Gomez v. Canada (Attorney General)

Gomez v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-11-25
Neutral citation
2021 FC 1300
File numbers
T-1079-20
Decision Content
Date: 20211125
Docket: T-1079-20
Citation: 2021 FC 1300
Ottawa, Ontario, November 25, 2021
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
FRANCISCO JOSE RANGEL GOMEZ
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is an application by the former Governor of the State of Bolivar in Venezuela, Francisco Jose Rangel Gomez [Mr. Rangel Gomez]. Mr. Rangel Gomez first seeks a declaration pursuant to subsection 18(1) of the Federal Courts Act, RSC 1985, c F-7 that the Justice for Victims of Corrupt Foreign Officials Regulations, SOR/2017-233 [the Regulations] as they apply to him are ultra vires the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), SC 2017, c 21 [the Act]. In the alternative, Mr. Rangel Gomez seeks judicial review of the August 13, 2020 decision of the Minister of Foreign Affairs [the Minister] which refused to remove (or “delist”) Mr. Rangel Gomez from the list of persons set out in the Schedule to the Regulations pursuant to section 8 of the Act [collectively, the Application]. Mr. Rangel Gomez argues that the Minister breached the duty of procedural fairness owed to him with respect to his request to be delisted. Mr. Rangel Gomez does not challenge the reasonableness of the Minister’s decision.
[2] As a preliminary issue, the Respondent notes that the Attorney General of Canada is the only proper respondent to this Application. As a result, the style of cause is amended to remove Her Majesty the Queen (as represented by the Minister of Foreign Affairs) as a respondent.
[3] For the reasons that follow, the Application is dismissed.
[4] The Court declines to exercise its discretion to consider whether the Regulations are ultra vires as they apply to Mr. Rangel Gomez. This issue is in essence about statutory interpretation. Mr. Rangel Gomez should have made submissions to the Minister regarding the interpretation of the Act and Regulations, or their vires, as the Act and Regulations apply to him, in his application to be delisted [Delisting Application]. Mr. Rangel Gomez could have then sought judicial review of the Minister’s decision if unfavourable to him. The Court could have then reviewed the reasonableness of the Minister’s decision with the benefit of the Minister’s reasons and considered the appropriate remedy. In the present circumstances, the Court finds that there are no compelling reasons that favour the Court’s exercise of discretion to consider this issue for the first time on this Application.
[5] The Court finds that the duty of procedural fairness owed by the Minister to Mr. Rangel Gomez in the context of his Delisting Application is at the low end of the spectrum. The Minister did not breach the duty owed in the circumstances. Mr. Rangel Gomez had sufficient information about why he was listed and of the case he had to meet in his Delisting Application and he responded to this information.
[6] The Court notes that the Act provides that an applicant may bring a new application to be delisted if there is a material change in circumstances.
I. Background
[7] From October 31, 2004 to October 15, 2017, Mr. Rangel Gomez was the Governor of the State of Bolivar in Venezuela.
[8] On October 15, 2017, a new governor was elected for the State of Bolivar. Shortly afterward, Mr. Rangel Gomez moved to Mexico. He states that he is now retired and is no longer politically active.
[9] On October 18, 2017, three days after Mr. Rangel Gomez left office, the Act came into force in Canada.
[10] On November 3, 2017, the Governor in Council [GIC], on the recommendation of the Minister of Foreign Affairs, listed Mr. Rangel Gomez in the Schedule of the Regulations pursuant to paragraph 4(2)(c) of the Act as a foreign public official involved in acts of significant corruption.
[11] An individual listed in the Schedule pursuant to paragraph 4(2)(c) is a “foreign public official” who, in the opinion of the GIC, is responsible for or complicit in ordering, controlling or otherwise directing acts of significant corruption. To date there are 70 foreign nationals listed, including Mr. Rangel Gomez.
[12] On January 5, 2018, the United States [US] Treasury Department sanctioned Mr. Rangel Gomez along with three other Venezuelan government officials associated with corruption and repression in Venezuela. The US press release described Mr. Rangel Gomez as:
a former Governor of Bolivar State [who] is retired from the National Army, with the rank of Division General. Rangel Gomez has been linked to corruption activities, such as strengthening armed gangs operating in Bolivar and pressuring courts to release gang members that are apprehended, during his time as Governor. Rangel Gomez has also been linked to networks of allegedly corrupt military officials.
[13] On November 23, 2018, counsel for Mr. Rangel Gomez wrote to Global Affairs Canada [GAC] requesting the reasons why he was listed in the Schedule.
[14] On January 24, 2019, GAC responded by letter, stating:
. . . At the time of listing, the Governor in Council was of the opinion that Mr. Rangel Gomez met the requirements for designation as a listed person under s. 4(2)(c) of the Act.
Information indicates that Mr. Rangel Gomez, as Governor of Bolivar State, was responsible for or complicit in accepting significant bribes in exchange for government contracts, for misappropriating public assets for personal gain, for acts of corruption related to extraction of natural resources, and for transferring the proceeds of corruption outside Venezuela. These activities are alleged to have included the granting of government contracts to companies owned by persons close to him without an invitation to tender. These companies allegedly took part in iron and aluminum bar trafficking, which increased under Mr. Rangel Gomez's regional government and may have helped to fund his 2008 election campaign. Mr. Rangel Gomez is also alleged to have taken part in the trafficking of precious metals.
[15] Over a year later, on February 25, 2020, Mr. Rangel Gomez applied to the Minister to be delisted pursuant to section 8 of the Act. Mr. Rangel Gomez provided an 85-page submission, which included his description of the purpose of the sanctions regime, politics in Venezuela, his military and political career, the success he achieved as Governor of Bolivar, his response to possible bribery allegations and corruption allegations, and submissions about why information that may have been provided by particular persons should be doubted.
[16] Mr. Rangel Gomez argued, among other things, that he should be delisted because: during his time as state governor, he was not involved in the federal government under the leadership of Nicolás Maduro; the purpose of the sanctions in the Act is to modify behaviour and he has no current ability to modify any behaviour in that country; there was an insufficient basis to sanction him in the first place; and, the allegations against him are based on dubious sources of information. He also argued that he had been denied procedural fairness because he was not advised of the case he had to meet, including because the reasons for listing did not provide the sources of the information relied on nor the specific acts of corruption alleged. He argued that he was required to refute evidence he was not made aware of.
[17] On April 28, 2020, GAC advised Mr. Rangel Gomez that it would assess his Delisting Application only from the perspective of the Act, not the Special Economic Measures Act, SC 1992, c 17 [SEMA], noting that some of his arguments, including that he was not part of the Maduro regime, relate to SEMA and not the Act under which he was listed. GAC provided Mr. Rangel Gomez with an opportunity to submit further information related to the harm that he alleges has resulted from being listed and any additional documentation that, in his view, should be taken into account by the Minister in support of the Delisting Application.
[18] On May 15, 2020, counsel for Mr. Rangel Gomez responded to GAC, noting, “[w]e do not have further information to provide at this time, absent further direction from the Department about any specific concerns that we should be addressing.” Counsel reiterated several of the submissions made previously, including the allegation that Canada did not have a basis to list Mr. Rangel Gomez in the first place.
[19] Counsel for Mr. Rangel Gomez did not provide any documents related to the alleged harm, but noted that the listings in both Canada and the US had affected Mr. Rangel Gomez’s ability to open a bank account, continue his health insurance, and finance a vehicle in Mexico. Counsel added that the most significant harm was to Mr. Rangel Gomez’s reputation. Counsel explained that it was not possible to isolate the harm caused only by the sanctions in Canada. Counsel also offered to meet with GAC officials to address their concerns. No further correspondence was exchanged between the parties.
[20] On August 13, 2020, the Minister refused the Delisting Application.
II. The Decision
[21] Mr. Rangel Gomez’s application is the first delisting application submitted to the Minister since the Act came into force in 2017.
[22] The Minister’s Decision relies on the information and advice set out in the Memorandum from the Deputy Minister [DM’s Memo]. The DM’s Memo notes, among other information:
The relevant provisions of the Act under which Mr. Rangel Gomez was listed on November 3, 2017.
The key arguments advanced by Mr. Rangel Gomez and the DM’s response:
The acts of significant corruption that Mr. Rangel Gomez was allegedly involved in, based on “reliable, credible open source information.” These acts include embezzlement, money laundering, and granting favourable mining contracts to his family and friends. Specifically, non-governmental organizations [NGOs] and news media (notably Transparencia Venezuela, InSight Crime, Armando Info, Project Poder, and the Economist) reported that under his governorship he “tolerated, if not encouraged,” an association in mining activities between criminal organizations and the state apparatus (i.e., the Venezuelan military), including “smuggling, trafficking in persons, drugs, and arms.” These sources also reported that Mr. Rangel Gomez had been directly involved in acts of corruption, leveraging his position as governor to involve close associates in businesses engaged in mineral exploitation in Bolivar.
The steps that were taken to process the Delisting Application, including “extensive due diligence and numerous exchanges with DLA Piper [counsel for Mr. Rangel Gomez] to seek additional information with respect to his application.”
The process for imposing sanctions under the Act, which requires that each listing meet the legal thresholds of the Act, be supported by credible and reliable open-source information and follow the GIC regulatory process.
1) The listing was unjustified and violated rights guaranteed by the Charter and the Bill of Rights (including his right to enjoyment of property). Mr. Rangel Gomez argued that he did not commit any acts of significant corruption and has no influence over the Maduro regime. Response: The department assessed the submissions and engaged in additional due diligence and corroborated the information used to support the listing, including direct communication with a prominent human rights NGO (Transparencia Venezuela) that released a report in 2019 explicitly denouncing Mr. Rangel Gomez’s role in the development of mining activities run by criminal organizations.
2) Mr. Rangel Gomez was never part of the Maduro regime and cannot exert influence over the behaviour of the Maduro regime. Response: Mr. Rangel Gomez was not listed under the SEMA, which is a different sanction regime related to sanctioning those who are part of the Maduro regime. Mr. Rangel Gomez was listed under the Act, which only requires credible evidence showing that he was involved in acts of significant corruption during his time as a foreign public official.
3) Mr. Rangel Gomez has always pursued the best interests of the Venezuelans he governed and is supportive of a return to democracy in the country. Response: No corroborative evidence of this was provided nor has the Department found such evidence. Moreover, this is not relevant because any positive impact in Bolivar does not negate the evidence of his acts of significant corruption.
4) Mr. Rangel Gomez and his family have suffered harm as a result of his listing. Response: The Department provided an opportunity to him to file additional information regarding the causal link between the alleged harm and his listing. However, he was unable to demonstrate such a link. Mr. Rangel Gomez provided information on how the listing affected him and his relatives in conducting activities in other foreign jurisdictions (not in Canada). Although he is inadmissible to Canada, his listing under the Act does not restrict his ability to obtain visas or travel in other countries. If that occurred, it would not be the result of Canadian law.
5) Mr. Rangel Gomez has not been prosecuted for corruption by any tribunal in Venezuela or elsewhere. Response: The absence of any legal action against Mr. Rangel Gomez does not exonerate him. Legal action against him is not a requirement for listing under the Act.
The DM’s Memo notes that Mr. Rangel Gomez’s submissions were considered, but did not adequately address the evidence regarding the acts of significant corruption for which he was responsible and did not allay the Department’s concerns, which were reinforced by ongoing communication with human rights and anti-corruption advocates.
[23] The Minister accepted the recommendation of the DM and refused Mr. Rangel Gomez’s Delisting Application. The Minister’s reasons note that each listing must meet the legal thresholds set out in the Act, and be supported by credible and reliable open-source information. The Minister reiterated the language of paragraph 4(2)(c), noting, “[c]riteria to decide when acts rise to the level of significant corruption include, among other things, their impact, the amounts involved, the foreign national’s influence or position of authority, or the complicity of the government of the foreign state in question”.
[24] The Minister’s reasons reflect the considerations set out in the DM’s Memo and state that the government has credible information that Mr. Rangel Gomez ordered or was complicit in acts of significant corruption while serving as the Governor of Bolivar from 2004 to 2017. The decision states, “[a]ccording to several reliable sources, Mr. Rangel Gomez was involved in embezzlement and money laundering, granting favourable mining contracts to his family and friends, and developing an association with criminal gangs operating in the state.”
[25] The reasons also address the several arguments raised by Mr. Rangel Gomez in his submissions.
[26] With respect to delisting, the Minister states:
A decision to delist someone under this Act requires that evidence be provided that supports the argument that the individual’s listing under the JVCFOA should not be maintained. This may include consideration of a number of factors, including but not limited to, the impacts of the acts, material changes in behaviour, amends for their wrongdoing, formal accountability in their home jurisdiction or elsewhere, or evidence from reliable, credible sources that the corrupt acts did not take place.
III. The Statutory Provisions
[27] The SEMA and the Act are related but distinct regimes that seek to sanction foreign nationals and entities involved in a grave breach of international peace and security, gross and systematic human rights violations, and acts of significant corruption. The circumstances for listing under each Act overlap but are also different.
[28] The SEMA sanctions with respect to Venezuela were first imposed on September 22, 2017 (i.e., the Special Economic Measures (Venezuela) Regulations, SOR/2017-204). As noted in the preamble, these regulations were made “for the purpose of implementing the decision of the Association Concerning the Situation in Venezuela made on September 5, 2017” and sought to target members of the Maduro regime. Mr. Rangel Gomez was not listed under these regulations.
[29] On October 18, 2017, the Justice for Victims of Corrupt Foreign Officials Act (the Act’s short title) came into force. The long title is more descriptive: An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the [SEMA] and the [IRPA].
[30] The Act allows, among other things, for the sanctioning of foreign public officials responsible for or complicit in acts of significant corruption. It also made related amendments to the SEMA to add human rights violations and acts of significant corruption as additional criteria triggering the measures and to the Immigration and Refugee Protection Act, SC 2001, c 27, to add a related ground of inadmissibility to Canada.
[31] The relevant statutory provisions are set out in ANNEX A. Section 2 of the Act sets out definitions. Section 4 provides that the Governor in Council may make orders or regulations to restrict or prohibit the activities of a foreign national where certain circumstances exist. Section 8 provides that a foreign national who is the subject of an order or regulation may apply to the Minister to cease being the subject of the order or regulation.
[32] The Regulatory Impact Analysis Statement [RIAS] describes the main objectives of the Regulations, including:
to signal Canada's international condemnation of the individuals responsible for or complicit in the gross violations of internationally recognized human rights and acts of significant corruption that occurred in the case of Sergei Magnitsky and that continue to occur in Venezuela and in South Sudan;
to end impunity for those responsible for or complicit in these acts by denying such individuals the ability to store their wealth in Canada or otherwise use Canada and the Canadian financial system for their benefit; and
to establish a mechanism to list individuals in the future through amendments to the Regulations.
[33] The RIAS notes, with respect to Venezuela:
Canada has also expressed concern with respect to the numerous incidents of gross abuses of human rights and acts of significant corruption associated with the current economic and political crises in Venezuela. The Regulations also list individuals in Venezuela who, in the opinion of the Governor in Council, are responsible or complicit in acts of significant corruption including incidents of money laundering and public officials diverting state revenues for personal use.
IV. Overview of the Applicant’s Submissions
[34] Mr. Rangel Gomez initially argued that the Regulations were ultra vires because he was not a foreign public official at the time he was listed and, alternatively, that the decision-making process was procedurally unfair. In June 2021, Mr. Rangel Gomez sought to amend his Notice of Application and to file a Supplementary Memorandum of Fact and Law. The Respondent consented and the Court granted the motion. As a result, Mr. Rangel Gomez raised the additional argument that the Regulations are also ultra vires because Mr. Gomez was not a foreign public official at the time the Act came into force. The hearing of the Application was adjourned to permit the parties to file brief additional submissions.
[35] As a result of the amendment, Mr. Rangel Gomez now argues that the Regulations that listed him are ultra vires the Act for two reasons. First, he argues that the Act was not in force at the time he was a foreign public official. Mr. Rangel Gomez notes that the Act does not explicitly state that it applies retrospectively and relies on the presumption that legislation does not operate retrospectively. He also disputes that the Act is retrospective by necessary implication. As a result, he argues that the Regulations made pursuant to the Act are ultra vires as they apply to him.
[36] Second, he argues that the provisions of the Act as worded apply only to persons who are foreign public officials at the time of listing. Noting that he left office on October 15, 2017, he submits that he ceased to be a foreign public official before he was listed in the Regulations. He again argues that the Regulations are ultra vires the Act as they apply to him. He argues that, unlike other legislation which seeks to include current or former public officials and uses terms such as “is or was,” the Act refers to “a foreign national, who is a foreign public official…” [Emphasis added]. He notes that the Act adopts the definition of foreign public official in the Corruption of Foreign Public Officials Act, which means a person who “holds a legislative, administrative or judicial position of a foreign state” or a person “who performs public duties or functions for a foreign state” [Emphasis added].
[37] More generally, Mr. Rangel Gomez submits that the Act and Regulations are intended to apply to persons who were foreign public officials at the time the Act and Regulations came into force and continue to be foreign public officials. He submits that listing former foreign public officials does not serve the purpose of modifying the behaviour targeted by the sanctions.
[38] In response to the issue of why the vires argument is being raised for the first time on judicial review without first being raised with the Minister in his submissions to be delisted, Mr. Rangel Gomez submits that it would have been pointless to do so because the Minister does not have particular expertise in interpreting the Act and does not have the authority to declare the Regulations invalid.
[39] Mr. Rangel Gomez alternatively argues that if the Regulations are valid, the Minister’s decision must be quashed because he was denied procedural fairness in his delisting application. He argues that he did not know the case to be met. He submits that, although he made lengthy submissions to the Minister, these were based in large part on guesswork about the information relied on by the Minister to list him in the first place. Mr. Rangel Gomez submits that the generic letter from GAC merely parroted the wording of the Act. He submits that he could not possibly address vague allegations about his twenty years as a state governor. Mr. Rangel Gomez submits that the public reports of NGOs considered by the Minister should have been disclosed to him. He also generally disputes the allegations of corruption and suggests that these are based on information from political opponents, who should not be relied on.
V. Overview of the Respondent’s Submissions
[40] The Respondent submits that the Court should not consider Mr. Rangel Gomez’s arguments regarding the vires of the Regulations, which are statutory interpretation issues, given that this issue was not raised by him in his 85-page Delisting Application, his supplementary submissions, nor in any other correspondence with GAC or the Minister. The Respondent submits that the jurisprudence is clear that arguments which were not made before an administrative decision-maker should generally not be entertained on judicial review.
[41] The Respondent adds that in the event that the Court decides to exercise its discretion to consider the vires argument, it is in essence a statutory interpretation issue. The Respondent submits that applying the principles of statutory interpretation, the only logical interpretation is that the Act applies to current and former foreign public officials. The Respondent notes, among other things, that it would be absurd to exempt a foreign public official who resigns or retires before being listed, yet is responsible for the corruption that has occurred. With respect to the presumption against retrospectivity, the Respondent submits, among other things, that the reason for the presumption—which is to avoid unfairness and protect acquired rights—is not at play because Mr. Rangel Gomez has no acquired rights in Canada and corrupt public officials were already sanctioned by the international community before the Act came into force.
[42] The Respondent notes that Mr. Rangel Gomez was a foreign public official at the relevant time and would have been aware of the international instruments, including the Inter‑American Convention Against Corruption, to which Venezuela, Canada, the United States were parties, to hold corrupt officials to account even before the Act was proclaimed in force. He would also have known of international concerns and efforts to combat corruption, including money laundering.
[43] The Respondent submits that the Act seeks to address past violations of human rights and is by its very nature retrospective. In addition, it is retrospective by necessary implication because the purpose of the Act and related anti-corruption policies would be undermined if sanctions could not be imposed for conduct that took place before its enactment.
[44] The Respondent disputes Mr. Rangel Gomez’s characterization of the Act as being for the purpose of modifying current behaviour and his submission that it is too late to modify his behaviour as a foreign public official. The Respondent submits that the purpose of the Act is set out in the preamble and informed by several international instruments; it is intended to deter conduct, protect the public from engaging with listed persons, hold current and former foreign public officials who are responsible for or complicit in acts of significant corruption accountable, and prohibit them from taking advantage of the Canadian financial system.
[45] The Respondent further argues that there was no breach of procedural fairness in the Delisting Application. The Respondent submits that Mr. Rangel Gomez knew the case he had to meet, noting that the Act and the Regulatory Impact Analysis Statement provided the general reasons for listing foreign nationals, and that Mr. Rangel Gomez was provided with the reasons why he was listed. The Respondent argues that Mr. Rangel Gomez’s extensive submissions to the Minister belie his contention that he did not know what the Minister relied on in refusing to delist him. Mr. Rangel Gomez was also given an additional opportunity to make further submissions about how the sanctions had caused him harm, but did not elaborate.
VI. Issues
[46] The Application raises the following issues:
1. Whether the Court should consider the vires argument (which is in essence a statutory interpretation argument) given that Mr. Rangel Gomez did not raise this issue with the Minister in the context of his Delisting Application;
2. If the Court exercises its discretion to consider the vires issue, whether the Regulation listing Mr. Rangel Gomez is ultra vires the Act because at the time the Act came into force, he was no longer a foreign public official, and/or because at the time he was listed in the Regulations, he was no longer a foreign public official; and
3. Whether the Minister breached the duty of procedural fairness owed to Mr. Rangel Gomez with respect to the Delisting Application.
VII. Standard of Review
[47] If the Court considers the statutory interpretation and vires arguments, the issues are whether the Regulations listing Mr. Rangel Gomez have been enacted within the scope of the Act and whether the Act captures Mr. Rangel Gomez. These issues are reviewed on the reasonableness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 65 [Vavilov]).
[48] In Portnov v Canada (Attorney General), 2019 FC 1648, a foreign national who was designated under the Freezing Assets of Corrupt Foreign Officials (Ukraine) Regulations argued that the GIC lacked jurisdiction to issue an order extending the application of the regulations for a further five years. On judicial review, Justice Fothergill found that the reasonableness standard applied, citing Vavilov, and noting, at para 23:
In Vavilov, a majority of the Supreme Court of Canada held that it would “cease to recognize jurisdictional questions as a distinct category attracting correctness review” (para 65). The categories of decision that remain subject to correctness review are now confined to those delineated by clear legislative intent (paras 34-52), or where this is required by respect for the rule of law, i.e., constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding the jurisdictional boundaries between two or more administrative bodies (paras 55-68). None of these exceptions apply here.
[49] The Federal Court of Appeal agreed that the standard of review is reasonableness (Portnov v Canada (Attorney General), 2021 FCA 171 at paras 10–17). The Court of Appeal concluded that the issue was one of statutory interpretation; the issue did not raise any constitutional or quasi-constitutional principle and did not qualify as a question of central importance to the legal system. As such, none of the exceptions to reasonableness review set out in Vavilov applied.
[50] The correctness standard applies to issues of procedural fairness. In Canadian Pacific Railway Company v Canada (Attorney Gereral), 2018 FCA 69, the Court of Appeal noted that judicial review for procedural fairness is “‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied” (para 54). The Court of Appeal explained that the question is whether “the procedure was fair having regard to all of the circumstances, including the Baker factors. A reviewing court does that which reviewing courts have done since Nicholson; it asks, with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed.”
VIII. Should the Court Consider Whether the Regulations Are Ultra Vires as They Apply to Mr. Rangel Gomez?
A. The Respondent’s Submissions
[51] The Respondent submits that arguments which were not made before an administrative decision-maker should not be considered on judicial review (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [Alberta Teachers]; Hughes v Canada (Attorney General), 2021 FC 147 [Hughes]). The Respondent’s position is that none of the factors noted in Alberta Teachers and other jurisprudence would favour the Court’s exercise of discretion to consider the vires issue.
[52] The Respondent submits that if Mr. Rangel Gomez had raised the vires or statutory interpretation issues with the Minister, the Minister would certainly have had the expertise to interpret this statute given that the Minister is responsible for international relations and has the highest level of expertise with respect to the purpose of the Act and Regulations and the scope of who may be listed. The Respondent adds that the Court should have the benefit of the Minister’s decision and reasons for the purpose of any judicial review of that decision.
[53] The Respondent suggests that Mr. Rangel Gomez now seeks a declaration from the Court as a means to get around the fact that he never sought judicial review of the Regulations that listed him in the first place and he did not raise the statutory interpretation argument in his Delisting Application. The Respondent submits that an application for a declaration is not a way to circumvent the Minister’s role as decision-maker.
B. The Applicant’s Submissions
[54] Mr. Rangel Gomez submits that the Court has the discretion to consider an issue raised for the first time on judicial review (Alberta Teachers at paras 22–24). He notes that in Alberta Teachers the Supreme Court of Canada found that, in the circumstances of that case, the Court did not err in considering an issue raised for the first time on judicial review. He submits that similar factors exist in his case.
[55] Mr. Rangel Gomez argues that the Court should consider the vires issue because the Minister has no authority to determine the validity of the Regulations; the Minister may only make a recommendation to the GIC. He notes that subsection 18(1) of the Federal Courts Act gives this Court jurisdiction to issue extraordinary remedies, including a declaration that the Regulations, as they relate to him, are invalid or unlawful.
[56] Mr. Rangel Gomez further argues that the Minister has no greater expertise with respect to interpreting the Act or in determining whether it applies retrospectively.
[57] Mr. Rangel Gomez also submits that the Respondent has not been prejudiced by his raising this issue on judicial review because the initial hearing date was adjourned to permit additional submissions.
C. The Jurisprudence
[58] In Alberta Teachers, the Supreme Court of Canada addressed the question of whether an issue not raised before the administrative decision-maker (in that case, an adjudicator), and raised for the first time on judicial review, should be considered by the court (at paras 22–28).
[59] The Supreme Court of Canada noted, at para 22:
Just as a court has discretion to refuse to undertake judicial review where, for example, there is an adequate alternative remedy, it also has a discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so: see, e.g., Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, per Lamer C.J., at para. 30: “[T]he relief which a court may grant by way of judicial review is, in essence, discretionary. This [long-standing general] principle flows from the fact that the prerogative writs are extraordinary [and discretionary] remedies.”
[60] The Supreme Court explained that the discretion to consider the new issue will generally not be exercised where the issue could have been, but was not, raised before the decision-maker (para 23). The Court noted that there were several rationales for this rule, including that the “legislature has entrusted the determination of the issue to the administrative tribunal,” and that courts should avoid undue interference with the discharge of administrative functions delegated to administrative bodies by Parliament (at para 24). The Supreme Court noted that “courts should respect the legislative choice of the tribunal as the first instance decision maker by giving the tribunal the opportunity to deal with the issue first and make its views known.”
[61] The Supreme Court added, at para 25, that respecting the legislative choice is particularly true where the issue raised for the first time on judicial review relates to the decision-maker’s specialized functions or expertise. In such cases, the Court should not overlook the loss of the benefit of the decision-maker’s views.
[62] The Court further noted, at para 26, that “raising an issue for the first time on judicial review may unfairly prejudice the opposing party and may deny the court the adequate evidentiary record required to consider the issue.”
[63] In Alberta Teachers, upon considering the rationale for the principles and the particular facts, the Supreme Court of Canada agreed with the Alberta Court of Appeal that the judge had not erred in exercising their discretion to consider the new issue for the first time on judicial review. The Supreme Court noted, among other considerations, that the decision-maker had decided the same issue and had expressed their views at first instance in other cases, no evidence was required to decide the issue, no prejudice was alleged, and the issue had also been implicitly decided by the adjudicator in proceeding with the adjudication.
[64] In Canada (Attorney General) v Public Alliance of Canada, 2014 FC 688 [Public Alliance of Canada], Justice Strickland applied the Supreme Court’s guidance in Alberta Teachers and also exercised her discretion to consider an issue that was not raised before the labour adjudicator about the meaning and scope of a term in a collective agreement. Justice Strickland found, upon review of the record, that the issue raised was not a new issue, but rather one that was related to the focus of the submissions and that she also had the benefit of the adjudicator’s reasoning on the interpretation of the disputed term (at paras 22–23).
[65] In Hughes, Justice Diner relied on the rationale and principle set out in Alberta Teachers and refused to exercise his discretion to hear the res judicata and issue estoppel arguments that were not raised before the Canadian Human Rights Tribunal. Justice Diner noted, among other things, at para 75, that the applicant was represented by the same counsel who represented him at the Tribunal and could have raised the issues which he sought to raise for the first time on judicial review, but failed to do so.
[66] With respect to Mr. Rangel Gomez’s argument that it would have been pointless to raise the vires issue with the Minister because the Minister has no power to make a declaration of invalidity, the Federal Court of Appeal’s decision in Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at paras 37–47 [Forest Ethics] is instructive.
[67] In Forest Ethics, the Court of Appeal found that the applicant could have raised a Charter issue with the decision-maker, noting that in accordance with the governing legislation, the National Energy Board could hear and decide questions of law, including Charter issues.
[68] The Court of Appeal noted that the National Energy Board “never had a chance to consider the constitutional issues the applicants now place before this Court” (para 41). The Court of Appeal explained why this matters, at paragraphs 42–43, including that, if the issue had been raised with the National Energy Board, it would have received relevant evidence, reflected on the issue and expressed its views in its reasons. With the benefit of a fully developed record, a party could then seek judicial review. The Court of Appeal added that this approach would respect the difference between administrative decision-makers and the reviewing court and Parliament’s choice in assigning the determination of factual and legal issues to the decision‑maker.
[69] The Court of Appeal emphasized the importance of not bypassing the administrative decision-maker, noting at para 45:
If administrative decision-makers could be bypassed on issues such as this, those appreciations, insights and understandings would never be placed before the reviewing court. In constitutional matters, this is most serious. Constitutional issues should only be decided on the basis of a full, rich factual record: Mackay v. Manitoba, [1989] 2 S.C.R. 357 at pages 361-363. Within an important regulatory sector such as this, a record is neither full nor rich if the insights of the regulator are missing.
[70] Although Forest Ethics addressed a Charter issue raised for the first time on judicial review, the considerations which supported the Court of Appeal’s conclusion are relevant to the issue of whether Mr. Rangel Gomez’s arguments about the statutory interpretation and vires of the Act and Regulations as they apply to him should be considered by this Court.
[71] In Forest Ethics, the Court of Appeal considered the argument that the Court should hear and determine the issue because the decision-maker did not have the power to declare the provision at issue to be invalid. The Court of Appeal noted that this argument was rejected by the Supreme Court of Canada in Okwuobi v Lester B Pearson School Board; Casimir v Quebec (Attorney General); Zorrilla v Quebec (Attorney General), 2005 SCC 16 [Okwuobi]. At para