense that (1) decision-makers must explain their decisions; boilerplate does not suffice; (2) courts do not arrogate to themselves the responsibility to conduct decisions—this is represented in the prohibition against reweighing, and Vavilov’s revived prohibition against supplementing decisions. In my view, this description of Vavilov provides a defensible balance between deference and robust review. Decision-makers must decide on the merits, faced with the parties’ arguments, and they must explain their decisions. Once they do so, courts review those decisions with due respect—they do not add or subtract to them.
But the version of reasonableness review in CSFTNO is quite different because it leaves open the door to the courts reweighing Charter values. At first blush, it appears “robust.” Courts can reweigh Charter values and apparently determine the extent to which they can govern the constitutional analysis. But this robustness, in my view, comes at the price of principle because it could be seen as a form of disguised correctness review. If it is, then this is not really Vavilov reasonableness. It is a mystery wrapped in a riddle: CSFTNO imposes an obligation to consider Charter values on decision-makers—a tool that can be potentially used to defeat claims of Charter right, in other cases, a potentially burdensome obligation on administrative decision-makers to consider legal materials that were not argued. Courts then can re-weigh Charter values on judicial review—values that, again, the decision-maker may simply have not addressed. What we’re missing is a focus on the reasons offered by the decision-maker, the judicial focus under Vavilov.
As I said last week, there was a different way to integrate Vavilov into the world of Charter values. We could have expected decision-makers to prepare cogent reasons outlining why their decisions do not unjustifiably abridge Charter rights; and judicial review would then centre on whether the reasons disclose a demonstrably justifiable balance of the right with a statutory grant of authority. This would keep the conceptual basis of Vavilov intact. Unfortunately, Côté J did not explore this option.
I expect that 2024 will likely lead to some growing pains as we explore the implications of CSFTNO. Some of these pains may pertain to reasonableness review, and the respective roles of courts and administrators under this revised framework. Additionally, the Supreme Court will have another look at the Doré framework in the appeal from Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476 (Issue #46).
For arguments from different perspectives on this, see: Paul Daly and Leonid Sirota.
Reasonableness Review: Mason v Canada (Citizenship and Immigration), 2023 SCC 21
The Supreme Court’s “funhouse mirror” approach to reasonableness might have also raised reared its head in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108). This case presented a mixed bag. On one hand, Jamal J (for a majority) concludes that the Immigration Appeal Division [IAD] failed to address key elements of its statutory grant of authority, refusing to find that the IAD considered these elements “implicitly.” This seems fully consistent with the general trend of Vavilovian reasonableness review: a stricter set of standards, especially on questions of law, for decision-makers to integrate into their practices. Particularly, Jamal J evidently erects a high bar here to consider that an issue has been considered by a decision-maker impliedly.
And yet, from a doctrinal coherence standpoint, Mason might cause some worry. Jamal J also finds fault with the IAD for failing to consider certain international law constraints that were not raised before it. Now, the IAD is subject to the Immigration and Refugee Protection Act, which explicitly commits to implementing Canada’s international law obligations. But Jamal J finds this to be a freestanding constraint, unaffected by an applicant’s failure to raise that argument in front of it. It is a hollow form of deference, in my view, that holds administrators to an ill-defined standard that courts can then second-guess on judicial review. In many ways, this finds harmony with the CSFTNO approach to reasonableness review.
If we read Mason and CSFTNO together, the picture begins to look like this: Charter values and international law standards might sit outside the normal rules of reasonableness review. If this is so—if the Supreme Court is implicitly telling us that the conceptual basis for deference in these cases is overpowered by the substantive strength of these values—then the implications could be widespread. We will have to wait and see.
Scope of Judicial Review: Yatar
In November, the Supreme Court heard the case of Yatar, which I also profiled in last year’s Administrative Law Wrapped. At first blush, the issue the case presents is simple: is a statutory right of appeal an adequate alternative remedy to judicial review, such that a court can exercise its discretion not to hear a judicial review application in face of that right of appeal? The case also centres on a subsequent question. Under what circumstances can a court decide to exercise its constitutionally protected judicial review discretion even in face of a right of appeal? The question gained some currency after Vavilov, which held that rights of appeal do not “on their own” preclude access to judicial review (Vavilov, at para 52).
Yatar, at one level, presents the problem that courts have struggled with all year: what is the relationship between judicial review and rights of appeal? See: Issue #81; Issue #110; Issue #111. This could be assessed from a constitutional perspective, as I did in my paper on the matter—does a right of appeal that is limited to questions of law, say, undercut the constitutional guarantee of judicial review in superior courts? But this is not, for the most part, how the argument proceeded in the Supreme Court. Instead, the parties were focused on the test in Strickland v Canada (Attorney General), 2015 SCC 37, which outlines the circumstances in which courts under the common law may exercise discretion to refuse to undertake judicial review, specifically when there is an adequate alternative remedy. These circumstances are well-recognized at common law: prematurity, adequate alternative remedy, delay and the like. A statutory right of appeal could be analyzed under this framework as an “adequate alternative,” but I fear this obscures more than it illuminates. On a right of appeal, a litigant gets judicial resolution of largely the same class of questions she would receive on judicial review; this is quite unlike the typical adequate remedy cases, which involve exhaustion of remedies before the decision-maker.
The question then becomes whether a limited right of appeal that reduces the class of questions available for resolution is “adequate,” but this is merely to restate the constitutional problem: can a legislature properly oust judicial review on questions of fact that previously may have been characterized as jurisdictional, attracting constitutional protection? This was dodged in the hearing, for the most part.
For my part, I cannot imagine an opinion in Yatar that does not engage the constitutional problem, at least in part. But perhaps the fact pattern in Yatar does not present it as squarely as one would hope. Yatar contained no privative clause—only a right of appeal which, “on its own”, might not preclude judicial review implicitly. But where a right of appeal restricted to questions of law is raised alongside a privative clause barring review on all other issues, the constitutional problem is raised squarely, as it was in Canada (Attorney General) v Best Buy, 2021 FCA 161 (Issue #4). There, the right to seek judicial review is barred explicitly. In these cases, the constitutional issue cannot be hidden behind Strickland, and courts will need to confront Vavilov’s silence on the role of privative clauses with the obscured conceptual basis for the constitutional guarantee of judicial review. If Yatar does not deal with this problem, I doubt it will go away.
Regulations: Auer/TransAlta vs. Portnov/Innovative Medicines at the SCC
The ongoing debate over whether Vavilov applies to subordinate legislation (particularly executive legislation) will be heard at the Supreme Court in 2024 in the cases of Auer and TransAlta. The case was se tup by the debate between the Alberta Court of Appeal and the Federal Court of Appeal, which I profiled in Issue #68. At the heart of the debate is whether Vavilov applies to the review of subordinate regulations (Federal Court of Appeal) or whether the more deferential standard in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 applies because of the proximity of the executive to the legislative process (ABCA).
Two of the pressure points that will govern how this case comes out: (1) the status of the “record”; (2) the principles of interpretation. I cover some of these in my paper, linked above. On Issue (1), the problem is whether a consistent package of material is created as a “record” on the promulgation of subordinate legislation. At the federal level, judicial review on Vavilov grounds has proceeded easily in the Federal Court, perhaps because of the advent of regulatory impact statements and their frequent use by courts to understand the purpose of a regulation. But this will not always be available, particularly at the provincial level where scrutiny of regulations processes are relatively less developed. Here, Vavilov’s focus on “reasons” runs into some practical issues, but for my part, I do not believe they are at all insurmountable.
This is because of the real focus of judicial review of subordinate instruments—even decisions. The question is whether the regulation falls within the ambit of the enabling statute. This is fundamentally a legal question, one that falls to resolution under the principles of interpretation. Vavilov provides extensive guidance on the use of those principles in administrative contexts, significantly more guidance than Katz. Those principles can still apply even in absence of reasons or a record. True, as Vavilov instructs, in such cases the analysis may focus more on outcome. But deference does not disappear. Delegated legislation is often authorized by broad enabling legislation, and here, deference is built-in—where semantic breadth is wide, Vavilov instructs courts to stay their hands.
The interaction between the requirement of justification and these principles will need to be worked out should Vavilov apply to subordinate legislation. There are a wide variety of views on this issue—some quite different from mine—with widespread implications for judicial review of administrative action. See Paul Daly, Shaun Fluker, Sara Blake.
The Changing World of Immigration & Refugee Law
Much of the law of judicial review cashes out in the immigration state, and on that front, it was a busy year. There are many sub-themes happening at once in this area.
1. Writ of Mandamus
The writ of mandamus is exceptional, compelling a public body to complete a duty to act that is owed to an applicant. As delays for processing of ordinary immigration applications increase—and show no signs of abating—the writ of mandamus may be a more common judicial remedy. Several cases this year dealt with this issue: see e.g. Samideh v Canada (Citizenship and Immigration), 2023 FC 854; Chen v Canada (Citizenship and Immigration), 2023 FC 885 (Issue #96); Ghaddar v Canada (Citizenship and Immigration), 2023 FC 946 (Issue #98). In Chen (a study permit application), the Court was ultimately not convinced that mandamus should issue given that the impact of the delay on the applicant’s study permit was not consequential, and did not rise to the level of “significant prejudice.” But Aylen J was not impressed with the government’s excuses for the delay—the pandemic and pending security clearances. In Ghaddar, however, mandamus was granted by Gascon J. Here, again, the government’s “security clearance” justification was found wanting. And Gascon J reached the same result in Ran v Canada (Citizenship and Immigration), 2023 FC 1447.
The difference between Chen and Ghaddar might lie in the requirement of “significant prejudice” that was seemingly imposed by Aylen J in Chen, but not found in Ghaddar (but is an aspect of the analysis in Ran). As Will Tao argues, the imposition of a “significant prejudice” test in mandamus cases might mix together considerations relevant to the abuse of process doctrine with those pertinent to mandamus. In cases where a requirement of prejudice was explored by the court, the requirement was sometimes weak and sometimes quite stringent. Consider Chen and Ran, both study permit cases. In Chen, Aylen J notes that since the applicant was seeking a study permit “[t]he delay has not removed any substantive right of the Applicant, but rather prevents a right to study in Canada…from being vested for a period of time” (Chen, at para 19). In Ran, the nature of the application was not relevant in determining prejudice. In fact, the delay was not just a short wait for a right to “vest”—it was a loss of a full year of study plus a separation from her partner, causing her “psychological and emotional distress” (Ran, at para 34). One senses a lower bar in Ran for prejudice.
At any rate, these doctrinal twists might affect the rate at which courts will grant mandamus, but barring a lasting political solution to delays in processing, I also suspect that applicants will continue to seek the writ.
2. Bulk Processing
Given the volume of various immigration applications, Immigration, Refugees and Citizenship Canada [IRCC] has adopted the Chinook bulk processing tool. The procedural and substantive propriety of using this bulk processing tool has been raised in several Federal Court cases, with little success. In Haghshenas v Canada (Citizenship and Immigration), 2023 FC 464 (Issue #85), Brown J indicated the Court’s (so far) general preference that applications be dealt with on an individual basis “whether or not artificial intelligence was used” (Haghshenas, at para 24), and without peeling back the curtain on how Chinook operates. In other cases, the Court has used stronger language. In Ardestani v Canada (Citizenship and Immigration), 2023 FC 874, Aylen J said that “the hearing of an application for judicial review is not an examination for discovery” and chastised the applicant for raising arguments rejected in Haghshenas.
I predict that applicants will continue to struggle to link fairness or substance arguments to the operation of Chinook. This is because, now, there is a veritable laundry list of cases rejecting the proposition that—on the current state of the facts—Chinook arrogates to itself a decision-making role that should properly rest in human hands (see Raja v Canada, 2023 FC 719 and Issue #99). Though the Court has left the door open to an argument on fairness lines, it is not open much (Shirkavand v Canada (Citizenship and Immigration), 2023 FC 1022).
3. A Closer Look at Reasons
As noted above in Mason, there is a principled way and a less-principled way to do robust reasonableness review. Zibadel v Canada (Citizenship and Immigration), 2023 FC 285 (see Issue #81) stands as a good example of the principled way of doing reasonableness review, and also stands as an example of the stricter method of judicial review developing in the Federal Courts, particularly with respect to front-line visa decisions. In Zibadel, Justice Little found fault with a visa officer’s boilerplate reasons, and refused an invitation to engage “in a form of judicial pareidolia using the contents of the factual record before the officer” (Zibadel, at para 48). Put differently, courts should have “a high level of confidence before concluding that something not apparent in the decision-maker’s reasons is implied or implicit on the basis of the factual evidence alone” (Zibadel, at para 47). This only reinforces other lucid comments made in other courts this year about the importance of decision-makers actually deciding issues themselves, and courts reviewing what was decided under a robust framework: see Cavendish Farms Corporation v Lethbridge (City), 2022 ABCA 312, Issue #60.
Zibadel is an excellent decision that, in my view, typifies the best of Vavilov. It is also representative of the general trend in the Federal Courts, and perhaps beyond. Government counsel defending administrative decisions on judicial review should look closely at Zibadel to see the general disposition of courts conducting reasonableness review in the post-Vavilov world. The Supreme Court could learn something from the Federal Courts!
For more on Chinook, see Will Tao’s appearance on this podcast.
For more on mandamus, see Will’s article on Chen.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own