Vento Motorcycles Inc v Mexico, 2025 ONCA 82 (February 4, 2025)
***edited**
Category: Procedural fairness (bias).
Context: Vento brought a claim against Mexico under NAFTA, and the parties established a tribunbal to hear the claim. The Tribunal subsequently held that Mexico did not breach its obligations under NAFTA and dismissed Vento’s claim. However, Vento learned that Mexican officials had been communicating with the Mexican nominee to the Tribunal during the arbitration, and so applied to set aside the award. The application judge concluded that the there had been a reasonable apprehension of bias raised by the conduct of the Mexican nominee, but that the apprehension did not undermine the reliability of the award nor lead to “unfairness or practical prejudice” [4].
Issue: Should the application judge’s decision be upheld?
Holding: No.
Analysis: In allowing the appeal, the Court (per Huscroft JA) articulately reprises the definition and value of the legal doctrine of reasonable apprehension of bias (see paras 23-38).
Starting off, Huscroft JA outlines the stringent, orthodox rule: “[c]ourts will sustain decisions marred by procedural errors only in highly unusual circumstances” [30], with “[t]he rule against bias [being] stricter still” [31]. As he says, “…the common law does not establish a discretion to refuse to remedy a reasonable apprehension of bias because the finding is for some reason not considered sufficiently serious, or because it would be somehow inconvenient to provide the required remedy” [33]. This is a clear affirmation of the practice of courts when faced with bias allegations.
The application judge erred here because she was under the impression that an apprehension of bias on the part of one member does not taint the entire award and panel. Huscroft JA—rightly, in my view—rejects this proposition. This is because “…it is impossible to know whether—or to what extent—the participation of a biased member affected a panel’s decision” [46].
The law of procedural fairness can be framed, in one sense, as a contest between vindication of a common law right vs the costs of providing impartial procedures. The five factors in the landmark Baker decision contemplate this; the case recognizes that an agency’s “choice of procedure” is owed deference, in part to avoid the problem of courts imposing procedures that might gum up the works. Huscroft JA is alert to this contest of values, particularly in the context of commercial arbitration: “This result is unfortunate, to be sure, given the importance of finality and economic efficiency in commercial arbitration. But it is the only result that is appropriate in the circumstances. It is the only result that guarantees the integrity of the commercial arbitration process” [68].
Howlader v Canada (Citizenship and Immigration), 2025 FC 274 (February 11, 2025)
Category: Application of the reasonableness standard.
Context: The applicant in this case was refused a temporary resident permit (TRP). The Officer implicitly interpreted the relevant legislative provisions as requiring a “compelling or unique reason” for the granting of a TRP. The Officer found that, by overstaying, Mr. Howlader’s disregarded Canadian immigration law and further that his overstay was not inadvertent or accidental. The Immigration Officer also noted that Mr. Howlader’s removal was initiated in October 2022.
Issue: Is the decision reasonable?
Holding: No.
Analysis: This case falls to statutory interpretation, as many (most?) cases involving reasonableness review now do. Section 24(1) says the following:
24 (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
Battista J starts the analysis in the right place: citing CISSS A, 2024 SCC 43 (Issue #162) he notes that the text of the statute is the “anchor of the interpretive exercise” and “the focus of interpretation” [21]. Starting where he must, Battista J notes that “Parliament’s choice of terms in the IRPA to authorize the issuance of a TRP…reflects a broad, open-ended grant of authority…” [24]. The semantic breadth of the term cuts against a narrow interpretation that “reads-in” a “uniqueness” threshold [36]. This semantic breadth was confirmed by context and purpose. In terms of context, s.24(1) is remedial and broad in comparison to other similar provisions, like s.25 (1) (humanitarian and compassionate grounds) [43]. This is true: section 25(1) requires justification according to “humanitarian and compassionate considerations” including the “best interests of a child directly affected” which, all things considered, narrows the discretion in comparison to s.24(1). The broad reading was supported by considerations of purpose. Section 24(1) was enacted as a broad-based “safety valve” designed to “alleviate the consequences of inadmissibility or inability to meet the requirements of the IRPA” [53]. As such, any narrowing of a provision through the imposition of a “uniqueness” threshold would be inconsistent with text, context, and purpose.
Battista J’s opinion in this case demonstrates how to interpret statutes under the Supreme Court’s re-calibrated modern approach. The text is the anchor because it tells interpreters which interpretations go beyond the semantic meaning or stay within it. Purpose and context primarily exist to either confirm semantic breadth or tell us which option within a broad grant of authority is most plausible. It is because of this methodology that it might have been possible for the Officer to justify an interpretation of s.24(1) that insists on “compelling” but not “unique” circumstances. As he says:
This is because the use of “compelling” in appropriate circumstances is respectful of the wide discretion and varied circumstances contemplated by the provision, while the use of “unique” in describing circumstances or reasons is not. The latter term has the effect of narrowing the scope of the provision in a manner that cannot be supported, while the former term can be used as long as its use is justified.
The text must be respected. Interpreters can justify options within the semantic meaning; they cannot justify options that are disrespectful of the semantic breadth.
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