Readers of this blog know that one of the concepts that I am very fascinated/still struggle with the idea of fettering discretion. For whatever reason, my 2015 post where I tried to harness my inner Paul Daly and assess it, is a top Google search for the definition [use with caution/take it for what it’s worth].
While researching for a judicial review I am preparing when an Officer went beyond the policy scope of their discretionary assessment of humanitarian and compassionate grounds factors, I came across a 2017 Boswell J. decision in Alagaratnam v. Canada (Citizenship and Immigration), 2017 FC 381 (CanLII), <http://canlii.ca/t/h3bsc> that does a very good job of laying out the state of the current standard of review analysis.
For now, I think this is the best way to address standard of review until we may get clarity with the new trilogy heard in December with Bell Canada, et al. v. Attorney General of Canada (37896), and with National Football League, et al. v. Attorney General of Canada (37897).
I have reproduced paragraphs 23 to 28 below.
A. Standard of Review
[23] An officer’s decision to deny relief under subsection 25(1) of the IRPA involves the exercise of humanitarian and compassionate discretion and is reviewed on the reasonableness standard (Kanthasamy at para 44). Under this standard of review, the Court must determine whether the Officer’s decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and whether the decision is justifiable, transparent, and intelligible: Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII) at para 47, [2008] 1 SCR 190. Those criteria are met if “the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII) at para 16, [2011] 3 SCR 708.
[24] It warrants note that the Supreme Court in Kanthasamy applied a reasonableness standard of review, yet ultimately concluded that the officer had inappropriately fettered her discretion by a literal obedience to the adjectives “unusual and undeserved or disproportionate” hardship, leading her “to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision” (para 45).
[25] As to the standard of review for an allegation that an administrative decision-maker has fettered their discretion, this is somewhat unsettled in the jurisprudence. In Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 (CanLII), 341 DLR (4th) 710 [Stemijon], Justice Stratas explained how fettering of discretion was traditionally an automatic ground for setting aside a decision, but now it should be subsumed into the reasonableness analysis:
[21] The appellants’ submissions, while based on reasonableness, seem to articulate “fettering of discretion” outside of the Dunsmuir reasonableness analysis. They seem to suggest that “fettering of discretion” is an automatic ground for setting aside administrative decisions and we need not engage in a Dunsmuir-type reasonableness review.
[22] On this, there is authority on the appellants’ side. For many decades now, “fettering of discretion” has been an automatic or nominate ground for setting aside administrative decision-making: see, for example, Maple Lodge Farms Ltd. v. Government of Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2 at page 6. The reasoning goes like this. Decision-makers must follow the law. If the law gives them discretion of a certain scope, they cannot, in a binding way, cut down that scope. To allow that is to allow them to rewrite the law. Only Parliament or its validly authorized delegates can write or rewrite law.
[23] This sits uncomfortably with Dunsmuir, in which the Supreme Court’s stated aim was to simplify judicial review of the substance of decision-making by encouraging courts to conduct one, single methodology of review using only two standards of review, correctness and reasonableness. In Dunsmuir, the Supreme Court did not discuss how automatic or nominate grounds for setting aside the substance of decision-making, such as “fettering of discretion,” fit into the scheme of things. Might the automatic or nominate grounds now be subsumed within the rubric of reasonableness review? On this question, this Court recently had a difference of opinion: Kane v. Canada (Attorney General), 2011 FCA 19 (CanLII). But, in my view, this debate is of no moment where we are dealing with decisions that are the product of “fettered discretions.” The result is the same.
[24] Dunsmuir reaffirms a longstanding, cardinal principle: “all exercises of public authority must find their source in law” (paragraphs 27-28). Any decision that draws upon something other than the law – for example a decision based solely upon an informal policy statement without regard or cognizance of law, cannot fall within the range of what is acceptable and defensible and, thus, be reasonable as that is defined in Dunsmuir at paragraph 47. A decision that is the product of a fettered discretion must per se be unreasonable.
[26] In Frankie’s Burgers Lougheed Inc v Canada (Employment and Social Development), 2015 FC 27(CanLII), 473 FTR 67, the Court followed this approach:
[24] With respect to the fettering of discretion issue that has been raised, it is not necessary to definitively determine whether the standard of review is correctness or reasonableness, since the result is the same: a decision that is the product of a fettered discretion must per se be unreasonable (Stemijon…at paras 20-24).
[27] More recently, in Gordon v Canada (Attorney General), 2016 FC 643 (CanLII), 267 ACWS (3d) 738, the Court noted the unsettled question as to whether a correctness or a reasonableness standard of review applies to an allegation that an administrative decision-maker fettered their discretion, observing that:
[25] Some confusion exists regarding the appropriate standard of review where the fettering of discretion is at issue.
[26] Traditionally, the fettering of discretion has been reviewable on the correctness standard: Thamotharem v. Canada (Minister of Citizenship & Immigration), 2007 FCA 198 (CanLII) at para 33, 366 NR 30.
[27] However, the Federal Court of Appeal has recently posited that post- Dunsmuir, the fettering of discretion should be reviewed on the reasonableness standard, as it is a kind of substantive error. The Federal Court of Appeal has, however, also been careful to say that the fettering of discretion is always outside the range of possible, acceptable outcomes, and is therefore per se unreasonable: Stemijon at paras 23-25…
[28] It is sufficient to state in this case that the fettering of discretion is a reviewable error under either standard of review, and will result in the decision being quashed: JP Morgan Asset Management (Canada) Inc. v. Minister of National Revenue, 2013 FCA 250 (CanLII) at paras 71-73, 450 N.R. 91; see also Stemijon Investments, above, at para 23. Simply put, if the Minister’s Delegate fettered her discretion, her decision should be set aside regardless of the standard of review applied.
[28] For the purposes of this case, it is sufficient to conclude that, regardless of the standard of review to be applied to the fettering of discretion issue raised by the Applicant, if the Officer fettered his or her discretion that would constitute a reviewable error under either standard of review and would require that the decision be set aside.
