There will be no SEAR next week as I will be travelling in Europe for a few speaking engagements (on administrative law and culture of justification, of all subjects). The following week’s SEAR will contain any cases missed during the previous week.
Mark
Girard v Canada (Attorney General), 2022 FC 578 (April 21, 2022)
Category: Application of reasonableness standard (legal errors)
Context: This is an application for judicial review of a decision by the Government of Canada Pension Centre. The Pension Centre found that a member of the RCMP, under the RCMP Superannuation Act, was only entitled to a return of contributions with interest because he was found to have contravened the RCMP Code of Conduct, rather than the full “Transfer Value” of the pension.
Issue: Is the decision reasonable?
Holding: No
Analysis: Here is an example of a case where an administrator directly contravened Vavilov’s constraints, and so the decision was quite clearly unreasonable:
The Pension Centre ignored the text of the relevant provision. It provided that “despite any other provision in this Act” the applicant “is entitled” to a Transfer Value if he meets the other requirements of the statute [28]. For the Court, this textual constraint was central: “[t]he opening words of section 12.1 are of critical importance…these ‘notwithstanding’ words removes any ambiguity between it and any other provisions of the Superannuation Act” [31-32]. The Court rejected attempts by the Respondent to overcome these words through the doctrine of absurdity [43]. This is because the “notwithstanding” words “…mean what they say, in other words, nor more nor less” [44].
The Pension Centre’s decision ran counter to a long-standing precedent which “continues to be a useful guide to the interpretation of provisions in police legislation” regarding pensions and conduct [59].
International Brotherhood of Boilermakers v Alberta Labour Relations Board, 2022 ABCA 139 (April 20, 2022)
Category: Adequacy of reasons
Context: The appellant union filed a complaint with the Alberta Labour Relations Board, which alleged that the respondent employer commited unfair labour practices under the Labour Relations Code. The employer moved to summarily dismiss one allegation, which the Board granted. Judicial review to the ABQB was unsuccessful.
Issue: The union essentially argued that the Board’s reasons “failed to demonstrate that it had addressed the parties’ arguments…” [18] The union also argued that the Board’s conclusion that one of the allegations advanced by the union was not particularized is unreasonable [18]. Is the decision reasonable?
Holding: The decision is unreasonable.
Analysis: This is another example of a case where a decision is struck because the decision-maker failed to (a) contend with a party’s submissions; and (b) with the governing legal tests. Here, the Court baldly says that the “reasons read as a repetition of relevant tests, followed by a bald conclusion they had not been met” [34]. The Board did not state the law governing the particular Code allegation at play, “despite both parties framing their written submissions around its elements” [36]. For that reason, the Board’s reasons were not reasonable.
This case is reminiscent of another that I surveyed in Issue #16. In 2021 NLSC 134, the Newfoundland and Labrador Supreme Court (in a decision with which I agree wholeheartedly) held that a decision-maker was bound by Vavilov to consider all parts of the test for estoppel. It failed to apply a core part of the test. This is a material error, as it is in this case.
Rijhwani v Canada (Citizenship and Immigration), 2022 FC 549 (April 19, 2022)
Context: The applicant sought judicial review of an immigration officer’s decision to deny her application for permanent residence on humanitarian and compassionate [H&C] grounds.
Issue: Is the decision reasonable?
Holding: No.
Analysis: The Court makes some important comments about reasons must look like, especially in the immigration context. Here, the applicant raised two grounds supporting her application: (1) hardship; and (2) establishment. The Court says the following
It is particularly important that when there are few factors raised—in this case only hardship and establishment—that the Officer addresses the rationale clearly for each [17].
This creates a certain burden for those decision-makers that may handle matters on which there is no space for extensive legal argument. In this case, the officer failed to address these factors adequately, making “two significant errors…in under a page of reasons” [10]. The Court is careful to note that this does not translate into a requirement of lengthy reasons [10]. However, “brevity cannot excuse inadequacy” [10]. In these cases, Vavilov is doing quite a bit of work.
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.
Quote of the Week: “Law is no longer anything sacred or mysterious”—Roscoe Pound