Issue #3-August 1, 2021
Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 (July 29, 2021)
Context: Section 34 (1) (e) of the Immigration and Refugee Protection Act provides that permanent residents or foreign nationals are “inadmissible on security grounds” for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.” The key question is whether the provision applies beyond cases where there is some connection to national security. The Immigration Appeal Division held that the provision was broad, reaching beyond cases implicating national security. Mason et al appealed.
Holding: The Federal Court of Appeal (per Stratas JA) decided that the IAD’s decision was reasonable.
Analysis: This case provides valuable and clear insight about various elements of Vavilovian reasonableness, correcting some elements of the Federal Court’s reasoning:
1) An important reminder that Vavilov instantiated an ethic and doctrinal requirement of “reasons first” (see Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 at para 26). Justice Stratas reminds us that arguments must be directed towards the administrator’s interpretation, determining whether it falls within the bounds of reasonableness. The courts do not develop an external yardstick and then measure the administrator’s reasons up against that yardstick (see para 19 of Mason, and Hillier v Canada (Attorney General), 2019 FCA 44 at paras 13-17). Advocates should not fall into disguised correctness by suggesting some “ideal” interpretation the administrator should have adopted.
Similarly, though, the Court rightly rejects the Federal Court’s conception of the “knock-out punch” in interpretations of law, which holds that a court must be sure that an administrator did not miss a “knock-out punch” in the argument. To the extent this sort of language has been used in the Federal Courts, it should not longer be used. It opens the door to disguised correctness review, as Stratas JA notes in Mason, but it also sets the bar high for a finding of unreasonableness, inconsistently with Vavilov. It unnecessarily mucks things up.
2) Mason speaks of “implied reasons” (see para 31). We know that, according to Vavilov, an administrator need not speak to every component of a statute’s text, context, and purpose. But this is fundamentally different from the previous generation of “implied reasons” doctrine that came from Newfoundland Nurses, 2011 SCC 62 and Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. Under that previous line of thinking, reasons were not a “stand-alone basis” for quashing a decision (see Newfoundland Nurses, at paras 13-16), but the result was that courts were sometimes “acting as ghostwriter for administrators, coopering up their decisions (see Alexion, case #2 below, at para 8). Of course, Vavilov does not say that reasons are a stand-alone basis for a successful judicial review (Vavilov, at para 122). But it does note that a failure to consider a fundamental aspect of text, context, and purpose may sometimes lead a decision to be unreasonable (Vavilov, at para 122), and it suggests that it is not “ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision” (Vavilov, at para 96). This, to me, is a categorical difference from a blanket presumption of regularity when it comes to reasons that preceded Vavilov. In this case, the IAD did omit some aspects of the relevant context (Mason, at para 46), but those omissions were not fundamental elements of the interpretation analysis. What is clear is that administrators must engage with the salient parts of the statute under interpretation, and courts cannot “assist” them in this.
Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 (July 29, 2021)
Context: The Patented Medicine Prices Review Board found that a drug company, Alexion, had priced a drug (Soliris) excessively, contrary to the Patent Act, s.85, and ordered Alexion to forfeit excess revenues. The Board’s reasoning related to the assertion that “…the price of Soliris had to be lower” than a list of seven comparator countries (Alexion, at para 3).
Holding: The Court (per Stratas JA) held that the Board’s decision and reasoning were unreasonable.
Analysis: While Alexion raises many of the same issues as Mason, it is a welcome reminder that the “biggest constraint of all” of administrative decision-making is the governing statute (see Alexion, at paras 27, 42; Vavilov, at para 108) and that a failure to reason in relation to that statute is a major reasonableness problem. The problem in Alexion was that the lower courts and the administrative body failed to hone in on the relevant section granting the Board authority, and therefore its reasoning was loose and obfuscatory.
In this case, the problem was a failure of statutory reasoning leading to an unreasonable interpretation of law. The list of errors is notable because it should tell lawyers what to avoid if arguing in the Federal Courts.
1) Boilerplate language from administrators will continue to be problematic post-Vavilov. Part of the problem in Alexion was the Board’s “conclusory” analysis, saying that it considered all of the evidence etc etc (see Alexion, at para 43). But this is not enough: in fact, this is not truly reasoning in the relevant sense, since the court cannot determine whether the administrator adequately grappled with the statute (Alexion, at para 44).
2) The Board misapprehended its statutory purpose, suggesting that it related to “consumer protection at large” (Alexion, at para 51). But section 85 only relates to excessive and abusive pricing, as evident through the cases (Alexion, at para 49). This led the Board to adopt a standard of “reasonableness” for the pricing of Soliris, which is too low a standard (Alexion, at paras 51-52). Administrators must be careful to cast the relevant statutory objectives in a plausible way, supported by the statute; failing to do so could be an error.
3) The Board drew evidence for its selection of purpose from parliamentary debates. Advocates should be cautious of doing this: as Alexion notes, “caution must be exercised” (Alexion, at para 53). The Supreme Court recently cast doubt on the reliability of parliamentary debates as a means of interpretation in MediaQMI v Kamel, 2021 SCC 23 at paras 37-38. Advocates should be careful about a liberal reliance on parliamentary debates.
4) The Board had adopted Guidelines that relate to pricing, but departed from those Guidelines without explanation. A reminder that Guidelines are not the law, but that they can validly guide discretion, and in such cases, departures from guidelines must be explained. All part and parcel of Vavilovian justification.
Johnston v Canada (Attorney General), 2021 FC 783 (July 22, 2021).
Context: This case involved a decision of the Parole Board of Canada Appeal Division, which affirmed the revocation of Johnston’s statutory release by the Parole Board of Canada.
Analysis: One of my problems post-Vavilov is with the way some courts continue to describe certain tribunals. As I have previously written, prisons have historically been described as “expert” institutions, balancing public safety with the rights of prisoners. There are good reasons to doubt this characterization, but whether it is true or not is besides the point: Vavilov dethroned expertise as an automatic reason for deference, suggesting instead that expertise must be demonstrated and proven (Vavilov, at paras 30-31).
Yet, as I say above, prisons post-Vavilov continue to be spoken about with the language of presumptive expertise. So in Johnston. The Court says the following, at para 41:
Furthermore, both tribunals are highly specialized and owed deference in the discretionary areas of probation and attendant risk to the public, which fall squarely within their legislation and expertise (see West v Canada (Parole Board), 2020 FC 126 at para 38; Chartrand v Canada (Attorney General), 2018 FC 1183 at para 40).
This all may be true, but on Vavilov’s terms, it must be proven—not stated before the analysis begins. If you find yourself working in a field, like prison law, where courts are still using this language, you should gently point them to Vavilov, at paras 30-31. Those paragraphs do not endorse this sort of presumptive language.
Venema v Brandon University, 2021 MBQB 155 (July 29, 2021)
Context: This case before the Court of Queen’s Bench of Manitoba concerned a professor who applied for judicial review of a decision of the University not to grant him a promotion. While there is an internal appeal process for such promotions, the decision in this case was appealed to the final decision-maker, the Promotion Appeals Committee (PAC).
Analysis: If Johnston is an example of what courts should not be doing when it comes to expertise, Venema is an example of a court getting it right. Even though the standard of review was reasonableness for decisions of the PAC, and even though the Court accepted that courts should be sensitive to demonstrated expertise (Venema, at para 29), this is not a carte blanche. The Court notes that while the PAC is in a “better position to understand the application process…” (Venema, at para 72), it had not demonstrated in its reasons that it was alive to a key point (Venema, at paras 73, 75), or that it had applied its expertise appropriately. Expertise must be demonstrated, not assumed.
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. Please complement the SEAR with your own research and study. Any mistakes are my own.
Quote of the Week: “In the long run, the sharpest weapon of all is a kind and gentle spirit”—Anne Frank.
Happy Long Weekend to all SEAR readers celebrating.