Canadian National Railway Company v Halton (Regional Municipality), 2024 FCA 160 (October 4, 2024)
**LINK UPDATED**
Category: Application of the reasonableness standard.
Context: I reviewed the Federal Court’s decision in this case in Issue #128. This case involves CN’s application to operate an intermodal hub in Milton ON. The underlying decisions are (1) a ministerial referral decision concluding that the project is likely to cause significant environmental effects; and (2) a Cabinet decision concluding that any environmental effects caused by the project are justified in the circumstances. At the Federal Court, Brown J concluded that the ministerial referral decision, and Cabinet’s ultimate decision, failed to properly grapple with potential direct environmental impacts on health, arguably required by the relevant statute.
Holding and Analysis: The Court (per Biringer JA) disagrees with the Federal Court, and holds that the underlying decisions are reasonable.
In reviewing the Federal Court’s decision, I noted that Brown J’s reasons were “rather exacting in [their] review of the record…” with his conclusion depending on “a rather close parsing of the various reports and Order in Council.” In her reasons, Biringer JA identifies this as the central problem with the Federal Court’s decision [see paras 70-72]. For Biringer JA, “[i]t is difficult to imagine what more the Minister could have done to consider human health” [79].
This case is an important entry in the ongoing saga of how courts review ministerial and Cabinet decisions. The major takeaway appears to be that where—as here—the legal constraints on the decision-maker are less restrictive, and the decision depends on an assessment of the evidence, reasonableness review will not demand exacting scrutiny. Consider three components of Biringer JA’s reasons that provide further guidance on applying Vavilov’s reasonableness standard:
As we have seen previously—see Issue #3 and Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157—misunderstanding the way a statute works can lead to errors in the review of reasons for their adequacy. This was the central problem in this case. For example, the Federal Court looked at one of the statutory provisions governing the dispute and believed that it created a distinction between “direct” and “cumulative” environmental impacts. It then faulted the Minister’s decision and the Cabinet decision for failing to specifically consider “direct” environmental effects on health [54]. But for Biriniger JA, this distinction was largely immaterial, and so the Federal Court’s error “pervaded [its] review” [54]. The insistence on a specific consideration of “direct” effects on health misses the substantive consideration that was given to these effects throughout the regulatory process (see paras 60-70).
The Federal Court had also faulted the Minister for failing to consider a provision of the statute which mandates that decision-makers “must exercise their powers in a manner that protects the environment and human health” [74]. Putting aside that a decision is not unreasonable simply because it fails to refer to a particular statutory provision, this is especially so where a provision—like the one here—is a “guiding” provision that is merely interpretive and does not prescribe outcomes [77]. Here, Vavilov’s focus on the governing statutory scheme is doing a significant amount of work.
Biringer JA rejects an argument that the ministerial and Cabinet decisions did not adequately reflect the stakes—one of Vavilov’s constraints. This constraint is most applicable where there is a decision that threatens “life, liberty, dignity, or livelihood” [105]. Biringer JA openly questions whether “the Minister’s decision or the GIC Decision is of the type contemplated in Vavilov…” [105]. While she does not elaborate on the point, it does make sense to suggest that the principle of responsive justification in Vavilov does not carry the same force in all decision-making contexts and in all statutory schemes. To my mind, responsive justification is more applicable in the case of an individualized decision raising significant, life-altering consequences for a particular person or defined set of people. This decision is more polycentric in nature, requiring the minister and Cabinet to balance several conflicting considerations. Judicial review does not lose power in these circumstances, but it does change, so that some of Vavilov’s constraints are simply less relevant.
Hannan v Scouts Canada, 2024 ONSC 5361 (September 27, 2024)
Category: Justiciability.
Context: The applicant is a longstanding volunteer with Scouts Canada. Scouts Canada was incorporated by an Act of Parliament in 1914. His annual application to renew his volunteer status was denied by the Group Commissioner for the troop for which he typically volunteered. The applicant argued that the denial of his application was in breach of internal rules and procedures of Scouts Canada.
Issue: Is the application for judicial review in relation to a public matter?
Holding: I have concluded that the relationship is contractual in nature and that if the basis for not renewing membership is alleged to be unacceptable conduct on the part of the member, the member has the right to assume that the organization will follow its stated policies
Analysis:
As the Supreme Court has explored in recent years, in both Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 and Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22, courts can only intervene in the affairs of private associations where there is a legal right at stake.
One of the alleged legal rights at issue in this case was a purported contract between the applicant and Scouts Canada. On this account, Scouts Canada volunteers “are recruited and induced to continue as volunteers by a number of well publicized policies and procedures promising to support volunteers in their roles and describing a fair, comprehensive and open process to address performance concerns and impose discipline if necessary” [45]. This web of contracts “[i]n their formality and structure …appear contractual in nature and not merely aspirational” [45].
Scouts Canada rejected this interpretation, arguing that if a contract existed, it was only a “one-year term contract” [38]. On this framing, volunteers offer their services yearly, and Scouts Canada other accept or reject the offer. The Court ultimately rejects this interpretation, suggesting instead that the policies of the organization warrant that “annual renewal will ordinarily be granted if all screening requirements are met and the volunteer has not been made aware of performance concerns” [42].
There was concern after Wall and Aga that the Supreme Court’s jurisprudence on the matter would represent a retreat of the supervisory jurisdiction. This case is a sign, perhaps, that those worries have not come to fruition.
**For another decision of this sort, see Nova Scotia Health Authority v Finkle and West, 2024 NSCA 87, which follows some of the legal conclusions of the Court of Appeal for Ontario’s recent decision in Khorsand v Toronto Police Services Board, 2024 ONCA 597 (Issue #147).
Mamut v Canada (Citizenship and Immigration), 2024 FC 1593 (October 8, 2024)
Category: Mandamus.
Context: The facts of the case are complex. Below are the opening paras of the Court’s (per Norris J) decision:
[1] Salahidin Abdulahad and Khalil Mamut are Chinese citizens of Uyghur ethnicity. They were both captured in Pakistan and turned over to the United States military after coalition forces invaded Afghanistan in response to the terrorist attacks in the United States on September 11, 2001. In early 2002, Mr. Abdulahad and Mr. Mamut were transferred to the Guantanamo Bay detention facility. They were held there until 2009, when they were released to be resettled in Bermuda.
[2] Mr. Abdulahad’s spouse, Zulipiye Yahefu, was granted refugee protection by Canada. When she applied for permanent residence in Canada in December 2013, Ms. Yahefu included Mr. Abdulahad on her application. Ms. Yahefu became a permanent resident in July 2014 but Mr. Abdulahad’s application remains outstanding. Ms. Yahefu is now a Canadian citizen.
[3] Mr. Mamut’s spouse, Aminiguli Aizezi, was also granted refugee protection in Canada. When she applied for permanent residence in Canada in June 2015, she included her then only child (a son) as well as Mr. Mamut on her application. Ms. Aizezi and her son became permanent residents in March 2017 but Mr. Mamut’s application remains outstanding. Ms. Aizezi and her son are now Canadian citizens.
[4] On February 14, 2022, Mr. Mamut and Ms. Aizezi commenced an application for judicial review (IMM-1407-22). On August 31, 2022, Mr. Abdulahad and Ms. Yahefu commenced a similar application (IMM-8585-22). The applicants contend that they are entitled to a legal remedy because of the failure of the Minister to make a decision on the outstanding applications for permanent residence in a reasonable time.
Issue: Should mandamus be granted?
Holding: The application for mandamus should be granted, but the applicants’ request for a stay of proceedings of their admissibility proceedings should be rejected.
Analysis: This is yet another case, in the Federal Courts, where mandamus is granted for delays in the processing of applications (see also Issue #132). Norris J generally concludes that the delay was unreasonable, that the need for security screening did not in any way justify the delay, and that the Applicants did not have responsibility for the delay. To show that the delay was not justified, the Court pointed to significant gaps between procedural steps in the processing of both Applicant’s applications. These gaps range from 10 months to 31 months and apparently, have no explanation.
Norris J—rightly in my view—does reject the applicants’ request for a stay. He states that a stay of the security inadmissibility proceedings, as a result of inordinate delay and abuse of process, would be self-defeating. The Court does not have the power to order administrative decision makers to ignore statutory requirements – in this case, whether an officer is satisfied that the Applicants are not inadmissible. It would arrogate the decision-making function to the Court to impose a result in this case where there is still a decision left to be made.
By my lights, there has been an influx of successful mandamus applications in the Federal Courts. The debate in some of these cases has concerned whether a successful application for mandamus—as opposed to an application based on the doctrine of abuse of process—requires a showing of “significant prejudice”: see again Issue #132. But as Will Tao argues in the immigration context, 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. To be sure, delay could be relevant to both the writ of mandamus and abuse of process, but there is at least some question whether, as Tao argues, the higher bar for abuse of process should have been imported into mandamus. This case does not turn on significant prejudice, which might suggest another entry in the line of cases that does not insist on this threshold in mandamus cases.
Jafarkhani v Canada (Immigration, Refugees and Citizenship), 2024 FC 1633 (October 16, 2024)
Category: Application of the reasonableness standard.
Context and Analysis: This is a judicial review of a negative study permit decision. I highlight this case because the Court (per Pentney J) outlines several takeaways from the Federal Court’s recent study permit cases. See para 5:
A reasonable decision must explain the result, in view of the law and the key facts.
Vavilov seeks to reinforce a “culture of justification”, requiring the decision-maker to provide a logical explanation for the result and to be responsive to the parties’ submissions, but it also requires the context for decision-making to be taken into account.
Visa Officers face a deluge of applications, and their reasons do not need to be lengthy or detailed. However, their reasons do need to set out the key elements of the Officer’s line of analysis and be responsive to the core of the claimant’s submissions on the most relevant points.
The onus is on the Applicant to satisfy the Officer that they meet the requirements of the law that applies to the consideration of student visas, including that they will leave at the end of their authorized stay.
Visa Officers must consider the “push” and “pull” factors that could lead an Applicant to overstay their visa and stay in Canada, or that would encourage them to return to their home country.
The decision must be assessed in light of the context for decision-making, including the high volume of applications to be processed, the nature of the interests involved, and the fact that in most instances an applicant can simply reapply.
It is not open to the Minister’s counsel or the Court to fashion their own reasons to buttress or supplement the Officer’s decision: see Ajdadi v Canada (Citizenship and Immigration), 2024 FC 754 .
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