Turanich v Fort Saskatchewan (Subdivision and Development Appeal Board), 2023 ABCA 204 (June 29, 2023)
Category: Tribunal standing
Context: The applicant applied for permission to appeal a decision of the Subsdivision and Development Appeal Board. The Board “filed a memorandum in response to this application, and counsel for the Board appeared at the hearing” [10].
Issue and Analysis: The Court throws cold water on the ability of the Board to appear at hearings [10]:
In my view, after the decision in Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, appearances by the Board are inappropriate and unnecessary where both sides are represented and a sufficient adversarial context already exists. After Vavilov there is no need for the Board to make submissions about the standard of review. True “issues of jurisdiction” rarely arise. There was no need to explain the record. There is no valid reason for the Board to repeat or make arguments that should be made by the parties.
Taken literally, this appears to be a remarkable proposition. In Ontario (Energy Board) v Ontario Power Generation Inc, 2015 SCC 44, the Court held that tribunal standing and participation is a matter of the court’s discretion, guided by certain factors, including the presence of other parties, and the nature of the administrative actor. Gone are the days when a tribunal’s participation was limited to speaking to its jurisdiction: see Northwestern Utilities Ltd v City of Edmonton, [1979] 1 SCR 684.
There seem to be good reasons, based on Ontario Power Generation, that counsel for the Board should not have appeared here. But the Court seems to suggest that after Vavilov, counsel for the Board should never appear, in part because the concept of jurisdictional error is no more. Whatever the merits of this position, I think it is too broad. Ontario Power Generation invites a more relaxed approach that could very well permit tribunal participation in cases involving the Board. I might agree with the Court in principle, but the law appears to be less emphatic.
Hardman v West Hants (Municipality), 2023 NSSC 211 (June 29, 2023)
Category: Admissibility of evidence
Context:
[1] This is a motion to supplement the record in a judicial review proceeding, where the decision under review is a development permit issued by a municipality, there are no reasons for the decision to issue the permit, and the supplemental record refers to past practices or past decisions of the municipality.
Specifically, the Municipality wishes to justify its grant of a development permit to a canoe club to operate a day camp. It wants to do so by supplementing the record with an affidavit from a city employee, outlining “his knowledge that the Municipality and its predecessors have always allowed community centres to operate day camps….” on the land [3].
Issue: The respondent hopes to admit the affidavit in order to show that the permit grant is consistent with past practice.
Holding: The affidavit is admissible because “it tends to support the position of the Municipality that its decision to grant the permit was consistent wtih past practice or past decisions and is therefore unreasonable” [11].
Analysis: Though the Court admits the affidavit, it (rightly) seems to doubt that it would be possible to justify a decision based on past practices that are not publicly available. That doubt seems right. How much is a culture of justification really worth if a decision can be justified based on information that may or may not exist in a staff member’s head? By admitting the affidavit, the Court permits the applicant to potentially raise “the extent to which the Applicants had access, if any, to the past practice or decisions referred to in the affidavit” [13]. If they did not, it seems hard to say that the decision is transparent and justified.
Zargar v Canada (Citizenship and Immigration), 2023 FC 905 (June 28, 2023)
Category: Procedural fairness
Context: This is an application for judicial review of a decision by a visa officer denying a work permit. The Applicant argued that her procedural fairness rights were breached, in part, because the Officer used the Chinook program (see analysis of the issues raised by Chinook in Issue #85).
Issue and Analysis: The Court here follows previous precedents (Haghshenas v Canada (Citizenship and Immigration), 2023 FC 464; Raja v Canada (Citizenship and Immigration), 2023 FC 719) to hold that “[i]n the absence of any specific evidence to support these allegations in this case…the Applicant has not established any breach of procedural fairness on these grounds” [12].
This case highlights the ongoing challenge that those litigating immigration cases—particularly permit applications—will have in dealing with Chinook. Counsel will need to advance specific evidence and information about how Chinook works and how it may or may not fetter an officer’s discretion. The problem, of course, is that the government hasn’t been exactly forthcoming about the ins and outs of Chinook, and it has taken access to information requests to unearth some of what is happening. That raises the whole other challenge of the deficiency in Canada’s access to information regime.
This puts immigration counsel in a real catch-22. In order to make the legal arguments on Chinook stick, they need information; but the information is not forthcoming. I expect the litigation on this issue is only getting started.
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.