Kallab v. Canada (Citizenship and Immigration)

Kallab v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2019-05-16
Neutral citation
2019 FC 706
File numbers
IMM-5130-17
Notes
A correction was made on November 19, 2019
Reported Decision
Decision Content
Date: 20191004
Docket: IMM-5130-17
Citation: 2019 FC 706
Ottawa, Ontario, October 4, 2019
PRESENT: Mr. Justice Annis
BETWEEN:
HASSAN NAGI MOHAMED KALLAB
ROAA ASHRAF MOHAMED KALLAB
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED JUDGMENT AND REASONS
I. Introduction
[1] This is an application pursuant to section72 of the Immigration and Refugee Protection Act, SC 2001, c.27 [IRPA or Act] for judicial review under the Federal Courts Act, RSC 1985, c. F-7 [FCA] of a decision rendered by the Refugee Protection Division of the Immigration and Refugee Board of Canada [Board or RPD] dated October 25, 2017. The RPD determined that the Applicants were not credible and therefore are not Convention refugees or persons in need of protection under sections 96 and 97(1)(a) and (b) of the IRPA.
[2] The Applicants are stateless Palestinians who hold Egyptian travel documents issued to Palestinians. The principal Applicant bases his claim on membership in a particular social group, namely stateless Palestinians coerced into acting as informants for the Kingdom of Saudi Arabia [KSA] government.
[3] The female Applicant bases her claim on that of the principal Applicant and membership in a particular social group, namely women subject to a male employer’s unwanted touching. Moreover, she does not want to adhere to the strict dress code and other discriminatory government policies against women in the KSA. Furthermore, she politically opposes restrictions on women in the social sphere, including the ban on women driving or being out in public without a male escort.
[4] The RPD decision dismissing the claims for refugee protection focused almost entirely on adverse credibility findings relating to the Applicants’ testimony. For the most part, the credibility findings consisted of the RPD’s factual inferences that refuted the Applicants’ statements upon which their claims of risk were founded.
[5] In Jean Pierre v Canada (Immigration and Refugee Board), 2018 FCA 97 at paras 51-53 [Jean Pierre], the Federal Court of Appeal held that the same considerations apply to the review of an administrative tribunal’s role as a finder of fact and a maker of inferences of fact as those discussed in the Supreme Court decision of Housen v Nikolaisen, 2002 SCC 33 [Housen]. In Housen, the Supreme Court established that Courts should adopt a highly non-interventionist approach for the review of facts and inferences of fact. The Housen standard of review did not permit Courts to resort to a reasonability analysis of factual findings, as such an assessment would not be sufficiently strict as a standard of review.
[6] In the analysis that follows, I apply the considerations of Housen to the RPD’s findings of fact as a quasi-judicial truth-seeking tribunal in accordance with the standard of review principles in Housen.
[7] For the purposes of this discussion, a truth-seeking tribunal is one that holds hearings to determine both the credibility and trustworthiness of facts. The level of deference owed to such a truth-seeking tribunal is the antipode to the correctness standard which affords no deference to the decision-maker on review. The factual findings of truth-seeking tribunals are owed the highest possible deference of any administrative tribunal because they most resemble trial courts, and because factual findings are their core function, in contrast to the core function of appellate courts or judicial review courts. It is not yet apparent where to situate the Refugee Appeal Division [RAD] in its finding of facts on the deference continuum when it does not hold a hearing. Its relationship with the RPD remains to be clarified as questions have been certified for appeal in Rozas del Solar v Canada (Citizenship and Immigration), 2018 FC 1145.
[8] Among the ratio decidendi of the matter before me is that the rule in Housen corroborates the rule in Canada (Citizenship and Immigration) v Khosa, [2009] 1 SCR 339 at paras 61, 64-67 [Khosa] that a reviewing Court should not reweigh the evidence before the RPD in search of a fact-finding error.
[9] A second issue of high importance considered in this matter is whether the RPD should only make implausibility findings of adverse credibility “in the clearest of cases.” This principle was first enunciated in Valtchev v Canada (Citizenship and Immigration), 2001 FCT 776, [2001] FCJ No. 1131 (TD) at para 7 [Valtchev and the Valtchev rule] and has since gained considerable traction in the jurisprudence of this Court.
[10] I conclude that the reasoning in Valtchev impermissibly raises the threshold required for the Board to make a finding of inferential implausibility or credibility to a greater probative standard than that of a probability. It would appear to be common ground, at least from the Respondent’s perspective, that if so, this likely lowers the strictness of the standard of review applied to implausibility findings and thereby fetters the Board’s authority to make findings of fact under paragraph 170(h) of the IRPA.
[11] In order to receive appropriate input with respect to these issues, I issued a Direction to the parties requesting their submissions. Mr. Waldman represented the Applicants; in Valtchev, this Court relied on his text, Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992). I consider the parties’ submissions when addressing the standard of review and the principles enunciated in Valtchev.
[12] In response to my Direction, the Applicants addressed the presumption of truthfulness of a sworn statement established in the Federal Court of Appeal decision Maldonado v MEI, [1980] 2 FC 302 (CA) [Maldonado] which is an additional factor applied in Valtchev.
[13] After considering the scope of the Maldonado rule, I found that, when interpreted contextually, it applies only to the credibility of evidence factor set forth in paragraph 170(h) of the IRPA, and not the factor relating to the trustworthiness of that evidence.
[14] Rather than a presumption of a sworn statement’s trustworthiness, which applies at the commencement of an RPD hearing, I conclude that the “benefit of the doubt rule” in the UNCHR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reissued Geneva, December 2011, at paragraphs 203 to 205, [UNHCR refugee handbook] applies. The benefit of the doubt rule has effect at the conclusion of the hearing, and only if the refugee claimant made a genuine effort to substantiate the sworn statement, which is otherwise found to be credible.
II. Facts
[15] The principal Applicant is a 32-year-old stateless Palestinian born and raised in the KSA. He holds a university degree in engineering and has been employed by Naizal Global Engineering Company, first as a System Engineer from August 2010 to October 3l, 2014, and then promoted to the position of Engineering Manager before leaving the KSA in July 2017.
[16] The principal Applicant alleges that his problems began after he returned from a business trip to Spain. On June 20, 2017, he received an unusual telephone call from a man who identified himself as Nasir Al-Kabtany from the Bureau of Investigation and Prosecution. Mr. Al-Kabtany stated that he knew the principal Applicant’s history and that he was a well-regarded employee. He requested to meet the principal Applicant one week later. After discussing with his father and brother, the principal Applicant met Mr. Al-Kabtany who asked him to inform on three colleagues. The principal Applicant informed his father about the encounter with Mr. Al-Kabtany, after he departed for Canada, where some of his relatives reside.
[17] The female Applicant is a dentist. She was educated in the KSA but received her dental training in Egypt. She and the principal Applicant had an arranged marriage. Her family has lived successfully in the KSA for at least three generations and her father is a well-established electrical engineer. The RPD found that while the family may not hold citizenship in the KSA, they have been able to work and enjoy a remarkable lifestyle there. Her mother is also university educated and has four brothers who immigrated to Canada shortly after the Applicants. They also advanced separate refugee claims. The principal Applicant’s father remains in the KSA.
[18] The female Applicant claims that she was a victim of discrimination in the KSA. She alleges that she could not attend university in the KSA and therefore studied dentistry in Egypt. She alleges that she had difficulty finding work in the KSA. The discrimination she experienced in the KSA required her to adhere to a strict dress code and other restrictions on women in the social sphere, including the ban on women driving or going out without a male escort.
[19] The Applicants left the KSA on July 9, 2017, first traveling to the United Arab Emirates and thereafter to the United States. They both filed refugee claims at the Canadian border on July 13, 2017. Their son was born in Canada in August 2017, one month after they arrived.
[20] The RPD rejected the Applicants’ claims on implausibility findings of adverse credibility. Essentially, the RPD judged their evidence to not be reasonable on a balance of probabilities. The decision is summed up at paragraphs 17 and 20 to 22 of the RPD’s reasons:
[17] … The panel finds, on a balance of probabilities, that the principal claimant fabricated the story in order to support a fraudulent refugee claim…
[…]
[20] … The female claimant has not provided a reasonable explanation for her not reporting this incident to the authorities or the licensing body of dentists in KSA…
[21] … The panel finds, on a balance of probabilities, that the female claimant does know why her mother and brothers have made refugee claims and that she knows why her father is remaining in KSA.
[22] When all of the above is taken into consideration, the panel finds, on a balance of probabilities, that the claimants’ evidence is not credible.
III. Relevant legislation
[21] The relevant portions of section 170 of the IRPA, with my emphasis, read as follows:
170. The Refugee Protection Division, in any proceeding before it,
(a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;
(b) must hold a hearing;
(c) must notify the person who is the subject of the proceeding and the Minister of the hearing;
[…]
(d.1) may question the witnesses, including the person who is the subject of the proceeding;
(e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;
[…]
(g) is not bound by any legal or technical rules of evidence;
(h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and
(i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.
170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés :
a) procède à tous les actes qu’elle juge utiles à la manifestation du bien-fondé de la demande;
b) dispose de celle-ci par la tenue d’une audience;
c) convoque la personne en cause et le ministre;
[…]
d.1) peut interroger les témoins, notamment la personne en cause;
e) donne à la personne en cause et au ministre la possibilité de produire des éléments de preuve, d’interroger des témoins et de présenter des observations;
[…]
g) n’est pas liée par les règles légales ou techniques de présentation de la preuve;
h) peut recevoir les éléments qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision;
i) peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
IV. Issues
[22] I find that this matter raises the following issues for consideration:
What is the standard of review for the Board’s findings of fact, and inferential findings of fact, including questions of mixed fact and law, in light of the direction from the Federal Court of Appeal in Jean Pierre that the considerations discussed in Housen apply in the administrative law context?
Is the rule in Valtchev that the Board may only make implausibility findings of adverse credibility in the clearest of cases good law?
Whether, in this case, the RPD erred by making implausibility findings of adverse credibility?
Whether, in this case, the RPD made reviewable fact-finding process errors by ignoring crucial evidence, and by relying on immaterial evidence?
Whether, in this case, the RPD breached the Applicants’ right to procedural fairness by denying them an opportunity to respond to its concerns about their residency documents?
V. Standard of review
[23] The first issue, regarding the appropriate standard of review to be applied by the Federal Court to the Board’s factual findings, is a question of pure law going to the jurisdiction of the Court to discharge its functions. This issue must therefore be reviewed on a correctness standard. To make this determination, the Court must determine if Jean Pierre, which introduced the Housen principles with respect to the review of factual findings to the administrative context, has modified the standard of review presently followed by the Court.
[24] The parties submitted that the second issue of this Court’s disagreement with the Valtchev rule, established in previous Federal Court jurisprudence, is a matter to be decided in accordance with the principles of judicial comity. Recall that judicial comity calls upon judges not to depart from the conclusions of law of other judges of the same Court, unless he or she is convinced that the departure is necessary and can articulate cogent reasons for doing so, such as when the preceding jurisprudence was wrong: Apotex Inc. v Allergan Inc., 2012 FCA 308, paras 43-48.
[25] I agree that the principle of judicial comity applies with respect to a Court’s differences of opinion with previous rulings of the same Court. This implies that the Court should be held to a standard of correctness in its reasoning as a ground for not following the rule of judicial comity.
[26] With respect to the third issue, regarding the credibility findings of implausibility, these are to be reviewed on a reasonableness standard to be defined by the conclusion of the first issue.
[27] With respect to the fourth and fifth issues, regarding whether the RPD ignored crucial evidence, relied on immaterial evidence, and breached the Applicants’ right to procedural fairness by failing to provide them with an opportunity to respond to concerns about a document, these are all alleged process errors and shall be reviewed on a correctness standard.
A. Standard of review of facts and inferential facts
(1) Fact-finding fundamentals
(a) An inferential finding of fact
[28] The concept of interpreting the primary evidence in the inference drawing process and the requirement that the inductive conclusion only must follow with some degree of probability, rather than of necessity, is explained in the decision of R. v Munoz, 86 OR (3d) 134, 2006 CanLII 3269 (ON SC) at para 23, as follows with my emphasis:
[23] While the jurisprudence is replete with references to the drawing of "reasonable inferences", there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion [in a deduction] is inherent in the relationship between the premises. Rather, the process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience. Consequently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning, inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.
(2) Distinguishing fact-finding weight and process errors
[29] The Law of Evidence, authored by Ontario Court of Appeal Justice David Paciocco and Professor Lee Stuesser [Paciocco Text], provides some useful explanations of terms to bear in mind when considering the distinction between fact-finding errors relating to the process followed to determine a fact, as opposed to the weighing and assessment of evidence to find a fact, in its chapter “The Basics of Admissibility and the Evaluation of Evidence”. The Paciocco Text is also useful to demarcate the distinction between the credibility and trustworthiness aspects of fact-finding.
[30] The Paciocco Text notes that as a condition for admissibility, evidence must be relevant (whether the evidence makes a fact it is directed to more or less likely) and material (directed to a material issue in the proceedings) [together often described as logical relevance]. These conditions being satisfied, the question becomes what probative value or weight to accord the evidence (being believable or informative, i.e. credible or trustworthy).
[31] The Board’s fact-finding errors may generally arise in two different circumstances. The first arises out of the manner in which a tribunal conducts the fact-finding process. It is described as a fact-finding process error [“process error”]. Issues of relevance and materiality of evidence typify a process error, among others. The second form of fact-finding error occurs in the weighing or assessment of the probative value of evidence to form a fact. This is described as a fact-finding assessment error [“assessment error”].
[32] Process errors are not to be treated with deference. They raise issues of fairness to be considered on a correctness standard. Process errors are well described in Judicial Review of Administrative Action in Canada, D. J. M. Brown & The Honourable J. M. Evans, 14:3520 [Judicial Review of Administrative Action], at 4:3420 under the heading “Other Fact-Finding Process Errors”, as follows with my emphasis:
As well, the duty of fairness imposes certain limitations on the manner in which an agency can conduct the fact-finding process. For instance, the agency may not prevent a party from tendering evidence that is relevant to the issues in dispute, nor can it receive evidence ex parte without disclosing it to the other party for rebuttal. In addition, whether a tribunal has erred either by admitting and relying upon irrelevant evidence, by purporting to take judicial notice of facts that were not notorious, by failing to make necessary factual findings to support a constitutional challenge, by wrongly drawing adverse inferences, by excluding relevant evidence, by failing to consider relevant evidence, including expert evidence, by failing to make relevant inquiries, by failing to resolve conflicts in the evidence or by genuinely misunderstanding the evidence, will usually all be decided by the reviewing court without deference to the decision of the administrative agency. Similarly, questions as to the burden and standard of proof are matters on which a reviewing court will usually substitute its conclusion for that of the agency, as it will where evidence is weighed without apparent regard to statutory presumptions.
[33] To clear up any confusion that may be attributed to the term “wrongly drawing adverse inferences” referred to in the above passage, the following cases were cited in support of this reference. They indicate that this form of process error does not involve the weighing of evidence, but rather entails issues of fairness:
• Audmax Inc. v Ontario Human Rights Tribunal, 2011 ONSC 315 (Superior Court of Justice, Divisional Court) at para 43: (adverse inference drawn from the employer’s failure to call a witness);
• Bajwa v Canada (Immigration, Refugees and Citizenship), 2017 FC 202 at para 70: (failure to provide a reasonable opportunity to disabuse the Visa Officer of her credibility concerns); and
• Walton v. Alberta (Securities Commission), 2014 ABCA 273 at paras: 143-7 (failure to follow Browne v Dunn (1893) 6 R 67, H.L. in cross-examination seriously weakens the Alberta Securities Commission’s inference as to credibility).
[34] The excerpted passage above sets forth the most common process errors encountered in Board decisions. They include: admitting and relying on irrelevant evidence, failing to consider relevant evidence that a party specifically raises, including expert evidence (which, as a pre-condition, must be initially admissible, per R v Mohan, [1994] 2 SCR 9, 1994 CanLII 80), genuinely misunderstanding the evidence (i.e. clearly misapprehending the evidence as opposed to interpreting or arguing as to its meaning). When the Board makes a factual finding without any supporting evidence at all, this might be classified under either heading as a weight-based error or a process error depending on the circumstances. In either case, the error is plain to see.
[35] In this matter, the Applicants submit that the RPD committed a process error by failing to consider relevant evidence and by relying on immaterial evidence. These issues are reviewed on a correctness standard.
[36] Likewise, it will be seen that Valtchev raises the requirement to consider cultural factors as a rationale for its rule that implausibility findings of credibility should only be made in the clearest of cases. In this Court’s respectful view, issues relating to the consideration of cultural factors would most likely fall under the process error rubric, on the contention that the Board did not consider relevant evidence that a party brought forward. This type of error should be reviewed on a correctness standard as it raises fairness issues. Otherwise, cultural factors might contribute to the probative value accorded to some aspect of the evidence. This is a matter of weight attributed to the finding of a fact at issue, and is therefore subject to the highest deference possible in the review of such findings, even more so if they relate to a witness’s credibility.
[37] Unless otherwise specifically mentioned, the following discussion of issues is limited to assessment-findings of fact, not process-findings of fact.
(3) Mixed findings of fact and law
[38] To complete the survey of the standard of judicial review of the Board’s factual determinations, Housen is again helpful in its description of the distinction between findings of fact and mixed findings of fact and law at paragraph 26 and summary at paragraphs 36 and 37, as follows with my emphasis:
26 At the outset, it is important to distinguish questions of mixed fact and law from factual findings (whether direct findings or inferences). Questions of mixed fact and law involve applying a legal standard to a set of facts: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35. On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts. Both mixed fact and law and fact findings often involve drawing inferences; the difference lies in whether the inference drawn is legal or factual. Because of this similarity, the two types of questions are sometimes confounded. This confusion was pointed out by A. L. Goodhart in “Appeals on Questions of Fact” (1955), 71 L.Q.R. 402, at p. 405:
The distinction between [the perception of facts and the evaluation of facts] tends to be obfuscated because we use such a phrase as “the judge found as a fact that the defendant had been negligent,” when what we mean to say is that “the judge found as a fact that the defendant had done acts A and B, and as a matter of opinion he reached the conclusion that it was not reasonable for the defendant to have acted in that way.”
[…]
36 To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.
37 In this regard, we respectfully disagree with our colleague when he states at para. 106 that “[o]nce the facts have been established, the determination of whether or not the standard of care [a term in negligence law] was met by the defendant will in most cases be reviewable on a standard of correctness since the trial judge must appreciate the facts within the context of the appropriate standard of care. In many cases, viewing the facts through the legal lens of the standard of care gives rise to a policy-making or law-setting function that is the purview of both the trial and appellate courts”. In our view, it is settled law that the determination of whether or not the standard of care was met by the defendant involves the application of a legal standard to a set of facts, a question of mixed fact and law. This question is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law.
[39] To precis the conclusions from paragraph 36 of Housen, it is first necessary to distinguish the situation as one of mixed fact and law, and thereafter determine whether it is possible to extricate the legal questions from the factual ones. If so, and the error is fundamentally legal in nature, it is reviewed on a correctness standard, subject to the principles in Dunsmuir v New Brunswick, [2008] 1 SCR 190, 2008 SCC 9, that direct many of these questions to the tribunal’s expertise. If the legal principle is not extricable, then the entire mixed question of fact and law is reviewed on the highly deferential, non-interventionist standard applying to findings of fact that can only be overturned in the clearest of cases.
(4) The standard of review of the Board’s findings of fact
[40] This Court’s decision in Njeri v Canada (Minister of Citizenship and Immigration), 2009 FC 291 [Njeri] describes the least interventionist standard of review for findings of fact at paragraph 11 where Justice Phelan stated, with my emphasis as follows:
[11] On credibility findings, I have noted the reluctance that this Court has, and should have, to overturn such findings except in the clearest case of error (Revolorio v. Canada (Minister of Citizenship and Immigration), 2008 FC 1404 (CanLII)). The deference owed acknowledges both the contextual circumstances and legislative intent, as well as the unique position that a trier of fact has to assess testimonial evidence. That deference is influenced by the basis upon which credibility is found. The standard is reasonableness subject to a significant measure of deference to the Immigration and Refugee Board.
[41] I understand that in Odia v Canada (Citizenship and Immigration), 2018 FC 363 at para 6 [Odia], Justice Boswell is the only other judge of this Court to rely on Njeri for that principle, apart from myself: Ramos Aguilar v Canada (Citizenship and Immigration), 2019 FC 431at para 29; Abiobun v Canada (Citizenship and Immigration), 2019 FC 299 at para 10; Amin v Canada (Citizenship and Immigration), 2019 FC 295 at para 17; Gamez Barrientos v Canada (Citizenship and Immigration), 2018 FC 1220 at para 14. Otherwise, this Court generally applies an interventionist standard of review of the Board’s factual findings based on the reasonability principles of Dunsmuir.
[42] For the numerous reasons that follow, I conclude that the statement in Jean Pierre that “the same considerations apply equally to the review of an administrative tribunal’s role as a finder of fact and a maker of inferences of fact” should supplement Justice Phelan’s statement in Njeri regarding the standard of review applied to the Board’s factual findings. This precludes a reasonability analysis in consideration of an alleged error of fact.
[43] The standard of review applied to factual findings in Housen precludes a reasonability analysis of factual findings, which would amount to an insufficiently strict standard of review that involves reweighing evidence. For that reason, I equate “clearest case of error” in Njeri to the term “plain to see” adopted by the Supreme Court in Housen to describe a “palpable” error arising from a factual finding. More significantly, I conclude that Housen’s preclusion of a reasonability analysis to assess alleged errors of factual findings equally applies to the Court’s assessment of the Board’s findings of fact, as apparently held by the Federal Court of Appeal in Jean Pierre at paras 51-53.
[44] This is in opposition to the Court’s standard of review of facts adopted throughout its jurisprudence based upon a reasonability analysis as prescribed by the Supreme Court in Dunsmuir, with a reference to Khosa that the Court is not to reweigh the evidence. This analysis invariably requires an examination of every aspect of how the fact was found. The result is then expressed, in the context of an overall decision, that it fall within the range of possible acceptable outcomes, and be expressed by justified, transparent, and intelligible reasons. Reviewing Courts very rarely state that “some evidence” supporting the Board’s factual finding is a reason not to interfere with the finding in question.
[45] In my respectful view, this leads the Court to determine, in its own mind, if the decision is reasonable. Frequently, this Court does so without recognizing that it is weighing the evidence, which is what the Supreme Court in Housen implies invariably happens when a reasonability analysis is applied to factual findings. In my view, this follows from the fact that once the Court starts a reasonability analysis of facts, it will take that analysis to its logical conclusion, which necessarily entails weighing the evidence that was before the administrative tribunal. It is also because it is difficult for judges to constrain themselves when it comes to reviewing facts. This was the opening statement that the Court made in Housen at para 4: “While the theory [not to interfere unless there is a palpable and overriding error] has acceptance, consistency in its application is missing”.
[46] The parties’ response to my Direction on these issues confirms my understanding of the approach that this Court generally adopts in reviewing factual findings. The Applicants’ response, with my emphasis, reads as follows:
The Applicant agrees that Dunsmuir sets out the proper test for the standard of review to be applied in this case. The applicant agrees that the standard of review requires that the Court defer to the findings of fact of the tribunal. However, in each case the Court has the obligation of reviewing the record and the reasons to ensure that the decision is within the range of possible outcomes in order to determine whether or not the decision is reasonable.”
[47] The Respondent’s proposal of the appropriate standard of review is somewhat more ambiguous. Eventually, it comes back to the same standard that the Applicants propose. The Respondent initially recognizes that “Housen is equally applicable to guide standards of judicial review to truth-seeking quasi-judicial tribunals such as the RPD”. The Respondent further submits that Housen supports the standard of review expressed in Njeri.
[48] But then, the Minister turns around and declares that “the ’clearest of cases of error’ terminology in Njeri may be hyperbole, similar to the language of ’in the clearest of cases’ expressed in Valtchev.” Thereafter, the Respondent submits that Dunsmuir has replaced the “patently unreasonable” standard, apparently with the view that Dunsmuir was intended to render less strict the test for administrative tribunals’ findings of fact. The Minister concludes that “given that patent unreasonableness is no longer a standard of review … The standard of review to be applied is simply reasonableness with deference to the RPD.”
[49] I respectfully disagree with the Respondent’s implied conclusion that in Dunsmuir, the Court’s intention was to establish a more interventionist standard of review of facts than the previous patently unreasonable standard. The opposite conclusion would be more appropriately measured by the ratio decidendi of Housen that this Court directed the parties to consider. If it is impermissible to apply a reasonability analysis on review of the trial Judge’s inferences of fact because that amounts to reweighing the evidence, given the universal nature of inferential findings of fact, this rule should equally apply to the review of all forms of factual findings made by the Board, which is a quasi-judicial tribunal.
[50] Moreover, I am not aware of a precedent to the effect that the factual findings of a quasi-judicial truth-seeking tribunal, like the Board, should be owed amongst the highest degrees of deference with respect to its findings of fact, in comparison to other administrative decision-makers. In respect of these findings, there has been no attempt to crystallize and state in clear, practical and appropriate terms “Dunsmuir's recognition that reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors”: Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2, [2012] 1 SCR. 5, at para 18 [my emphasis].
[51] In other words, the Board’s factual findings are not yet understood to be at the polar opposite end of the lowest “intervention scale” from findings reviewable on the correctness standard at the highest end. In my view, factual findings should be subject to a similar, but opposite form of “bright line”, non-interventionist review. This is the ineluctable conclusion that flows from Housen.
[52] Finally, it should be understood that the procedure of fact-finding analysis is distinct from that used to determine the decision’s outcome. The review of facts is a prerequisite to be completed before applying the principles of Dunsmuir. By this process, the fact-finding element of review is not in conflict with the principles of Dunsmuir. Rather, it is simply recognized as a separate specialized task that the Board must undertake which requires a specialized contextual standard of review as outlined in Housen. Once the conclusions on the facts are completed, if found to be in error, there remains the issue of applying the principles in Dunsmuir to determine whether the decision should be set aside, or not.
B. Housen principles of the standard of review of factual findings
(1) The rule in Housen precludes a reasonability analysis of the weight of a factual finding because the reasonability standard is insufficiently strict
[53] The veritable debate among Housen Court members was whether the minority view correctly held that in reviewing an inferential finding of fact “the appeal court will verify whether it can reasonably be supported by the findings of fact that the trial judge reached.” The five-member majority concluded that any reasonability analysis of the inference drawing step was impermissible. The reviewing court could only determine whether the alleged error was “plain to see” (ie. palpable).
[54] Two rationales underlay the majority conclusion that a reasonability analysis is not permitted as a standard of review for the step that entails drawing an inference of fact. The first rationale is explained in this section. It relates to the (universal) nature of the process employed to draw an inferred fact from the primary evidence and facts. The process involves assessing the weight of the primary facts based on the uniformity of human experience and logic (ie. an inductive process). A reasonability analysis is an insufficiently strict standard of review that is inconsistent with a highly non-interventionist approach required for the review of factual findings.
[55] This rationale is described in Housen at paras 19 and 21 to 23. In these passages, the majority first refers to and ultimately rejects the minority’s contention that an appellate court may conduct a reasonability analysis of the trial Judge’s inference drawing process because the test is not sufficiently strict:
19 We find it necessary to address the appropriate standard of review for factual inferences because the reasons of our colleague suggest that a lower standard of review may be applied to the inferences of fact drawn by a trial judge. With respect, it is our view, that to apply a lower standard of review to inferences of fact [my emphasis] would be to depart from established jurisprudence of this Court, and would be contrary to the principles supporting a deferential stance to matters of fact.
[My emphasis]
[…]
21 In discussing the standard of review of the trial judge’s inferences of fact, our colleague states, at para. 103, that:
In reviewing the making of an inference, the appeal court will verify whether it can reasonably be supported by the findings of fact that the trial judge reached and whether the judge proceeded on proper legal principles... While the standard of review is identical for both findings of fact and inferences of fact, it is nonetheless important to draw an analytical distinction between the two. If the reviewing court were to review only for errors of fact, then the decision of the trial judge would necessarily be upheld in every case where evidence existed to support his or her factual findings. In my view, this Court is entitled to conclude that inferences made by the trial judge were clearly wrong, just as it is entitled to reach this conclusion in respect to findings of fact.
With respect, we find two problems with this passage. First, in our view, the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard [my emphasis].
[Emphasis of the Supreme Court.]
[56] First and foremost, it is not the reviewing court’s role to verify whether an inference can reasonably be supported by the findings of fact that the trial Judge