Issue #7-August 29, 2021
Portnov v Canada (Attorney General), 2021 FCA 171 (August 23, 2021)
Context: The Governor in Council passed a regulation in 2014 under s.4 of the Freezing Assets of Corrupt Foreign Officials Act dealing with certain property connected to corrupt former Ukranian officials, and extended that same regulation in 2019 under s.6 of the statute  . Portnov challenged the extension, arguing that s.4 of the statute creates statutory preconditions that must be met before an extension of the regulation is legal, and advanced the argument that the question was one of “central importance,” inviting a correctness standard under Vavilov.
Issues: (1) What is the standard of review? (2) What test applies to govern the challenged regulation? (3) Does the decision satisfy that test (which, in this case, turns out to be Vavilov reasonableness)?
Holding: (1) The standard of review is reasonableness; (2) Vavilov, rather than the approach in Katz Group Canada Inc v Ontario, 2013 SCC 64, applies; (3) The decision is reasonable.
1) Stratas JA for the Court finds that the standard of review is reasonableness because the question is not one of “central importance.” This is a good reminder for lawyers: this exception in Vavilov is very narrow, and even a question like this involving international relations will not satisfy courts. Stratas JA puts the formula for this exception well, and I would bookmark this: “This question does not transcend the Act, nor does it smack of any constitutional or quasi-constitutional principle” . All the questions recognized by the SCC in this category have met both of the two branches of the sentence in para 17 of Portnov (Portnov, at para 13).
2) Stratas JA: “Thus, in conducting reasonableness review, I shall not apply Katz. I shall follow Vavilov” . As I wrote on Double Aspect, this is quite the sea change—a judge of an appellate court choosing one Supreme Court case (Vavilov) over another (Katz). But there are persuasive reasons for doing so. Katz was a specific approach to the review of regulations that was “hyperdeferential” in nature, according to Paul Daly. And for the reasons offered by Stratas JA, this approach as a standalone way of conducting review of regulations should simply be discarded in the wake of Vavilov’s contextual approach to reasonableness (see particularly paras 22, 24, 25, and 27). Vavilov purported to be a comprehensive re-jigging of the law of judicial review. So be it, at least for now, in the Federal Courts.
3) When dealing with a decision like this, Vavilov is arguably not as stringent as one might think, considering that the issue here is a question of law. One might think that, following Portnov’s argument, that whether s.4 qualifies s.6 is a legal condition precedent on which there is not much room for error—after all, the governing statute is the “biggest constraint of all” on administrative actors (see Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 at paras 27, 42 and Issue #3). But here, the legal requirements were quite broad in nature. The issue involved a “factually suffused” determination about whether an extention “is necessary and consistent with the purposes of the Act,” involving questions of international relations and anti-corruption . As Stratas JA acknowledges, though, there are countervailing factors: “the impact upon Mr. Portnov…” . But even still, this case shows how the “culture of justification” in Vavilov has its limits: with confidentiality/foreign policy concerns, and broad delegations of authority to make determinations “in the interest of international relations” (s. 4(2)(c)), we might expect fewer reasoning requirements, even on questions of law. But it is worthwhile to note that this is not necessarily true in all cases. Where the impact to the affected party is great and the legal terms under interpretation are more specific and finely-wrought, Vavilov prescribes less room to move.
First Nation of Na-cho Nyäk Dun v Yukon, 2021 YKSC 43 (August 25, 2021)
Context: This concerned an application by the Yukon government to strike four declarations sought by the First Nation (the FNNND). The FNNND sought declarations related to breaches of duties to implement Treaty promises and a breach of duty of good faith in contractual performance.
Holding: The Court dismissed the motions to strike, holding that the allegations made the FNNND were available at law, and in particular, could be argued on a judicial review application [34 et seq].
Analysis: The Court makes a number of comments about the vehicle of judicial review for claims advanced in the context of treaties or the duty to consult. Here, the Yukon basically advanced the proposition that judicial review (1) cannot, in law, be a vehicle to advance the treaty claims, based as they are in the honour of the Crown and the Constitution; and (2) is too summary a procedure to deal with the complex issues in this case. But there is established SCC authority that judicial review can “give full weight to the constitutional interests of the First Nation” [47, see also Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 47]. This is true despite the fact that the claim here was not a duty to consult claim, which is the context in which the Supreme Court has endorsed judicial review as an appropriate vehicle (see Beckman). But the Court says that, of course, the treaty obligations here are rooted in the honour of the Crown and s.35 . In law, then, judicial review is appropriate even for a case not involving the duty to consult but raising other important Indigenous rights issues .
As for the argument that judicial review is too summary procedure: it is true that judicial review developed as a means to quickly assess the legality of government action on the record. But the Federal Court of Appeal, as an example, has conducted extremely complex judicial reviews of cases involving Indigenous rights and with many procedural wrinkles (see Coldwater First Nation v Canada (Attorney General), 2020 FCA 34, and various case management rulings such as Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224; Ignace v Canada (Attorney General), 2019 FCA 239). This is, perhaps, inevitable. But it is no doubt challenging for courts.
Hasham v Canada (Citizenship and Immigration), 2021 FC 880 (August 25, 2021)
Context: This case concerned a decision by a visa officer [the decision-maker] to deny Hasham a permit under the Temporary Foreign Worker program. The decision-maker denied the application under s.40(1)(a) of the Immigration and Refugee Protection Act, for misrepresenting material facts. The decision under review was accompanied by Global Case Management System [GCMS] notes, which is used by officers to make notes on particular cases, and those notes typically form part of the record on immigration judicial review matters. Here, the relevant GCMS notes were offered by the decision-maker and another officer who sent a so-called “procedural fairness letter” to Hasham; that letter notified him that there were concerns about misrepresentation on his application. Crucially, it was the officer who sent the procedural fairness letter who addressed Hasham’s main defences of innocent misrepresentation and materiality .
Holding: The application was dismissed because the decision was reasonable. Specifically, the decision-maker was not required to expressly adopt the officer’s analysis .
Analysis: This case shows how Vavilovian reasonbleness will not challenge the day-to-day realities of administrative regimes in all cases (though certainly in some): here, the reliance of the decision-maker on the GCMS notes of another officer. One might think the opposite; after all, Vavilov insisted on a culture of justification as central to the exercise of administrative power. But that injunction sits alongside paragraphs that insist that judicial justice is not the same as administrative justice (Vavilov, at para 92). So here, the Court found “no conflict” between the traditional teaching in Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817 that “the notes of a subordinate officer should be taken, by inference, to be the reasons for making the decision under judicial review…” (Baker, at para 44), and Vavilov . So says the Court:
 In the case at hand, while the Decision-Maker did not expressly adopt the analysis of the Officer, the context clearly demonstrates that this analysis informed the Decision. The Officer’s GCMS notes refer to the Officer’s analysis as a recommendation submitted to the Officer’s supervisor for review. I agree with the Respondent’s submission that such an administrative structure is not unusual and that there is no requirement for an administrative decision-maker to repeat a subordinate officer’s analysis upon which it is relying in arriving at its decision. Such a proposition would be inconsistent with the flexibility described in Baker as necessitated by the day-to-day realities of administrative decision-making.
So far as it goes, this is plausibly consistent with Vavilov—even if I personally think that the person actually deciding things should do just that: decide, and explain what evidence was persuasive in doing so, even if that evidence is somewhere in a thick record. Nonetheless, reasonableness is clearly contextual and the record is clearly part of this context.
But there is an unusual wrinkle here. The Court accepts that some of the GCMS notes are “boilerplate in nature” . In the past, some courts have found that this is at the very least an indication of unreasonableness (see Osun v Canada (Citizenship and Immigration), 2020 FC 295 at para 26). But here, the boilerplate was not problematic to the Court, because it sat alongside an overall credibility analysis . One might reasonably say that Osun and Hasham sit uncomfortably, but I think this is a product of Vavilov itself: it is not always clear when boilerplate or insufficient reasoning will be the key to an unreasonable decision. It is best, I think, to say that the reasoning on a particular evidentiary point may need to be lacking completely, as in Osun. That this is unclear is, perhaps, a symptom of contextualism in reasonableness.
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: “Useless laws weaken the necessary ones” (Montesquieu)