Given that next week is Thanksgiving, there will be no SEAR. The newsletter will return on Sunday, October 20.
**dicta recording forthcoming**
Democracy Watch v Canada (Attorney General), 2024 FCA 158 (October 2, 2024)
**edited October 6, 2024**
Category: Partial restrictions on review.
Context: Democracy Watch applied for judicial review of a report by the Conflict of Interest Ethics Commissioner, which concluded that PM Trudeau did not violate the Conflict of Interest Act [COIA] when he participated in two decisions involving WE Charity. The applicants had a hurdle to overcome: s.66 of the COIA contains a privative clause barring review (except on grounds listed in the Federal Courts Act). The applicants argued that this section “offends the rule of law” relying on the Federal Court of Appeal’s previous decision in Canada (Attorney General) v Best Buy, 2021 FCA 161 (Issue #4). The applicants adopt the position that Vavilovian reasonableness review is constitutionally entrenched, and so the partial privative clause preserving review on narrow grounds is unconstitutional. For their part, the respondents argued that s.66 preserves the narrow grounds for judicial review recognized as the constitutional minimum in Crevier v Attorney General of Quebec, [1981] 2 SCR 220. The respondents also emphasized the distinct role of the Commissioner in a “highly political environment,” suggesting that the privative clause reinforces Parliament’s choice to limit resort to the courts [24].
See also the previous decision in this matter, by Stratas JA, in Democracy Watch, 2022 FCA 208 (Issue #71).
Issue: Is s.66 unconstitutional because it bars review in a manner contrary to the constitutional guarantee of judicial review in the superior courts?
Holding: All 3 judges (de Montigny CJ, Boivin JA, LeBlanc JA) agree that Democracy Watch’s application for judicial review should be struck because the COIA provides adequate alternative remedies to judicial review. de Montigny CJ wrote separately to reject the proposition that reasonableness review is constitutionally entrenched [76]. de Montigny CJ’s opinion in this regard, however, did not command a majority of the Court. Boivin JA and LeBlanc JA concluded that de Montigny CJ’s opinion in this regard was obiter [96].
Analysis: The holding in this case is quite narrow, limited to the analysis on adequate remedies. Nonetheless, de Montigny CJ’s opinion provides grist for the mill of the undoubtedly forthcoming appeal to the Supreme Court on the constitutional question. As he says, “I realize that the final word on that most complex and vexed question will ultimately have to come from the Supreme Court itself” [78].
Readers of the newsletter will know that we have been following the twists and turns of the privative clause issue post-Vavilov (see e.g. Issue #81, Issue #119). Many of these cases have dealt with the institutional situation where there is a right of appeal on questions of law, with a privative clause barring review on all other issues (as in Best Buy itself). Here, the institutional arrangement is different: there is a partial privative clause, and no right of appeal (see para 27). Nonetheless, comparable issues arise about the scope of the constitutional guarantee of judicial review (though Best Buy is not strictly dispositive, which is why the concurring judges do not see de Montigny CJ’s constitutional analysis as binding).
Nonetheless, I generally agree with de Montigny CJ’s analysis of the problem in this case, as I outline in my paper now published in the Canadian Bar Review. But it is worth highlighting the key points of de Montigny CJ’s view, which will undoubtedly set up the debate in the Supreme Court.
de Montigny CJ’s opinion begins with a masterful (at least in my view) summary of the history of privative clauses in Canadian law and the convulsions in judicial treatment of those clauses [34-49]. They key feature of this history is a shift in the conceptual basis for the exercise of judicial review. In “the early days…the role played by privative clauses was tightly related to jurisdiction” so that “[i]f the administrative decision-maker’s error was committed within the exercise of its jurisdiction conferred by statute, a privative clause would be effective to insulate it from review…” [34-35]. This explains Crevier, which framed the constitutional guarantee of judicial review around jurisdictional error. But with the dispatch of jurisdictional error, and the increasing difficulty that courts had in identifying such an error, privative clauses took a downgraded role as merely indicating a deferential standard of review in the Dunsmuir era [66]. Vavilov made matters worse, because it held that “privative clauses play no role in identifying the applicable standard of review” [52].
In the post-Vavilov era, the question is stark, because privative clauses must mean something. If no effect is given to privative clauses within constitutional limits, then the Supreme Court’s concept of legislative intent in Vavilov—represented in institutional design choices like rights of appeal—would be thin and unbalanced, indeed (see de Montigny CJ, at para 65). On the other hand, the rule of law must also mean something, and so the question becomes whether it creates a “firewall” over Parliament’s ability to exclude issues that otherwise would be amenable to review under a constitutionalized reasonableness standard [68].
As I outline in my paper, I agree with de Montigny CJ that reasonableness review itself is not constitutionalized—saying so would mean adopting a rather thick version of the rule of law that could well be in tension with the legitimate parliamentary choice to bar review on some grounds. As he says, the conclusion that reasonableness review is constitutionally guarantee “…is too broad and does not flow from the case law of the Supreme Court on judicial review nor from the most generous interpretation of Vavilov” [72]. Quite aside from my position that the constitutional guarantee of judicial review is best translated as a guarantee for review on questions of law (rather than questions of law & fact on the reasonableness standard), I think de Montigny CJ rightly points out that Vavilov did not, by implication, create a new fetter on legislatures in the form of a constitutionalized reasonableness standard [69]. More fundamentally, I think he is spot-on when he says:
“As long as courts have the ability to intervene in cases where an administrative decision-maker steps out of bounds and impermissibly oversteps its lawful authority, how can it be said that the rule of law is threatened by the insertion of a privative clause in a statute?” [75].
On the issue of alternative remedies that united the entire Court, de Montigny CJ puts much stock in the institutional design choices made by Parliament in creating and empowering the Commissioner. Those choices implied that courts should be careful about interfering in a legislative scheme designed to provide political remedies [88, 90-91]. By my lights, this is a fair conclusion. The text of the statute reveals institutional design choices that clearly place the Commissioner in a proximate relationship with political remedies. There is good reason for courts to stay their hands based on the text of the statute, which contemplates the Commissioner acting as an independent officer of the legislature. Here, the privative clause was presumably enacted with this in mind.
No matter what I think, the scope of the constitutional guarantee of judicial review remains controversial. There is dispute among academics and courts on the issue. de Montigny CJ has merely set up the appeal in the Supreme Court.
Mehrara v Canada (Citizenship and Immigration), 2024 FC 1554 (October 3, 2024)
Category: Application of the reasonableness standard//Chinook
Context: This decision by Battista J is the most intensive look yet at IRCC’s “Chinook” software (see Issues #85, #119). Here, applicants challenged the reasonableness of a refused study permit application and an associated temporary resident visa. These decisions were prepared with the assistance of Chinook. The applicants’ arguments related to the fettering of discretion of the visa officer “as well as a breach of fairness due [to] the limited information regarding Chinook’s role in the decision making process.
Issues: Are the decisions reasonable? Was there a breach of procedural fairness?
Holding:
[3] For the reasons that follow, I find the decisions to be unreasonable, but I find that no breach of procedural fairness or fettering occurred in the decision making process. The application for judicial review is granted.
Analysis: This is a fascinating exploration of Chinook—the most comprehensive yet—and it is worth noting Battista J’s comments. While he generally does not see Chinook as relevant to the legal issues raised, he tantalizingly leaves open the door to further challenges based on Chinook.
First, the applicants argued—when advancing their fettering arguments—that when Chinook is used, the presumption that the decision-maker considered all evidence should be waived. Battista J rejects this argument [46]. For him, this presumption is “particularly appropriate in the administrative law context” because of the “necessity of decision-making efficiency” [46]. Just because the applicant does not have access to the entire file or all information about Chinook does not mean that she cannot discharge her onus to demonstrate that evidence was not considered [47]. I have written before about the problems that this presumption could raise in the modern system of judicial review is premised on a culture of justification. Applied too strongly, it could shortcircuit the responsibility of decision-makers to justify their decisions with reference to key evidence. Battista J seems to think that, at least in this case, Chinook itself did not provide a reason to reject the presumption.
Second, the applicants identified several features of the Chinook system that they said should have been disclosed in the certified tribunal record. But here, Battista J says that the alleged errors in the case— “an alleged mismatch between the evidence that was provided and the reasons for the decision that were rendered” [53]—are “not relevant to this application because the alleged error is not connected to the involvement of Chinook” [55]. So there are several features of the Chinook software that Battista J simply sees as lacking a proximate relationship to the judicial review application:
Notes: Chinook generates “working notes,” which are “transitory noes made by an officer as the decision making process unfolds” [56]. For Battista J, these notes do not form the reasoning of the decision, and so cannot be relevant to a judicial review application.
Risk Indicators: these indicators relate to “information provided to a visa officer about ‘trends the IRCC has detected’ with respect to areas of concern [61]. No indicators were identified in the applicants’ file. However, Battista J leaves open the possibility that “problematic risk indicator categories, which are then imported into Chinook” could raise concerns about bias or irrelevant considertions [63].
Spreadsheets: Battista J mentions that Chinook spreadsheets contain the working notes, risk indicators, and other information relevant to an application—but he says that these spreadsheets are merely “conglomerative” [65] which do not “independently generate information such as statistics…” [66].
Overall, I think this opinion walks a fine line. Counsel for the applicants clearly put forward a strong case that Chinook could have impacted the result of the case, and offered comprehensive information about it [see para 27 and the Tao Affidavit]. Some of this information has been missing in previous challenges to administrative decisions based on the Chinook software (see e.g. Shirkavand v Canada (Citizenship and Immigration), 2023 FC 1022 (Issue #99); Zargar v Canada (Citizenship and Immigration), 2023 FC 905 (Issue #95). The applicants put their best foot forward. But I also think that Battista J was right, on these facts, to say that Chinook simply may not have been relevant to the alleged errors.
That leads, however, to the final point. Many of the cases that have dealt with Chinook leave open the prospect that future uses of processing software could raise legal issues amenable to correction on judicial review. Battista J, in my view, is on solid ground when he continues this trend. He connects the potential problems with Chinook, particularly with risk indicators, to the ethic of justification endorsed by Vavilov:
[69] However, while I have found the record to be complete for the purposes of reviewing this decision based on the nature of the error, the reasons of the Officer, and the current evidence regarding the function of Chinook, this may not be the case in other judicial reviews of applications processed using processing technology, particularly in applications where risk indicators are present. For this reason, the Respondent’s systematic daily deletion of all material generated by processing technology may not reflect best practice. The growing recognition that the exercise of public power must be justified, as articulated in Vavilov and affirmed in Mason, would be hollow without a basic understanding of how the exercise of that power occurs.
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