Zibadel v Canada (Citizenship and Immigration), 2023 FC 285 (March 1, 2023)
Category: Application of the reasonableness standard (adequacy of reasons)
Context: This is a judicial review of two decisions of a visa officer, denying the 8 year old applicant a study permit and the mother applicant a temporary resident visa. The officer grounded the decision on the following factors: (1) the purpose of the visit was questionable given that similar study programs “are available closer to the applicant’s place of residence”; (2) the applicant’s socio-economic situation does not demonstrate that studies in Canada is a “reasonable or affordable expense” [14]. For our purposes, the important issue concerns the officer’s assertion that another similar program was available closer to the applicant’s home.
Issue: Is the decision reasonable?
Holding: No.
Analysis: For those dealing with visa applications (or sufficiency of reasons problems more broadly), this case is an exemplar, in my view, of properly applying Vavilovian reasonableness. I would save the reasons in this case from Justice Little.
The reasons in this case consisted of an “express statement that the officer reviewed the application and that ‘minor applicant to study at North Vancouver District School’” and otherwise included “principally template statements” [36]. These boilerplate statements are increasingly common: the Court outlines recent examples of the same wording being used in other study permit decisions [36], and I have mentioned some of these in issues of the newsletter: see e.g. Issue #65. As judges of the Federal Court have held, such template language is not inherently problematic [37]. But as I have mentioned before, I think it is presumptively so: in theory, the promise of individualized justification offered by Vavilov would be fairly hollow if the same reasons could be offered for every case in a particular institutional context.
As the Court says, the facts of this case show why the use of standard language “without adding a bit more about the particular study permit application” is such a problem; why boilerplate, without more, is presumptively problematic [49]. The applicant’s arguments in this case were directed towards why the programs in Iran and the education she would receive in Canada were dissimilar; ie) how study in Canada would benefit her development in a way that was not possible in Iran [38-40]. The officer’s reasons elided these arguments completely, and concluded—without explanation—that the program in Iran would be comparable; this is fundamentally a failure to consider evidence and arguments that run counter to the stated conclusion [41]. The flaw here was a failure to adapt the boilerplate to the factual context. In my view, the Court gets this exactly right.
Government counsel here tried to escape this conclusion by reference to Zeifmans LLP v Canada, 2022 FCA 160 (Issue #60) [43]. Counsel have relied on Zeifmans as a way to buttress vulnerable reasons: see Wang v Canada (Citizenship and Immigration), 2023 FC 62 (Issue #74). Zeifmans states an approach that “is of wider application in judicial review proceedings” [45]. It holds that courts can look to the record and use it to supplement omissions in explicit reasons where the record leaves “no doubt” (Zeifmans, at para 11). The Court in Zibadel notes that “[i]t seems particularly important to have a high level of confidence before concluding that something not apparent in the decision-maker’s reasons is implied or implicit on the basis of the factual evidence alone” [47]. Here, the record did not help the reasons—and in a memorable turn of phrase, the Court says that it cannot “engage in a form of judicial pareidolia using the contents of the factual record before the officer” [48].
As template reasons become more common, courts will continue to adjust their approach to judicial review. As far as it goes, though, I think Zibadel gets it right. Judicial pareidolia here would render Vavilovian reasonableness quite hollow.
Smith v The Appeal Commission, 2023 MBCA 23 (March 6, 2023)
Context: From the decision:
[2] The applicant challenged the respondent’s decision in which it dismissed her appeal of the denial by the director of Victim Services (the director) to compensate her under the program for prescription drug coverage. She proceeded by way of an originating process which combined an application for judicial review and a statutory appeal pursuant to section 67 of The Victims’ Bill of Rights, CCSM c V55 (the VBR).
Issue: The main legal issue in this case concerned the scope of the right of appeal. That appeal clause contemplated an appeal only on a question of law or jurisdiction. The question was whether this clause insulated the decision from review except as provided by the statutory right of appeal (ie foreclosed judicial review application on issues outside the scope of the right of appeal).
Holding: In this case, a limited right of appeal as here does not foreclose an application for judicial review on questions of fact/mixed fact and law [4].
Analysis: This case comes at a good time; the Supreme Court granted leave on Thursday to Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446 (Issue #45). It looks like the meaning of partial restrictions on review, and their constitutionality, will receive a hearing.
In this case, the Court offers a number of reasons for stating that the right to judicial review remains. First, it relies on paras 45 and 52 of Vavilov, which held that the existence of a limited right of appeal does not on its own preclude judicial review over other aspects of the decision [42-45]; second, there was no privative clause alongside the right of appeal, as in other legislation; as a constitutional matter, it cannot be lightly presumed that judicial review should be precluded in such cases [49, 51, 56].
The issue will hopefully be explored in Yatar. I think it is important to note, though, that this issue is complicated because there are many different ways that statutes can be read to foreclose judicial review. We have to pay close attention to institutional design, as the Supreme Court does in its cases on s.96: see particularly the discussion in AG v Farrah, [1978] 2 SCR 638. For example, in Canada (Attorney General) v Best Buy Canada Ltd, 2021 FCA 161 (Issue #4) [EDIT: link to Best Buy amended], the statute contained a right of appeal on questions of law and jurisdiction and a privative clause making clear that decisions could only be “dealt with” in the manner specified by the right of appeal. In the Smith case, though, we are arguably dealing with a different legislative setup. The provisions in this case provide a right of appeal, and a statement that the appeal may be made only on a question of law or jurisdiction [31]. They do not expressly state that the decision may only be dealt with by way of appeal, as the provision does in Best Buy, and in fact, a previous version of the legislation contained such a clause which was later removed. In my view, Best Buy is a case where review for factual matters was more clearly foreclosed, which puts the constitutional issue at the forefront—can these issues be so foreclosed? But in this case, I do not think the constitutional issue arises—if the legislature has not even attempted to foreclose review on issues that are purportedly protected by the core of judicial review, there’s no reason for courts to create an implicit presumption that this is so, especially when avoiding such a presumption avoids constitutional problems. I do not think this undermines Vavilov’s holding that “appeal means appeal.” The legislature can intend that all questions of law proceed by appeal for various reasons, but it might be hazardous and unnecessary to read much further—ie) to suggest that the legislature also intends to extinguish all judicial review rights absent a clear privative clause, as in Best Buy.
This means that the constitutional issue comes into view more clearly when there is a clear privative clause and a clear right of appeal, as in Best Buy. When that institutional arrangement presents itself, we can argue about what constitutes the core minimum of judicial review—in my view, so long as there is a prospect of review on questions of fundamental legality, any constitutional minimum is satisfied, and so I think the minority view in Best Buy is on solid ground. But in a case such as Smith, we need not concern ourselves with any constitutional problem if the legislature has not clearly provided an institutional arrangement that engages it. This, itself, is quite consistent with Vavilov’s focus on legislative intent and institutional design. As Yatar suggests, even when judicial review is open in such a way, it need not mean that courts should exercise it. But this is different from suggesting that judicial review is ousted completely by a right of appeal alone, without more.
This is all quite tentative. I hope to write something else longer and more considered on this issue soon.
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.