Eskasoni First Nation v Canada (Attorney General), 2024 FC 1856 (November 21, 2024)
Context: Procedural fairness and duty to consult.
Context: Eskasoni First Nation and Chief Leroy Denny (the “Applicants”) sought judicial review of a decision made by the Federal Electoral Boundaries Commission for Nova Scotia (the “Commission). The decision, made pursuant to subsection 23(1) of the Electoral Boundaries Readjustment Act, finalized adjustments made to electoral boundaries and disposed of the Nation’s objections to them. It was the Applicants’ position (among other things) that, in making its decision, the Commission breached procedural fairness and the duty to consult. Prior to the boundary adjustments, the Eskasoni fell within the Sydney-Victoria district along with the Wagmatcook First Nation and the Membertou First Nation. The Sydney-Victoria district is represented by MP Jaime Battiste who is both a member and resident of Eskasoni. Following the adjustments, Eskasoni became part of the Cape-Breton-Canso-Antigonish electoral district. Effectively, the Applicants’ submitted that the Mi’kmaq vote has been diluted and that they could no longer be represented by a member of their community.
Issue: The Applicants challenged (1) the reasonableness of the Proclamation changing the boundaries; and (2) the fairness of the process in adjusting the boundaries. I will focus on the 2nd issue.
Holding: Blackhawk J finds no procedural fairness or duty to consult violations.
Analysis: This is a fascinating case merging together issues of procedural fairness and the duty to consult. Blackhawk J’s analysis is extensive and complete, well-worth reading. I highlight a few points of interest.
First, on procedural fairness, Blackhawk J correctly notes that “[t]he exercise of reviewing and defining electoral boundaries is a general matter based on considerations of broad public policy, not facts pertaining to particular individuals or groups” [49]. Because readjustment of boundaries is a delegated legislative function (albeit exercised by an independent commission), “the Commission did not owe either Eskasoni or the Mi’kmaq Nation a duty of procedural fairness to consult with or hold a separate enagement session” above and beyond the regular public consultation [65].
On the duty to consult and Aboriginal treaty rights, the Mi’kmaq Nation put forward evidence of longstanding treaty arrangements that could support a general right to be consulted on electoral boundary changes [82-83]. Blackhawk J, however, requires more: “The Applicants have not, however, highlighted any specific promises (oral or written) within the various treaties…to support their asserted generic right to be consulted on changes to federal election boundaries” [82]. Moreover, and again, the development of legislation is an action that does not trigger the duty to consult [96].
The bottom line: even in the duty to consult context, Blackhawk J draws a line in the sand about the extent to which action taken by an independent commission could be characterized as subject to the duty. In other words, even where the independent commission is tasked with creating recommendations that later feed into a legislative process, the recommendation process itself can still be characterized as “legislative” (see para 51).
Shirazi Nezhad v Canada (Citizenship and Immigration), 2024 FC 1747 (November 1, 2024)
Category: Reasonableness review
Context: This is a judicial review of a decision refusing a study permit application.
Issue: Was the decision reasonable?
Holding/Analysis: Diner J finds that the decision is unreasonable for five reasons. Some of these include:
If officers are to rely on push factors, they must explain their relevance clearly [6].
In concluding that the applicant was unlikely to leave Canada at the end of the study period, the officer simply stated that the applicant did not have significant family ties outside of Canada. Not only was this conclusion not explained, it was contradicted by the evidence—all of the applicant’s immediate family are “well established and live in Iran” [7].
The officer denied the applicant’s permit in part because her study plan demonstrated inconsistent career progress, but the applicant explained why the study permit in Canada would assist her career [9]. This explanation apparently went unanswered.
Most importantly, Diner J reaffirms an important point he has made before: boilerplate reasons are suspect (see Patel v Canada (Citizenship and Immigration), 2020 FC 77). Diner J points out that the boilerplate problems in this case are seen by the Court “repeatedly in study permit applications, and appear to have been generated by Chinook…” [13]. These boilerplate statements are not necessarily fatal, but they do undermine the confidence that the court will have in the decision.
See also Issue #93, analyzing Safarian v Canada (Citizenship and Immigration), 2023 FC 775 and Khosravi v Canada (Citizenship and Immigration), 2023 FC 805.
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