**dicta recording to follow**
Vukaj v Canada (Citizenship and Immigration), 2025 FC 1037 (June 11, 2025)
Category: Procedural unfairness and abuse of process.
Context: From the Court (per Battista J):
[1] This application concerns the decision of the Refugee Protection Division (RPD) to vacate the Applicant’s refugee protection status. At the time of his claim, the Applicant did not reveal that he had used a previous name, and the RPD panel that granted him refugee protection status was not aware of the fact that he had been convicted of a serious offence in Albania under that name. Despite this, proceedings to vacate his status were not commenced until approximately 16 years after his status was conferred.
Issue and Holding: Battista J finds the decision reasonable, but procedurally unfair because of a delay leading to an abuse of process.
Analysis: In reviewing the law, Battista J points out that “[a] divergence of opinions currently exists in this Court regarding the applicable method of assessing abuse of process” [11]. One position, represented in Naimi v Canada (Public Safety and Emergency Preparedness), 2024 FC 1294, views the issue as one of reasonableness, and whether the RPD reasonably interpreted the test for delay in vacation proceedings. Battista J takes a different approach. He begins by noting the Supreme Court’s decision in Law Society of Saskatchewan v Abrametz, 2022 SCC 29 (Issue #48), which applied a correctness standard to an abuse of process-delay issue. However, as Battista J points out, it did so because the case came to court via a right of appeal [12].
Instead, Battista J says that the appropriate standard is “fair in all the circumstances’ [15]. Given that this case does not involve a right of appeal (and in this sense is a typical procedural fairness case), Battista J worries about the terminology of “correctness”: this approach “risks confusion” because it “creates the impression that procedural fairness issues fall among the exceptions to reasonableness review discussed in Vavilov” [14]. It is true, of course, that the SCC has previously described the standard of review for fairness issues as “correctness”: see Mission Institution v Khela, 2014 SCC 24 at para 79. But as Battista J says, procedural fairness is not considered in Vavilov as it relates to the standard of review. He makes the point that the omission of procedural fairness from the Vavilov template “supports the view procedural determinations and reasonableness review serve two different functions: the former concerns the Court’s role in ensuring a party was treated fairly, while the latter serves to examine the reasons and outcome of a decision made under the “reasons first” approach described in Mason” [14].
This is a fascinating perspective on fairness issues. Abrametz, it is true, views the issue as one of correctness because it comes to the court via a right of appeal. This could be taken as an affirmation that the Vavilov framework applies to all issues subject to curial review. However, that is not clear from Abrametz alone, and the bulk of authority applies the “fairness in all the circumstances” standard in normal procedural fairness cases arising in a judicial review application. That said, and while Battista J applies a different standard, it is worth noting that he channels Côté J’s dissent in Abrametz, which made a point of delineating the different functions served by procedural and substantive review.
Hamilton v Canada (Attorney General), 2025 FC 1001 (June 5, 2025)
Category: Reasonableness review.
Context: This is a judicial review arising out of three workplace grievances filed by the applicant against the Parole Board of Canada and its Deputy Chairperson. The grievances were resolved against the applicant in a decision by the Chairperson of the Parole Board of Canada [32].
Issue: Can the decision survive judicial review?
Holding: No—the Court (per Zinn J) concludes that the decision was both unreasonable and reached in a procedurally unfair manner.
Analysis: For our purposes, Zinn J’s discussion of “cumulative errors” is interesting. Zinn J concludes that the decision falls because of incoherent reasoning and a failure to engage contradictory evidence and central submissions [67]. However, Zinn J notes that even if these individual errors were not present, the decision would still be cumulatively unreasonable. He says that “[c]umulative unreasonableness occurs where multiple errors, although individually insufficient to render a decision unreasonable, collectively undermine the decision’s justification to such an extent that the outcome and reasons are no longer acceptable and defensible given the relevant facts and law..” [94]. Helpfully, he outlines three factors that contribute to a finding of cumulative unreasonableness:
Materiality: “…the errors in question relate to central aspects of the decision” [95]
Interconnectedness: this “requires examining whether identified errors compound and mutually reinforce each other to distort the factual weighing on legal reasoning” [96]
Overall Justification: this involves an overall evaluation of the “qualitative, combined impact [of the errors] on the overall logic, coherence, and justifiability of the decision” [97]
This is a useful rubric to assess cumulative errors, where they arise.
Haulage Network Driving Academy Inc v Ontario (Superintendent of Career Colleges), 2025 ONSC 2492 (May 26, 2025)
Category: Remedy.
Context: Haulage was a trucking school in Ontario. It was required by statute, as a condition of operation, to post a security bond. After an investigation, the Superintendent of Career Colleges issued notices of contravention, suspension and refusal to renew Haulage’s registration. The Superintendent then declared the security bond forfeit without notifying Haulage, leading to Haulage ceasing its operations.
On appeal to the Licence Appeal Tribunal [LAT], the LAT ordered the immediate registration of Haulage with conditions.
On judicial review, Haulage argued that the forfeiture of the bond was procedurally unfair because it denied Haulage notice or an opportunity to respond to the allegations.
Issue: Can the decision survive judicial review?
Holding: No. The Court (per O’Brien J) concludes that the decision is both procedurally unfair and unreasonable.
Analysis: O’Brien J’s analysis is worth reading. At the centre of the analysis is the Superintendent’s blanket policy of forfeiture. Haulage argued that the automatic forfeiture effected by the Superintendent denied it notice. O’Brien J accepted this argument, rejecting the Superintendent’s general argument that its consumer protection mandate justified immediate forfeiture [18-19]. I think this is a central aspect of the decision, and a good reminder for regulators. A regulator cannot rely on a general regulatory purpose— “consumer protection” — to backstop a regulatory power not discernible from the statutory scheme. Here, it was apparent that the Superintendent had 12 months, by statute, to declare a security forfeited, which could be viewed as a legislative signal that regulatory powers must be exercised alongside basic procedural fairness protections (like notice). As O’Brien J says, calling to mind Roncarelli v Duplessis, [1959] SCR 121, “there is no such thing as absolute and untrameled discretion” [18].
On remedy, O’Brien J declines to remit, and orders the Superintendent to return the funds to Haulage [44]. This is not the usual remedy. But in this case, the LAT’s findings pertaining to Haulage swayed O’Brien J. The Tribunal noted that the Superintendent’s approach to Haulage was “tainted by confirmation bias” [41]. Given this finding, O’Brien J saw no purpose in remitting the matter, since the LAT’s findings would invariably constrain the Superintendent [44]. In this reasoning, O’Brien J is on solid ground. Vavilov suggests that the reason why a decision is wanting—on substance or procedure—will inevitably impact the court’s choice of remedy. Here, the confirmation bias finding is and should be decisive. Remitting in these circumstances would arguably be pointless.
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