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August 19, 2019

Judicial Review Case Highlights an Exceptional Remedy

Posted by Michelle Adormaa Owusu - Bellissimo Law Group PC

The case of Tennant is an example of the reviewing court using its exceptional power “to substitute its view for that of the administrative decision-maker, provided that certain conditions are met”.[1]

Tennant involves a judicial review of an application for a Canadian citizenship certificate. The Applicant, a minor, was born in the USA and claimed to be a Canadian citizen by way of descent. Because his father had also become a Canadian by descent, in order for the Applicant to be issued evidence of Canadian citizenship the officer had to be satisfied that at the time of his father’s birth outside of Canada the Applicant’s paternal grandfather had been employed by the Government of Canada.[2] The officer refused the citizenship application as she was not satisfied that the grandfather had been a government employee at the relevant time. The Honourable Justice Ahmed of the Federal Court came to “the only logical conclusion”[3] based on the evidence and took the unusual step of making a declaration that the Applicant is a citizen of Canada. The Federal Court did not certify a serious question of general importance yet the Minister of Citizenship and Immigration proceeded to the Federal Court of Appeal on the basis that the Federal Court had exceeded its jurisdiction.

For those who are unfamiliar with the Federal Court’s role in immigration, refugee and citizenship cases, when a person’s application for permanent residence or citizenship, for example, is refused by Immigration, Refugees and Citizenship Canada (IRCC) and the person believes the IRCC officer made a factual or legal error, they may ask the Federal Court to review the negative decision.[4] This process is referred to as judicial review and consists of two stages. At the first stage – the application for leave – the judge must determine whether there a serious issue to be tried. If the judge is of the view that such an issue exists, leave will be granted and the case will proceed to the second stage. At the second stage, the judge will review the officer’s decision and determine if the decision should stand or if some sort of relief is warranted. Under subsections 18(1) 18.1(3) of the Federal Courts Act, a Federal Court judge may order a wide variety of remedies including a declaration. It is not unusual for the judge to ask a different immigration officer to make a decision on the permanent residence application, or whatever the application may be. Such an approach is generally understood by the judiciary to reflect the deference properly owed to the executive branch of government.

The Federal Court judge may also certify a serious question of general importance, which would allow one of the parties to commence an appeal before the Federal Court of Appeal.

Although Justice Ahmed’s judgment was exceptional in that it included a declaration, the majority of the Federal Court of Appeal decided to quash the Minister of Citizenship and Immigration’s appeal last month. The Honourable Justice Laskin (with Justice Webb in agreement), wrote that the Federal Court’s remedy constituted a type of substitution, which is an exceptional remedy provided when “there is only one reasonable outcome”.[5] The majority added, “this Court should not be taken either to endorse or to disapprove of the application judge’s approach.”[6]

In a dissenting opinion, the Honourable Justice Near wrote that the Federal Court of Appeal should have allowed the appeal as “it is not at all clear that the Federal Court’s factual declaration that the respondent is a Canadian citizen was the only reasonable determination of the matter.”[7]

The Federal Court of Appeal’s judgment in Tennant is an interesting read that explains why declarations will likely continue to be the exception to the rule in successful Federal Court cases.

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