Khosa v. Canada (Minister of Citizenship and Immigration), (2009) 385 N.R. 206 (SCC)

JudgeMcLachlin, C.J.C., Bastarache*, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
CourtSupreme Court (Canada)
Case DateMarch 06, 2009
JurisdictionCanada (Federal)
Citations(2009), 385 N.R. 206 (SCC);2009 SCC 12;[2009] CarswellNat 434;[2009] 1 SCR 339;304 DLR (4th) 1;385 NR 206;82 Admin LR (4th) 1;AZ-50542515;EYB 2009-155418;JE 2009-481;[2009] FCJ No 12 (QL);[2009] SCJ No 12 (QL);[2009] ACS no 12;77 Imm LR (3d) 1

Khosa v. Can. (M.C.I.) (2009), 385 N.R. 206 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. MR.020

Minister of Citizenship and Immigration (appellant) v. Sukhvir Singh Khosa (respondent) and Immigration and Refugee Board (intervenor)

(31952; 2009 SCC 12; 2009 CSC 12)

Indexed As: Khosa v. Canada (Minister of Citizenship and Immigration)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache*, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

March 6, 2009.

Summary:

Khosa was a citizen of India who immigrated to Canada with his parents in 1996 when he was 14. He was ordered to be removed for reasons of serious criminality under s. 36(1)(a) of the Immigration Refugee and Protection Act (IRPA). Khosa appealed under s. 67(1)(c) of the IRPA, seeking special relief on humanitarian and compassionate grounds. The Immigration and Appeal Division (IAD) of the Immigration and Refugee Protection Board dismissed the appeal. Khosa applied for judicial review under s. 18.1 of the Federal Courts Act.

The Federal Court (applications judge), in a decision reported 266 F.T.R. 138, dismissed the application, holding that the IAD's decision was not patently unreasonable. Khosa appealed.

The Federal Court of Appeal, Desjardins, J.A., dissenting, in a decision reported 360 N.R. 183, allowed the appeal, set aside the decision of the applications judge, allowed the application for judicial review, set aside the decision of the IAD and sent the matter to the IAD for reconsideration by a differently constituted panel. The court held that the appropriate standard of review was reasonableness, and here, the IAD's decision was unreasonable. The Minister of Citizenship and Immigration appealed.

The Supreme Court of Canada, Fish, J., dissenting, allowed the appeal and restored the decision of the IAD. The court held that the common law principles of judicial review were not ousted by s. 18.1 of the Federal Courts Act. The court, applying general principles of administrative law, including its recent decision in Dunsmuir v. NB (2008), held that the applications judge was right to give a higher degree of deference to the IAD decision than seemed appropriate to the Federal Court of Appeal majority. On the basis of a Dunsmuir analysis, the applicable standard of review was reasonableness. The IAD's decision was within a range of reasonable outcomes. The majority of the Federal Court of Appeal erred in intervening in this case to quash the IAD's decision.

(Note: *Bastarache, J., took no part in the judgment)

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - At issue in this case was whether s. 18.1 of the Federal Courts Act expressly, or by necessary implication, provided the standards of review to be applied on judicial review, and if so, whether that displaced the common law standard of review analysis recently articulated in Dunsmuir v. New Brunswick (2008 SCC) - The Supreme Court of Canada held that the general principles of judicial review (incl. the principles in Dunsmuir) were not ousted by s. 18.1, although the court opined that s. 18.1 dealt essentially with grounds of review of administrative action, not standards of review - See paragraphs 1 to 69.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Supreme Court of Canada stated that "In cases where the legislature has enacted judicial review legislation, an analysis of that legislation is the first order of business. Our Court had earlier affirmed that, within constitutional limits, Parliament may by legislation specify a particular standard of review ... Nevertheless, the intended scope of judicial review legislation is to be interpreted in accordance with the usual rule that the terms of a statute are to be read purposefully in light of its text, context and objectives" - See paragraph 18.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Supreme Court of Canada stated that "Generally speaking, most if not all judicial review statutes are drafted against the background of the common law of judicial review. Even the more comprehensive among them, such as the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45, can only sensibly be interpreted in the common law context because, for example, it provides in s. 58(2)(a) that 'a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable '. The expression 'patently unreasonable' did not spring unassisted from the mind of the legislator. It was obviously intended to be understood in the context of the common law jurisprudence, although a number of indicia of patent unreasonableness are given in s. 58(3). Despite Dunsmuir, 'patent unreasonableness' will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. That said, of course, the legislature in s. 58 was and is directing the B.C. courts to afford administrators a high degree of deference on issues of fact, and effect must be given to this clearly expressed legislative intention" - See paragraph 19.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Supreme Court of Canada stated that it accepted that the legislature could by clear and explicit language oust the common law with respect to judicial review - "Many provinces and territories have enacted judicial review legislation which not only provide guidance to the courts but have the added benefit of making the law more understandable and accessible to interested members of the public. The diversity of such laws makes generalization difficult. In some jurisdictions (as in British Columbia), the legislature has moved closer to a form of codification than has Parliament in the Federal Courts Act. Most jurisdictions in Canada seem to favour a legislative approach that explicitly identifies the grounds for review but not the standard of review. In other provinces, some laws specify 'patent unreasonableness' [e.g., the Administrative Tribunals Act (B.C.)]. In few of these statutes, however, is the content of the specified standard of review defined, leading to the inference that the legislatures left the content to be supplied by the common law" - See paragraph 50.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Supreme Court of Canada stated that "... a legislature has the power to specify a standard of review ... if it manifests a clear intention to do so. However, where the legislative language permits, the courts (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir [v. NB (2008 SCC)] principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in judicial intervention in administrative matters (as well as other factors such as an applicant's delay, failure to exhaust adequate alternate remedies, mootness, prematurity, bad faith and so forth" - See paragraph 51.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Supreme Court of Canada stated that determining the standard of review involved two steps as outlined in Dunsmuir v. NB (SCC 2008) - The first step involved a examination of the existing jurisprudence - When jurisprudential categories were not conclusive, the second step was to consider such factors as the presence or absence of a privative clause, the purpose of the tribunal as determined by its enabling legislation, the nature of the question at issue and the expertise of the tribunal - See paragraphs 53 and 54.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Supreme Court of Canada stated that "Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir [v. NB (SCC 2008)] was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within 'a range of possible, acceptable outcomes which are defensible in respect of the facts and law' (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome" - See paragraph 59.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Aliens - Topic 1797.2 and first Courts - Topic 4071.5 ].

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - [See all Administrative Law - Topic 3202 , Aliens - Topic 1797.2 and first Courts - Topic 4071.5 ].

Aliens - Topic 1797.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Appeals or judicial review - Khosa, a landed immigrant, was ordered deported for reasons of serious criminality (involvement in a street-race) - He appealed, seeking special relief on humanitarian and compassionate grounds (Immigration Refugee and Protection Act, s. 67(1)(c)) - The Immigration Appeal Division of the Immigration and Refugee Protection Board (IAD) dismissed the appeal - Khosa applied for judicial review - The Federal Court (applications judge), reviewing the decision on the standard of patent unreasonableness, dismissed the application - Khosa appealed - The Federal Court of Appeal (majority) allowed the appeal and remitted the matter to the IAD for reconsideration - The court held that the appropriate standard of review was reasonableness, and here, the IAD's decision was unreasonable - The Minister of Citizenship and Immigration appealed - The Supreme Court of Canada allowed the appeal and restored the decision or the IAD - The court concluded that on general principles of administrative law, including its recent decision in Dunsmuir v. NB (2008), the applications judge was right to give a higher degree of deference to the IAD decision than seemed appropriate to the Federal Court of Appeal majority - Applying Dunsmuir, the standard of review was reasonableness and the IAD's decision was within a range of reasonable outcomes - The majority of the Federal Court of Appeal erred in intervening in this case to quash IAD's decision - See paragraphs 1 to 68.

Aliens - Topic 1799.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Appeals - Humanitarian and compassionate grounds (special relief) - [See Aliens - Topic 1797.2 ].

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - Khosa, a landed immigrant, was ordered deported for reasons of serious criminality - He appealed, seeking special relief on humanitarian and compassionate grounds (Immigration Refugee and Protection Act, s. 67(1)(c)) - The Immigration Appeal Division of the Immigration and Refugee Protection Board (IAD) dismissed the appeal - Khosa applied for judicial review - The Federal Court, reviewing the decision on the standard of patent unreasonableness, dismissed the application - Khosa appealed - The Federal Court of Appeal allowed the appeal and remitted the matter to the IAD for reconsideration - The court held that the appropriate standard of review was reasonableness simpliciter, and here, the IAD's decision was unreasonable - The Minister of Citizenship and Immigration appealed, arguing that s. 18.1 of the Federal Courts Act established a legislated standard of review that displaced the common law altogether, such that the common law principles set out in Dunsmuir v. NB (2008 SCC) were irrelevant to this type of appeal - The Supreme Court of Canada allowed the appeal and restored the IAD's decision - The court held that the principles in Dunsmuir applied to the standard of review analysis under s. 18.1 of the Federal Courts Act - See paragraphs 27 to 54.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - [See Aliens - Topic 1797.2 ].

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - The Supreme Court of Canada, per Rothstein, J. (minority), adopted the perspective that in the absence of a privative clause or statutory direction to the contrary, express or implied, judicial review under s. 18.1 of the Federal Courts Act was to proceed "as it does in the regular appellate context" (i.e., absent statutory direction, explicit or by necessary implication, no deference was owed to administrative decision makers in matters that related to their special role, function and expertise) - Binnie, J. (McLaughlin, C.J.C., LeBel, Abella and Charron, JJ., concurring) (the majority), did not share Rothstein, J.'s view - The majority noted that Dunsmuir v. NB (SCC 2008) recognized that with or without a privative clause a measure of deference had come to be accepted as appropriate where a particular decision was allocated to an administrative decision maker rather than the courts - The majority stated that Dunsmuir stood against the idea that in the absence of express statutory language or necessary implication, a reviewing court was "to apply correctness standard as it does in the regular appellate context" - The majority stated that it would reject Rothstein, J.'s efforts "... to roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess" - See paragraphs 25 and 26.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - Section 18.1 of the Federal Courts Act governed judicial review applications in the Federal Court - The Supreme Court of Canada discussed the role and function of s. 18.1, holding that a flexible contextual approach was required - The court stated that s. 18.1 had to remain flexible to deal with an immense variety of circumstances (i.e., the interpretation of s. 18.1 had to be sufficiently elastic to apply to the decisions of hundreds of different "types" of administrators with distinct grants of decision-making powers) - Some of those statutory grants included privative clauses and/or statutory rights of appeal and others did not - Resort to the general law of judicial review (incl. Dunsmuir v. NB (2008 SCC)) was essential in applying s. 18.1 - See paragraphs 27 to 58.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - The English version of s. 18.1(4) of the Federal Courts Act provided that "The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal ..." - The French version of s. 18.1(4) provided that " Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas ..." - The Supreme Court of Canada discussed the linguistic differences in these provisions (i.e., that the English version was permissive, while the words "sont prises" translated literally as "are taken", did not on their face, confer a discretion) - The court stated that while a shared meaning on that point was difficult to discern, the linguistic difference had to be reconciled for the sake of consistency across the country - The court stated that the text of s. 18.1(4) had to be interpreted not only in accordance with the rules governing bilingual statutes but within the framework of the modern rule that the words of an Act were to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament - The court concluded that notwithstanding the bilingual issue in the text, s. 18.1(4) should be interpreted so as to preserve to the Federal Court a discretion to grant or withhold relief, a discretion which, had to be exercised judicially and in accordance with proper principles, including those set out in Dunsmuir v. NB (SCC 2008) - See paragraphs 27 to 40.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - Section 18.1(4) of the Federal Courts Act provided for relief by way of judicial review where a federal board, commission or other tribunal "(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction" - The Supreme Court of Canada stated that "No standard of review is specified. Dunsmuir [v. NB (SCC 2008)] says that jurisdictional issues command a correctness standard (majority, at para. 59). The Federal Courts Act does not indicate in what circumstances, despite jurisdictional error having been demonstrated, relief may properly be withheld. For that and other issues, resort will have to be had to the common law" - See paragraph 42.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - Section 18.1(4) of the Federal Courts Act provided for relief by way of judicial review where a federal board, commission or other tribunal "(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe" - The Supreme Court of Canada stated that "No standard of review is specified. On the other hand, Dunsmuir [v. NB (SCC 2008)] says that procedural issues (subject to competent legislative override) are to be determined by a court on the basis of a correctness standard of review. Relief in such cases is governed by common law principles, including the withholding of relief when the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice (Pal, at para. 9). This is confirmed by s. 18.1(5). It may have been thought that the Federal Court, being a statutory court, required a specific grant of power to 'make an order validating the decision' (s. 18.1(5)) where appropriate" - See paragraph 43.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - Section 18.1(4) of the Federal Courts Act provided for relief by way of judicial review where a federal board, commission or other tribunal "(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record" - The Supreme Court of Canada stated that "Errors of law are generally governed by a correctness standard ... Dunsmuir [v. NB (SCC 2008) (at para. 54), says that if the interpretation of the home statute or a closely related statute by an expert decision maker is reasonable, there is no error of law justifying intervention. Accordingly, para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute. This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised. Once again, the open textured language of the Federal Courts Act is supplemented by the common law" - See paragraph 44.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - Section 18.1(4) of the Federal Courts Act provided for relief by way of judicial review where a federal board, commission or other tribunal "(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" - The Supreme Court of Canada stated that "The legislator would have been aware of the great importance attached by some judicial decisions to so-called 'jurisdictional fact finding' ... Parliament clearly wished to put an end to the tendency of some courts to seize on a 'preliminary fact' on which the administrative agency's decision was said to be based to quash a decision ... More generally, it is clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir [v. NB (2008 SCC)]. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act" - See paragraphs 45 and 46.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - Section 18.1(4) of the Federal Courts Act provided for relief by way of judicial review where a federal board, commission or other tribunal "(e) acted, or failed to act, by reason of fraud or perjured evidence" (i.e., a question of mixed fact and law) - The Supreme Court of Canada discussed the court's discretion under s. 18.1(4) - As to s. 18.1(4)(e), the court stated, that "The common law would not allow a statutory decision maker to rely on fraudulent or perjured testimony. The court would be expected to exercise its discretion in favour of the applicant under para. (e) as well" - See paragraph 47.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - Section 18.1(4) of the Federal Courts Act provided for relief by way of judicial review where a federal board, commission or other tribunal "(f) acted in any other way that was contrary to law" - The Supreme Court of Canada in discussing the court's discretion under s. 18.1(4)(f) stated that "A reference to 'contrary to law' necessarily includes 'law' outside the Federal Courts Act including general principles of administrative law. Paragraph (f) shows, if further demonstration were necessary, that s. 18.1(4) is not intended to operate as a self-contained code, but is intended by Parliament to be interpreted and applied against the backdrop of the common law, including those elements most recently expounded in Dunsmuir [v. NB (2008 SCC)]." - See paragraph 48.

Courts - Topic 4071.5

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standard of review - [See first and fourth Administrative Law - Topic 3202 and Aliens - Topic 1797.2 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See third Courts - Topic 4071.5 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See second Administrative Law - Topic 3202 ].

Statutes - Topic 2609

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Variation of language (incl. bilingual statutes) - [See third Courts - Topic 4071.5 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [paras. 1, 70].

Ribic v. Minister of Employment and Immigration, [1985] I.A.B.D. No. 4 (I.A.B.), refd to. [paras. 7, 137, 145].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [paras. 7, 137, 145].

R. v. Owen (T.), [2003] 1 S.C.R. 779; 304 N.R. 254; 173 O.A.C. 285; 2003 SCC 33, refd to. [paras. 18, 99].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 20].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [paras. 21, 89].

Pezim v. British Columbia (Superintendent of Brokers) - see Pezim v. British Columbia Securities Commission et al.

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [paras. 23, 87].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [paras. 24, 92].

Penetanguishene Mental Health Centre et al. v. Ontario (Attorney General) et al., [2004] 1 S.C.R. 498; 318 N.R. 73; 185 O.A.C. 201, refd to. [para. 31].

Pinet v. St. Thomas Psychiatric Hospital et al., [2004] 1 S.C.R. 528; 317 N.R. 365; 185 O.A.C. 8; 2004 SCC 21, refd to. [para. 32].

Mazzei, Re, [2006] 1 S.C.R. 326; 346 N.R. 1; 222 B.C.A.C. 1; 368 W.A.C. 1; 2006 SCC 7, refd to. [para. 32].

Pringle v. Fraser, [1972] S.C.R. 821, refd to. [para. 34].

Howarth v. National Parole Board, [1976] 1 S.C.R. 453; 3 N.R. 391, refd to. [para. 34].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 34].

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 34].

Canada (Attorney General) v. Law Society of British Columbia - see Jabour v. Law Society of British Columbia et al.

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [paras. 36, 133].

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, refd to. [para. 39].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 39].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 40].

Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 40].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; 88 D.L.R.(4th) 1, refd to. [para. 40].

Grenier v. Canada, [2006] 2 F.C.R. 287; 344 N.R. 102; 2005 FCA 348, refd to. [para. 40].

Devinat v. Commission de l'immigration et du statut de réfugié du Canada, [2000] 2 F.C. 212; 250 N.R. 326; 181 D.L.R.(4th) 441 (F.C.A.), refd to. [para. 40].

Thanabalasingham v. Canada (Minister of Citizenship and Immigration) (2006), 345 N.R. 388; 263 D.L.R.(4th) 51; 2006 FCA 14, refd to. [para. 40].

Charette v. Commissioner of Competition (2003), 312 N.R. 358; 29 C.P.R.(4th) 1; 2003 FCA 426, refd to. [para. 40].

Pal v. Minister of Employment and Immigration (1993), 70 F.T.R. 289 (T.D.), refd to. [para. 40].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [paras. 44, 121].

Bell v. Human Rights Commission (Ont.), [1971] S.C.R. 756, refd to. [para. 44].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [paras. 45, 82].

Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; 3 N.R. 484, refd to. [para. 57].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 63].

U.E.S., Local 298 v. Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 74].

Pasiechnyk v. Worker's Compensation Board (Sask.) - see Pasiechnyk et al. v. Procrane Inc. et al.

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 74].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 76].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, refd to. [para. 86].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 1; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 88].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 93].

R. v. Holmes, [1988] 1 S.C.R. 914; 85 N.R. 21; 27 O.A.C. 321, refd to. [para. 104].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 104].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man.R.(2d) 81, refd to. [para. 106].

Morneault v. Canada (Attorney General), [2001] 1 F.C. 30; 256 N.R. 85 (F.C.A.), refd to. [para. 127].

Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; 121 N.R. 323; 38 Q.A.C. 253, refd to. [para. 135].

R. v. Khosa (S.S.) et al., [2003] B.C.T.C. 221; 2003 BCSC 221, refd to. [para. 146].

Statutes Noticed:

Administrative Tribunals Act, S.B.C. 2004, c. 45, sect. 58 [para. 19].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18.1 [para. 16]; sect. 18.1(4) [para. 37]; sect. 18.1(4)(a) [para. 42]; sect. 18.1(4)(b) [para. 43]; 18.1(4)(c) [para. 44]; sect. 18.1(4)(d) [para. 45]; sect. 18.1(4)(e) [para. 47]; sect. 18.1(4)(f) [para. 48].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3(1)(h), sect. 36(1)(a), sect. 67(1)(c) [para. 16].

Authors and Works Noticed:

Bastarache, Michel et al., The Law of Bilingual Interpretation (2008), pp. 32 [paras. 38, 39]; 67 [para. 40].

Bauman, Richard W., and Kahana Tsvi, The Least Examined Branch: The Role of Legislatures in the Constitutional State (2006), pp. 500 [para. 81]; 512 [para. 83].

Bogart, W.A., The Tools of the Administrative State and the Regulatory Mix, in Flood, C.M., and Sossin, L., Administrative Law in Context (2008), p. 31 [para. 79].

British Columbia, Hansard, Debates of the Legislative Assembly, 5th Sess., 37th Parliament (May 18, 2004), p. 11193 [paras. 114, 115].

Brown, Donald, J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2008 Looseleaf Update), p. 3-99 [paras. 36, 133].

Canada, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, Issue No. 26, 2nd Sess., 28th Parliament (May 7, 1970), pp. 25, 26 [para. 34].

Charney, Richard J., and Brady, Thomas E.F., Judicial Review in Labour Law (1997) (2008 Looseleaf Update, Release 11), pp. 2-1 to 2-17 [para. 80].

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 72, 91, fn. 123 [para. 38]; 324 [para. 39].

Dicey, Albert Venn, Introduction to the Study of the Law of the Constitution (10th Ed. 1959), p. 193 [para. 90].

Dyzenhaus, David, Disobeying Parliament? Privative Clauses and the Rule of Law, in Bauman, Richard W., and Kahana, Tsvi, The Least Examined Branch: The Role of Legislatures in the Constitutional State (2006), pp. 500 [para. 81]; 512 [para. 83].

Flood, C.M., and Sossin, L., Administrative Law in Context (2008), pp. 31 [para. 79]; 104 [para. 81]; 199 [para. 80]; 225 [para. 92].

Fuller, Lon L., The Morality of Law (Rev. Ed. 1969), pp. 81 to 91 [para. 90].

Hansard (B.C.) - see British Columbia, Hansard, Debates of the Legislative Assembly.

Liston, Mary, Governments in Miniature: The Rule of Law in the Administrative State, in Flood, C.M., and Sossin, L., Administrative Law in Context (2008), p. 104 [para. 81].

Macklin, Audrey, Standard of Review: The Pragmatic and Functional Test, in Flood, C.M., and Sossin, L., Administrative Law in Context (2008), pp. 199 [para. 80]; 225 [para. 92].

Mullan, David J., Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let's Try Again! (2008), 21 C.J.A.L.P. 117, pp. 125, 126 [para. 96].

Mullan, David J., Establishing the Standard of Review: The Struggle for Complexity? (2004), 17 C.J.A.L.P. 59, p. 93 [para. 25].

Raz, Joseph, The Authority of Law: Essays on Law and Mortality (1979), pp. 215 to 217 [para. 90].

Saunders, Brian J., Kinnear, Meg, and Rennie, Donald J., Federal Courts Practice 2009 (2008), pp. 112 to 113 [para. 49]; 145 [para. 126].

Sgayias, David, Kinnear, Meg, Rennie, Donald J., and Saunders, Brian J., Federal Court Practice 1998 (1997), pp. 69, 70 [para. 130].

Sossin, Lorne, Empty Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review in Administrative Law (2003), 27 Adv. Q. 478, p. 491 [para. 94].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 116 [para. 39]; 261, 262, 432 [para. 34]; 434 to 436 [para. 104].

Counsel:

Urszula Kaczmarczyk and Cheryl D. Mitchell, for the appellant;

Garth Barriere and Daniel B. Geller, for the respondent;

Joseph J. Arvay, Q.C., and Joel M. Rubinoff, for the intervenor.

Solicitors of Record:

Attorney General of Canada, Vancouver, British Columbia, for the appellant;

Garth Barriere, Vancouver, British Columbia, for the respondent;

Arvay Finlay, Vancouver, British Columbia, for the intervenor.

This appeal was heard before McLachlin, C.J.C., Bastarache*, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the court was delivered in both official languages on March 6, 2009, and the following opinions were filed:

Binnie, J. (McLachlin, C.J.C., LeBel, Abella and Charron, JJ., concurring) - see paragraphs 1 to 68;

Rothstein, J. - see paragraphs 69 to 137;

Deschamps, J. - see paragraphs 138;

Fish, J., dissenting - see paragraphs 139 to 161.

*Bastarche, J., took no part in this judgment.

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