The final version of my paper on privative clauses, rights of appeal, and the constitutional guarantee of judicial review has been posted by the Canadian Bar Review. This may be of interest to those following the problem of how limited rights of appeal, restricted to questions of law, interact with privative clauses barring review on all other questions.
Arodu v Canada (Citizenship and Immigration), 2024 FC 1476 (September 19, 2024)
Category: Application of the reasonableness standard.
Context: This is a decision of a visa officer refusing an applicant’s study permit application. The refusal was predicated on “the applicant’s US immigration history…and the applicant’s apparent strong desire to enter Canada…” [9].
Issue: Is the refusal reasonable?
Holding: The refusal is unreasonable.
Analysis: While the Court (per Little J) finds the decision unreasonable, it also takes some time to expressly reject portions of the “applicant’s position that seeks to extend an officer’s obligation to provide written analysis and explanation when denying a study permit application” [26]. This is important: as I have chronicled in this newsletter, Vavilov has meaningfully increased the degree of responsiveness required by decision-makers in front-line contexts. This tendency has been most prominent in cases where it is clear that the decision-maker has relied on “boilerplate” reasoning.
However, Little J seems to suggest, here, that there is a limit to what Vavilov requires in the study permit context. He outlines four nuances to the requirement of responsiveness instituted by Vavilov [27-30].
“First, this is not a case involving generic reasoning to refuse the application…” [27]. I take this to be a recognition of the reality that “generic reasoning”—boilerplate—is the area where Vavilov has made most of the difference.
“…a decision denying a study permit is not a circumstance, on its own and without more, that typically gives rise to severe negative consequences on an individual’s rights or interests” [28]. I take this to be a warning to applicants: generally, on study permit applications, it will not be open to them to argue that a negative decision invites “severe consequences” under Vavilov, warranting a higher bar for substantive reasoning.
Nonetheless, decisions denying study permit applications “must still be sufficiently responsive to the critical or central aspects of the applicant’s submissions or position on the application…” [29].
It is always open to an applicant to argue that the officer—even in brief notes/decisions—did not understand key facts or evidence [30].
Nonetheless, even despite these clarifications in the Vavilov framework, Little J still finds fault with the decision in this case [46].
Little J has now rendered two significant decisions about the scope of Vavilov review in study permit/visa contexts. The first, Zibadel v Canada (Citizenship and Immigration), 2023 FC 285 (Issue #81), came down hard on boilerplate reasoning and a tendency to “engage in a form of judicial pareidolia using the contents of the factual record before the officer” in order to bolster deficient decisions [48]. Zibadel sits well with this case. On one hand, Vavilov meaningfully changed the way courts review decisions that rely on one line of boilerplate. At the same time, the context in which a decision is made significantly conditions the application of the reasonablenesss standard. So here: the denial of a study permit is not the sort of circumstance, like a finding of inadmissibility, that might warrant a heightened requirement for administrative reasoning.
Powell River Energy Inc. v. British Columbia (Utilities Commission), 2024 BCCA 327
Category: Preliminary issues
Context: Power River Energy (PREI) sought leave to appeal a reconsideration decision of the British Columbia Utilities Commission panel. The Commission decided that PREI falls within the deifnition of “public utility” and does not meet the requirements for an exclusion from regulation. Additionally, and importantly for our purposes, the Commission sought directions as to whether it might participate in the hearing, as well as the proper scope of any participation.
Issue: Should the Commission be permitted to participate in the appeal, and on what grounds?
Holding and Analysis: As Abrioux JA notes, the rules governing tribunal standing “have evolved significantly” since the Supreme Court’s early decision in Northwestern Utilities Ltd v City of Edmonton, [1979] 1 SCR 684. In that case, the SCC limited the scope of tribunal participation to argument on jurisdiction, as opposed to the merits. That approach was significantly relaxed in Ontario (Energy Board) v Ontario Power Generation Inc, 2015 SCC 44, which introduced three non-exhaustive factors to be balanced in deciding tribunal standing, absent legislative guidance. These factors could contemplate tribunal participation on the merits.
In this case, the statutory provision at issue provided that the Commission “may be heard on an appeal…” This provision, for Abrioux JA, did not clearly resolve the question, inviting resort to the Ontario Power Generation factors [59]. The factors, in this case, favoured the Tribunal’s participation on the contested merits issues. Several features of the factual context were relevant: the lack of an adversarial context, as well as the presence of a narrow question of law on which the Commission’s submissions may be relevant.
Given the narrowness of the legal question in this case, Abrioux JA’s decision is well-supported. This is the sort of question that might have been classified as “jurisdictional” in the past, given the nature of the statutory interpretation question. Under the revised rules in Ontario Power Generation, the decision fits nicely. The case is proof-positive of the broader discretion exercised by courts to invite tribunals to participate in judicial review/appeal proceedings. But we must remember that this discretion should not be unbounded: as here, Abrioux JA reminds us that “[t]he Commission has emphasized that it is cognizant of the tone it must adopt, and the limits on arguments it can properly advance…” [65]. This is an important reminder so that tribunal standing questions do not become free-for-alls.
International Longshore and Warehouse Union—Canada v British Columbia Maritime Employers Association, 2024 FCA 142 (September 13, 2024)
Category: Preliminary objections//application of the reasonableness standard.
Context: This is a judicial review of a decision of the Canada Industrial Relations Board (CIRB). The CIRB declared that ILWU Canada engaged in an unlawful strike, and that ILWU Canada was required to give a strike notice under the circumstances [4].
Issues: (1) Is the application moot? (2) Is the decision reasonable? There is also a question of procedural fairness which I do not address.
Holding: (1) The application is moot, but discretion should be exercised to hear the case anyhow; (2) The CIRB decision is reasonable.
Analysis: On the first issue of mootness, the Court (per Gleason JA) decided that though the application is moot (the strike that gave rise to the CIRB decision had ended and the parties entered a new collective agreement), the Court should nonetheless Two practical factors favoured hearing the case. First, and most importantly, an adversarial context remained between the parties: a grievance had been filed against ILWU Canada for the strike, and the adjudication of that issue may engage the validity of the CIRB order. As Gleason JA says, “Thus, the outcome of this application could well have a practical impact on the rights of the parties in existing or contemplated litigation” [65]. Secondly, given the routine nature of judicial review of CIRB decisions, it made some practical sense to nonetheless hear the moot case, especially since the parties’ arguments had been filed and the Court had everything in front of it to decide the issue. Gleason JA’s conclusion on mootness is quite consistent with broad trends in the caselaw to liberally exercise discretion to hear moot cases (see, for example, Battista J’s innovations on the mootness test in Nshimyumuremyi v. Canada (Citizenship and Immigration), 2024 FC 1352 (Issue #149)).
On the reasonableness of the CIRB decision, Gleason JA notes that deference is particularly apposite in the case of the CIRB, “which is charged with applying the complex provisions in the Code to bargaining relationships that form the backbone of the Canadian economy and which, in so doing, has acquired considerable labour relations expertise and knowledge of those relationships” [96]. Gleason JA points to a “strongly-worded privative clause” in the legislation. As a preliminary point, I do not believe that the qualitative strength of “deference” in a particular case should turn on a judge’s own appreciation of the decision-maker under review. It is true that, historically, labour relations decision-making was the central case for judicial deference. Now, however, the same reasons that might motivate “super-deference” for labour relations boards would also motivate deference to any decision-maker. There is no longer a special reason to review labour boards more deferentially than any other decision-maker. Instead, review should depend on the application of Vavilov’s constraints, as they appear, in a particular case.
Additionally, the mention of the privative clause is neither here nor there. Vavilov did not assign any particular importance to privative clauses in calibrating the reasonableness standard; in other words, the presence of a privative clause does not mean that judicial review is more chastened. The issue of privative clauses will need to be dealt with by the Supreme Court at some juncture. But for now, privative clauses do not serve any analytical purpose in the law of judicial review.
Gleason JA concludes that the decision is reasonable. The CIRB adequately dealt with its own precedents and Charter arguments; and it reasonably interpreted the statutory grant of authority. ILWU Canada tried to argue that this was a case where only one reasonable outcome was available. Its effort to do so was valiant: the Supreme Court has, in recent cases, deployed a form of reasonableness review that could shade into correctness review, insisting that there is only one reasonable result available: see Mason v Canada, 2023 SCC 21 (Issue #108); Mandate Letters, 2024 SCC 4 (Issue #123). As I have written before, these cases—especially Mandate Letters—arguably blurred the lines between reasonableness and correctness review. This is why what the Supreme Court does is important: it sends signals to litigants and lower courts about the sorts of arguments that might be appropriate. Nonetheless, and despite Gleason JA’s comments on labour relations generally, I think she is right to insist that ILWU Canada was essentially inviting a correctness review [113]. All the more reason to keep a clean line between correctness and reasonableness.
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