Nshimyumuremyi v Canada (Citizenship and Immigration), 2024 FC 1352 (August 29, 2024)
Category: Preliminary objections (mootness)
Context: This is a judicial review of a refusal of an application for a pre-removal risk assessment [PRRA]. The Applicant is a gay man from Rwanda. As the Court (per Battista J) explains, “The Applicant was removed from Canada on April 30, 2024, despite the issuance of a production order from the Court prior to the removal indicating that leave to apply for judicial review would likely be granted” [1]. As a result, the government argued that the judicial review is moot.
Issue: Is the matter moot?
Holding: While Battista J was bound by Federal Court of Appeal jurisprudence that review of a PRRA after removal is moot (see Solis Perez v Canada (Citizenship and Immigration), 2009 FCA 171), he nonetheless exercised his discretion to hear the matter under the a revised form of the test in Borowski v Canada (Attorney General), [1989] 1 SCR 342 [31].
Analysis: This is an important case for those who deal with PRRA applications specifically, but also for those who encounter mootness in any judicial review context. Two take-aways.
First, in exercising discretion to hear the case, Battista J rejects the notion that “a continuing adversarial context should not in itself justify the exercise of discretion to determine a matter that is moot” [28]. This notion was, it is true, supported by some authority [28-30], but Battista J does not find these cases particularly binding, and in principle “[i]mposing restrictions on the various criteria for exercising discretion in moot cases would contradict ther very process of exercising discretion as well as the caution of the SCC in Borowski not to fetter a court in exercising such discretion” [30].
Secondly—and importantly—Battista J officially adds a new factor to consider in exercising discretion to hear a moot matter: “The role of one of the parties (or their agents) in manufacturing the conditions of mootness” [25]. Battista J explains the criterion: its value “lies in its potential to deter a party from removing an otherwise justiciable issue from the Court based solely on that party’s ability to do so” [39]. He ties this value to core principles underlying the law of judicial review. For him, a “reflexive or broad application of mootness in the public law context has the potential to shield public decision making from transparency and accountability” [41]. Accordingly, “[t]he exercise of discretion to determine matters when public authorities have played a role in manufacturing mootness reduces the risk that unlawful public decisions will be insulated from public scrutiny” [41]. This case provides an example: here, the Applicant was removed despite a valid production order, issued by the Court, which is issued when the Court is likely to grant leave on the underlying matter [44-45, 47].
The addition of a factor to the Borowski test is not a small matter. I leave it to others to query whether this was the right case to recognize a new Borowski factor—though Borowski does leave open the prospect that the list of factors to consider is not closed, and Battista J’s addition of a factor is well-reasoned, at least rooted in fundamental concerns. Further, one wonders whether this mootness factor will affect government more than other parties. Nonetheless, the addition of the factor is connected to broader trends in Canadian administrative law, emphasizing the evil of immunization of review—for example, similar concerns have been raised by the Federal Court of Appeal in its jurisprudence on the scope of the record on judicial review. With that evil in mind, Battista J’s introduction of an additional mootness factor makes some sense, and further carries some resemblance to the “clean hands” doctrine (see para 39).
Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer), 2024 ONSC 4464
**Thank you to a SEAR reader for sending this case**
Category: Preliminary objection (amenability)
Context: The Financial Services Regulatory Authority of Ontario [FSRA] initiated enforcement proceedings against the applicants, proposing to revoke or refuse the applicants’ licences. The “notice of prooposal” initiating enforcement proceedings was published on the FSRA’s website under FSRA policy (the “Transparency Guideline”). After preliminary motions challenging aspects of the application for judicial review, certain parts of the application remained: (1) a request for a declaration that the policy of publication of enforcement is unreasonable; (2) a request for a declaration that FSRA’s refusal to publish the applicants’ request for an oral hearing is unreasonable.
Issues: Are the impugned decisions amenable to judicial review? Are they unreasonable?
Holding: The remainder of the claims in the application are not amenable to judicial review, and “the impugned decisions of FSRA are, in any event, reasonable” [9],
Analysis: The core of the applicants’ challenge concerned whether FSRA’s policy to publish documents related to enforcement proceedings is amenable to review. The Court (per Backhouse J) notes that “FSRA is not specifically required or empowered by statute to issue the Transparency Guideline or to publish [the enforcement documents].” In other words, the publication of this information does not depend on any statutory authority that could atrtact judicial review. Moreover, here, Backhouse J concludes that the impugned decisions, while potentially impacting the reputation of the applicants. That is because “[r]eputational damage in the circumstances of this case does not give rise to a right of judicial review" [75].
Unsurprisingly, Backhouse J concludes that the Transparency Guidance and the process by which it was developed is reasonable [88].
This is a case that tests the limits of the sorts of rights, interests, and privileges that typically attract judicial review. Backhouse J seems careful not to close the door entirely to reputational damage as a harm that could attract judicial review (“…in the circumstances of this case…”). Nonetheless, it seems that such harms are typically not tangible enough to justify judicial review.
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