Category Archives: Judicial Review Applications

SCC Replaces the Oakes Test with the Reasonableness Standard

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Over the last several years, the Supreme Court of Canada has released numerous administrative law decisions where it found that the reasonableness standard of review should replace other standards.  On March 22nd 2012, in Dore v. Burraeu du Quebec, 2012 SCC 12, the Court extended this trend to proclaiming that the reasonableness standard should replace the Oakes test when determining whether an administrative tribunal’s action which limited a right under Canada’s Charter of Rights and Freedoms could nonetheless withstand s. 1 analysis.

Section 1 analysis refers to the judicial process of determining whether a government’s breach (or limitation) of a Charter right is nonetheless constitutional pursuant to s. 1 of the Charter, which states that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In 1985, the Supreme Court of Canada created the Oakes test for determining whether a Charter breach is reasonable and justifiable in a free and democratic society.  The Oakes test first involves determining whether the government’s limitation of a Charter right is the result of a pressing and substantial objective.  If it is, then the government must demonstrate that the means to achieve its objective are proportional.  Proportionality requires that:

  1. The means be rationally connected to the government’s pressing and substantial objective;
  2. That the means to achieve the objective involve a minimal impairment of Charter rights; and
  3. There must be proportionality between the infringement and the objective.

As the Court noted in Dore, the judiciary has had difficulty applying Oakes in a non-legislative context.  What, for example, is the pressing and substantial objective of an administrative decision?  Who has the burden of defending that decision?  The difficulty is further exemplified in immigration law by the fact that it is often not the tribunal itself that is a party to a proceeding.

Accordingly, the Supreme Court has proclaimed that in administrative law decisions, the reasonableness standard should apply to determining whether a Charter limitation is justified.  The Court adopted the reasonableness standard over the correctness standard because a) it reiterated that administrative law involves a tribunal’s complex interpretation of its enabling statute, of which the tribunal is the most familiar, and b) because the Court was concerned that adopting the correctness standard would lead to judicial review becoming a hearing de novo.

As such, where an administrative tribunal limits a Charter right, then the reasonableness standard will apply to determine whether that limitation is nonetheless constitutional.  The reasonableness analysis will center on proportionality, or ensuring that a tribunal interfere with a Charter guarantee no more than is necessary given a statutory objective.

It may be that the change does not result in any practical difference.  As the Court noted, “a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality…… in both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.”

On the other hand, moving away from a rigid formula to a more flexible reasonableness standard may actually lead to a flurry of Charter challenges, as reasonableness decisions are inherently factually and contextually based.

Indeed, I can think of a few areas that I think may be ripe for some Charter challenges under the new test.

 

When the Court Will Award Costs [Last Update July 9 2011]

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In Canadian litigation, an order for “costs” compels one party to pay a portion of the other party’s legal fees.  The main purpose of costs is to dissuade frivolous lawsuits.

In the immigration context, the Federal Court Rules provide the authority of a court to order one party to pay another party’s legal fees.  Section 22 of the Federal Courts Immigration and Refugee Protection Rules, , however, limits when they can be awarded.  It states that:

No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders.

In this post, which will be updated frequently, I will be looking at scenarios where the Federal Court ordered costs.  I’m hoping that this post can become a useful reference for Federal Court practitioners.

Johnson v. Canada, 2005 FC 1262

Costs can be awarded where a party has unnecessarily or unreasonably prolonged legal proceedings.  (Paragraph 26)

Paul v. Canada, 2010 FC 1075

Consulate sent applicant a letter stating “YOU SHOULD SUBMIT ONLY THOSE ITEMS MARKED WITH AN “✔ (emphasis added).” Applicant was specifically told to only submit a birth certificate for one of his relatives. He did, and his application was ultimately denied because he did not submit a marriage certificate as well.

[14]           I am of the view that there are special reasons why costs should be awarded in this case.  The Immigration Officer who made the decision made a clear error, and in so doing committed an egregious breach of procedural fairness.  The respondent decided to oppose the applicant’s application for leave and for judicial review, causing the applicant to incur significant legal expenses even though he is clearly in the right.  Furthermore, the respondent’s submissions did not address the serious issue raised by the applicant and on which he was successful.  Instead, the respondent made boilerplate submissions about the duty to give reasons and patent unreasonableness which have no relevance to the single and clear issue raised by the applicant.

[16]           In this case, the conduct of the respondent throughout has been unfair, improper, and has resulted in undue prolongation of proceedings and a delay in the applicant’s application being determined in a timely manner.  These are sufficient special reasons to justify an award of costs.  Further, it is appropriate to order the respondent to give prompt attention to the applicant’s application for a permanent resident visa as a skilled worker.

Dhoot v. Canada (Minister of Citizenship and Immigration), 2006 FC 1295

Consulate faxed request for interview in Y-1 which was never received by applicant. In Y applicant sent a letter to embassy requesting an interview be scheduled. Consulate received letter, but rejected application on the basis that applicant did not attend interview that was scheduled in the fax.

[19]          It is wrong for the respondent, in a case such as this, to oppose the applicant’s Court case.  For this reason there are special circumstances in this case to award legal costs to the applicant.  The applicant presented clear evidence that he did not receive the letter scheduling the interview.  The respondent should have recognized that this letter was not properly sent or received, so that this Court hearing should not have been necessary.  Accordingly, the legal costs associated with this application before the Court are awarded to the applicant.

Aghdam v. Canada (Public Safety and Emergency Preparedness), 2011 FC 131

Five year delay in processing a Ministerial exemption, including two after which the CBSA made its preliminary rejection.

[21]           However, this Court has also considered undue delay in processing a claim to be a “special reason” which would justify an award of costs: see, for example, Manivannan, above, at para. 60; Singh v. Canada (Minister of Citizenship and Immigration), 2005 FC 544, [2005] F.C.J. No. 669, at para. 24; Ben-Musa v. Canada (Minister of Citizenship and Immigration), 2005 FC 764, [2005] F.C.J. No. 942, at para. 36.

Singh Dhaliwal v. Canada (Citizenship and Immigration), 2011 FC 201

Costs awarded where the IAD refused to allow a self represented litigant to provide oral evidence.

[33]           The mere fact that an immigration application for judicial review is opposed, and the tribunal is subsequently found to have erred, does not give rise to a “special reason” justifying an award of costs. However, this is, in my view, an exceptional case. The breaches of procedural fairness here were so obvious and so serious that the application for judicial review should never have been opposed.

Qin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1154

Costs may be awarded where a visa officer’s lack of training and “blatant” mistakes are evident and contrary to the understanding and skills expected of the professional visa officer. Costs may be appropriate to encourage CIC to review, and perhaps modify, the training and practices of visa officers in overseas posts.

Kargo v. Canada (Citizenship and Immigration), 2011 FC 469

In an H&C case that had been rejected twice on groundless reasons Justice Russell noted that:

[34]           Mistakes have been made in two decisions that, in my view, were perverse but, as Justice Dawson points out, this is not sufficient. This is a case that, from the beginning, cried out for compassion and prompt action. The Applicants have faced trauma that simply cannot be comprehended by most people. In this context I do believe that, given their backgrounds and vulnerabilities, the Applicants have been treated in a way that has been insensitive, and they have been subjected to needless delays at the visa post in the processing of their applications and needless resistance from the Minister in rectifying obvious mistakes and bringing this matter to a point where a final decision can be made. The processing of their application has taken twice as long as could have been expected, and through no fault of the Applicants. Their application has been refused twice because of careless mistakes and notwithstanding considerable efforts by Applicants’ counsel to expedite the process. All of this has cost the Applicants time and money in a context where time is of the essence because of the fragile state of Ms. Rosaline Kargbo and where funds are not available to finance a drawn-out process and careless mistakes.

[35]           Notwithstanding obvious careless mistakes at the visa post, the Minister has continued to resist until, apparently, the arrival of Mr. Hicks as counsel for the Minister and a change of attitude in the face of the compelling H&C factors and an acknowledgment of past mistakes. At the very least, I think I would have to describe the Minister’s approach to this matter until the more recent change of attitude as careless, unfair and oppressive, particularly when the situation of the Applicants cried out for a prompt resolution. On the other side, since the Minister has finally taken stock of the situation and acknowledged past mistakes and injustices and there has been some cooperation. Leave was not opposed and the Minister has made suggestions for the timely resolution of the problems. Consequently, I feel that some recognition of past unfairness and oppression is required in the way of costs but that the full amount claimed is too much. I think an appropriate figure would be $4000.

Converting from Judicial Review to an Action

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Clients often ask me why federal court actions are limited to judicial reviews.  They want to know why it is that they can introduce new evidence and call witnesses at the Immigration Appeal Division, an administrative tribunal, but not in court.

There are numerous reasons why federal court actions are limited to judicial review.

The first is because immigration decisions take place in the context of administrative law.  Because the court is simply reviewing the reasonableness of an administrative tribunal’s decision (be it a visa officer or the Immigration Appeal Division), it is not necessary to hear fresh evidence.  The second is to facilitate access to justice and avoid unnecessary cost and delay.  The third is that many people who would be called as witnesses in a normal action are not eligible to enter Canada.  Finally, applicants are always able to re-apply.

Converting to an Action

Although federal court actions for immigration decisions generally occur in the context of judicial review, s. 18.4(2) of the Federal Court Act provides that the court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.

Section 18.4(2) is a response to concerns that judicial review does not always provide appropriate procedural safeguards where declaratory relief is sought.  It addresses not only the procedural shortcomings of an application, but also the remedial ones including the inability to claim damages on judicial review.

There are no limits on the considerations which may be taken into account in deciding whether to allow a judicial review application to be converted into an action.  The test of whether to convert to an action is whether affidavit evidence will be adequate, and not whether trial evidence might be superior.

Examples of Cases that were Converted

As shown below, the facts of a case must be particularly spectacular for an immigration judicial review to be converted into an action.

Sivak v. Canada (2011 FC 402)

  • There were serious concerns of institutional bias.  The rules of cross-examination of affidavits had not produced the evidence that was required to determine whether there was such a bias.  Judicial review did not contain any procedures to address this issue.

Staying Removal

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People issued removal orders often want to know how long they can stay in Canada before they have to leave, and if there is a chance to defer removal.

Section 48 of the Immigration and Refugee Protection Act (the “Act”) provides that:

Enforceable removal order

48. (1) A removal order is enforceable if it has come into force and is not stayed.

Effect

(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.

In a previous post, I discussed s. 48(2) of the Act, and how the term “reasonably practicable” has been interpreted.  In this post, I will discuss s. 48(1), and the principles behind a “stay of removal”.

The Ribic Factors

In determining whether to issue a stay of removal for a permanent resident, the Immigration Appeal Division (the “IAD”) can consider humanitarian & compassionate factors.  The leading case on this matter is Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.D.D. No. 636, affirmed by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84.

In Ribic, the IAD noted that:

In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada.  These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order.  The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality.  While the general areas of review are similar in each case the facts are rarely, if ever, identical.

Accordingly, the Ribic factors are:

a.         the seriousness of the offences leading to the deportation order;

b.         the possibility of rehabilitation;

c.         the length of time spent in Canada and the degree to which the appellant is established here;

d.         the family in Canada and the dislocation to the family that deportation would cause;

e.         support available to the appellant, within the family and within the community; and

f.           potential foreign hardship the appellant will face in the likely country of removal.

These factors are not exhaustive.

If you are a permanent resident who faces removal, it is important that you apply the circumstances of your situation to these factors, and present convincing humanitarian & compassionate considerations to stay removal.