Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship)

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship)
Court (s) Database
Federal Court of Appeal Decisions
Date
2020-11-13
Neutral citation
2020 FCA 196
File numbers
A-382-19
Notes
A correction was made on November 24, 2020.
Reported Decision
Decision Content
Date: 20201113
Docket: A-382-19
Citation: 2020 FCA 196
CORAM:
NEAR J.A.
DE MONTIGNY J.A.
LEBLANC J.A.
BETWEEN:
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Appellant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
Respondent
and
THE IMMIGRATION AND REFUGEE BOARD
Intervener
Heard by online video conference hosted by the Registry on September 16, 2020.
Judgment delivered at Ottawa, Ontario, on November 13, 2020.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
NEAR J.A.
LEBLANC J.A.
Date: 20201113
Docket: A-382-19
Citation: 2020 FCA 196
CORAM:
NEAR J.A.
DE MONTIGNY J.A.
LEBLANC J.A.
BETWEEN:
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Appellant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
Respondent
and
THE IMMIGRATION AND REFUGEE BOARD
Intervener
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] The Canadian Association of Refugee Lawyers (CARL or the appellant) appeals, and the Minister of Citizenship and Immigration (the respondent) cross-appeals, from a decision of the Federal Court (per Chief Justice Crampton) dated September 4, 2019 (2019 FC 1126) (Reasons), which granted in part, two applications for judicial review challenging the designation of four Jurisprudential Guides (JG) by the Chairperson of the Immigration and Refugee Board of Canada (the Board or the IRB). The first application (IMM-3433-17) concerned the designation of three decisions from the Refugee Appeal Division (RAD) pertaining to Pakistan, India and China, respectively, as JGs. The second application (IMM-3373-18) was to the same effect, but with respect to a JG pertaining to Nigeria.
[2] The Federal Court found that the impugned JGs had been validly enacted pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In other words, it was not unreasonable for the Chairperson to implicitly construe that provision as conferring upon him the authority to issue JGs that include factual considerations.
[3] That said, the statement of expectation included in the policy notes accompanying the JGs pertaining to Pakistan, India and China was found to be unlawful and inoperative to the extent only that it pressured Board members to adopt the RAD’s own findings, on issues that went beyond the evidence specific to claimants. The Court saw no issue, however, with the JG pertaining to Nigeria which, given its particular emphasis on each claim’s specific circumstances, did not fetter the discretion of Board members or improperly interfere with their independence.
[4] The Federal Court certified the two following serious questions of general importance, as contemplated by paragraph 74(d) of the IRPA:
1. Does the Chairperson of the Immigration and Refugee Board have the authority pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act to issue jurisprudential guidelines that include factual determinations?
2. Do the Jurisprudential Guides that the Chairperson issued with respect to Nigeria, Pakistan, India and China unlawfully fetter the discretion of members of the Refugee Protection Division and the Refugee Appeal Division to make their own factual findings, or improperly encroach upon their adjudicative independence?
[5] For the reasons that follow, I am of the view that the Federal Court did not err in answering the first question affirmatively, but did so in answering the second question affirmatively, to the extent that the Pakistan, India and China JGs were concerned. Accordingly, I would dismiss the appeal and grant the cross-appeal.
I. Factual background
[6] This appeal concerns the Chairperson’s decision to identify four decisions of the RAD as JGs, pursuant to paragraph 159(1)(h) of the IRPA. Three of these guides were issued on July 18, 2017: RAD decision TB7-01837, concerning a Pakistani refugee claimant (Pakistan Guide); RAD decision TB6-11632, concerning a Chinese refugee claimant (China Guide); and RAD decision MB6-01059/MB6-01060, concerning an Indian refugee claimant (India Guide). The fourth guide, which was issued on July 6, 2018, concerned RAD decision TB7-19851 involving a Nigerian refugee claimant (Nigeria Guide).
[7] The policy notes accompanying the issuance of the JGs stress that the fair and efficient determination of refugee claims before the Refugee Protection Division (RPD) and the RAD is of “great importance” to the Board, and is “essential” to the Board dealing with a “significant backlog” in the refugee determination continuum. They go on to state that these JGs are meant to facilitate decision-making “in a manner that meets the twin requirements of fairness and efficiency”. Indeed, it is clear from internal memos that significant backlogs and growing intake volumes were part of the rationale for issuing the disputed JGs.
[8] All of the policy notes also explain that “RPD and RAD members are expected to apply [JGs] in cases with similar facts or provide reasoned justifications for not doing so” (Appeal Book, p. 1735, 1755, 1776 and 1793). They add that the JGs are meant to assist RPD and RAD members in narrowing the issues to be determined, and to promote fairness, consistency and efficiency in writing reasons. Finally, the policy notes accompanying the issuance of the China, India and Pakistan JGs specifically set out the requirement that the Research Directorate of the Board must monitor and report to the RAD Deputy Chairperson any developments in the country of origin information that could have an impact on the factual foundation of the JGs.
[9] The Policy Note accompanying the identification of TB6-11632 as a JG for China (Policy Note China) states that the decision was chosen for its detailed, clear, and sound analysis of Chinese exit control procedures and the ability for those being sought by the authorities to exit China via an airport using a genuine passport. That issue had given rise to conflicting jurisprudence both at the Board level and at the Federal Court. The analysis at paragraphs 12-22 and 25-34 of the RAD decision forms the basis of this JG. The Policy Note specifies that the key determination “is one of fact that may be applicable to a large number of claims […] in relation to an aspect of the Chinese government’s public security infrastructure and how it operates” (Appeal Book, p. 1756). After reviewing evidence with respect to China’s Golden Shield Project and security apparatus, the RAD found on a balance of probabilities that it was unlikely that a wanted person could have left China from an international airport using a passport with his own name, date of birth and photograph.
[10] The Policy Note accompanying the designation of decision TB7-19851 as a JG (Policy Note Nigeria) recognized the decision, and more particularly its paragraphs 13-30, as a detailed, clear and sound analytical framework to address the viability of an internal flight alternative (IFA) in Nigeria, for individuals fearing non-state actors. The Policy Note provides that the JG deals with a question of mixed fact and law, and establishes that there are several large, multilingual, multiethnic cities in south and central Nigeria where persons fleeing non-state actors may be able to safely establish themselves, depending on their own particular circumstances. The Policy Note also encourages RPD and RAD members, in appropriate circumstances, to proceed directly to an IFA analysis without having first to decide the credibility of a claimant’s allegations of persecution.
[11] The JG with respect to decision MB6-01059/MB6-01060 was issued with respect to the issue of whether Sikh refugee claimants from Punjab have a viable IFA. As in the case of Nigeria, the Policy Note identifying that decision as a JG (Policy Note India) reinforces the objective of conducting more focused hearings and issuing more focused reasons. RPD and RAD members are encouraged to proceed directly, in appropriate circumstances, to an IFA analysis within India. Given that the existence of an IFA would be determinative, members would not necessarily have to decide first the credibility of the claimant’s allegations of persecution. After reviewing the evidence, the RAD member determined in that decision that Punjab police would only track an individual from state to state in extreme cases, and that neither India’s tenant registration system, nor the Zipnet police computer system, would facilitate the inter-state tracking of a wanted person.
[12] Finally, the Policy Note identifying decision TB7-01837 as a JG for Pakistan (Policy Note Pakistan) formally identifies the key determination as one of mixed law and fact, the scope of which being whether the treatment experienced by Ahmadis from Pakistan amounted to persecution, and whether state protection and an IFA are available. In that case, the RAD member found that the claimant faced a serious possibility of persecution because of her Ahmadi religion and could not expect state protection or avail herself of a viable IFA.
[13] At the time the Federal Court rendered its decision, the JGs pertaining to India and China had been revoked on November 30, 2018 and June 28, 2019 respectively. The former had been revoked due to developments in the Board’s country of origin information. It appears that the JG was not revoked because of actual changes that had occurred in India since its issuance, but rather as a result of changes in the documentation available on the issue. As for the latter, it was revoked because a finding of fact drawn from the Board’s National Documentation Package (NDP) was ultimately found to be unsupported by the same document, as it stood at the time of the decision.
[14] The Chairperson has subsequently announced that the JG pertaining to Nigeria was revoked as of April 6, 2020, in light of developments in the country of origin information. As a result, of the four JGs that are the subject of this appeal, only the JG pertaining to Pakistan is still in force.
II. The Impugned Decision
[15] Before the Federal Court, the respondent raised two preliminary issues. First, the Attorney General submitted that the appellant lacked standing to bring the two applications for judicial review, since the central issues were not evasive of review and could have been pursued by a litigant with a more direct stake in the issues. Second, the respondent took the position that the JG pertaining to India (and subsequently China) should no longer be part of the application in IMM-3433-17, to the extent that the issue of their validity was now moot as a result of their revocation.
[16] With respect to the public interest standing issue, the Court found the question to be res judicata as it pertained to IMM-3433-17, to the extent that a motion to strike the appellant as a party from that proceeding was rejected in an interlocutory order of Prothonotary Aalto. The respondent was precluded from appealing this decision by virtue of paragraph 72(2)(e) of the IRPA, but claimed that an appeal from Prothonotary Aalto’s decision was available if, pursuant to paragraph 74(d) of the IRPA, the Federal Court certifies a serious question of general importance in the ultimate judgment relating to the application. Relying on a decision of this Court in Canada (Minister of Citizenship and Immigration) v. Edwards, 2005 FCA 176 [Edwards], the Federal Court rejected that argument and concluded that the appeal contemplated in paragraph 74(d) is an appeal only of the judgment issued in respect of the application for judicial review, and not of interlocutory matters. The Federal Court also rejected the respondent’s argument that a decision with respect to standing constitutes a separate and divisible judicial act, this Court having explicitly dismissed that argument in HD Mining International Ltd. v. Construction and Specialized Worker Union, Local 1611, 2012 FCA 327 [HD Mining]. CARL having been granted standing in IMM-3433-17, also ought to be granted standing in IMM-3373-18.
[17] On the issue of mootness, the Federal Court found that the China Guide, though it had been revoked, could still be a factor in ongoing litigation concerning past refugee decisions in which the China Guide was followed. The same reasoning would presumably apply to India. In any event, the Chief Justice determined that the factors to be considered in exercising his discretion to address the China JG in spite of the matter being moot, as set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, weighed in favour of doing so. Specifically, the ongoing adversarial relationship between the parties, judicial economy and the public interest in resolving the uncertainty regarding those issues were of particular relevance, in his view.
[18] Turning next to the substantive issues, the Chief Justice first considered whether the Chairperson had the authority to issue JGs on questions of fact. Applying the standard of reasonableness, he found that it was not unreasonable for the Chairperson to have implicitly interpreted paragraph 159(1)(h) of the IRPA as conferring upon him the authority to issue JGs on factual determinations. The Chief Justice first noted that, in light of the plain wording of the provision, the Chairperson’s authority was not formally restricted to the issuance of JGs on issues of law or mixed fact and law. Such a reading was supported, in his view, by the legislative history and stated purpose of that provision, and by the purpose identified by the Chairperson, all of which reflected an intent both to enhance consistency in decision-making, while at the same time facilitating more focused hearings and reasons.
[19] Regarding the statutory context, the Chief Justice saw in paragraph 159(1)(g) and subsection 162(2), which respectively set forth the Chairperson’s broad authority and the Board’s general objective, further support for the authority to issue JGs that include factual determinations. He also noted that the difficulty to distinguish between issues of fact and issues of mixed fact and law, and the fact that findings on the latter cannot be made without first making findings on the former, favoured the implicit interpretation given by the Chairperson to paragraph 159(1)(h).
[20] Finally, he rejected CARL’s argument that the term “jurisprudential guide” cannot be interpreted as contemplating a guide on issues of fact because the term “jurisprudence” refers to legal principles only and does not encompass factual findings. While not disputing that factual disputes must be determined on their merits in each case, the Federal Court expressed the view that the ordinary meaning of the term “jurisprudence” contemplates decisions issued by a court in respect of both factual issues and issues of law and of mixed fact and law.
[21] The next substantive issue examined by the Federal Court was CARL’s submission that the four JGs at issue unlawfully fettered the discretion of the Board members. On that issue, the Chief Justice declined to determine whether the standard of review was that of correctness or reasonableness because, in any case, fettering of a decision-maker’s discretion is per se unreasonable. He then summarized the requirements of adjudicative independence, which at its root means that judges and quasi-judicial decision-makers must be at liberty to hear and decide cases without interference. Relying on IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282 [Consolidated-Bathurst] and Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 [Ellis-Don], he stated:
[93] Put differently, in the administrative law context, it can be entirely appropriate to embrace tools such as guidelines to influence, in a general way, the manner in which decisions are reached. In this regard, a legitimate type of general influence can include identifying factors, sources of information, and even particular information that can be helpful to consider. Indeed, I consider it to be permissible to go further and encourage such information to be taken into account, so long as it is made clear that decision-makers remain completely free to reach their own conclusions, based on the facts of each particular case.
(…)
[95] However, the line would be crossed when the language used in guidelines may be reasonably apprehended by decision-makers or members of the general public to have the likely effect of either pressuring independent decision-makers to make particular factual findings or attenuating their impartiality in this regard. The same is true where such language may be reasonably apprehended to make it more difficult for independent decision-makers to make their own factual determinations. This is so even if it has been stated that the guidelines are not binding.
[22] Applying these principles to each of the JGs, the Chief Justice found that the Nigeria JG did not unlawfully fetter Board members’ discretion to make their own factual findings or improperly constrain their freedom to decide cases that may come before them, given how it was made abundantly clear that each claim was to be decided on its particular facts.
[23] The same could not be said, in his view, of the JGs pertaining to Pakistan, India and China. In all of these cases, the Chief Justice found that the facts that are specific to the particular claimant do not pose a potential problem nor do the facts that are characterized as having been reported in the country documentation. The former are unique to the refugee claimant, and the latter are not presented as factual findings made by the RPD or the RAD, but rather as information in the country documentation that was relevant and that should be taken into account in future cases. It is the facts that are presented as the RAD’s own findings on issues that go beyond the evidence specific to the claimant that were considered more problematic. In the Chief Justice’s view, the statement of expectations in the policy notes that accompanied the issuance of these three JGs, by which “RPD and RAD members are expected to apply [JGs] in cases with similar facts or provide reasoned justifications for not doing so”, are troubling. At the very least, some Board members would not feel completely free to decide cases with similar facts according to their own conscience, and some members of the public would likely have a reasonable apprehension that those members of the Board would feel pressured and would therefore not be entirely impartial. As the Chief Justice stated:
[141] …It is the imposition of this expectation [to apply the JGs] and corresponding obligation to justify a decision to not follow the JG in cases with similar facts that gives rise to the improper pressure on Board members to adopt the factual determinations made by the RAD […] as their own. This is particularly so given the extent to which the communication of this expectation has been repeated, and the absence of any clear statement that each case must be decided based on its specific facts.
[24] It bears noting that in the Chief Justice’s opinion, encouraging Board members to take the JGs into account or to follow them in cases with similar facts would be entirely legitimate, “so long as it was also made very clear that they are completely free to depart from the JG based on the particular facts of the case before them” (Reasons, at para. 142).
[25] The third issue in dispute before the Federal Court was whether the impugned JGs unfairly enhanced the burden of proof for applicants for refugee protection. To the extent that the problem relates to the statement of expectation made in the policy notes with respect to the factual findings that go beyond the facts specific to a refugee claimant, the Court considered that this argument is just another way to say that the impugned JGs unlawfully fetter the discretion of the Board members. Apart from that specific problem, the Court found that any increase in the burden that claimants for refugee protection may face as a result of having to buttress their narrative to deal with facts referenced from the Board’s NDP is not unfair. By providing the Chairperson the authority to issue JGs, Parliament must be understood to have recognized, by necessary implication, the authority to reference country documentation and other objective sources in a JG.
[26] With regard to the issue of whether the Chairperson was required to engage in external consultation before identifying the decisions in question as JGs, I need not say much as this aspect of the Federal Court decision has not been appealed. Suffice it to say that the Federal Court quickly disposed of that argument by referring to paragraph 159(1)(h), according to which the Chairperson is given the authority to identify decisions of the Board as JGs “after consulting with the Deputy Chairpersons”. This provision, in the Court’s view, could reasonably be interpreted as implicitly indicating that consultation with any other persons or organizations was not considered to be required by Parliament.
[27] The last issue to be decided by the Federal Court had to do with the Nigeria JG. CARL submitted that the decision in respect of which the Nigeria JG was identified was impermissibly pre-selected to be the subject of a JG before it was finally decided, thereby contravening paragraph 159(1)(h) and compromising the independence of the refugee determination process. The Federal Court disagreed, and held, on a standard of reasonableness, that there was no evidence to suggest that the Chairperson had de facto designated the decision in question as a JG before the issuance of that decision. The Court further found that there was no evidence that the concerned Board member’s impartiality had been undermined by exchanges preceding the finalization of the decision, or that any of the principles established in Consolidated-Bathurst had been breached as a result of the exchanges that took place internally in relation to the Nigeria JG.
III. Issues
[28] As previously mentioned, the Federal Court certified two questions, one pertaining to the Chairperson’s authority to issue JGs on factual determinations under paragraph 159(1)(h) of the IRPA, and the other pertaining to the alleged unlawful interference with the Board members’ discretion. While the certification of these questions served a “triggering” function by which the appeal was permitted (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 at para. 44 [Kanthasamy]), this Court is not restricted to their determination and may further consider any issues affecting the validity of the judgment under appeal. The case law establishing this principle has been well summarized in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at paragraph 50:
Once an appeal has been brought to this Court by way of certified question, this Court must deal with the certified question and all other issues that might affect the validity of the judgment under appeal […]. The certification of a question “is the trigger by which an appeal is justified” and, once triggered, the appeal concerns “the judgment itself, not merely the certified question” […]. Simply put, “once a case is to be considered by the Federal Court of Appeal, that Court is not restricted only to deciding the question certified”; instead, the Court may “consider all aspects of the appeal before it” […].
[29] In my view, and taking into account the parties’ submissions, this appeal and this cross-appeal raise four issues, two of which consist of the certified questions. They can be formulated as follows:
A. Does the appellant have the requisite public interest standing?
B. Does the Chairperson of the IRB have the authority pursuant to paragraph 159(1)(h) of the IRPA to issue JGs that include factual determinations?
C. Do the JGs that the Chairperson issued with respect to Nigeria, Pakistan, India, and China unlawfully fetter the discretion of members of the RPD and the RAD to make their own factual findings, or improperly encroach upon their adjudicative independence?
D. Does the cumulative effect of the facts and context surrounding the promulgation of the Nigeria JG give rise to a reasonable apprehension of bias?
IV. Standard of review
[30] The parties are broadly in agreement with respect to the applicable standard of review. It is now well established that, on appeal from a decision of the Federal Court sitting in judicial review of an administrative decision, this Court must “step into the shoes” of the Federal Court, and determine whether it appropriately selected and properly applied the standard of review: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47. When, however, the Federal Court makes findings of fact or mixed fact and law on the basis of the evidence before it, rather than on a review of the administrative decision, it is the appeal framework developed in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen] that applies: Apotex Inc. v. Canada (Health), 2018 FCA 147, at paras. 57-58; Oceanex Inc. v. Canada (Transport), 2019 FCA 250, at para. 18.
[31] Applying this matrix, I am of the view that the first question pertaining to the Federal Court’s finding with respect to the question of standing is to be reviewed on the Housen standard. This is clearly a decision made by the Federal Court, not the administrative decision-maker: Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139, at paras. 37-39; Canada (Attorney General) v. Rapiscan Systems, Inc., 2015 FCA 96, at para. 21. Since the decision to grant CARL standing is clearly a question of mixed fact and law, it ought to be reviewed on the standard of palpable and overriding error.
[32] On the second issue relating to the authority of the Chairperson to issue JGs that include factual determinations, the Federal Court properly applied the reasonableness standard. Although determined by the Chief Justice with reference to Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, the applicable standard of review is still that of reasonableness under the framework laid out by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov]. Indeed, the Supreme Court stated that when reviewing an administrative decision, a court “should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness” (Vavilov, at para. 25).
[33] The same standard of reasonableness applies to the issues of consultation and pre-selection of the Nigeria JG. Both of these issues turn on the Chairperson’s interpretation of his home statute. The presumption of reasonableness review in such cases was already well established in cases such as Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 30, Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46, and Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22, and was reiterated in Vavilov (at para. 25).
[34] As for the issue raised by the second certified question (the third issue before this Court), the Federal Court stated that it was unnecessary to determine whether the applicable standard of review was that of correctness or reasonableness. In so doing, the Court pointed to the fact that fettering of a decision-maker’s discretion is per se unreasonable and relied for that proposition on Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, at paras. 23-24 and Danyi v. Canada (Public Safety and Emergency Preparedness), 2017 FC 112, at para. 19.
[35] Neither Vavilov nor, for that matter, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, have addressed the standard for determining whether the decision-maker complied with the duty of procedural fairness. In those circumstances, I prefer to rely on the long line of jurisprudence, both from the Supreme Court and from this Court, according to which the standard of review with respect to procedural fairness remains correctness: see Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79; Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385, at para. 33 [Thamotharem]; Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R. 170, at para. 34; Wsáneć School Board v. British Columbia, 2017 FCA 210, at paras. 22-23; Johnny v. Adams Lake Indian Band, 2017 FCA 146, at para. 19; Therrien v. Canada (Attorney General), 2017 FCA 14, at para. 2; El-Helou v. Courts Administration Service, 2016 FCA 273, at para. 43; Arsenault v. Canada (Attorney General), 2016 FCA 179, at para. 11; Henri v. Canada (Attorney General), 2016 FCA 38, at para. 16; Abi-Mansour v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 135, at para. 6; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, at paras. 33-56. In fact, it is not at all clear to me why we keep assessing procedural fairness within the framework of judicial review, considering that it goes to the manner in which a decision is made rather than to the substance of the decision, as Justice Binnie aptly observed in C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 102. What matters, at the end of the day, is whether or not procedural fairness has been met.
V. Analysis
A. Does the appellant have the requisite public interest standing?
[36] In its memorandum of fact and law, the respondent devotes only one paragraph to this issue, and merely reiterates its position before the Federal Court that CARL lacked the requisite public interest standing without setting out how the Court below erred, or adducing any new arguments in support of its thesis. At the hearing, the respondent appeared to accept the authority of Edwards and HD Mining for the proposition that questions of standing are matters arising under the IRPA and cannot be challenged on judicial review because of the constraints imposed by section 72 of that legislation.
[37] In any event, I am of the view that it is very late in the day to challenge CARL’s standing to bring applications for judicial review questioning the legality of the impugned JGs. Moreover, the Prothonotary provided cogent reasons to grant standing, and the respondent has failed to show any reviewable error in the Federal Court’s reasoning that could justify interfering with its decision to the effect that the Prothonotary’s decision could not be appealed.
B. Does the Chairperson of the IRB have the authority pursuant to paragraph 159(1)(h) of the IRPA to issue JGs that include factual determinations?
[38] Paragraph 159(1)(h) of the IRPA provides as follows:
159(1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
159(1) Le président est le premier dirigeant de la Commission ainsi que membre d’office des quatre sections; à ce titre:
…
…
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties;
h) après consultation des vice-présidents et en vue d’aider les commissaires dans l’exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel;
[39] The appellant contends that the Chairperson’s implicit interpretation of paragraph 159(1)(h) as conferring upon him the authority to issue JGs on factual determinations is unreasonable in two respects. First, such reading of the provision is unsupported, says the appellant, by basic principles of statutory interpretation. Second, the Chairperson’s reasons appear to be internally inconsistent, given that the policy on which he relied in the first place is circumscribed to the issuance of JGs on questions of law and mixed fact and law.
[40] Referring to the text of paragraph 159(1)(h), the appellant reiterates that the term “jurisprudential” cannot plausibly be interpreted as contemplating guidance on factual issues, because “jurisprudence” consists of case law establishing legal precedents.
[41] Turning to the purpose of paragraph 159(1)(h), the appellant first argues that promotion of consistency in administrative decision-making, which lies at the heart of the provision, is understood to be in relation to questions of law and policy, and that nothing in the debates surrounding the adoption of the IRPA suggests otherwise. While the provision contains no express and unequivocal language ousting principles of natural justice, the Chairperson’s reading of paragraph 159(1)(h), argues the appellant, is to this effect. In making this second submission, the appellant essentially relies on the cases of Consolidated-Bathurst and Ellis-Don which, in its view, must be read as preventing an institutionalized decision-maker to influence a panel member’s findings of fact, and therefore as prohibiting findings of fact to be part of the Board’s JGs. In my view, this interpretation of Consolidated-Bathurst and Ellis-Don is entirely without merit, as I will endeavour to show in the next section of these reasons. Finally, the appellant submits that guidance on constantly changing country conditions, for which there is no central database, inevitably leads to imperfect and necessarily delayed monitoring, as well as to eventual revocation of JGs after they have been relied upon in numerous cases.
[42] As part of its submissions on the first certified question, the appellant also takes issue with the Chairperson’s reliance on the Board’s Policy on the Use of Jurisprudential Guides (as amended December 2016) in its formal designation of the JGs. The policy states that “[a] decision may be identified as a [JG] on either a question of law or a question of mixed law and fact”, yet the Chairperson’s decision goes well beyond and concerns questions of fact. In the appellant’s view, the Chairperson’s reasons are internally inconsistent, and for that reason the decision to issue the impugned JGs on factual determinations is unreasonable.
[43] I am unable to agree with the appellant’s submissions. On the contrary, I find that the Court properly found that the Chairperson had the authority to issue JGs on issues of fact in accordance with the plain words of the statutory provision. The Chairperson implicitly interpreted paragraph 159(1)(h) as conferring upon him the authority to issue JGs on factual issues, and that implicit interpretation was reasonable.
[44] In Vavilov, the Supreme Court held that “whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision” (at para. 120), thereby referring to the usual principles of statutory interpretation as set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21. Although the Chairperson did not formally engage in such an exercise, there is no doubt in my mind that his implicit interpretation is consistent with that approach.
[45] I would start by noting that administrative agencies do not require an express grant of statutory authority in order to use “soft law” such as policy statements, guidelines, manuals and handbooks to structure the exercise of their discretion. As this Court found in Thamotharem (at para. 56):
Through the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well as to the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day-to-day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation. Indeed, an administrative agency does not require an express grant of statutory authority in order to issue guidelines and policies to structure the exercise of its discretion or the interpretation of its enabling legislation…
[46] In the case at bar, there is an express statutory grant of authority to the Chairperson. Moreover, as properly noted by the Chief Justice, there is no limitation confining the scope of paragraph 159(1)(h) to issues of law or mixed fact and law. On the contrary, the authority of the Chairperson to issue JGs is conferred in the broadest terms, as long as their purposes are to assist members in carrying out their duties, and with the only requirement that their issuance be preceded by consultation with the Deputy Chairperson.
[47] The breadth of this power aligns with the context in which paragraph 159(1)(h) is found. Not only does paragraph 159(1)(g) authorize the Chairperson to take “any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay”, but subsection 162(2) requires the IRB to deal with proceedings “as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”. To this end, sections 170 and 171 provide guidance to members in conducting proceedings, and make clear that Parliament’s intention was to promote efficiency and consistency while taking into account considerations of fairness and natural justice.
[48] To achieve that mandate as a tribunal with a large, diverse body of members adjudicating a high volume of cases, the IRB has been provided with an arsenal of tools including not only JGs, but also guidelines and persuasive decisions. Various policy instruments, such as instructions, three-member panels, and training, are also available to the IRB, through the initiatives of its Chairperson. Paragraph 159(1)(h) cannot be interpreted in a vacuum. The legislative context in which it is found is consistent with the broad interpretation that the Chairperson has given to that provision, namely to ensure that Board members carry out their duties efficiently and without undue delays.
[49] The only limitation to the plain wording of paragraph 159(1)(h) to which the appellant can point is the use of the word “jurisprudential”. For the appellant, the term “jurisprudence” can only refer to legal principles as they are set out in the case law or court decisions. Much like the Federal Court, I find little support for this narrow reading of this concept. The appellant cites the case of R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, in which the Supreme Court held that “the answer to a question of fact, as it rests wholly on the evidence in a particular case, cannot be presumed to be true for any situation outside the specific one before the trial court” (at para. 86). While undoubtedly true, this principle does not entail that decisions entirely or largely based on factual determinations are excluded from a tribunal’s jurisprudence. On the contrary, the Supreme Court does not seem to operate such a distinction, as pointed out by the respondent, when referring to decisions of tribunals and boards as “jurisprudence”: see Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 13; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at para. 199; Canadia