A common situation in Canadian immigration law is when you make an application or a request for something such a reconsideration and you get back a decision with reasons you believe are inadequate. This could be a visa officer who has first issued you a standard form refusal letter and upon an ATIP request you realize there’s but a few lines that say very little. This could be a Minister’s Delegate who refuses to reconsider a decision to refer a s.44(1) report to the Immigration under s.44(2) of IRPA. When are decisions considered inadequate? How can you raise inadequacy in the context of judicial review?
Short Overview of Context
The broader context of adequacy of reasons, specifically the shift from the historical requirement of administrative decision-makers to provide reasons for their decision in only the most exceptional/quasi-judicial circumstances to a legal obligation, was in fact routed in an immigration case heard by the Supreme Court in 1999, Baker v. Canada [1999] 2 SCR 817.
With the law of reasonableness in adminstrative law shifting post-Dunsmuir, in the 2011 Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62, 3 SCR 708, the Supreme Court of Canada appeared to be weary of the implications of framing inadequate Officer reasoning with a breach of procedural fairness. The Court held that the poor quality of reasons provided by an administrative decision maker could not be a stand-alone basis upon which to quash a decision for lacking fairness.
The Court wrote:
[14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).
[15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.
[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, 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, the Dunsmuir criteria are met.
[17] The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.
In the oft-cited paragraph 18 of the decision, the Court cautions that the reasons should not be viewed in a vacuum and that perfection is not the standard:
[18] Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57, [2011] 3 S.C.R. 572) that Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review” (para. 164). He notes that “perfection is not the standard” and suggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the bases of its decision” (para. 163). I found the description by the Respondents in their Factum particularly helpful in explaining the nature of the exercise:
When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties’ submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para. 44]
(emphasis added)
At paragraph 22 of the decision, the Court also confirmed that the post-Dunsmuir standard of review for inadequate reasons, where reasons were provided should be reasonableness:
[22] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.
(emphasis added)
It is interesting comparing the SCC’s decision in 2011 with one made in an immigration context [refused H&C] four years earlier by Justice Shore, which seems to have parallel language. In Za’Rour v. Canada (Citizenship and Immigration), 2007 FC 1281 (CanLII), Justice Shore writes:
[19] The reasons inform Mr. Za’Rour why his request was denied and has not prejudiced his ability to seek judicial review. It is well-established that reasons serve the two main purposes of letting the parties know that the issues have been considered and of allowing the parties to effectuate any right of appeal or judicial review. (Via Rail Canada Inc. v. Lemonde (C.A.), 2000 CanLII 16275 (FCA), [2000] F.C.J. No. 1685 (QL); Townsend v. Canada (Minister of Citizenship and Immigration), 2003 FCT 371 (CanLII), [2003] F.C.J. No. 516 (QL); Fabian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1527 (CanLII), [2003] F.C.J. No. 1951 (QL).)
[20] Moreover, the Supreme Court of Canada held in R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, paragraphs 33, 46 and 53, that the inadequacy of reasons is not a free-standing right of appeal, in that, it automatically constitutes a reviewable error. The Court held that “requirement of reasons, in whatever context it is raised, should be given a functional and purposeful approach.” Where the record as a whole indicates the basis upon which a trier of fact came to his or her decision, a party seeking to overturn the decision on the basis of the inadequacy of reasons, must show that the deficiency in reasons has occasioned prejudice to the exercise of a legal right to appeal. (Reference is also made to R. v. Kendall (C.A.), 2005 CanLII 21349 (ON CA), [2005] O.J. No. 2457.)
This case is also significant as the inadequacy of reasons being prejudicial it appears – is still good law as per our section talking about requesting detailed reasons for refusal below.
While jurisprudence has clearly established now that a lack of adequate reasons cannot be a stand-alone basis to find a decision procedurally unfair and that the broad nature of the reasonableness analysis may allow reviewing tribunals to view the context of a decision, there have been several circumstances where Courts have not upheld the reasonableness of a decision where inadequate reasons were at play.
Conclusion Without Reasons
Recognizing the potential misapplication of Newfoundland Nurses, particularly where no reasons were given, Justice Rennie wrote in the 2013 decision of Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431 (CanLII), where the officer only stated a conclusion that the Applicant did not meet a particular NOC code in refusing the decision. Justice Rennie wrote:
[9] The decision provides no insight into the agent’s reasoning process. The agent merely stated her conclusion, without explanation. It is entirely unclear why the decision was reached.
[10] Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), [2011] 3 SCR 708 does not save the decision. Newfoundland Nurses ensures that the focus of judicial review remains on the outcome or decision itself, and not the process by which that outcome was reached. Where readily apparent, evidentiary lacunae may be filled in when supported by the evidence, and logical inferences, implicit to the result but not expressly drawn. A reviewing court looks to the record with a view to upholding the decision.
[11] Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page.
(emphasis added)
Review of Positive Factors Without Stating Conclusion
In Chakanyuka v. Canada (Immigration, Refugees and Citizenship), 2017 FC 313 (CanLII), an officer refused the H&C application of an adult son, accepting the positive nature of the adult son’s establishment in Canada, listing out the positive evidence, but then finding there with insufficient H&C considerations in the officer’s conclusion. Justice Southcott writes:
[8] The Applicants rely on the jurisprudence of this Court, in which judicial review has been granted in the absence of reasons justifying a decision (see Jasim v Canada (Minister of Citizenship and Immigration), 2003 FC 1017 (CanLII), at paras 18-19; Bajraktarevic v Canada (Minister of Citizenship and Immigration) 2006 FC 123 (CanLII), at para 18; Cobham v Canada (Minister of Citizenship and Immigration), 2009 FC 585 (CanLII), at para 26; Webb v Canada (Minister of Citizenship and Immigration), 2012 FC 1060 (CanLII), at para 31) and in particular Adu v Canada (Minister of Citizenship and Immigration), 2005 FC 565 (CanLII) [Adu], where Justice Mactavish held as follows at paragraph 14:
[14] In my view, these ‘reasons’ are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.
[9] I am conscious that adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), at para 14, [Newfoundland Nurses]). However, I do not consider these principles to detract from the reasoning in Adu, that a decision must contain analysis, explaining how the decision-maker arrived at his or her conclusion. Otherwise, the applicant has not received reasons at all.
[10] I agree with the Applicants that the Officer’s decision on Simbarashe’s application suffers from precisely the same shortcoming identified by Justice Mactavish in Adu. The Officer referred to school documents and a letter of reference submitted in support of the application, identifying those elements as positive and granting them certain weight. However, the Officer then proceeds immediately to expressing the conclusion that, having considered Simbarashe’s personal profile, his personal circumstances, his establishment in Canada, and his links to Canadian society, there were insufficient H&C considerations to grant his application. The decision discloses no analysis explaining why the positive factors were not sufficient to grant an exemption on H&C grounds.
(emphasis added)
However, in two recent and subsequent decisions, Justice Southcott has clearly indicated he is unwilling to extend the Abu argument to situations where Officer’s engaged in some prescriptive form of balancing. In Khokhar v. Canada (Citizenship and Immigration), 2018 FC 555 (CanLII), a decision where the Applicant attempted to cite his holding in Chayakunka to demonstrate the unreasonableness of the establishment analysis:
[28] I am unable to conclude that the Officer has erred in the manner described in these authorities. The Decision does not reflect an expectation that an extraordinary level of establishment would be required in order to grant H&C relief. Rather, the Officer concluded the level of establishment to be modest, explaining this conclusion in terms of the family’s financial circumstances, the relatively recent efforts by Mr. Khokar to upgrade his skills, and the fact that little information had been provided to substantiate the nature and extent of the family’s community participation. Further, the analysis as to why the positive factors identified by the Officer were not sufficient to grant relief is evident from the following paragraph at the end of the Decision:
With respect to establishment, I find the evidence is reflect of a modest level accordingly I give this factor low weight. I accept that the applicant is the sole breadwinner and further accept that his wife could be subject to numerous challenges which are experienced by other women who raising children as sole parents, including but not restricted to emotional and financially related issues. I also accept that the applicant is actively involved in day-to-day lives of his 3 daughters and in this regard find his absence could have some adverse effects on their best interests. However, I give more weight to the applicant’s criminal convictions and demonstrated dishonesty and disrespect with respect to the immigration laws of Canada.
[29] It is apparent from this paragraph that, although there were positive factors which operated in Mr. Khokar’s favour, the Officer found that these factors did not outweigh his criminality and misrepresentation.
(emphasis added)
In Fray v. Canada (MCI) 2019 FC 1159, Justice Southcott applies the Newfoundland Nurses verbage of not reviewing decision within a vacuum and writes:
[15] While the adequacy of reasons is not a stand-alone basis for quashing a decision, a decision can be unreasonable if it does not disclose how the decision-maker arrived at his or her conclusion (see, e.g., Chakanyuka v Canada (Citizenship and Immigration), 2017 FC 313 at paras 9-10, relying on Adu v Canada (Citizenship and Immigration), 2005 FC 565 at para 14).
[16] I recognize that the Decision does not expressly set out an analysis of the evidence explaining how the Officer arrived at the resulting conclusion. However, a decision maker’s reasons are not to be reviewed in a vacuum but are to be considered in the context of the evidence, the parties’ submissions, and the process giving rise to the decision (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 18).
Justice Southcott examines the GCMS notes, the requested documentation and finds that the decision is intelligible. He writes at para 18 of his decision:
[18] …. Reviewing the Decision in the context of the larger record, it discloses the Officer’s reasoning, and there is no basis for a conclusion that the Decision is outside the range of acceptable outcomes. The Decision is therefore reasonable
(emphasis added)
What the Respondent Minister May Argue or Judges May Say in Rejecting Judicial Reviews on Adequacy of Reasons
In this section I wanted to briefly look at a few cases to show how the Respondent Minister may respond to an argument that the reasons for refusal provided were inadequate in their submissions on Judicial Review. I also found a few cases with language from the judiciary that is a good summary of what we have discussed so far.
In a refugee refusal context in Kemenczei v. Canada (Citizenship and Immigration), 2012 FC 1349 (CanLII), the Respondent’s argument as summarized by Justice Russell was as follows:
[51] The Respondent submits that a functional approach should be taken in analyzing the adequacy of reasons; the inquiry is not abstract, but should address the live issues in the case (R v Dinardo, 2008 SCC 24 (CanLII) at paragraph 25). The Applicant must show the deficiencies in the reasons prejudiced her right of judicial review (Za’rour v Canada (Minister of Citizenship and Immigration), 2007 FC 1281 (CanLII) at paragraph 20); she has not done so in this case. Deference requires that the matter not be examined microscopically (Ayalal v Canada (Minister of Citizenship and Immigration), 2012 FC 183 (CanLII)), and reasons are to be reviewed in the context of the evidence, submissions, and process (Veerasingam v Canada (Minister of Citizenship and Immigration), 2012 FC 241 (CanLII)).
[52] The Decision in this case informs the Applicant as to why her application was refused, and how the RPD weighed the evidence that led it to its conclusion. The reasons demonstrate the factors considered, and how the RPD conducted its analysis. As such, the reasons are adequate (Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151 (CanLII) at paragraphs 13-15). Essentially, the Applicant is simply complaining that she would have weighed the evidence differently, and this is not a reviewable issue. The Respondent requests that this application be dismissed.
In Vo v. Canada (Citizenship and Immigration), 2018 FC 230 (CanLII), a judicial review invoving a refused Immigration Appeal Division spousal appeal, Justice Diner writes:
[52] On the point of adequate reasons, the IAD’s reasons must be read together with the record and the outcome of the decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII) at paras 14-16 [NLNU]). The IAD does not have to make explicit findings on every piece of evidence submitted (NLNU at para 16; Tang at para 33). Here, the reasons were comprehensive on the issue of res judicata, as well as intelligible, justified, and transparent (see Tiwana at para 40).
(emphasis added)
In Basanti v. Canada (Citizenship and Immigration), 2019 FC 1068 (CanLII), Justice Gascon summarizes the law relating to suffiency of reasons in quite a comprehensive way – touching on many of the themes this piece has talked about including the interplay between Newfoundland Nurses push for increased deference and not viewing decision in a vacuum and the Komolafe dots on a page critique of decisions.
C. Adequacy of reasons
[38] Mr. Basanti’s last argument deals with the adequacy and sufficiency of the IAD’s reasons. Mr. Basanti submits that the lack of a proper analysis of the evidence by the IAD does not allow one to understand how the IAD reached its conclusions, and that the Decision therefore does not have the required attributes of justification, transparency and intelligibility.
[39] I again disagree with Mr. Basanti. As I explained in previous decisions such as Benko v Canada (Citizenship and Immigration), 2017 FC 1032 (CanLII) and Al-Katanani v Canada (Citizenship and Immigration), 2016 FC 1053 (CanLII) [Al-Katanani], the law relating to the sufficiency of reasons in administrative decision-making has evolved substantially since Dunsmuir. It is now trite law that the inadequacy of reasons is no longer a stand-alone basis for quashing a decision.
[40] In Newfoundland Nurses, the Supreme Court of Canada provided guidance on how to address situations where decision-makers provide brief or limited reasons. Reasons need not be fulsome or perfect, and need not address all of the evidence or arguments put forward by a party or in the record (Newfoundland Nurses at paras 16, 18). Reasonableness, not perfection, is the standard. An imperfect decision may still be immune from judicial review, as the standard of review is not concerned with the decision’s degree of perfection but rather its reasonableness (Bhatia v Canada (Citizenship and Immigration), 2017 FC 1000 (CanLII) at para 29). Even when the reasons for the decision are brief, or poorly written, the reviewing court should defer to the decision-maker’s weighing of the evidence, as long as it is able to understand why the decision was made (Al-Katanani at para 32). Reasons do not need to be lengthy either. Even a sentence or two can be enough to provide adequate reasons (Vancouver International Airport Authority v Public Service Alliance of Canada, 2010 FCA 158 (CanLII) at para 25). Short as they may be, reasons will be sufficient if they “allow the reviewing court to assess the validity of the decision” (Lake v Canada (Minister of Justice), 2008 SCC 23 (CanLII) at para 46).
[41] In other words, adequacy and sufficiency of reasons are not measured by the pound. No matter the number of words used by a decision-maker or how concise a decision may be, the test is whether the reasons are justified, transparent and intelligible, and explain to the Court and the parties why the decision was reached. The reasons for a decision need not be comprehensive; they only need to be comprehensible. Reasons are sufficient if they “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 Nurses at para 16). In order to provide adequate reasons, “the decision maker must set out its findings of fact and the principal evidence upon which those findings were based”, as well as “address the major point in issue” and “reflect consideration of the main relevant factors” (VIA Rail Canada Inc v Canada (National Transportation Agency), 2000 CanLII 16275 (FCA), [2001] 2 FC 25 (FCA) at para 22).
[42] Reviewing courts may also look to the record for the purpose of assessing the reasonableness of the outcome. In City of Edmonton, the Supreme Court has even posited that a tribunal’s failure to provide any reasons does not, in itself, breach procedural fairness, and a reviewing court may consider the reasons which could be offered in support of the decision being reasonable (City of Edmonton at paras 36-38). That said, I am mindful that the Supreme Court has also recently cautioned that the requirement that respectful attention be paid to the reasons offered, or that could be offered in light of City of Edmonton, does not empower a reviewing court to ignore them altogether and substitute their own: “[w]hile a reviewing court may supplement the reasons given in support of an administrative decision, it cannot ignore or replace the reasons actually provided. Additional reasons must supplement and not supplant (emphasis in original) the analysis of the administrative body” (Delta Air Lines Inc v Lukács, 2018 SCC 2 (CanLII) [Delta Air Lines] at para 24 [emphasis added]. It is thus important to maintain the prerequisite that, where decision-makers provide reasons for their decisions, they do so in an intelligible, justified, and transparent way (Delta Air Lines at para 27).
[43] I agree that Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor a licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking (2251723 Ontario Inc. (VMedia) v Rogers Media Inc, 2017 FCA 186 (CanLII) at para 24). As this Court stated in Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 (CanLII) at paragraph 11, Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. I am satisfied that, in the case of Mr. Basanti, there were dots on the IAD’s page and that the reasons enable me to understand how the IAD reached its conclusion, and have the proper factual foundation in the record for reaching it. There is therefore no inadequacy of reasons.
Requesting Detailed Reasons for Refusal
Another nuance about a complaint via judicial review about the inadequacy of reasons is a requirement for requesting delivery of reasons before making a complaint about it.
In Za’Rour v. Canada (Citizenship and Immigration), 2007 FC 1281 (CanLII), Justice Shore writes:
[23] Second, Mr. Za’Rour’s argument cannot be sustained because of his failure to ask for more detailed reasons. The principle that reasons must first be requested was clearly stated by Justice John Maxwell Evans in Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1301 (T.D.) (QL), which dealt with an overseas H&C application that had been refused:
[31] First, the administrative exhortation in the Immigration Manual to program managers that they provide a rationale for their decisions on waiver requests appears to envisage that they should enter their reasons in the file as a matter of course. However, in my opinion the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.
[32] There is nothing in the application record before me to indicate that the applicant requested reasons for the program manager’s decision. If the applicant or his representative had regarded the decision-letter as an inadequate explanation, a request should have been made for further elucidation.
[24] The Federal Court of Appeal explicitly adopted this proposition in Marine Atlantic Inc. v. Canadian Merchant Service Guild, [2000] F.C.J. No. 1217 (C.A.) (QL). Although it was dealing with a different tribunal (the Canadian Industrial Relations Board), the Court’s agreement with the reasoning and conclusion in Liang, above, could not be more clear:
[4] Based on the rationale outlined in Baker, while not required in every case, it will generally be a salutary practice for tribunals to provide reasons for their decisions. However, it is not necessary for this Court to determine whether this is a case in which reasons are required. The applicant concedes that it did not ask the Board to provide reasons. In fact, although the applicant sought reconsideration by the Board, the absence of reasons was not one of the grounds for that application
[5] In Liang v. The Minister of Citizenship and Immigration [1999] F.C.J. No. 1301, Evans J. (as he then was) stated at paragraph 31:
However, in my opinion, the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.
We agree with Evans J. Before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is an obligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the Court may be appropriate. However, it would unduly complicate the administration of justice if parties could resort to the Court to seek to quash orders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal.
[6] A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, required in the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in the Court.
[7] We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the Court without a request for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannot request reasons from the Board. Such situations, we think, would be exceedingly unusual.
[8] In this case, the failure to request reasons is fatal to this aspect of the judicial review application. While the matter may be of significance to the applicant, there is no satisfactory explanation why the applicant could not have requested reasons from the Board. This ground of the applicant’s judicial review must be rejected.
[25] In the present case, there is no evidence to indicate that Mr. Za’Rour requested a more detailed explanation for the refusal of his application. Applying the above jurisprudence, Mr. Za’Rour’s failure is fatal to his argument.
Similarly in Tran v. Canada (Public Safety and Emergency Preparedness), 2009 FC 1078 (CanLII), Justice Mosley writes about a failure of counsel to seek reasons for a Minister’s Delegate’s s.44(2) referral:
[21] There was no clear and specific request for delivery of such material made by the applicant before either the referral decision or the admissibility hearing. No request was made by the applicant for an explanation of the 44(1) and 44(2) decisions. In my view, the applicant can not be heard now to complain about the failure to disclose the officer’s notes or to provide such an explanation when he did not request that they be produced.
[22] In Liang v.Canada (Minister of Citizenship and Immigration), (1999), 91 A.C.W.S. (3d) 141, [1999] F.C.J. No.1301, Evans J., as he then was, noted at paragraph 31 that the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty if reasons are not provided. This view of the duty was endorsed by the Federal Court of Appeal in Marine Atlantic Inc. v, Canadian Merchant Service Guild, (2000), 258 N.R. 112 (C.A.), [2000] F.C.J. No. 1217 and has been applied in other decisions of this Court:; Za’rour v. Canada (Minister of Citizenship and Immigration), 2007 FC 1281 (CanLII), [2007] F.C.J. No.1647; Gaoat v. Canada (Minister of Citizenship and Immigration), 2007 FC 440 (CanLII), [2007] F.C.J. No. 629.
[23] As noted by Mr. Justice Pinard in Gaoat, above at paragraphs 10-11, the rule in Marine Atlantic applies where the reasons given may be insufficient. The applicant is required to request further reasons before he can complain in Court that they are inadequate: see also Hayama v. Canada (Minister of Citizenship and Immigration), 2003 FC 1305 (CanLII), [2003] F.C.J. No. 1642.
Is There No Hope for Procedural Fairness?
Perhaps it is also time for us to challenge the inadequacy of reasons for refusal no longer as a procedural fairness issue. Where applicants are being deprived of reasons in a decision and further being deprived through Privacy Act and Access to Information Act legislation of being able to have those reasons in a reasonable time to even proceed to judicial review. ATIP/Privacy Act requests are routinely taking several months longer than the legislation provides for, in many cases without an extension request.
Where visa offices are refusing to follow-up with requests for detailed reasons and forcing us into judicial reviews, we may want to start raising this as a parallel issue regarding the severe prejudice this creates.
What Are Your Thoughts?
Have any further thoughts about the inadequacy of reasons and where this is going? Perhaps we need to update this in the Fall when the SCC’s decision is received in Vavilov. Let’s chat.
