Between:

Jeyakannan Kanthasamy

Appellant

and

Minister of Citizenship and Immigration

Respondent

– and –

Canadian Council for Refugees, Justice for Children and Youth, Barbra Schlifer Commemorative Clinic, Canadian Centre for Victims of Torture, Canadian Association of Refugee Lawyers and Parkdale Community Legal Services

Interveners

Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.

Jeyakannan Kanthasamy Appellant

v.

Minister of Citizenship and Immigration   Respondent

and

Canadian Council for Refugees,

Justice for Children and Youth,

Barbra Schlifer Commemorative Clinic,

Canadian Centre for Victims of Torture,

Canadian Association of Refugee Lawyers and

Parkdale Community Legal Services Interveners

Indexed as: Kanthasamy v. Canada (Citizenship and Immigration)

2015 SCC 61

File No.: 35990.

2015: April 16; 2015: December 10.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.

on appeal from the federal court of appeal

Immigration — Judicial review — Refugee claim — Humanitarian and compassionate considerations — Best interests of child — 17-year-old refugee claimant from Sri Lanka seeking humanitarian and compassionate exemption to apply for permanent residence from within Canada — Whether decision to deny relief was reasonable exercise of humanitarian and compassionate discretion — Proper role of Ministerial Guidelines used by immigration officers in determining whether humanitarian and compassionate considerations warrant relief — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25(1) .

K is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and questioning by the Sri Lankan army and police, K’s family arranged for him to travel to Canada to live with his uncle. He was 16 years old. When he arrived in Canada, he made a claim for refugee protection which was refused. K’s application for a pre‑removal risk assessment was also rejected. K additionally filed an application for humanitarian and compassionate relief under s. 25(1)  of the Immigration and Refugee Protection Act  seeking to apply for permanent resident status from within Canada. The Officer reviewing his application concluded that relief was not justified as she was not satisfied that a return to Sri Lanka would result in hardship that was unusual and undeserved or disproportionate. On judicial review, the Federal Court found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal agreed.

Held (Moldaver and Wagner JJ. dissenting): The appeal should be allowed. The Officer’s decision was unreasonable and should be set aside. The matter is remitted for reconsideration.

Per McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ: Section 25(1)  of the Immigration and Refugee Protection Act  gives the Minister discretion to exempt foreign nationals — individuals who are neither citizens nor permanent residents — from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. The purpose of s. 25(1) is to offer equitable relief. That purpose was furthered in Ministerial Guidelines intended to assist immigration officers in determining whether humanitarian and compassionate considerations warrant relief under s. 25(1) . They state that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application under s. 25(1)  is done by an “assessment of hardship”. What warrants relief will vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them. An officer can take the underlying facts adduced in refugee determination proceedings into account in determining whether the applicant’s circumstances warrant humanitarian and compassionate relief.

The Guidelines state that applicants must demonstrate either “unusual and undeserved” or“disproportionate” hardship for relief under s. 25(1)  to be granted. “Unusual and undeserved hardship” is defined in the Guidelines as hardship that is “not anticipated or addressed” by the Act or its regulations, and is “beyond the person’s control”. “Disproportionate hardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”.

While the Guidelines are useful, they are not legally binding and are not intended to be either exhaustive or restrictive. Officers should not fetter their discretion by treating them as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion anticipated by s. 25(1) . The words “unusual and undeserved or disproportionate hardship” should instead be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1) . As a result, officers should not look at s. 25(1)  through the lens of the three adjectives as discrete and high thresholds. This has the result of using the language of “unusual and undeserved or disproportionate hardship” in a way that limits the officer’s ability to consider and give weight to allrelevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1)  to respond more flexibly to the equitable goals of the provision.

Section 25(1)  also refers to the need to take into account the best interests of a child directly affected. Where, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective. The “best interests” principle is highly contextual because of the multitude of factors that may impinge on the child’s best interests. A decision under s. 25(1)  will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered.

It is difficult to see how a child can be more directly affected than when he or she is the applicant. The status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since children will rarely, if ever, be deserving of any hardship, the concept of unusual or undeserved hardship is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief.

In this case, the Officer failed to consider K’s circumstances as a whole and took an unduly narrow approach to the assessment of his circumstances. The Officer failed to give sufficiently serious consideration to K’s youth, his mental health, and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessing each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”. The Officer’s literal obedience to those words, which do not appear anywhere in s. 25(1) , rather than looking at K’s circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion, rendering her decision unreasonable.

The Officer accepted the diagnosis in the psychological report of post‑traumatic stress disorder, yet required K to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka. Once she accepted that he had post‑traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor. In her exclusive focus on whether treatment was available to K in Sri Lanka, the Officer ignored what the effect of removal from Canada would be on his mental health. The fact that K’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition. And while the Officer did not dispute the psychological report presented, she found that the medical opinion rested mainly on hearsay because the psychologist was not a witness to the events that led to the anxiety experienced by K. This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on hearsay. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. A psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.

The Officer considered the discrimination K would likely endure in Sri Lanka, but effectively concluded that in the absence of evidence from K that he would be personally targeted by discriminatory action, there was no evidence of discrimination. This approach however, failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s identity is relevant under s. 25(1) , whether or not the applicant has evidence that he or she has been personally targeted.

Further, the Officer here did not appear to turn her mind to how K’s status as a child affected the evaluation of the other evidence raised in his application. This approach is inconsistent with how hardship should be uniquely addressed for children. Moreover, by evaluating K’s best interests through the same literal approach she applied to each of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — the Officer misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that children cannot be said to be deserving of hardship.

The Officer therefore avoided the requisite analysis of whether, in light of the humanitarian purpose of s. 25(1) , the evidence as a whole justified relief. This approach unduly fettered her discretion and led to its unreasonable exercise.

Per Moldaver and Wagner JJ. (dissenting):  While there is agreement with much of the majority’s discussion on the meaning of the phrase “justified by humanitarian and compassionate considerations”, there is no agreement with the test proposed for granting relief under s. 25(1) . The scheme of the Immigration and Refugee Protection Act  and the intention of Parliament in enacting s. 25(1)  suggest that this provision is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend. Parliament recognized that cases could arise in which the strict application of the rules would not reflect Canada’s policy goals, or would lead to an arbitrary or inhumane result. That said, Parliament did not intend to provide relief on a routine basis. The test for humanitarian and compassionate (“H&C”) relief must balance the dual characteristics of stringency and flexibility and reflect the broad range of factors that may be relevant.

The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. However, the test falls down on the flexibility side as it risks excluding or diminishing the weight that some factors may deserve in deciding whether H&C relief should be granted. Section 25(1)  does not limit when the relevant H&C considerations must occur; nor does it require that they be viewed only from the applicant’s perspective. It asks only that decision makers look at H&C considerations relating to the applicant. Section 25(1)  is framed in broad terms because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to enter or remain in Canada. A more comprehensive approach is therefore required.

Bearing in mind the purpose and context of s. 25(1) , and the fact that the hardship test used to date may, in some circumstances, be overly restrictive, the test for granting relief should be reframed as follows: whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair‑minded Canadians would find it simply unacceptable to deny the relief sought. To be “simply unacceptable”, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted. This test maintains the stringency of the hardship test — but does not exceed it. At the same time, it is more flexible than the hardship test. It asks decision makers to turn their minds to all of the relevant circumstances when deciding whether refusing relief would be “simply unacceptable”. This prevents decision makers from excluding relevant H&C considerations because they do not fit within the future‑oriented hardship framework or because they do not involve hardship experienced solely by the applicant. The test proposed by the majority does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test.

The Officer’s decision in this case falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, and was therefore reasonable. Decision making under s. 25(1)  is highly discretionary and is entitled to deference. Care must be taken not to overly dissect or parse an officer’s reasons. Rather, reasonableness review entails respectful attention to the reasons offered or which could be offered in support of a decision. As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it would itself have come to a different result, lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review.

In evaluating the application, the decision maker must not segment the evidence and require that each piece either rise above the hardship threshold or be discounted entirely. Rather, the decision maker must fairly consider the totality of the circumstances and base the disposition on the evidence as a whole. Likewise, the decision maker must not fetter his or her discretion by applying the Guidelines — the “unusual and undeserved or disproportionate hardship” framework — as a strict legal test to the exclusion of all other factors. Taken as a whole, the Officer’s decision in this case denying K’s H&C application is transparent. She provided intelligible reasons for concluding that K did not meet his onus of establishing, on balance, that he should be permitted to apply for permanent residency from within Canada for H&C reasons. She did not use the hardship framework in a way that fettered her discretion or caused her to discount relevant evidence. Her conclusions are reasonable, and well‑supported by the record. While aspects of K’s situation warrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief.

It was open to the Officer to find that the record did not justify relief under s. 25(1) . While the Officer’s reasons could have engaged more fully with the psychological evidence and while it would have been helpful had she specifically addressed the issue of the impact of removal on K’s mental health, her failure to do so does not render her decision unreasonable. The Officer’s approach to the issue of discrimination was also not unreasonable, nor did it render her decision unreasonable. The applicant need only show that the denial of relief would pose a certain risk of harm. However, that risk must necessarily be a “personalized risk”, in the sense that the applicant must fall within the category of people who, on the evidence submitted, would face that risk. When viewed in context, the Officer’s conclusion that K had failed to provide sufficient evidence to support his statements that he will be personally discriminated against simply reiterated the wording of his submissions. Lastly, the Officer’s analysis and conclusion on K’s best interests as a child were also reasonable. It was highly relevant that K was only one day away from turning 18 when he initially applied for H&C relief. K was a teenager on the verge of adulthood. On the record before her, it was open to the Officer to conclude that removal to Sri Lanka would not impair K’s best interests, because he would be returning to his immediate family rather than being separated from them.

Although the Officer applied the hardship standard from the Guidelines, she did not do so in a way that fettered her discretion. Further, had she applied the test reframed, she would inevitably have come to the same result. The Officer’s decision to deny an exemption to K was reasonable.

Cases Cited

By Abella J.

Referred to: Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470; Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; United States of America v. Johnson(2002), 62 O.R. (3d) 327; Diarra v. Canada (Minister of Citizenship and Immigration), 2006 FC 1515; Love v. Canada (Minister of Citizenship and Immigration), 2004 FC 1569, 43 Imm. L.R. (3d) 111; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463; Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. 206; Flores v. Canada (Minister of Citizenship and Immigration), 2013 FC 1002; Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 233; Park v. Canada (Minister of Citizenship and Immigration), 2012 FC 528; Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Chen v. Canada (Minister of Citizenship and Immigration), 2003 FCT 447, 232 F.T.R. 118; Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555; Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 621; Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Gordon v. Goertz, [1996] 2 S.C.R. 27; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; MacGyver v. Richards (1995), 22 O.R. (3d) 481; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358; Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008 FC 165, 323 F.T.R. 181; Kim v. Canada (Citizenship and Immigration), 2010 FC 149, [2011] 2 F.C.R. 448; Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Davis v. Canada (Minister of Citizenship and Immigration), 2011 FC 97, 96 Imm. L.R. (3d) 267; Martinez v. Canada (Minister of Citizenship and Immigration), 2012 FC 1295, 14 Imm. L.R. (4th) 66; Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714; Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC 166.

By Moldaver J. (dissenting)

Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Pan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1303; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Paz v. Canada (Minister of Citizenship and Immigration), 2009 FC 412; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358, leave to appeal refused, [2002] 4 S.C.R. vi; Pannu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1356; Jacob v. Canada (Minister of Citizenship and Immigration), 2012 FC 1382, 423 F.T.R. 1; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458.

Statutes and Regulations Cited

Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4 .

Canadian Charter of Rights and Freedoms, s. 7 .

Immigration Act, R.S.C. 1952, c. 325, s. 8.

Immigration Act, R.S.C. 1985, c. I‑2, s. 114(2).

Immigration Act, 1976, S.C. 1976‑77, c. 52, s. 115(2).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 11(1) , 25(1) , (1.3) , 62  to 71 , 96 , 97 .

Immigration and Refugee Protection Regulations, SOR/2002‑227, s. 6.

Immigration Appeal Board Act, S.C. 1966‑67, c. 90, s. 15.

Treaties and Other International Instruments

Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 3(1).

Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009.

Authors Cited

Brown, Donald J. M., and John M. Evans, with the assistance of Christine E. Deacon. Judicial Review of Administrative Action in Canada, vol. 3. Toronto: Carswell, 2014 (loose‑leaf updated May 2015, release 1).

Canada. Citizenship and Immigration Canada. “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds”, in Inland Processing (online: http://www.cic.gc.ca).

Canada. Employment and Immigration Canada. Immigration Manual. 1986.

Canada. House of Commons. House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, pp. 13267-68.

Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001, 9:55 to 10:00.

Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, 15:40.

Canada. Library of Parliament. Parliamentary Research Branch. “Bill C‑11: The Immigration and Refugee Protection Act ”, Legislative Summary LS‑397E, by Jay Sinha and Margaret Young, Law and Government Division, March 26, 2001, revised January 31, 2002.

Canada. Senate and House of Commons. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, p. 12.

Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart, 1997, 279.

Hawkins, Freda. Canada and Immigration: Public Policy and Public Concern. Montréal: McGill‑Queen’s University Press, 1972.

Jones, Martin, and Sasha Baglay. Refugee Law. Toronto: Irwin Law, 2007.

Liew, Jamie Chai Yun, and Donald Galloway. Immigration Law, 2nd ed. Toronto: Irwin Law, 2015.

Neufeld, Heather. “Inadequacies of the Humanitarian and Compassionate Procedure for Abused Immigrant Spouses” (2009), 22 J.L. & Soc. Pol’y 177.

APPEAL from a judgment of the Federal Court of Appeal (Blais C.J. and Sharlow and Stratas JJ.A.), 2014 FCA 113, [2015] 1 F.C.R. 335, 459 N.R. 367, 372 D.L.R. (4th) 539, 77 Admin. L.R. (5th) 181, 27 Imm. L.R. (4th) 1, [2014] F.C.J. No. 472 (QL), 2014 CarswellNat 1435 (WL Can.), affirming a decision of Kane J., 2013 FC 802, [2014] 3 F.C.R. 438, 437 F.T.R. 120, [2013] F.C.J. No. 848 (QL), 2013 CarswellNat 2568 (WL Can.), dismissing an application for judicial review. Appeal allowed, Moldaver and Wagner JJ. dissenting.

Barbara Jackman and Ksenija Trahan , for the appellant.

Marianne Zoric and  Kathryn Hucal, for the respondent.

Jamie Liew,  Jennifer Stone  and Michael Bossin, for the intervener the Canadian Council for Refugees.

Emily Chan and  Samira Ahmed, for the intervener Justice for Children and Youth.

Alyssa Manning, Laila Demirdache,  Aviva Basman and  Rathika Vasavithasan, for the interveners the Barbra Schlifer Commemorative Clinic and the Canadian Centre for Victims of Torture.

Audrey Macklin,  Joo Eun Kim and  Laura Brittain, for the intervener the Canadian Association of Refugee Lawyers.

Ronald Poulton  and  Toni Schweitzer, for the intervener Parkdale Community Legal Services.

The judgment of McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ. was delivered by

[1] Abella J. — The Immigration and Refugee Protection Act [1] consists of a number of moving parts intended to work together to ensure a fair and humane immigration system for Canada. One of those parts is refugee policy. Under s. 25(1) of the Act, the Minister has a discretion to exempt foreign nationals from the Act’s requirements if the exemption is justified by humanitarian and compassionate considerations, including the best interests of any child directly affected. The issue in this appeal is whether a decision to deny relief under s. 25(1)  to a 17 -year-old applicant was a reasonable exercise of the humanitarian and compassionate discretion.  In my respectful view, it was not.

Background

[2] Jeyakannan Kanthasamy is a Tamil from northern Sri Lanka.  In April 2010, fearing for his safety after he was subjected to detention and questioning by the army and the police, his family arranged for him to travel to Canada to live with his uncle.  He was 16 years old.

[3] When he arrived in Canada, he made a claim for refugee protection under ss. 96  and 97 , which permit applicants to seek refugee status based on a “well-founded” fear of persecution.  His claim was based on a fear that because he is a Tamil, the army, the Eelam People’s Democratic Party, the police, or others would arrest or harm him upon his return to Sri Lanka on suspicion that he supports the Liberation Tigers of Tamil Eelam. The Immigration and Refugee Board refused his claim in February 2011, concluding that the authorities in Sri Lanka had taken steps to improve the situation of Tamils, and that he did not have a profile that would put him at risk if he were returned to that country.

[4] In August 2011, he applied for a pre-removal risk assessment, which determines whether an applicant can safely be removed from Canada.  The process assesses new risk developments arising after the refugee hearing, but is not a second refugee determination hearing: Martin Jones and Sasha Baglay, Refugee Law (2007), at p. 332.  The Officer who decided his pre-removal risk assessment found that Jeyakannan Kanthasamy was credible and accepted the evidence that young Tamils faced discrimination and harassment in Sri Lanka. But she concluded that since this treatment did not rise to the level of persecution, his application should be rejected.

[5] Around the same time, he also filed an application for humanitarian and compassionate relief under s. 25(1)  of the Immigration and Refugee Protection Act , seeking to apply for permanent resident status from within Canada. He was then 17 years old.  The denial of relief would result in his removal from Canada.

[6]  The Officer who reviewed the   application concluded that the relief was not justified by humanitarian and compassionate considerations.  Drawing on language set out in Guidelines prepared by the Minister, the Officer said she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate”. 

[7] On judicial review, the Federal Court held that the test was whether the hardship was “unusual and undeserved or disproportionate” in accordance with the Guidelines, and found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal largely agreed with both the test and the result. While it concluded that s. 25(1)  was not intended to duplicate refugee proceedings, the evidence from those proceedings can nonetheless be considered for the purpose of determining whether the applicant will face “unusual and undeserved, or disproportionate hardship” if returned to the foreign state.

[8] For the following reasons, I do not, with respect, agree with the conclusion that the Officer’s decision was reasonable.

Analysis

[9] The Immigration and Refugee Protection Act  governs the admissibility, eligibility and removal of non-citizens. Under the Act and its accompanying regulations, foreign nationals — individuals who are neither citizens nor permanent residents — seeking permanent resident status must apply for and obtain a visa before entering Canada: Immigration and Refugee Protection Act, s. 11(1) ; Immigration and Refugee Protection Regulations, SOR/2002-227, s. 6. A permanent resident visa may be issued where the foreign national is not inadmissible and meets the requirements of the Act: Immigration and Refugee Protection Act, s. 11(1) .

[10] Section 25(1)  of the Immigration and Refugee Protection Act  gives the Minister discretion to exempt foreign nationals from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. At the relevant time, s. 25(1) stated:

25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

A brief history helps explain the purpose of humanitarian and compassionate relief under this provision.

[11] Under the 1952 Immigration Act, R.S.C. 1952, c. 325, the Minister had an almost unlimited discretion to allow individuals into Canada: Freda Hawkins, Canada and Immigration: Public Policy and Public Concern (1972), at pp. 101-3.  Although humanitarian and compassionate considerations were not explicitly part of the legislative scheme at the time, the Minister retained the authority to issue permits to allow certain applicants to remain in Canada: Immigration Act (1952), s. 8.  These permits “introduced an element of flexibility and humanitarianism into the administration of immigration law”: Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470, at p. 476.

[12] A discretion to grant relief on the basis of humanitarian and compassionate considerations became an express part of the legislative scheme in the Immigration Appeal Board Act, S.C. 1966-67, c. 90, which created a quasi-judicial, independent Immigration Appeal Board. Section 15(1) of the Immigration Appeal Board Act gave the new Board the power to stay or quash a deportation order based on “compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief”: s. 15(1)(b)(ii).  The reason for this power was explained by John Munro, then Parliamentary Secretary for the Minister of Manpower and Immigration:

The law establishes general rules as to who may come to Canada and who may stay in Canada.  The rules necessarily are general.  They cannot precisely accommodate all the variety of individual circumstances.  They must be capable of being tempered in their application, according to the merits of individual cases. There will sometimes be humanitarian or compassionate reasons for admitting people who, under the general rules, are inadmissible.[Emphasis added.]

(House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at p. 13267)

[13] The meaning of the phrase “humanitarian and compassionate considerations” was first discussed by the Immigration Appeal Board in the case of Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338.  The first Chair of the Board, Janet Scott, held that humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act”: p. 350. This definition was inspired by the dictionary definition of the term “compassion”, which covers “sorrow or pity excited by the distress or misfortunes of another, sympathy”: Chirwa, at p. 350. The Board acknowledged that “this definition implies an element of subjectivity”, but said there also had to be objective evidence upon which special relief ought to be granted: Chirwa, at p. 350.

[14] The Chirwa test was crafted not only to ensure the availability of compassionate relief, but also to prevent its undue overbreadth. As the Board said:

It is clear that in enacting s. 15 (1) (b) (ii) Parliament intended to give this Court the power to mitigate the rigidity of the law in an appropriate case, but it is equally clear that Parliament did not intend s. 15 (1) (b) (ii) of the Immigration Appeal Board Act to be applied so widely as to destroy the essentially exclusionary nature of the Immigration Act and Regulations. [p. 350]

[15] In proceedings before the Special Joint Committee of the Senate and the House of Commons on Immigration Policy in 1975, Janet Scott elaborated on the importance of being able to guard against the unfairness of deportation in certain cases:

. . . it was recognized that deportation might fall with much more force on some persons . . . than on others, because of their particular circumstances, and the Board was therefore empowered to mitigate the rigidity of the law in an appropriate case.  Section 15 is a humanitarian and equitable section, which gives the Board power to do what the legislator cannot do, that is, take account of particular cases. [Emphasis added.]

(Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, at p. 12)

[16] In 1977, Parliament passed comprehensive immigration reforms that introduced humanitarian and compassionate discretion into other areas of the immigration scheme: Immigration Act, 1976, S.C. 1976-77, c. 52.  Notably, under s. 115(2), the Governor in Council was given broad authority to facilitate the admission of “any person” on the basis of humanitarian or compassionate considerations:

115. (2) The Governor in Council may by regulation exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Governor in Council is satisfied that the person should be exempted from such regulation or his admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarian considerations.

[17] The role of this discretion was explained by this Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817:

[The] words [humanitarian and compassionate considerations] and their meaning must be central in determining whether an individual [humanitarian and compassionate] decision was a reasonable exercise of the power conferred by Parliament.  The legislation and regulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner.  This Court has found that it is necessary for the Minister to consider [a humanitarian and compassionate] request when an application is made . . . . Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations. [Emphasis deleted; citation omitted; para. 66.]

[18] More recently, in 2001, Parliament passed another set of comprehensive reforms by enacting the Immigration and Refugee Protection Act .  The humanitarian and compassionate discretion previously found in s. 115(2) of the Immigration Act, 1976 was incorporated into the new s. 25(1) : United States of America v. Johnson (2002), 62 O.R. (3d) 327 (C.A.), at para. 47; Diarra v. Canada (Minister of Citizenship and Immigration), 2006 FC 1515, at para. 8 (CanLII); Love v. Canada (Minister of Citizenship and Immigration) (2004), 43 Imm. L.R. (3d) 111 (F.C.), at para. 15.

[19] The Legislative Summary of Bill C-11, the Bill that led to the enactment of the Immigration and Refugee Protection Act , explained that s. 25  “continue[d] the important power of the Minister to override the provisions of the Act and grant permanent residence, or an exemption from any applicable criteria or obligation under the Act, on humanitarian and compassionate grounds or for reasons of public policy”: Library of Parliament, “Bill C-11: The Immigration and Refugee Protection Act ”, Legislative Summary LS-397E, by Jay Sinha and Margaret Young, March 26, 2001, at p. 12 (footnote omitted); Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, at para. 41. The humanitarian and compassionate discretion in s. 25(1)  was, therefore, like its predecessors, seen as being a flexible and responsive exception to the ordinary operation of the Act, or, in the words of Janet Scott, a discretion “to mitigate the rigidity of the law in an appropriate case”.

[20] As noted, Chirwa was decided in the context of an appeal to the Immigration Appeal Board under s. 15 of the Immigration Appeal Board Act. Under the current legislative scheme, the Immigration Appeal Division can similarly exercise that discretion for a number of statutorily defined purposes: see ss. 62  to 71  of the Immigration and Refugee Protection Act . The exercise of humanitarian and compassionate discretion under s. 25(1)  of the Immigration and Refugee Protection Act , on the other hand, is limited to situations where a foreign national applies for permanent residency but is inadmissible or does not meet the requirements of the Immigration and Refugee Protection Act .

[21] But as the legislative history suggests, the successive series of broadly worded “humanitarian and compassionate” provisions in various immigration statutes had a common purpose, namely, to offer equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”: Chirwa, at p. 350.

[22] That purpose was furthered in Ministerial Guidelines designed to assist officers in determining whether humanitarian and compassionate considerations warrant relief under s. 25(1) . They state that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application under s. 25(1) , is done by an “assessment of hardship”.

[23] There will inevitably be some hardship associated with being required to leave Canada.  This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1) : see Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463, at para. 13 (CanLII); Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. 206 (F.C.T.D), at para. 12.  Nor was s. 25(1)  intended to be an alternative immigration scheme: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40 (Peter MacDougall); see also Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson).

[24] And, as is stated in s. 25(1.3) , added to the Act in 2010 (S.C. 2010, c. 8 ), s. 25(1)  is not meant to duplicate refugee proceedings under s. 96  or s. 97(1) , which assess whether the applicant has established a well-founded fear of persecution, risk of torture, risk to life, or risk of cruel and unusual treatment or punishment.

[25] What does warrant relief will clearly vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh allthe relevant facts and factors before them: Baker, at paras. 74-75.

[26] According to the Guidelines, applicants must demonstrate either “unusual and undeserved” or“disproportionate” hardship for relief under s. 25(1)  to be granted.  “Unusual and undeserved hardship” is defined as hardship that is “not anticipated or addressed” by the Immigration and Refugee Protection Act  or its regulations, and is “beyond the person’s control”.  “Disproportionate hardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”: Citizenship and Immigration Canada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds” (online), s. 5.10 .

[27] The Guidelines further explain the application of the “unusual and undeserved or disproportionate hardship” standard by setting out a non-exhaustive list of factors that may be relevant:

5.11.   Factors to consider in assessment of hardship

[Section 25(1) ] provides the flexibility to grant exemptions to overcome the requirement of obtaining a permanent residence visa from abroad, to overcome class eligibility requirements and/or inadmissibilities, on humanitarian and compassionate grounds.

Officers must assess the hardship that would befall the applicant should the requested exemption not be granted.

Applicants may base their requests for [humanitarian and compassionate] consideration on any number of factors including, but not limited to:

• establishment in Canada;

• ties to Canada;

• the best interests of any children affected by their application;

• factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in [ss. 96  and 97 ]);

• health considerations;

• family violence considerations;

• consequences of the separation of relatives;

• inability to leave Canada has led to establishment; and/or

• any other relevant factor they wish to have considered not related to [ss. 96  and97 ].  [Emphasis added.]

(Inland Processing, s. 5.11)

[28] The Guidelines confirm that the humanitarian and compassionate determination under s. 25(1)  is a global one, and that relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances:

. . . the officer should assess all facts in the application and decide whether a refusal to grant the request for an exemption would, more likely than not, result in unusual and undeserved or disproportionate hardship.
. . .

Individual [humanitarian and compassionate] factors put forward by the applicant should not be considered in isolation in a determination of the hardship that an applicant would face; rather, hardship is determined as a result of a global assessment of [humanitarian and compassionate] considerations put forth by the applicant. In other words, hardship is assessed by weighing together all of the [humanitarian and compassionate] considerations submitted by the applicant. [Emphasis added.]

(Inland Processing, ss. 5.8 and 5.10)

[29] To date, there appear to be two schools of thought on how to approach the factors to be considered in assessing whether humanitarian and compassionate considerations apply under s. 25(1) . A number of Federal Court decisions have implicitly rejected the language in Chirwa and have, instead, treated the Guidelines, and the words “unusual and undeserved or disproportionate hardship”, as setting out the test the applicant must meet in order to receive an exemption on the basis of humanitarian and compassionate grounds. In Flores v. Canada (Minister of Citizenship and Immigration), 2013 FC 1002, for example, the Federal Court talks about unusual and undeserved or disproportionate as being the “correct test” in humanitarian and compassionate applications: paras. 36-39 (CanLII). Similarly, in Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 233, the Federal Court noted that it was the applicant’s burden to satisfy the immigration officer that there was unusual and undeserved or disproportionate hardship: para. 13 (CanLII). The Federal Court observed that “[t]his is the test” and that the disadvantages demonstrated by the applicant had to meet this threshold: para. 13. Also see Park v. Canada (Minister of Citizenship and Immigration), 2012 FC 528, at paras. 46-47 (CanLII).

[30] A second approach is found in decisions which treat Chirwa less categorically, using the language in Chirwa as co-extensive with the Guidelines: see Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956, at paras. 16-17 (CanLII); Chen v. Canada (Minister of Citizenship and Immigration), 232 F.T.R. 118, at para. 15.  In these decisions, the Federal Court and Federal Court of Appeal have made it clear that the Guidelines and the “unusual and undeserved or disproportionate hardship” threshold merely provide assistance to the immigration officer but that they should not be interpreted as fettering the immigration officer’s discretion to consider factors other than those listed in the Guidelines. In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, the Federal Court of Appeal noted that the Guidelines are “not meant as ‘hard and fast’ rules” and are, rather, “an attempt to provide guidance to decision makers when they exercise their discretion”: para. 9. And in Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 621, the Federal Court noted that humanitarian and compassionate considerations “are not limited . . . to hardship” and that the “Guidelines can only be of limited use because they cannot fetter the discretion given by Parliament”: paras. 10 and 12 (CanLII).

[31] This second approach, which seems to me to be more consistent with the goals of s. 25(1) , focuses more on the equitable underlying purpose of the humanitarian and compassionate relief application process. It sees the words in the Guidelines as being helpful in assessing when relief should be granted in a given case, but does not treat them as the only possible formulation of when there are humanitarian and compassionate grounds justifying the exercise of discretion.

[32] There is no doubt, as this Court has recognized, that the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act : Agraira, at para. 85. But as the Guidelines themselves acknowledge, they are “not legally binding” and are “not intended to be either exhaustive or restrictive”: Inland Processing, s. 5. Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1)  discretion, but should turn “[their] mind[s] to the specific circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans with the assistance of Christine E. Deacon, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 12-45. They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1) : see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at p. 5; Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.), at para. 71.

[33] The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1) .  As a result, what officers should not do, is look at s. 25(1)  through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1)  to respond more flexibly to the equitable goals of the provision.

[34] This brings us to the fact that s. 25(1)  refers to the need to take “into account the best interests of a child directly affected”. In Agraira, LeBel J. noted that these interests include “such matters as children’s rights, needs, and best interests; maintaining connections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has no connections”: para. 41. As the Guidelines note, the “best interests” principle applies to all children under 18 years of age:[2]

In an examination of the circumstances of a foreign national under [s. 25(1) ], [the Immigration and Refugee Protection Act ] introduces a statutory obligation to take into account the best interests of a child who is directly affected by a decision under this section. This codifies departmental practice into legislation, eliminating any doubt that the interests of a child will be taken into account. This applies to children under the age of 18 years as per the Convention on the Rights of the Child.

(Inland Processing, s. 5.12)

[35] The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 20.  It must therefore be applied in a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application in the context of a particular case.

[36] Protecting children through the “best interests of the child” principle is widely understood and accepted in Canada’s legal system: A.B. v. Bragg Communications Inc., [2012] 2 S.C.R. 567, at para. 17. It means “[d]eciding what . . .  appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention”: MacGyver v. Richards (1995), 22 O.R. (3d) 481 (C.A.), at p. 489.

[37] International human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71.  Article 3(1) of the Convention in particular confirms the primacy of the best interests principle:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

[38] Even before it was expressly included in s. 25(1) , this Court in Baker identified the “best interests” principle as an “important” part of the evaluation of humanitarian and compassionate grounds.  As this Court said in Baker:

. . . attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for [a humanitarian and compassionate] decision to be made in a reasonable manner. . . .

. . . for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them.  That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying [a humanitarian and compassionate] claim even when children’s interests are given this consideration.  However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [paras. 74-75]

[39] A decision under s. 25(1)  will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered: Baker, at para. 75.  This means that decision-makers must do more than simply state that the interests of a child have been taken into account: Hawthorne, at para. 32.  Those interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence: Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 323 F.T.R. 181, at paras. 9-12.

[40] Where, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective: A.C., at paras. 80-81. The Minister’s Guidelines set out relevant considerations for this inquiry:

Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to:

• the age of the child;

• the level of dependency between the child and the [humanitarian and compassionate] applicant or the child and their sponsor;

• the degree of the child’s establishment in Canada;

• the child’s links to the country in relation to which the [humanitarian and compassionate] assessment is being considered;

• the conditions of that country and the potential impact on the child;

• medical issues or special needs the child may have;

• the impact to the child’s education; and

• matters related to the child’s gender.

(Inland Processing, s. 5.12)

[41] It is difficult to see how a child can be more “directly affected” than where he or she is the applicant.  In my view, the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any hardship”, the concept of “unusual and undeserved hardship” is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v. Canada (Citizenship and Immigration), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009.

Application

[42] In considering the standard of review, this Court “step[s] into the shoes” of the reviewing court: Agraira, at para. 46. This means that the question for this Court is whether the reviewing court identified the appropriate standard of review and applied it properly: Agraira, at para. 45.

[43] In this case, the Federal Court applied a reasonableness standard. The Federal Court of Appeal, however, concluded that the appropriate standard of review was correctness because there was a certified question. It suggested that this Court’s approach in Agraira, where the standard of review was reasonableness despite the presence of a certified question, was at odds with the prior case law. I respectfully disagree.

[44] The Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71.  In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at para. 23. As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.

[45] Applying that standard, in my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’s circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”, then appeared to discount each from her final conclusion because it failed to satisfy that threshold.  Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1) , rather than looking at his circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion and rendering her decision unreasonable.

[46] In discussing the effect removal would have on Jeyakannan Kanthasamy’s mental health, for example, the Officer said she “[did] not dispute the psychological report” and “accept[ed] the diagnosis”. The report concluded that he suffered from post-traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood resulting from his experiences in Sri Lanka, and that his condition would deteriorate if he was removed from Canada.  The Officer nonetheless inexplicably discounted the report:

. . . the applicant has provided insufficient evidence that he has been or is currently in treatment regarding the aforementioned issues or that he could not obtain treatment if required in his native Sri Lanka or that in doing so it would amount to hardship that is unusual and undeserved or disproportionate.

[47] Having accepted the psychological diagnosis, it is unclear why the Officer would nonetheless have required Jeyakannan Kanthasamy to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka.  Once she accepted that he had post-traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor.  

[48] Moreover, in her exclusive focus on whether treatment was available in Sri Lanka, the Officer ignored what the effect of removal from Canada would be on his mental health.  As the Guidelines indicate, health considerations in addition to medical inadequacies in the country of origin, may be relevant: Inland Processing, s. 5.11. As a result, the very fact that Jeyakannan Kanthasamy’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition: Davis v. Canada (Minister of Citizenship and Immigration) (2011), 96 Imm. L.R. (3d) 267 (F.C.); Martinez v. Canada (Minister of Citizenship and Immigration) (2012), 14 Imm. L.R. (4th) 66 (F.C.). As previously noted, Jeyakannan Kanthasamy was arrested, detained and beaten by the Sri Lankan police which left psychological scars. Yet despite the clear and uncontradicted evidence of such harm in the psychological report, in applying the “unusual and undeserved or disproportionate hardship” standard to the individual factor of the availability of medical care in Sri Lanka — and finding that seeking such care would not meet that threshold — the Officer discounted Jeyakannan Kanthasamy’s health problems in her analysis.

[49]And while the Officer did not “dispute the psychological report presented”, she found that the medical opinion “rest[ed] mainly on hearsay” because the psychologist was “not a witness of the events that led to the anxiety experienced by the applicant”.  This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on “hearsay”. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. In any event, a psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.

[50] The Officer applied a similarly constricted approach to her analysis of whether Jeyakannan Kanthasamy would face discrimination. The  Officer took particular note of s. 25(1.3) , which led her to decline to consider elements of his application that related to “fear of persecution, torture, risk to life or cruel and unusual treatment . . . on the basis of his race and nationality” as a young Tamil, which she suggested are part of the determination of refugee status or the pre-removal risk assessment.

[51] As the Federal Court of Appeal concluded in this case, s. 25(1.3)  does not prevent the admission into evidence of facts adduced in proceedings under ss. 96  and 97 .  The role of the officer making a determination under s. 25(1)  is to ask whether this evidence, along with any other evidence an applicant wishes to raise, though insufficient to support a s. 96  or s. 97  claim, nonetheless suggests that “humanitarian and compassionate considerations” warrant an exemption from the normal application of the Immigration and Refugee Protection Act .  In other words, the officer does not determine whether a well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment has been established — those determinations are made under ss. 96  and 97  — but he or she can take the underlying facts into account in determining whether the applicant’s circumstances warrant humanitarian and compassionate relief.

[52] The Officer agreed to consider the hardship Jeyakannan Kanthasamy would likely endure as discrimination in Sri Lanka against young Tamil men. She also accepted evidence that there wasdiscrimination against Tamils in Sri Lanka, particularly against young Tamil men from the north, who are routinely targeted by police.  In her view, however, young Tamils are targeted  only where there is suspicion of ties to the Liberation Tigers of Tamil Eelam , and the government had been making efforts to improve the situation for Tamils.  She concluded that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”.

[53] This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633.

[54] Here, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1) , it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38.

[55] Even the Guidelines, expressly relying on this Court’s decision in Andrews, encourage an approach to discrimination that does not require evidence that the applicant will be personally targeted:

5.16.   [Humanitarian and compassionate] and hardship: Factors in the country of origin to be considered

While [ss. 96  and 97 ] factors may not be considered, the decision-maker must take into account elements related to the hardships that affect the foreign national.  Some examples of what those “hardships” may include are:
. . .

• discrimination which does not amount to persecution;

• adverse country conditions that have a direct negative impact on the applicant.

. . .

Discrimination

Discrimination is: A distinction based on the personal characteristics of an individual that results in some disadvantage to that individual.

In Andrews, [the] Court wrote:

“Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.  Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.”

(Inland Processing, s. 5.16)

[56] As these passages suggest, applicants need only show that they would likely be affected by adverse conditions such as discrimination. Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant under s. 25(1) , whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from those experiences. Rennie J. persuasively explained the reasons for permitting reasonable inferences in such circumstances in Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714:

While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return . . . . This is not speculation, rather it is a reasoned inference, of a non-speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis . . . . [para. 12 (CanLII)]

[57] Finally, even though Jeyakannan Kanthasamy’s current age makes this issue one that no longer requires intervention, the Officer’s analysis of the “best interests” factor cannot be characterized as anything other than perfunctory.  She simply stated, in a single paragraph, that Jeyakannan Kanthasamy’s best interests lay in returning to Sri Lanka where he had grown up and where his immediate family continued to reside. In my view, this fails to accord with the “serious weight and consideration” this Court in Baker identified as essential to a proper appreciation of a child’s best interests: para. 65.

[58] At no point did the Officer appear to turn her mind to how his status as a child affected the evaluation of the other evidence raised in his application.  Instead, she atomized her evaluation of each of the other elements of his application, referring to his status as a child only in isolation.  In her assessment of his level of establishment in Canada, for example, she wrote:

. . . a person in Canada making a claim to refugee status is afforded the tools such as a study permit that would allow one to be self-sufficient and to integrate into the Canadian community. Therefore, in the case at hand, it is expected that a certain level of establishment would have taken place during the applicant’s stay in Canada. It is understandable that [Jeyakannan Kanthasamy] would like to remain in Canada and I accept that [Jeyakannan Kanthasamy’s] removal to Sri Lanka would be an inconvenience; however, I am not satisfied that he has established himself to such a degree that return to Sri Lanka would amount to unusual and undeserved or disproportionate hardship. [Emphasis added.]

Nowhere did the Officer ask whether the effect of separating Jeyakannan Kanthasamy from the people he was close to in Canada would be magnified by the fact that his relationships with them developed when he was a teenager. This approach is inconsistent with how hardship should be uniquely addressed for children.

[59] Moreover, by evaluating Jeyakannan Kanthasamy’s best interests through the same literal approach she applied to each of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — she misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that “[c]hildren will rarely, if ever, be deserving of any hardship”: Hawthorne, at para. 9. See also Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC 166, at paras.  64-67 (CanLII).

[60] Finding that no single factor amounted to hardship that was “unusual and undeserved or disproportionate”, the Officer ultimately concluded that humanitarian and compassionate relief was not warranted.  But these three adjectives are merely descriptive, not separate legal thresholds to be strictly construed. Finally, the Officer not only unreasonably discounted both the psychological report and the clear and uncontradicted evidence of a risk of discrimination, she avoided the requisite analysis of whether, in light of the humanitarian purpose of s. 25(1)  of the Immigration and Refugee Protection Act , the evidence as a whole justified relief.  This approach unduly fettered her discretion and, in my respectful view, led to its unreasonable exercise.

[61] I would therefore allow the appeal with costs, set aside the Officer’s decision, and remit the matter for reconsideration in light of these reasons.

The reasons of Moldaver and Wagner JJ. were delivered by

Moldaver J. (dissenting) —

1. Overview

[62] Jeyakannan Kanthasamy applied for a humanitarian and compassionate (“H&C”) exemption under s. 25(1)  of the Immigration and Refugee Protection Act, S.C. 2001, c. 27  (“IRPA ”). The exemption would have allowed him to apply for permanent resident status from within Canada. His application was rejected. He seeks to overturn that decision on the grounds that the Senior Immigration Officer (the “Officer”) applied the wrong legal test and unreasonably denied his application.

[63] Section 25(1)  is a safety valve that supplements the two normal streams by which foreign nationals can come to Canada permanently: the immigration classes and the refugee process. It empowers the Minister of Citizenship and Immigration (the “Minister”) to grant applicants relief from the requirements of the IRPA  when such relief is justified by H&C considerations. Properly construed, it provides a flexible means of relief for applicants whose cases are exceptional and compelling. For reasons that will become apparent, I am of the view that in deciding whether to grant relief under s. 25(1) , decision makers must determine whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought.

[64] Measured against this standard, and bearing in mind the deference that is owed to decisions made under s. 25(1) , the Officer’s decision was reasonable. Accordingly, I would uphold that decision and dismiss Mr. Kanthasamy’s appeal.

1. Factual Background

[65] Mr. Kanthasamy is a Tamil who grew up in northern Sri Lanka during that country’s civil war. Although the war ended in 2009, the situation in Sri Lanka remained unstable, and young Tamil men in particular faced a heightened risk of being subjected to discriminatory security measures. Mr. Kanthasamy’s family feared for his safety and arranged to send him to Canada. He arrived here using a false passport in April 2010. He was 16 years old.

A. Procedural History

[66] One month following Mr. Kanthasamy’s arrival in Canada, he made a claim for refugee protection. That claim was denied in February 2011. In denying his claim, the Refugee Protection Division tribunal determined that he did not have a well-founded fear of persecution in Sri Lanka, and that removal to Sri Lanka would not subject him personally to a risk of death, torture, or cruel and unusual treatment or punishment. His application seeking leave to have this decision judicially reviewed was dismissed in May 2011.

[67] In July 2011, Mr. Kanthasamy applied under s. 25(1)  to be exempted from the requirement that he apply for permanent resident status from outside Canada (the “H&C application”). His H&C application was received one day before his 18th birthday. He also applied for a Pre-Removal Risk Assessment (“PRRA”) in August 2011.

[68] Both his PRRA and H&C application were denied in January 2012. In the PRRA decision, the immigration officer concluded that Mr. Kanthasamy would not face “more than a mere possibility of persecution in Sri Lanka”, and that, on balance, he was not likely “to face a danger of torture, or a risk to life, or a risk of cruel and unusual treatment or punishment”. Mr. Kanthasamy initially sought leave for judicial review of his PRRA denial, but in March 2012, after securing an agreement from the Minister to reconsider his H&C application, he withdrew his application for leave.

[69] On reconsideration, Mr. Kanthasamy’s H&C application was again denied. Initial reasons for decision were provided in April 2012 and an addendum was released in July 2012. These two sets of reasons comprise the Officer’s decision. Mr. Kanthasamy challenged that decision by way of judicial review in the Federal Court. His application for judicial review was dismissed, as was his subsequent appeal to the Federal Court of Appeal. He now appeals with leave to this Court.

B. Facts Underlying Mr. Kanthasamy’s H&C Application

[70] The factual record underlying Mr. Kanthasamy’s H&C application can be distilled into four categories: (1) his past mistreatment by Sri Lankan authorities; (2) the conditions he would face if he were removed to Sri Lanka; (3) the psychological consequences of his return to Sri Lanka; and (4) his establishment in Canada.

(1) Mistreatment by Sri Lankan Authorities

[71] The evidence of past mistreatment focuses on two incidents which occurred shortly before Mr. Kanthasamy left Sri Lanka. In March 2010, he was arrested at his home and taken to an army camp in his village, where he was detained for one day. During his detention, he was held in a dark room for three to four hours. Soldiers visited him sporadically and touched him with their guns, kicked him, and threatened to kill him if he did not cooperate. The soldiers wanted Mr. Kanthasamy to identify supporters of the Liberation Tigers of Tamil Eelam (“LTTE”), an anti-government militant group. He was ultimately released with the warning that he would be re-arrested if he helped to conceal LTTE supporters in his village.

[72] After his release, members of a pro-government paramilitary group came to his home, questioned him, and pressured him to join their group. They warned Mr. Kanthasamy’s father to watch him, as the LTTE was trying to recruit young Tamil men. His father was concerned for Mr. Kanthasamy’s safety, and arranged to send him from his home village in northern Sri Lanka to the capital, Colombo, where he could obtain passage to Canada.

[73] The second incident of mistreatment occurred in Colombo in April 2010. Mr. Kanthasamy was arrested by police and detained for one day. During his detention, he was threatened, physically assaulted, and interrogated once again about any involvement with the LTTE. He was released after paying money to the police, but was warned that he could not stay in Colombo. Shortly after this incident, Mr. Kanthasamy made his way to Canada using a false passport.

(2) Present-Day Conditions in Sri Lanka

[74] The record contains conflicting evidence about conditions in Sri Lanka and the extent to which the treatment of Tamils had improved since the end of the civil war and the defeat of the LTTE in 2009. Mr. Kanthasamy put forward evidence suggesting that young Tamil men in northern Sri Lanka still faced “frequent harassment” and “abusive behaviour” by government and paramilitary forces, and that security measures targeted Tamils in a disproportionate and discriminatory manner. He also submitted evidence that the Sri Lankan government continued to engage in torture and that some failed Tamil asylum seekers had faced arbitrary arrest and torture upon their return to Sri Lanka. On the other hand, two research packages prepared by the Immigration and Refugee Board, which summarized reports from news, academic and other sources on the treatment of Tamils in Sri Lanka, contained evidence that the harassment and government surveillance of Tamils had decreased since 2009.

(3) Psychological Consequences of Return to Sri Lanka

[75] Mr. Kanthasamy was examined by a clinical psychologist in March 2012, and he submitted a psychological assessment in support of his H&C application. The psychologist, Dr. Kanagaratnam, outlined Mr. Kanthasamy’s history in Sri Lanka, including the two instances of arrest and interrogation. Mr. Kanthasamy described to her how the ongoing immigration proceedings had caused him to experience difficulty sleeping, difficulties with concentration and recall, and a reduced appetite. She noted that he also reported symptoms of hyper-arousal and hyper-vigilance when he saw military vehicles or heard the sounds of aircraft. According to Mr. Kanthasamy, he began experiencing these additional symptoms one to three months prior to his psychological evaluation.

[76] Dr. Kanagaratnam diagnosed Mr. Kanthasamy with anxiety, depression and post-traumatic stress disorder. Noting that “events that evoke elements of past trauma” can trigger the re-emergence of these conditions, she concluded that due to “a realistic and imminent threat to his safety, it is most likely that [Mr. Kanthasamy’s] condition [would] further deteriorate psychologically if he [were] to be deported” (emphasis added).

(4) Establishment in Canada

[77] Mr. Kanthasamy’s parents and three of his four siblings live in Sri Lanka. He had been living in Canada with his uncle, aunt and three cousins. To establish the strength of his attachment to Canada, Mr. Kanthasamy submitted evidence that he was “very close” to his Canadian relatives and they would be “very upset” if he had to return to Sri Lanka. At the time of his H&C application, he was enrolled in high school, worked part-time in his uncle’s hair salon and volunteered at a local temple. He had spent approximately 16 months in Canada.

III.Decisions Below

A. Decision on Mr. Kanthasamy’s H&C Application

[78] Mr. Kanthasamy raised four factors in support of his application for relief under s. 25(1) : (1) personalized risk of discrimination; (2) establishment in Canada; (3) the psychological impact of removal from Canada; and (4) his best interests as a child.

[79] In her reasons for dismissing his H&C application, the Officer stated that Mr. Kanthasamy bore the burden of establishing that the “hardship . . . would be . . . unusual and undeserved or . . . disproportionate”. This test initially appeared in the Minister’s immigration processing manual some three decades ago (Employment and Immigration Canada, Immigration Manual (1986), s. 1.39). It has been repeatedly applied by the Federal Court since then (see, for example, Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Pan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1303; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463). The current manual employs the same hardship test and provides a non-exhaustive list of factors for immigration officers to consider when assessing applications under s. 25(1)  (Citizenship and Immigration Canada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds”, ss. 5.10 and 5.11 (the “Guidelines”)). It is against this backdrop that the Officer evaluated the factors raised by Mr. Kanthasamy.

[80] The Officer accepted that young Tamil males continued to face discriminatory treatment by authorities. However, she noted that the focus of the government’s attention was on suspected LTTE supporters and that Mr. Kanthasamy had failed to present sufficient evidence that he would be personally targeted by security forces. While recognizing Mr. Kanthasamy’s establishment in Canada, the Officer observed that it had occurred while he was under a removal order, and concluded that returning to Sri Lanka would not rise to the level of hardship. In evaluating the psychological evidence, the Officer accepted Dr. Kanagaratnam’s medical diagnoses, but was not satisfied that Mr. Kanthasamy would be unable to obtain treatment for his conditions in Sri Lanka. Regarding “the best interests of the child”, the Officer concluded that it was in Mr. Kanthasamy’s best interests to return to Sri Lanka where he would have the care and support of his parents and siblings.

[81] Reviewing the record in its entirety, the Officer was unpersuaded that return to Sri Lanka would subject Mr. Kanthasamy to unusual and undeserved or disproportionate hardship. She concluded that H&C considerations did not justify granting an exemption.

B. Judicial Review and Appeal

[82] On judicial review, Mr. Kanthasamy challenged the Officer’s decision on several grounds (2013 FC 802, [2014] 3 F.C.R. 438). Among them, he claimed the Officer unreasonably concluded that he would not face a personalized risk of discrimination in Sri Lanka. Further, she unreasonably discounted evidence relating to his establishment in Canada and the psychological impact of deportation to Sri Lanka. Finally, she did not adequately consider his best interests as a child.

[83] Kane J. dismissed the application for judicial review. In her view, the Officer’s conclusions on these points were reasonable. The Federal Court of Appeal unanimously dismissed Mr. Kanthasamy’s appeal (2014 FCA 113, [2015] 1 F.C.R. 335, Blais C.J., Sharlow and Stratas JJ.A.). Writing for the court, Stratas J.A. concluded that subject to this Court holding otherwise, the hardship test reflected the appropriate standard to be applied under s. 25(1)  (paras. 47-49). He cautioned against applying the list of factors in the Guidelines as a closed list, but concluded the Officer had not done so in this case (paras. 51-53). The Officer had instead weighed the evidence and come to a reasonable decision.

1. Analysis

[84] This case raises two issues. The first issue is one of statutory interpretation: the meaning of the phrase “justified by humanitarian and compassionate considerations” in s. 25(1)  of the IRPA . At the time of Mr. Kanthasamy’s application, s. 25(1)  read as follows:

25. (1) The Minister . . . may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

[85] My colleague Justice Abella has considered the meaning of the phrase in question and I agree with much of what she says. With respect, however, I cannot agree with the test she proposes for granting relief under s. 25(1) . The scheme of the IRPA  and the intention of Parliament in enacting s. 25(1) and its predecessors all suggest that s. 25(1)  is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend.

[86] The second issue is whether, in light of the meaning of s. 25(1) , the Officer’s decision to deny Mr. Kanthasamy an exemption was reasonable. Unlike my colleague, I am respectfully of the view that it was.

A. Standard of Review

[87] I find it unnecessary to decide whether the standard of review applicable to the Officer’s interpretation of s. 25(1)  is correctness or reasonableness. For reasons that will become apparent, had she applied the test set out in these reasons, she would inevitably have come to the same result.

B. The Role of Section 25(1)  Within the IRPA 

[88] The IRPA and its regulations create a carefully tailored scheme, with two normal streams by which foreign nationals can come to Canada permanently: the immigration classes and the refugee process. Within each stream, Parliament has established a set of criteria that reflect Canada’s immigration and refugee policy goals and international obligations. These criteria anticipate most circumstances in which foreign nationals should be admitted to Canada. Parliament has also established procedures for determining whether an applicant meets these criteria, and procedural safeguards designed to ensure that these criteria have been properly applied, such as internal appeals, judicial review and the PRRA process.

[89] However, as with any administrative scheme, Parliament recognized that cases could arise in which the strict application of the rules would not reflect Canada’s policy goals, or would lead to an arbitrary or inhumane result. With this in mind, it empowered the Minister to grant some applicants special relief if they could convince the Minister that the relief sought was “justified by humanitarian and compassionate considerations” (IRPA, s. 25(1) ).

[90] The legislative history of the H&C provision makes clear that the provision was not intended as a separate category for admission to Canada, but rather as a safety valve for exceptional cases (see House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at pp. 13267-68). Though the terms “humanitarian” and “compassionate” have remained unchanged since the provision was first enacted, the provision has been debated, revised and re-enacted multiple times (see Immigration Appeal Board Act, S.C. 1966-67, c. 90, s. 15(1)(b)(ii); Immigration Act, R.S.C. 1985, c. I-2, s. 114(2); Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25(1) ; Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4 ). Notably, when Parliament amended the provision in 2010, it did so with a view to emphasizing the provision’s original purpose. As Peter MacDougall, the Director General of Refugees at the Department of Citizenship and Immigration, put it at the time:

. . . the original intent of the H and C provision was to provide the government with the flexibility to approve exceptional and compelling cases not anticipated in the Immigration and Refugee Protection Act . It was never intended to be an alternate immigration stream or an appeal mechanism for failed asylum claimants. It should be reserved for exceptional cases.

But what has happened is that some failed asylum claimants use the humanitarian and compassionate provision in another process to try to remain in Canada. In fact, more than half of the humanitarian and compassionate backlog is now made up of failed asylum claimants. [Emphasis added.]

(House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40)

[91] Mr. MacDougall’s comments pertained, inter alia, to what is now s. 25(1.3)  of the IRPA , which reads as follows:

25. . . .

(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96  or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.

The interpretation of this provision arises in this case. In the Federal Court of Appeal, Stratas J.A. concluded that it was “not meant to change the overall standard” for granting s. 25(1)  relief (para. 66). As he explained, “the evidence adduced in previous proceedings under sections 96  and 97  . . . is admissible in subsection 25(1)  proceedings” (para. 73). Section 25(1.3)  requires officers to “assess that evidence through the lens of the subsection 25(1)  test” and “not to undertake another section 96  or 97  risk assessment or substitute [their] decision for the Refugee Protection Division’s” (paras. 73-74).

[92] I agree with Stratas J.A.’s interpretation of s. 25(1.3) .  This subsection reminds decision makers that the H&C provision is not meant to be a second refugee proceeding with a lower threshold for admission. However, it does not prevent decision makers from looking at the facts and circumstances raised in the ss. 96  and 97  proceedings.

[93] In keeping with this legislative history, courts have recognized the exceptional nature of the H&C provision. This Court has described it as a “plea to the executive branch for special consideration” (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 64) and as “involv[ing] the exercise of considerable discretion” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 31). The Federal Court at both the trial and appellate level has emphasized that the provision is both exceptional and discretionary (see, for example, Paz v. Canada (Minister of Citizenship and Immigration), 2009 FC 412, at para. 15; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 (leave to appeal refused, [2002] 4 S.C.R. vi), at para. 15; Pannu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1356, at para. 29 (CanLII)).

[94] In short, s. 25(1)  is intended to provide flexibility and a means of relief for applicants who do not fall strictly within the rules governing the admission of foreign nationals to Canada. That said, Parliament did not intend to provide relief on a routine basis. Section 25(1)  was meant to operate as an exception, not the rule.

C. The Approach to Evaluating H&C Applications Requires Flexibility and Stringency

[95] As noted, s. 25(1)  empowers the Minister to grant applicants relief from the requirements of the IRPA  when such relief is “justified by humanitarian and compassionate considerations” (IRPA, s. 25(1) ). The Minister has described the approach immigration officers should take under s. 25(1)  in the Guidelines. The Guidelines require applicants to demonstrate that denial of relief would cause them “unusual and undeserved” or “disproportionate” hardship. Though the Federal Courts have adopted this test, as I have observed, it did not originate there or in Parliament. Instead, it appeared in the Minister’s immigration manual as early as 1986.

[96] To recapitulate, the test for H&C relief must balance the dual characteristics of stringency and flexibility. The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. With respect, however, the test falls down on the flexibility side. Put simply, it risks excluding or diminishing the weight that some factors may deserve in deciding whether H&C relief should be granted.

[97] In the Federal Court of Appeal, Stratas J.A. described the hardship test as “requiring proof that the applicant will personally suffer unusual and undeserved, or disproportionate hardship arising from the application of . . . the normal rule” (para. 41 (emphasis added)). Read literally, this test is future-oriented and focuses solely on the applicant. It asks how the applicant is likely to be affected in the future if relief is denied. As such, it runs the risk of excluding from consideration otherwise relevant H&C factors such as past hardship the applicant may have suffered or the impact that denying relief is likely to have on persons other than the applicant.

[98] Though the Guidelines direct decision makers to consider a broad range of factors such as family violence and establishment in Canada, the hardship lens might lead a decision maker to disregard these factors or give them less weight than they deserve. For example, a future-oriented analysis may not adequately account for the past hardship of sponsored spouses who leave abusive spouses or whose spouses become ineligible to sponsor them by virtue of a conviction involving domestic violence (H. Neufeld, “Inadequacies of the Humanitarian and Compassionate Procedure for Abused Immigrant Spouses” (2009), 22 J.L. & Soc. Pol’y 177, at p. 205). Likewise, a decision maker applying the hardship test literally might disregard the impact denying relief would have on other adults who are dependent on the applicant for their care and well-being (see, for example, Jacob v. Canada (Minister of Citizenship and Immigration), 2012 FC 1382, 423 F.T.R. 1, at para. 33).

[99] Neither the future-oriented analysis nor the exclusive focus on the applicant flows from the statute. Section 25(1)  does not limit when the relevant H&C considerations must occur; nor does it require that they be viewed only from the applicant’s perspective. It asks only that decision makers look at H&C considerations relating to the applicant. Section 25(1)  is framed in broad terms because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to enter or remain in Canada. A more comprehensive approach is therefore required.

[100] Given that s. 25(1)  is intended to act as a safety valve by providing flexibility to the normal operation of the IRPA , the test should reflect the broad range of factors that may be relevant. As the Minister is empowered to grant an exceptional remedy, the test should also convey the level of intensity that those factors must reach — that is, the stringent threshold for relief.

[101] Bearing in mind the purpose and context of s. 25(1) , and the fact that the hardship test used to date may, in some circumstances, be overly restrictive, I would reframe the test for granting relief as follows: whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted.

[102] This test maintains the stringency of the hardship test — but does not exceed it. The hardship test requires applicants to demonstrate “unusual and undeserved or disproportionate” hardship. If an applicant meets the hardship test, he or she should be granted relief. To do otherwise would be simply unacceptable.

[103] At the same time, it is more flexible than the hardship test. It asks decision makers to turn their minds to all of the relevant circumstances when deciding whether refusing relief would be “simply unacceptable”. This prevents decision makers from excluding relevant H&C considerations because they do not fit within the future-oriented hardship framework or because they do not involve hardship experienced solely by the applicant.

[104] The “simply unacceptable” test I am proposing should not be seen as wordsmithing; nor, in my view, will it lead to more confusion than clarity. It uses concepts that are well-understood and regularly applied in Canadian law. For example, the test for whether extradition would violate s. 7  of the Canadian Charter of Rights and Freedoms  “on account of the penalty which may be imposed in the requesting state” is whether the penalty would be “simply unacceptable” (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 849). Similarly, in criminal law, abuse of process may be established where conduct would violate the community’s sense of fair play and decency (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41).

[105] The appellant submits that the hardship test is too stringent and proposes that the test found in Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338, be adopted as a less stringent alternative. He argues that relief should be granted in circumstances which “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” (Chirwa, at p. 350).

[106] My colleague discusses the Chirwa test at length. She acknowledges that it was developed for a different decision-making context than the hardship test (para. 20), but appears to conclude nonetheless that the correct approach is to import it into s. 25(1)  and apply it in conjunction with the hardship test (paras. 30-33). In her view, the requirements of the hardship test — that the hardship must be unusual and undeserved or disproportionate — should be treated as “instructive but not determinative”, so that s. 25(1)  may “respond more flexibly to the equitable goals of the provision” (para. 33).

[107] With respect, the test that my colleague proposes is amorphous. It does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test. Relief could be granted in cases which arouse strong feelings of sympathy in an individual decision maker, but which do not reach the stringent standard that the hardship test demands. Setting the bar this low is inconsistent with Parliament’s goal and risks turning s. 25(1)  into an alternate immigration scheme, or an appeal mechanism for good faith but unsuccessful refugee claimants.

[108] The threshold that denial of relief must, in the circumstances, be simply unacceptable to decent, fair-minded Canadians aware of the exceptional nature of H&C relief provides the appropriate mix of flexibility and stringency. Canada is a desirable place to live. It is a thriving democracy with a high standard of living, a relatively low rate of violent crime and a generous social safety net. Understandably, many people want to come to Canada, and it is natural to feel sympathy for those whose home countries do not have the same advantages. However, most decent, fair-minded Canadians aware of the exceptional nature of H&C relief would not find it simply unacceptable that we exclude individuals who do not meet our legal requirements, even if such persons evoke our sympathy and would be better off here than in their home countries.

[109] With these thoughts in mind, I turn to the review of the Officer’s decision in this case.

D. The Reasonableness of the Officer’s Decision

[110] Mr. Kanthasamy submits, and my colleague agrees, that the Officer did not exercise her discretion reasonably in denying his H&C application. According to my colleague, the Officer erred in her overall approach by considering the relevant factors on a piecemeal basis and by treating the hardship test, identified in the Guidelines, as an all-inclusive “distinct legal test”, thereby fettering her discretion (para. 45). Additionally, she takes issue with certain aspects of the Officer’s reasons, maintaining that the Officer failed to properly assess several points raised by Mr. Kanthasamy.

[111] With respect, I cannot agree. In my view, the Officer’s decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, and was therefore reasonable. Decision making under s. 25(1)  is highly discretionary and is entitled to deference. Care must be taken not to overly dissect or parse an officer’s reasons. Rather, reasonableness review entails respectful attention to the reasons offered or which could be offered in support of a decision (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 11-12).

[112] In particular, I am concerned that my colleague has not given the Officer’s reasons the deference which, time and again, this Court has said they deserve. In her reasons, she parses the Officer’s decision for legal errors, resolves ambiguities against the Officer, and reweighs the evidence. Lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review, this approach fails to heed the admonition in Newfoundland and Labrador Nurses — that reviewing courts must be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fatal (para. 17). As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it considers the result unpalatable and would itself have come to a different result.

(1) The Officer Considered the Evidence as a Whole and Did Not Fetter Her Discretion

[113] As I have stated, to obtain H&C relief, an applicant bears the onus of demonstrating, having regard to all of the circumstances, that decent, fair-minded Canadians aware of the exceptional nature of H&C relief would find it simply unacceptable to deny the relief sought. In evaluating the application, the decision maker must not segment the evidence and require that each piece either rise above this threshold or be discounted entirely. Rather, the decision maker must fairly consider the totality of the circumstances and base the disposition on the evidence as a whole. Likewise, the decision maker must not fetter his or her discretion by applying the Guidelines — the “unusual and undeserved or disproportionate hardship” framework — as a strict legal test to the exclusion of all other factors. In my view, the Officer’s decision does not fall down on either basis.

[114] It is true that the Officer’s reasons address each of Mr. Kanthasamy’s submissions separately, and discuss the level of hardship associated with each factor. This is not an example of improper segmentation, however, but rather an uncontroversial method of legal analysis. In fact, had the Officer failed to discuss each factor individually, and instead simply listed the facts and stated her conclusion on the evidence as a whole, this appeal might well have been before us on the basis of insufficient reasons.

[115] The issue, therefore, is not whether the Officer analyzed the factors individually, but whether in doing so she failed to step back and consider the evidence as a whole. I find no such error in the Officer’s reasons. She stated that she “reviewed and considered the grounds” raised by Mr. Kanthasamy, and “considered all information and evidence regarding this application in its entirety”. In the July addendum, she listed seven additional pieces of evidence received from Mr. Kanthasamy, and stated that she “reviewed all of the evidence mentioned [therein] in conjunction with the evidence [she] previously reviewed”. It is apparent that the Officer gave careful consideration to the full record in reaching her determination.

[116] Moreover, the Officer’s use of the “unusual and undeserved or disproportionate hardship” standard to guide her analysis was entirely appropriate. As I have stated above, while the Guidelines do not establish the applicable test, the hardship analysis is neither irrelevant nor inappropriate. The degree of hardship demonstrated by the applicant is highly probative. In many cases, a hardship analysis may be dispositive. The decision maker must simply avoid applying the standard from the Guidelines in a way that fetters his or her discretion or causes relevant evidence to be improperly discounted.

[117] In my view, the Officer gave full and fair consideration to each of the factors supporting Mr. Kanthasamy’s application. On the issue of personalized risk, she recognized the conflicting evidence of present-day conditions in Sri Lanka, and accepted that challenges remained. She found that while some Tamils were singled out by the government, this attention was primarily focused on suspected LTTE supporters. She concluded that there was insufficient evidence that Mr. Kanthasamy would personally be discriminated against.

[118] On the issue of establishment, the Officer accepted the evidence of Mr. Kanthasamy’s relationships with friends and relatives in Canada, his integration into his school and religious communities, and his employment. She found that his degree of establishment was “commendable”, and recognized that removal to Sri Lanka would involve some hardship. However, she concluded that his establishment in Canada — for approximately two years, and all while under a removal order — was no more than would be expected under the circumstances and was not so compelling that it justified an H&C exemption.

[119] On the psychological evidence, the Officer expressed concern that the psychologist’s conclusions relied heavily on Mr. Kanthasamy’s own observations and explanations, which were not otherwise in the record. While the Officer ultimately accepted the medical diagnoses, she found that there was no evidence that mental health treatment would be unavailable in Sri Lanka, and therefore the psychological evidence did not establish hardship warranting H&C relief.

[120] On “the best interests of the child”, the Officer concluded that it was in Mr. Kanthasamy’s best interests to return to his immediate family in Sri Lanka. His relationships with friends and family in Canada might be weakened, but they could nonetheless be maintained even after his removal.

[121] Taken as a whole, the Officer’s decision denying Mr. Kanthasamy’s H&C application is transparent. She provided intelligible reasons for concluding that he did not meet his onus of establishing, on balance, that he should be permitted to apply for permanent residency from within Canada for H&C reasons. She did not use the hardship framework in a way that fettered her discretion or caused her to discount relevant evidence. Her conclusions are reasonable, and well-supported by the record before her.

[122] At bottom, it was open to the Officer to find that the record did not justify relief under s. 25(1) . While aspects of Mr. Kanthasamy’s situation warrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief. I find no error in the Officer’s approach requiring this Court’s intervention.

(2) The Officer’s Analysis of the Psychological Evidence, the Risk of Discrimination, and the Best Interests of the Child

[123] Mr. Kanthasamy alleges that the Officer failed to properly assess the psychological evidence, the issue of discrimination, and his best interests as a child. With respect, I disagree. As I have already indicated, decision making under s. 25(1)  is entitled to deference, and in line with that approach, Mr. Kanthasamy’s arguments do not justify setting aside the Officer’s decision.

(a) The Psychological Evidence

[124] Mr. Kanthasamy submits that the Officer failed to adequately consider the impact of removal on his mental health. By focusing exclusively on the availability of treatment in Sri Lanka, she discounted the evidence that his return to Sri Lanka would harm his mental health. Mr. Kanthasamy asserts that her failure to consider this aspect of the evidence rendered her decision unreasonable.

[125] I would not give effect to this submission. While I agree that the Officer’s reasons could have more fully engaged with the psychological evidence, and that it would have been helpful had she specifically addressed the issue of the impact of removal on Mr. Kanthasamy’s mental health, her failure to do so does not render her decision unreasonable.

[126] The Officer rejected the premise underlying the psychologist’s opinion on the harm of deportation, and was therefore entitled to reject the opinion itself. The psychologist concluded that “[w]ith what seems to be a realistic and imminent threat to his safety, it is most likely that [Mr. Kanthasamy’s] condition will further deteriorate psychologically if he was to be deported from Canada” (emphasis added). The phrasing of this opinion reveals that the ultimate conclusion — that Mr. Kanthasamy’s mental health would deteriorate upon his return to Sri Lanka — is premised on the assumption that removal poses a “realistic and imminent threat to his safety”.

[127] The Officer rejected this underlying assumption. She found that removal would not pose a serious risk to Mr. Kanthasamy’s safety. There was sufficient evidence in the record on conditions in Sri Lanka to support this conclusion. Though she did not say so expressly, by logical implication, it was on this basis that she rejected the psychologist’s opinion as to the impact of removal on Mr. Kanthasamy’s mental health. Immigration officers must be allowed to evaluate an expert’s assumptions in the context of the other evidence. If a report rests on an assumption that is contradicted by other evidence, decision makers must be entitled to reject or give little weight to that report’s conclusions.

[128] It bears repeating that reasonableness review requires this Court to give respectful attention to the reasons which, though not stated, could have been offered in support of a decision. This point is emphatically made in Newfoundland and Labrador Nurses, where the Court stressed that “even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them” (para. 12, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law(1997), 279, at p. 304). The fact that the Officer did not explicitly set out this aspect of her reasoning does not render her decision unreasonable.

[129] My colleague takes issue with the Officer’s comment that Mr. Kanthasamy provided insufficient evidence that he had received or was receiving treatment in Canada for his psychological condition. She says that once the Officer accepted the diagnosis, “requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor” (para. 47).

[130] With respect, I disagree. There was no evidence before the Officer that Mr. Kanthasamy ever sought treatment in Canada. The Officer’s comments on this point do not amount to questioning the diagnosis. Instead, they support her conclusion that removal from Canada would not meet the hardship test since no existing course of treatment would be interrupted. I fail to see how losing access to a service which Mr. Kanthasamy never attempted to access can be viewed as a hardship. This is especially so given the Officer’s further finding that he could receive treatment in Sri Lanka.

[131] In my view, there are two ways in which Mr. Kanthasamy’s mental health could give rise to hardship: either because returning him to Sri Lanka would aggravate his condition, or because it would affect his treatment, by interrupting an existing course of treatment or by precluding access to treatment altogether. The Officer, on the basis of the record before her, found that neither situation existed. In this context, asking for evidence regarding treatment did not improperly change the diagnosis from a “significant” to a “conditional” factor. The significance of the diagnosis always depended on the hardship that removal would cause.

(b) Personalized Risk of Discrimination

[132] Mr. Kanthasamy submits that the Officer’s approach to the issue of discrimination was flawed. After noting the effect of s. 25(1.3) , the Officer stated that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”. Mr. Kanthasamy asserts that it was a legal error for the Officer to require evidence that he would be personally targeted by discriminatory action. Rather, he submits that she should have considered more generally whether his profile as a young Tamil male from northern Sri Lanka would subject him to a risk of discriminatory mistreatment.

[133] While the Officer’s reasons could perhaps have been more clearly articulated, I do not share the view that her approach to the issue of discrimination was unreasonable, nor that it rendered her decision unreasonable. With respect to the effect of s. 25(1.3) , the Officer’s approach is consistent with that set out by Stratas J.A., which I have endorsed. The Officer’s statement that she had “not considered the applicant’s risk” in the context of the refugee and PRRA factors must not be overly parsed or dissected. She engaged with the evidence relating to the treatment of Tamil males in northern Sri Lanka and analyzed it through the lens of the criteria for granting H&C relief. This approach was reasonable and did not lead her to disregard any relevant evidence.

[134] On the issue of personalized risk of discrimination, I agree with my colleague that an applicant need not produce direct evidence showing that discrimination against the applicant himself or herself had occurred or would necessarily occur. Whether in the context of an H&C application, the PRRA process or a refugee claim, certainties are rare. The applicant need only show that the denial of relief would pose a certain risk of harm.

[135] However, that risk must necessarily be a “personalized risk”, in the sense that the applicant must fall within the category of people who, on the evidence submitted, would face that risk. For example, in order to establish the harm of removal to a country where discrimination against a certain ethnic minority was alleged, the applicant would need to establish not only that this discrimination was ongoing and sufficiently severe, but also that he or she was a member (or would be perceived to be a member) of the group facing discrimination.

[136] The Officer accepted that the conditions in Sri Lanka posed some risk of discrimination to certain subsets of the Tamil population, but concluded that government harassment and surveillance was focused on those suspected of being LTTE supporters. The Officer impliedly concluded that Mr. Kanthasamy was not suspected of being an LTTE supporter. She also noted that the government had attempted to improve the situation for Tamils. As a result, she found there was insufficient evidence that he would be personally targeted or personally discriminated against. This conclusion was open to her on the record. Though, as my colleague notes, the Officer was permitted to draw inferences from the experiences of other Tamils in order to find a personalized risk of discrimination, the record did not require that she draw that inference here.

[137] I note that on this point, the Officer’s conclusion largely mirrors the finding made on Mr. Kanthasamy’s refugee claim, which he enclosed with his H&C submissions. In that decision, while the Immigration and Refugee Board accepted Mr. Kanthasamy’s description of the two incidents of arrest and detention, it noted that “[t]here were no conditions placed on the claimant before he was released by the army or the police after they had questioned him”, and concluded that “[neither] the police [nor] the army would have released the claimant in the manner described” had they suspected Mr. Kanthasamy of LTTE support or sympathy. The refugee claim was rejected because “on a balance of probabilities . . . [Mr. Kanthasamy’s] profile is not one that would particularly attract any undue attention or reprisal . . . if he returns to his family in Sri Lanka”.

[138] In reaching a similar conclusion in evaluating his H&C application, the Officer arrived at a reasonable result that was supported by the record. Reviewing judges ought not to parse a decision maker’s word choices in “a line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 54). The Officer’s reasons must be viewed in the context of the record as a whole, including Mr. Kanthasamy’s submissions. Before the Officer, Mr. Kanthasamy submitted that he “has been personally affected by discrimination . . . and will continue to be so affected” (emphasis added). When viewed in context, the Officer’s conclusion that Mr. Kanthasamy had “failed to provide sufficient evidence to support his statements that he will be personally discriminated against” simply reiterated the wording of his submissions. The Officer’s word choice is not determinative. It is her reasoning that counts. I find nothing in her analysis on the issue of discrimination that warrants this Court’s intervention.

(c) Mr. Kanthasamy’s Best Interests as a Child

[139] Mr. Kanthasamy submits that the Officer’s analysis of his best interests as a child was superficial and that she failed to give adequate weight to his status as a child.

[140] Again, I accept that the Officer’s reasons could have been more expansive on this point. However, in my view, both her analysis and conclusion on Mr. Kanthasamy’s best interests as a child were reasonable.

[141] In the context of Mr. Kanthasamy’s application, it was highly relevant that he was one day away from turning 18 when he initially applied for H&C relief. Mr. Kanthasamy was not a young child, born in Canada, facing the prospect of his parents’ deportation and being left here without support. He was a teenager on the verge of adulthood. Removal would reunite him with his parents and siblings in Sri Lanka.

[142] The Officer considered factors unique to Mr. Kanthasamy’s status as a child, including friendships forged during his teenage years in Canada and his efforts at completing high school. She found that removal to Sri Lanka would not necessarily bring an end to these friendships. She was also unpersuaded that he “would be unable to attend school . . . upon his return to Sri Lanka”. In the totality of his circumstances, she concluded that it was in Mr. Kanthasamy’s best interests as a child to return to the support and care of his immediate family in Sri Lanka.

[143] On the record before her, it was open to the Officer to conclude that removal to Sri Lanka would not impair Mr. Kanthasamy’s best interests, because he would be returning to his immediate family rather than being separated from them. The Officer was obliged to be “alert, alive and sensitive” to the best interests of the child factor (Baker, at para. 75). In my view, her reasons demonstrate that she was, and I see no basis to disturb her findings on this issue.

1. Conclusion

[144] As I have explained, the test for granting relief under s. 25(1)  is not the “unusual and undeserved or disproportionate hardship” test set out in the Guidelines. Nonetheless, the Guidelines remain relevant. They can continue to serve their original purpose — describing the majority of situations appropriate for relief — and can be applied in a way that does not fetter the discretion of immigration officers.

[145] The Officer here used the hardship framework to guide her analysis. Had she applied the test that I have outlined — whether, having regard to all of the circumstances, decent, fair-minded Canadians aware of the exceptional nature of H&C relief would find it simply unacceptable to deny the relief sought — she would inevitably have reached the same conclusion.

[146] The Officer’s decision to deny an exemption to Mr. Kanthasamy was reasonable. Although she separately analyzed each factor raised in support of his application, she did not improperly discount the cumulative weight of each factor. Rather, after analyzing each piece of evidence in detail, she reached a conclusion which was grounded in Mr. Kanthasamy’s circumstances as a whole. Although she applied the hardship standard from the Guidelines, she did not do so in a way that fettered her discretion. Accordingly, I would dismiss Mr. Kanthasamy’s appeal, and affirm the Officer’s decision to deny his H&C application.

Appeal allowed with costs, Moldaver and Wagner JJ. dissenting.

Solicitors for the appellant: Jackman, Nazami & Associates, Toronto.

Solicitor for the respondent: Attorney General of Canada, Toronto.

Solicitors for the intervener the Canadian Council for Refugees: Neighbourhood Legal Services, Toronto; Ottawa Community Legal Services, Ottawa.

Solicitor for the intervener Justice for Children and Youth: Justice for Children and Youth, Toronto.

Solicitors for the interveners the Barbra Schlifer Commemorative Clinic and the Canadian Centre for Victims of Torture: Refugee Law Office, Toronto; Ottawa Community Legal Services, Ottawa; Barbra Schlifer Commemorative Clinic, Toronto.

Solicitors for the intervener the Canadian Association of Refugee Lawyers: University of Toronto, Toronto; Refugee Law Office, Toronto.

Solicitors for the intervener Parkdale Community Legal Services: Poulton Law Office, Toronto; Parkdale Community Legal Services, Toronto.

[1] S.C. 2001, c. 27 .

[2] No province in Canada sets the age of majority below 18 years of age.

The post Kanthasamy vs. Canada (Citizenship and Immigration) appeared first on B&B Associates LLP.

BETWEEN:
Minister of Citizenship and Immigration
Appellant
and
Sukhvir Singh Khosa
Respondent
‑ and ‑
Immigration and Refugee Board
Intervener
CORAM: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

*  Bastarache J. took no part in the judgment.

Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339

Minister of Citizenship and Immigration                                                        Appellant
v.
Sukhvir Singh Khosa                                                                                     Respondent
and
Immigration and Refugee Board                                                                    Intervener
Indexed as:  Canada (Citizenship and Immigration) v. Khosa
Neutral citation:  2009 SCC 12.
File No.:  31952.
2008:  March 20; 2009:  March 6.
Present:  McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the federal court of appeal
Administrative law — Judicial review — Standard of review — Immigration Appeal Division denying special relief on “humanitarian and compassionate grounds” from removal order — Standard of review applicable to Immigration Appeal Division decision — Whether common law of judicial review displaced by s. 18.1 of Federal Courts Act, R.S.C. 1985, c. F‑7 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 67(1) (c).
K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14.  In 2002, he was found guilty of criminal negligence causing death and received a conditional sentence of two years less a day.  A valid removal order was issued to return him to India.
K appealed the order, but the majority of the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied “special relief” on humanitarian and compassionate grounds pursuant to s. 67(1) (c) of the Immigration and Refugee Protection Act (“IRPA ”).  A majority of the Federal Court of Appeal applied a “reasonableness” simpliciter standard and set aside the IAD decision.  It found that the majority of the IAD had some kind of fixation with the fact that the offence was related to street‑racing.  On the issue of the “possibility of rehabilitation”, the majority of the IAD merely acknowledged the findings of the criminal courts in that regard, which were favourable to K, and did not explain why it came to the contrary conclusion.  In the end, that court concluded that the majority of the IAD had acted unreasonably in denying relief.
Held (Fish J. dissenting):  The appeal should be allowed.
Per McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ.:  This Court’s decision in Dunsmuir, which was released after the decisions of the lower courts in this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision-makers in matters that relate to their special role, function and expertise.  A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication.  These general principles of judicial review are not ousted by s. 18.1 of the Federal Courts Act which deals essentially with grounds of review of administrative action, not standards of review. [25]
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 court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir 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 in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters.  [51]
Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers who operate in different decision‑making environments under different statutes with distinct grants of decision‑making powers.  [28] [33]
The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief.  Despite a difference in the meaning of the English and French versions in the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court’s appreciation of the respective roles of the courts and the administration as well as the circumstances of each case.  The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir.  [36]
Dunsmuir establishes that there are now only two standards of review:  correctness and reasonableness.  No authority was cited suggesting that a “correctness” standard of review is appropriate for IAD decisions under s. 67(1) (c) of the IRPA , and the relevant factors in a standard of review inquiry point to a reasonableness standard.  These factors include:  (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1) (c) a power to grant exceptional relief and this provision calls for a fact‑dependent and policy‑driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy.  These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case.  [53‑57]
Where, as here, the reasonableness standard applies, it requires deference.  Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes.  In this case, the question whether K had established “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts.  [4] [59]
The IAD reasons, both the majority and dissent, disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome.  At the factual level, the IAD divided in large part over differing interpretations of K’s expression of remorse.  This is the sort of factual dispute which should be resolved by the IAD not the courts.  The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the circumstances of this case, discretionary relief should be refused.  While the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), were properly noted, the IAD had a mandate different from that of the criminal courts.  The issue before it was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other relevant factors, they warranted special discretionary relief from a valid removal order.  The IAD was required to reach its own conclusions based on its own appreciation of the evidence and it did so.  [64‑66]
In light of the deference properly owed to the IAD under s. 67(1) (c) of the IRPA , there was no proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case.  It cannot be said that this decision fell outside the range of reasonable outcomes.  [60] [67]
Per Rothstein J.:  Where a legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge.  With respect to s. 18.1(4) of the Federal Courts Act , the language of para. (d) makes clear that findings of fact are to be reviewed on a highly deferential standard.  Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”.  By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4) .  Where Parliament intended a deferential standard of review in s. 18.1(4) , it used clear and unambiguous language, as it has in para. (d) regarding facts.  The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context.  [70] [72] [113] [117]
While recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the Federal Courts Act .  Courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis.  The Dunsmuir standard of review should be confined to cases in which there is a strong privative clause.  Excepting such cases, it does not apply to s. 18.1(4) .  The application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis.  [70] [74] [106] [136]
The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system.  The creation of expert administrative decision-makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas, but it was only with the enactment of privative clauses, which marked the area of tribunal expertise that the legislature was satisfied warranted deference, that a legislature indicated an intent to oust, or at the very least restrict, the court’s review role.  Whereas tribunal expertise was a compelling rationale for imposing a privative clause, it was not a free‑standing basis for deference.  The approach of judicially imputing expertise which followed, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise.  [79] [82‑84] [87]
There is no dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision-makers on questions of fact and on questions involving mixed fact and law, where a legal issue cannot be extricated from a factual or policy finding.  However, where a legal issue can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause.  It is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed.  Recognizing expertise as a free‑standing basis for deference on questions that reviewing courts are normally considered to be expert on departs from the search for legislative intent that governs this area.  [89-93]
Concerns regarding the rigidity of the legislated standards are misplaced.  A review of the Federal Courts Act makes clear that the focus of the analysis should be on the nature of the question under review and not on the type of administrative decision-maker.  Even given this legislative focus on the nature of the question under review, not all administrative decision-makers will be subject to the same standards of review.  Where a decision-maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted.  [109‑110]
Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial review.  The remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself.  The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies which is wholly distinct from the common law of standard of review analysis.  Reliance upon this discretion contained in s. 18.1(4) to support the view that it opens the door to the Dunsmuir standard of review analysis is inappropriate.  [131] [135-136]
The IAD’s decision not to grant relief in this case should be upheld.  The application of the Ribic factors to the case before it and its exercise of discretion is fact‑based.  The IAD’s factual findings were not perverse or capricious and were not made without regard to the evidence.  [137]
Per Deschamps J.:  There is agreement with Rothstein J. that since s. 18.1(4) of the Federal Courts Act sets legislated standards of review, those standards oust the common law. [138]
Per Fish J. (dissenting):  The standard of review applicable is “reasonableness”, and the IAD’s decision does not survive judicial scrutiny under that standard.  The IAD’s task was to look to “all the circumstances of the case” in order to determine whether “sufficient humanitarian and compassionate considerations” existed to warrant relief from a removal order.  The IAD placed the greatest weight on three factors:  K’s remorse, rehabilitation, and likelihood of reoffence.  Despite abundant evidence that K was extremely unlikely to reoffend and had taken responsibility for his actions, the IAD focussed on a single fact — K’s denial that he was “street racing” — and based its refusal to grant relief largely on that fact alone.  While K’s denial may well evidence some “lack of insight”, it cannot be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence.  The IAD’s cursory treatment of the sentencing judge’s favourable findings on remorse and the risk of recidivism are particularly troubling.  While a criminal court’s findings are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the sentencing judge’s decision.  K’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence.  The IAD’s conclusion that there was “insufficient evidence” upon which a determination could be made that K does not represent a risk to the public is not only incorrect, but unreasonable.  Decisions of the IAD are entitled to deference, but deference ends where unreasonableness begins.  [139‑140] [145] [147] [149‑151] [153‑154] [160]
Cases Cited
By Binnie J.
Applied:  Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished:  R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779; referred to:  R. v. Khosa, 2003 BCCA 645, 190 B.C.A.C. 42; Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Roncarelli v. Duplessis, [1959] S.C.R. 121; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326; Pringle v. Fraser, [1972] S.C.R. 821; Howarth v. National Parole Board, [1976] 1 S.C.R. 453; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Solosky v. The Queen, [1980] 1 S.C.R. 821; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Canada v. Grenier, 2005  CAF 348, [2006] 2 F.C.R. 287; Devinat v. Canada (Commission de l’immigration et du statut de réfugié), [2000] 2 F.C. 212; Thanabalasingham v. Canada (Minister of Citizenship and Immigration), 2006 FCA 14, 263 D.L.R. (4th) 51; Charette v. Canada (Commissioner of Competition), 2003 FCA 426, 29 C.P.R. (4th) 1; Pal v. Canada (Minister of Employment and Immigration) (1993), 24 Admin. L.R. (2d) 68; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
By Rothstein J.
Not followed: Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; applied: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779; considered: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; discussed:  Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; referred to:  U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Bell Canada v. Canada (Canadian Radio‑Television and Telecommunications Commission), [1989] 1 S.C.R. 1722; R. v. Robinson, [1996] 1 S.C.R. 683; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; R. v. Holmes, [1988] 1 S.C.R. 914; Waldick v. Malcolm, [1991] 2 S.C.R. 456; Gendronv. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Morneault v. Canada (Attorney General), [2001] 1 F.C. 30; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.
By Fish J. (dissenting)
Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; R. v. Khosa, 2003 BCSC 221, [2003] B.C.J. No. 280 (QL); R. v. Khosa, 2003 BCCA 644, 190 B.C.A.C. 23.
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Human Rights Code, C.C.S.M., c. H175, s. 50(1).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1) (h), 36(1) (a), 63 ,  67(1) (c), 72 , 162(1) .
Interpretation Act, R.S.C. 1985, c. I‑21, s. 11 .
Judicial Review Act, R.S.P.E.I. 1988, c. J‑3, s. 4(1).
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Liquor Act, R.S.Y. 2002, c. 140, s. 118(1).
Occupational Health and Safety Act, S.N.B. 1983, c. O‑0.2, s. 26(5).
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Residential Tenancies Act, S.N.B. 1975, c. R‑10.2, s. 27(1).
Traffic Safety Act, R.S.A. 2000, c. T‑6, s. 47.1(3).
Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U‑8, s. 46(1).
Youth Protection Act, R.S.Q., c. P‑34.1, s. 74.2.
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Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada.  Toronto:  Canvasback, 1998 (loose‑leaf updated July 2008).
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Dyzenhaus, David.  “Disobeying Parliament?   Privative Clauses and the Rule of Law”, in Richard W. Bauman and Tsvi Kahana, eds., The Least Examined Branch:  The Role of Legislatures in the Constitutional State.  New York: Cambridge University Press, 2006, 499.
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Liston, Mary.  “Governments in Miniature:  The Rule of Law in the Administrative State”, in C. M. Flood and L. Sossin, eds., Administrative Law in Context.  Toronto: Emond Montgomery, 2008, 77.
Macklin, Audrey.  “Standard of Review:  The Pragmatic and Functional Test”, in C. M. Flood and L. Sossin, eds., Administrative Law in Context.  Toronto: Emond Montgomery, 2008, 197.
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Raz, Joseph.  The Authority of Law:  Essays on Law and Morality.  Oxford:  Clarendon, 1979.
Saunders, Brian J., et al.  Federal Courts Practice 2009.  Toronto:  Thomson Carswell, 2008.
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Sossin, Lorne.  “Empty Ritual, Mechanical Exercise or the Discipline of Deference?  Revisiting the Standard of Review in Administrative Law” (2003), 27 Advocates’ Q. 478.
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APPEAL from a judgment of the Federal Court of Appeal (Desjardins, Décary and Malone JJ.A.), 2007 FCA 24, [2007] 4 F.C.R. 332, 276 D.L.R. (4th) 369, 360 N.R. 183, 59 Imm. L.R. (3d) 122, [2007] F.C.J. No. 139 (QL), 2007 CarswellNat 212, setting aside a decision of Lutfy C.J., 2005 FC 1218, 266 F.T.R. 138, 48 Imm. L.R. (3d) 253, [2005] F.C.J. No. 1465 (QL), 2005 CarswellNat 2651, dismissing the application for judicial review of the decision of the Immigration Appeal Division, [2004] I.A.D.D. No. 1268 (QL).  Appeal allowed, Fish J. dissenting.
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 intervener.
The judgment of McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ. was delivered by
[1]     BINNIE J. — At issue in this appeal is the extent to which, if at all, the exercise by judges of statutory powers of judicial review (such as those established by ss. 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 ) is governed by the common law principles lately analysed by our Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[2]     The respondent, Khosa, applied unsuccessfully to the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board to remain in Canada, notwithstanding his conviction for criminal negligence causing death in an automobile street race.  A valid removal order had been issued to return him to India.  The majority of the IAD did not accept that there were “sufficient humanitarian and compassionate considerations [to] warrant special relief [against the removal order] in light of all the circumstances of the case” within the meaning of s. 67(1) (c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”).  Applying the “patent unreasonableness” standard of review, the judicial review judge at first instance dismissed Khosa’s challenge to the IAD decision.  However, applying a “reasonableness” simpliciter standard of review, a majority of the Federal Court of Appeal set aside the IAD decision.  Dunsmuir (decided subsequently to both lower court decisions) did away with the distinction between “patent unreasonableness” and “reasonableness simpliciter” and substituted a more context-driven view of “reasonableness” that nevertheless “does not pave the way for a more intrusive review by courts” (para. 48).
[3]     The appellant Minister sought leave to appeal to this Court to argue that in any event s. 18.1 of the Federal Courts Act establishes a legislated standard of review that displaces the common law altogether.  On this view, Dunsmuir is largely irrelevant to the current appeal.  However, it is apparent that while the courts below differed on the choice of the appropriate common law standard of review, neither the judge at first instance nor any of the judges of the appellate court considered the common law of judicial review to be displaced by s. 18.1 of the Federal Courts Act .  The trial court took the view that s. 18.1 of the Federal Courts Act deals essentially with grounds of review of administrative action, not standards of review, and the Federal Court of Appeal proceeded in the same way.  I think this approach is correct although, as will be discussed, s. 18.1(4) (d) does provide legislative guidance as to “the degree of deference” owed to the IAD’s findings of fact.
[4]     Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focussed on substance, particularly on the nature of the issue that was before the administrative tribunal under review.  Here, the decision of the IAD required the application of broad policy considerations to the facts as found to be relevant, and weighed for importance, by the IAD itself.  The question whether Khosa had shown “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order, which all parties acknowledged to be valid, was a decision which Parliament confided to the IAD, not to the courts.  I conclude that on general principles of administrative law, including our Court’s recent decision in Dunsmuir, 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.  In my view, the majority decision of the IAD was within a range of reasonable outcomes and the majority of the Federal Court of Appeal erred in intervening in this case to quash it.  The appeal is therefore allowed and the decision of the Immigration Appeal Division is restored.

1. Facts

[5]     The respondent, Sukhvir Singh Khosa, is a citizen of India.  He immigrated to Canada with his family in 1996, at the age of 14.  He has landed immigrant status.  During the evening of November 13, 2000, he and an individual named Bahadur Singh Bhalru, drove their respective cars at over 100 kilometres per hour along Marine Drive through a residential and commercial area of Vancouver.  At their criminal trial, the court concluded that they were “street racing”.  Khosa was prepared to plead guilty to a charge of dangerous driving, but not to the more serious charge of criminal negligence causing death, of which he was eventually convicted.  The respondent continued to deny street racing, although he admitted that he was speeding and that his driving behaviour was exceptionally dangerous. On appeal from sentencing, the British Columbia Court of Appeal commented:
. . . it is significant that the respondents were racing.  They were driving at excessive speeds in competition with each other on a major street lined with both commercial and residential properties.  They did this at a time when other vehicles and pedestrians reasonably could be expected to be on the roads.
. . .
The “spontaneous” nature of the race . . . mitigates the severity with which it should be assessed.  The race was not planned, did not involve vehicles specifically modified for the purpose of racing, and was of relatively short duration.  As unacceptable as the conduct of the respondents was, it represented a reckless error in judgment more than a deliberate endangerment of the public.
(2003 BCCA 645, 190 B.C.A.C. 42, at paras. 33 and 36)
As to the “moral culpability” of the respondent and his co-accused, the Court of Appeal continued:
The Crown concedes that there are several factors which mitigate the moral culpability of the respondents in this case.  Mr. Khosa and Mr. Bhalru are both young, have no prior criminal record or driving offences, have expressed remorse for the consequences of their conduct, and have favourable prospects for rehabilitation. . . . [para. 38]
[6]     The respondent received a conditional sentence of two years less a day.  The conditions included house arrest, a driving ban, and community service, all of which were complied with prior to the IAD hearing.

1. Judicial History

1. Immigration Appeal Division, [2004] I.A.D.D. No. 1268 (QL)

(1)   The Majority
[7]     The majority of the IAD recognized (at para. 12) that its discretionary jurisdiction to grant “special relief” on humanitarian and compassionate grounds under s. 67(1) (c) of the IRPA should be exercised in light of the factors adopted in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at paras. 40, 41 and 90, namely:
(1)               the seriousness of the offence leading to the removal order;
(2)               the possibility of rehabilitation;
(3)               the length of time spent, and the degree to which the individual facing removal is established, in Canada;
(4)               the family and community support available to the individual facing removal;
(5)               the family in Canada and the dislocation to the family that removal would cause; and
(6)               the degree of hardship that would be caused to the individual facing removal to his country of nationality.
[8]     The majority considered that the last four Ribic factors were not particularly compelling for or against relief.  As to the first two factors, the offence in question was “extremely serious” (para. 14) and the majority expressed particular concern over Khosa’s refusal to accept without reservation the finding that he had been street racing.  The IAD majority considered that this refusal “reflects a lack of insight into his conduct” (para. 15).  As to Khosa’s prospects for rehabilitation, the majority decided that there was insufficient evidence upon which to make a finding one way or the other (paras. 15 and 23).  However, even if Khosa had good prospects for rehabilitation, “balancing all the relevant factors, . . . the scale does not tip in [Khosa’s] favour” (para. 23).  Accordingly, “special relief” was denied.
(2)   The Dissent
[9]     The dissenting member of the IAD would also have denied the appeal, but she would have stayed the execution of the deportation order pending a further review in three years.  She acknowledged the seriousness of the offence for which Khosa was convicted but found that it was mitigated by matters not considered important by the majority.  Evidence of remorse and rehabilitation favoured relief.  Having regard to the criminal proceedings, she noted that no penitentiary term was considered appropriate.  The crime of which Khosa was convicted is not one of intent.  There was no evidence of criminal propensity.  The race was spontaneous and short.  All sentencing conditions had been complied with.  In the circumstances, she concluded that relief ought to be granted on humanitarian and compassionate grounds.

1. Federal Court, 2005 FC 1218, 266 F.T.R. 138

[10] Lutfy C.J. dismissed Khosa’s application for judicial review. He found that considerable deference was required, given the broad nature of the discretion vested in the IAD and its expertise in applying Ribic factors in appeals under s. 67(1) (c) of the IRPA .  The appropriate standard of review is patent unreasonableness.  Whether or not the IAD majority erred in its appreciation of the evidence in light of the Ribic factors is “substantially, if not completely, factual” (para. 29).
[11] Lutfy C.J. said that the crux of Khosa’s argument was that the majority of the IAD erred by placing inordinate emphasis on his denial that his admittedly dangerous driving took place in the context of a street race, but the judge declined to reweigh the evidence, saying (at para. 36):
In assessing Mr. Khosa’s expression of remorse, they [the majority] chose to place greater weight on his denial that he participated in a “race” than others might have.  The IAD conclusion on the issue of remorse appears to differ from that of the criminal courts.  The IAD, however, unlike the criminal courts, had the opportunity to assess Mr. Khosa’s testimony.
[12] In the result, Lutfy C.J. held that there was no basis for concluding that “the majority opinion is patently unreasonable or, in the words of paragraph 18.1(4) (d) of the Federal Courts Act , one which was based on an erroneous finding of fact ‘made in a perverse or capricious manner or without regard for the material’” (para. 39).

1. Federal Court of Appeal, 2007 FCA 24, [2007] 4 F.C.R. 332

(1)   The Majority
[13] Décary J.A. (Malone J.A. concurring) disagreed with Lutfy C.J. on the appropriate standard of review.  In his view, the applicable standard was “reasonableness”.  Accordingly, “[s]ince the applications Judge applied the wrong standard of review, it is my duty, on appeal, to review the Board’s decision on the correct standard of review, that is, on the standard of reasonableness” (para. 14).
[14] With respect to the second Ribic factor, Décary J.A. said that the “possibility of rehabilitation” is a criminal law concept with which the IAD does not have particular expertise.  It should be wary of questioning findings of the criminal courts on matters falling squarely within their expertise.  The majority “merely acknowledges the findings of the British Columbia courts in that regard, which are favourable to [Khosa], and does not explain why it comes to the contrary conclusion . . . .  The whole of the evidence with respect to the conduct of [Khosa] after his sentencing undisputedly strengthens the findings of the criminal courts.  Yet, the Board ignores that evidence and those findings” (para. 17).  As to the “street racing” issue, Décary J.A. said:
It clearly appears from the transcripts of the hearing that the presiding member — who wrote the majority decision — and counsel for the Crown, had some kind of fixation with the fact that the offence was related to street racing, to such a point that the hearing, time and time again, was transformed into a quasi-criminal trial, if not into a new criminal trial. [para. 18]
For these reasons, Décary J.A. concluded that the majority had acted unreasonably.
(2)   The Dissent
[15] Desjardins J.A. concluded that the applications judge was right to apply the “patent unreasonableness” standard.  She emphasized that the IAD has expertise in applying the Ribic factors in decisions under s. 67(1) (c) of the IRPA and that this exercise is “highly fact-based and contextual” (para. 36).  Desjardins J.A. also emphasized the broad discretion conferred upon the IAD by s. 67(1) (c) of the IRPA .  In her view, Lutfy C.J. had made no reviewable error.  She would have dismissed the appeal.
III.     Relevant Statutory Provisions
[16]                           Immigration and Refugee Protection Act, S.C. 2001, c. 27

3. (1)   The objectives of this Act with respect to immigration are

. . .
(h)    to protect the health and safety of Canadians and to maintain the security of Canadian society;

36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a)    having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,

. . .
(c)    other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
Federal Courts Act, R.S.C. 1985, c. F-7
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
(2)    An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
(3)    On an application for judicial review, the Federal Court may
(a)    order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b)    declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4)    The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a)    acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b)    failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c)    erred in law in making a decision or an order, whether or not the  error appears on the face of the record;
(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;
(e)    acted, or failed to act, by reason of fraud or perjured evidence; or
(f)    acted in any other way that was contrary to law.
(5)    If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may
(a)    refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b)    in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate.

1. Analysis

[17] This appeal provides a good illustration of why the adjustment made by Dunsmuir was timely.  By switching the standard of review from patent unreasonableness to reasonableness simpliciter, the Federal Court of Appeal majority felt empowered to retry the case in important respects, even though the issues to be resolved had to do with immigration policy, not law.  Clearly, the majority felt that the IAD disposition was unjust to Khosa.  However, Parliament saw fit to confide that particular decision to the IAD, not to the judges.
[18] 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: see R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779.  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.
[19] 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.

1. A Difference of Perspective

[20] As Rand J. commented in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, “there is always a perspective within which a statute is intended to operate”.  This applies to s. 18.1 of the Federal Courts Act as much as it does to any other enactment.
[21] My colleague Justice Rothstein adopts 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 is to proceed “as it does in the regular appellate context” (para. 117).  Rothstein J. writes:
On my reading, where Parliament intended a deferential standard of review in s. 18.1(4) , it used clear and unambiguous language.  The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context.  [Emphasis added.]
I do not agree that such an implication is either necessary or desirable.  My colleague states that “where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause” (para. 90), citing Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 13.  Housen, of course, was a regular appeal in a civil negligence case.
[22] On this view, the reviewing court applies a standard of review of correctness unless otherwise directed to proceed (expressly or by necessary implication) by the legislature.
[23] Rothstein J. writes, at para. 87, that the Court “depart[ed] from the conceptual origin of standard of review” in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557.  Pezimwas a unanimous decision of the Court which deferred to the expertise of a specialized tribunal in the interpretation of provisions of the Securities Act, S.B.C. 1985, c. 83, despite the presence of a right of appeal and the absence of a privative clause.
[24] The conceptual underpinning of the law of judicial review was “further blurred”, my colleague writes, by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, which treated the privative clause “simply as one of several factors in the calibration of deference (standard of review)” (para. 92).  In my colleague’s view, “[i]t is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed” (para. 91).
[25] I do not share Rothstein J.’s view that absent statutory direction, explicit or by necessary implication, no deference is owed to administrative decision-makers in matters that relate to their special role, function and expertise.  Dunsmuir recognized that with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts.  This deference extended not only to facts and policy but to a tribunal’s interpretation of its constitutive statute and related enactments because “there might be multiple valid interpretations of a statutory provision or answers to a legal dispute and that courts ought not to interfere where the tribunal’s decision is rationally supported” (Dunsmuir, at para. 41).  A policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Dunsmuir, at para. 49, quoting Professor David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93).  Moreover, “[d]eference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context” (Dunsmuir, at para. 54).
[26] Dunsmuir stands against the idea that in the absence of express statutory language or necessary implication, a reviewing court is “to apply a correctness standard as it does in the regular appellate context” (Rothstein J., at para. 117).  Pezim has been cited and applied in numerous cases over the last 15 years.  Its teaching is reflected in Dunsmuir.  With  respect, I would reject my colleague’s effort 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.

18. Section 18.1 of the Federal Courts Act

[27] Given the differing perspectives that Rothstein J. and I bring to judicial review, it is not surprising that we differ on the role and function of s. 18.1 of the Federal Courts Act .
[28] In my view, the interpretation of s. 18.1 of the Federal Courts Act must be sufficiently elastic to apply to the decisions of hundreds of different “types” of administrators, from Cabinet members to entry-level fonctionnaires, who operate in different decision-making environments under different statutes with distinct grants of decision-making powers.  Some of these statutory grants have privative clauses; others do not.  Some provide for a statutory right of appeal to the courts; others do not.  It cannot have been Parliament’s intent to create by s. 18.1 of the Federal Courts Act a single, rigid Procrustean standard of decontextualized review for all “federal board[s], commission[s] or other tribunal[s]”, an expression which is defined (in s. 2) to include generally all federal administrative decision-makers.  A flexible and contextual approach to s. 18.1 obviates the need for Parliament to set customized standards of review for each and every federal decision-maker.
[29] The Minister’s reliance on Owen is misplaced.  At issue in that case was the standard applicable to the highly specific task of judicial review of decisions of Review Boards set up under s. 672.38 of the Criminal Code, R.S.C. 1985, c. C-46 , to deal with individuals found not criminally responsible (“NCR”) on account of a mental disorder.  The mandate of these Boards is to determine the “least onerous and least restrictive” limits on the liberty of NCR individuals who remain a “significant threat to the safety of the public” (s. 672.54 ).  On a statutory appeal (s. 672.78 ), the Court of Appeal is authorized to set aside a Review Board order on a number of grounds, namely
(a) the decision is unreasonable or cannot be supported by the evidence; or,
(b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or
(c) there was a miscarriage of justice.
[30] The Owen court held that where Parliament has shown a clear intent then, absent any constitutional challenge, that is the standard of review that is to be applied (para. 32).  This approach was affirmed in Dunsmuir where the majority said that “determining the applicable standard of review is accomplished by establishing legislative intent” (para. 30).
[31] However, in Owen itself, even in the context of a precisely targeted proceeding related to a named adjudicative board, the  standard of review was evaluated by reference to the common law of judicial review, as was made clear in the following paragraph:
The first branch of the test corresponds with what the courts call the standard of review of reasonableness simpliciter, i.e., the Court of Appeal should ask itself whether the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination . . . . [para. 33]
And in the next paragraph:
Resort must therefore be taken to the jurisprudence governing judicial review on a standard of reasonableness simpliciter . . . . [para. 34]
See also Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498.
[32] In Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, the Court dealt with the second branch of s. 672.78(1)(b) (“error of law”) on ordinary administrative law principles (clearly applying a correctness standard, at para. 25).  As to the saving proviso (i.e., the decision may be set aside for an error of law unless “no substantial wrong or miscarriage of justice has occurred”), the Pinetcourt held that the party seeking to uphold the Review Board decision despite the error of law must “satisfy the appellate court that a Review Board, acting reasonably, and properly informed of the law, would necessarily have reached the same conclusion absent the legal error” (para. 28).  None of this is explicit in the statute, but the common law was necessarily called in aid to fill in interstices in the legislation.  See also Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326.
[33] Resort to the general law of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which, unlike s. 672 of the Criminal Code , is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers.  Section 18.1 must retain the flexibility to deal with an immense variety of circumstances.

1. Matter of Statutory Interpretation

[34] The genesis of the Federal Courts Act lies in Parliament’s decision in 1971 to remove from the superior courts of the provinces the jurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunals and to place that jurisdiction (slightly modified) in a new federal court.  As Donald S. Maxwell, Q.C., the then Deputy Minister of Justice, explained to the House of Commons Standing Committee on Justice and Legal Affairs:
Clause 18 is based on the philosophy that we want to remove the jurisdiction and prerogative matters from the Superior Courts of the provinces and place them in our own federal Superior Court.. . .
. . . Having got them there, we think they are not entirely satisfactory.  We feel that there should be improvements made on these remedies of certiorari and prohibition.  This is what we are endeavouring to do in Clause 28.
(See Minutes of Proceedings and Evidence of the Committee, No. 26, 2nd Sess., 28th Parl., May 7, 1970, at pp. 25‑26.)
This transfer of jurisdiction was recognized and accepted in Pringle v. Fraser, [1972] S.C.R. 821; Howarth v. National Parole Board, [1976] 1 S.C.R. 453, at pp. 470-72, and Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at p. 637, with the proviso that such transfer does not deprive the provincial superior courts of their jurisdiction to determine the constitutional validity and applicability of legislation: Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307.  Subsequent amendments to the Act in 1990 (when s. 18.1 was added) clarified and simplified its expression and implementation, but did not have the effect of excluding the common law.  R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), notes that “courts readily assume that reform legislation is meant to be assimilated into the existing body of common law” (p. 432; see also pp. 261-62).
[35] My colleague Rothstein J. writes that “to say (or imply) that a Dunsmuir standard of review analysis applies even where the legislature has articulated the applicable standard of review directly contradicts Owen” (para. 100).  This assumes the point in issue, namely whether as a matter of interpretation, Parliament has or has not articulated the applicable standard of review in s. 18.1 .
[36] In my view, the language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief.  Whether or not the court should exercise its discretion in favour of the application will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the “circumstances of each case”:  see Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575.  Further, “[i]n one sense, whenever the court exercises its discretion to deny relief, balance of convenience considerations are involved” (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf),  at p. 3-99).  Of course, the discretion must be exercised judicially, but the general principles of judicial review dealt with in Dunsmuir provide elements of the appropriate judicial basis for its exercise.
[37] On this point, as well, my colleague Rothstein J. expresses disagreement.  He cites a number of decisions dealing with different applications of the Court’s discretion.  He draws from these cases the negative inference that other applications of the discretion are excluded from s. 18.1(4) .  In my view, with respect, such a negative inference is not warranted.  Decisions that address unrelated problems are no substitute for a proper statutory analysis of s.  18.1(4) itself which in the English text provides that
18.1 . . .
(4)    The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
. . .
[38] A different concern emerges from the equally authoritative French text of s. 18.1(4) which reads:
18.1 . . .
(4)    Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas :
. . .
Generally speaking, the use of the present indicative tense (sont prises) is not to be read as conferring a discretion: see s. 11 of the French version of the Interpretation Act, R.S.C. 1985, c. I-21 , and P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), p. 72, fn. 123 (in the French edition, the point is canvassed by Professor Côté, at p. 91, fn. 123).  It has been truly remarked in the context of bilingual legislation that “Canadians read only one version of the law at their peril”: M. Bastarache et al., The Law of Bilingual Interpretation (2008), at p. 32.  However, the text of s. 18.1(4) must be interpreted not only in accordance with the rules governing bilingual statutes but within the larger framework of the modern rule that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[39] The English version of s. 18.1(4) is permissive; the court is clearly given discretion.  In the French version, the words “sont prises” translate literally as “are taken” which do not, on the face of it, confer a discretion.  A shared meaning on this point is difficult to discern.  Nevertheless, the linguistic difference must be reconciled as judges cannot be seen to be applying s. 18.1(4) differently across the country depending on which language version of s. 18.1(4) they happen to be reading.  In R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at para. 26, the Court cited with approval the following approach:
Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing the meaning common to both.  Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained.
(Quoting Côté, at p. 324.)
(See also Bastarache et al., at p. 32.) Linguistic analysis of the text is the servant, not the master, in the task of ascertaining Parliamentary intention: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1071-72 (Lamer J. dissenting in part, but not on this point).  A blinkered focus on the textual variations might lead to an interpretation at odds with the modern rule because, standing alone, linguistic considerations ought not to elevate an argument about text above the relevant context, purpose and objectives of the legislative scheme: see Sullivan, at p. 116.
[40] Here the English version cannot be read so as to compel the court to grant relief: the word “may” is unquestionably permissive.  In Bastarache et al., it is said that “the clearer version provides the common meaning” (p. 67), but it cannot be said that the French text here is ambiguous.  Accordingly, the linguistic issue must be placed in the framework of the modern rules of statutory interpretation that give effect not only to the text but to context and purpose.  There is nothing in the context or purpose of the enactment to suggest a Parliamentary intent to eliminate the long-standing existence of a discretion in judicial review remedies.  As mentioned earlier, the principal legislative objective was simply to capture the judicial review of federal decision-makers for the Federal Court.  Under the general public law of Canada (then as now), the granting of declarations and the original prerogative and extraordinary remedies, and subsequent statutory variations thereof, have generally been considered to be discretionary, as discussed by Beetz J. in Harelkin.  The Federal Court’s discretion in matters of judicial review has repeatedly been affirmed by this Court:  see Solosky v. The Queen, [1980] 1 S.C.R. 821, at pp. 830-31; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at pp. 92-93, and Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 77-80.  The Federal Courts themselves have repeatedly asserted, notwithstanding the problem posed by the French text of s. 18.1(4) , the existence of a discretion in the exercise of their judicial review jurisdiction (and quite properly so in my opinion) both in decisions rendered in French (see, e.g., Canada v. Grenier, 2005 CAF 348, [2006] 2 F.C.R. 287, per Létourneau J.A., at para. 40, and Devinat v. Canada (Commission de l’immigration et du status de réfugié), [2000] 2 F.C. 212 (C.A.), per The Court, at para. 73) and in English (see, e.g., Thanabalasingham v. Canada (Minister of Citizenship and Immigration), 2006 FCA 14, 263 D.L.R. (4th) 51, per Evans J.A., at para. 9; Charette v. Canada (Commissioner of Competition), 2003 FCA 426, 29 C.P.R. (4th) 1, per Sexton J.A., at para. 61, and Pal v. Canada (Minister of Employment and Immigration) (1993), 24 Admin. L.R. (2d) 68, per Reed J., at para. 9).  I  conclude 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, of course, must be exercised judicially and in accordance with proper principles.  In my view, those principles include those set out in Dunsmuir.
[41] With these general observations I turn to the particular paragraphs of s. 18.1(4) of the Federal Courts Act that, in my view, enable but do not require judicial intervention.
[42] Section 18.1(4) (a) provides for relief where a federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
No standard of review is specified.  Dunsmuir 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 Harelkin, at pp. 575-76.
[43] Judicial intervention is also authorized 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;
No standard of review is specified.  On the other hand, Dunsmuir 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.
[44] Judicial intervention is authorized 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;
Errors of law are generally governed by a correctness standard.  Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 37, for example, held that the general questions of international law and criminal law at issue in that case had to be decided on a standard of correctness.  Dunsmuir (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.
[45] Judicial intervention is further authorized 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 legislator would have been aware of the great importance attached by some judicial decisions to so-called “jurisdictional fact finding”; see, e.g., Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, and Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227.  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.  In Bell, the “jurisdictional fact” was whether the residential accommodation in respect of which a prospective tenant claimed rental discrimination was a “self-contained dwelling unit”.  The Court disagreed with the Human Rights Commission, which had “based” its decision on this threshold fact.  Viewed in this light, s. 18.1(4) (d) was intended to confirm by legislation what  Dickson J. had said in New Brunswick Liquor Corp., namely that judges should  “not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233).
[46] 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.  It provides legislative precision to the reasonableness standard of review of  factual issues in cases falling under theFederal Courts Act .
[47] Paragraph (e) contemplates a question of mixed fact and law namely that the federal board, commission or other tribunal
(e) acted, or failed to act, by reason of fraud or perjured evidence;
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.
[48] Section 18.1(4) (f) permits judicial intervention if the federal board, commission or other tribunal
(f) acted in any other way that was contrary to law.
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.
[49] In Federal Courts Practice 2009 (2008), B. J. Saunders et al. state, at pp. 112-13:
Grounds for Review
Section 18.1(4) sets out the grounds which an applicant must establish to succeed on an application for judicial review.  The grounds are broadly stated and reflect, generally, the grounds upon which judicial review could be obtained under the prerogative and extraordinary remedies listed in section 18(1).
Section 18.1(4) (f) ensures that the Court will not be hindered in developing new grounds for review. [Emphasis added.]
[50] I readily accept, of course, that the legislature can by clear and explicit language oust the common law in this as in other matters.  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.1  In other provinces, some laws specify “patent unreasonableness”.2  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.
[51] As stated at the outset, a legislature has the power to specify a standard of review, as held in Owen, 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 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).

1. Standard of Review Analysis

[52] Dunsmuir states that “[c]ourts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures” (para. 27).
[53] The process of judicial review involves two steps.  First, Dunsmuir says that “[a]n exhaustive review is not required in every case to determine the proper standard of review” (para. 57).  As between correctness and reasonableness, the “existing jurisprudence may be helpful” (para. 57).  And so it is in this case.  Dunsmuir renders moot the dispute in the lower courts between patent unreasonableness and reasonableness.  No authority was cited to us that suggests a “correctness” standard of review is appropriate for IAD decisions under s. 67(1) (c) of the IRPA .  Accordingly, “existing jurisprudence” points to adoption of a “reasonableness” standard.
[54] This conclusion is reinforced by the second step of the analysis when jurisprudential categories are not conclusive.  Factors then to be considered include: (1) the presence or absence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation; (3) the nature of the question at issue before the IAD; and (4) the expertise of the IAD in dealing with immigration policy (Dunsmuir, at para. 64).  Those factors have to be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case.  A contextualized approach is required.  Factors should not be taken as items on a check list of criteria that need to be individually analysed, categorized and balanced in each case to determine whether deference is appropriate or not.  What is required is an overall evaluation.  Nevertheless, having regard to the argument made before us, I propose to comment on the different factors identified in Dunsmuir, all of which in my view point to a reasonableness standard.
[55] As to the presence of a privative clause, s. 162(1) of the IRPA provides that “[e]ach Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.  A privative clause is an important indicator of legislative intent.  While privative clauses deter judicial intervention, a statutory right of appeal may be at ease with it, depending on its terms.  Here, there is no statutory right of appeal.
[56] As to the purpose of the IAD as determined by its enabling legislation, the IAD determines a wide range of appeals under the IRPA , including appeals from permanent residents or protected persons of their deportation orders, appeals from persons seeking to sponsor members of the family class, and appeals by permanent residents against decisions made outside of Canada on their residency obligations, as well as appeals by the Minister against decisions of the Immigration Division taken at admissibility hearings (s. 63 ).  A decision of the IAD is reviewable only if the Federal Court grants leave to commence judicial review (s. 72 ).
[57] In recognition that hardship may come from removal, Parliament has provided in s. 67(1) (c) a power to grant exceptional relief.  The nature of the question posed by s. 67(1) (c) requires the IAD to be “satisfied that, at the time that the appeal is disposed of . . . sufficient humanitarian and compassionate considerations warrant special relief”.  Not only is it left to the IAD to determine what constitute “humanitarian and compassionate considerations”, but the “sufficiency” of such considerations in a particular case as well.  Section 67(1) (c) calls for a fact‑dependent and policy‑driven assessment by the IAD itself.  As noted in Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order
establishes that, in the absence of some special privilege existing, [an individual subject to a lawful removal order] has no right whatever to remain in Canada.  [An individual appealing a lawful removal order] does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege. [Emphasis added.]
[58] The respondent raised no issue of practice or procedure.  He accepted that the removal order had been validly made against him pursuant to s. 36(1) of the IRPA .  His attack was simply a frontal challenge to the IAD’s refusal to grant him a “discretionary privilege”.  The IAD decision to withhold relief was based on an assessment of the facts of the file.  The IAD had the advantage of conducting the hearings and assessing the evidence presented, including the evidence of the respondent  himself.  IAD members have considerable expertise in determining appeals under the IRPA .  Those factors, considered altogether, clearly point to the application of a reasonableness standard of review.  There are no considerations that might lead to a different result.  Nor is there anything in s. 18.1(4) that would conflict with the adoption of a “reasonableness” standard of review in s. 67(1) (c) cases. I conclude, accordingly, that “reasonableness” is the appropriate standard of review.

1. Applying the “Reasonableness” Standard

[59] Reasonableness is a single standard that takes its colour from the context.  One of the objectives of Dunsmuir 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.
[60] In my view, having in mind the considerable deference owed to the IAD and the broad scope of discretion conferred by the IRPA , there was no basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case.
[61] My colleague Fish J. agrees that the standard of review is reasonableness, but he would allow the appeal.  He writes:
While Mr. Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence.  [para. 149]
I do not believe that it is the function of the reviewing court to reweigh the evidence.
[62] It is apparent that Fish J. takes a different view than I do of the range of outcomes reasonably open to the IAD in the circumstances of this case.  My view is predicated on what I have already said about the role and function of the IAD as well as the fact that Khosa does not contest the validity of the removal order made against him.  He seeks exceptional and discretionary relief that is available only if the IAD itself is satisfied that “sufficient humanitarian and compassionate considerations warrant special relief”.  The IAD majority was not so satisfied.  Whether we agree with a particular IAD decision or not is beside the point.  The decision was entrusted by Parliament to the IAD, not to the judges.
[63] The Dunsmuir majority held:
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47]
Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form of accountability of the decision-maker to the applicant, to the public and to a reviewing court.  Although the Dunsmuir majority refers with approval to the proposition that an appropriate degree of deference “requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’” (para. 48 (emphasis added)), I do not think the reference to reasons which “could be offered” (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43.  Baker itself was concerned with an application on “humanitarian and compassionate grounds” for relief from a removal order.
[64] In this case, both the majority and dissenting reasons of the IAD disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome.  At the factual level, the IAD divided in large part over differing interpretations of Khosa’s expression of remorse, as was pointed out by Lutfy C.J.  According to the IAD majority:
It is troublesome to the panel that [Khosa] continues to deny that his participation in a “street-race” led to the disastrous consequences. . . . At the same time, I am mindful of [Khosa’s] show of relative remorse at this hearing for his excessive speed in a public roadway and note the trial judge’s finding of this remorse . . . . This show of remorse is a positive factor going to the exercise of special relief.  However, I do not see it as a compelling feature of the case in light of the limited nature of [Khosa’s] admissions at this hearing.  [Emphasis added; para. 15.]
According to the IAD dissent on the other hand:
. . . from early on he [Khosa] has accepted responsibility for his actions.  He was prepared to plead guilty to dangerous driving causing death . . . .
I find that [Khosa] is contrite and remorseful. [Khosa] at hearing was regretful, his voice tremulous and filled with emotion. . . .
. . .
The majority of this panel have placed great significance on [Khosa’s] dispute that he was racing, when the criminal court found he was.  And while they concluded this was “not fatal” to his appeal, they also determined that his continued denial that he was racing “reflects a lack of insight.”  The panel concluded that this “is not to his credit.”  The panel found that [Khosa] was remorseful, but concluded it was not a “compelling feature in light of the limited nature of [Khosa’s] admissions”.
However I find [Khosa’s] remorse, even in light of his denial he was racing, is genuine and is evidence that [Khosa] will in future be more thoughtful and will avoid such recklessness. [paras. 50-51 and 53-54]
It seems evident that this is the sort of factual dispute which should be resolved by the IAD in the application of immigration policy, and not reweighed in the courts.
[65] In terms of transparent and intelligible reasons, the majority considered each of the Ribicfactors.  It rightly observed that the factors are not exhaustive and that the weight to be attributed to them will vary from case to case (para. 12).  The majority reviewed the evidence and decided that, in the circumstances of this case, most of the factors did not militate strongly for or against relief.  Acknowledging the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), it found that the offence of which the respondent was convicted was serious and that the prospects of rehabilitation were difficult to assess (para. 23).
[66] The weight to be given to the respondent’s evidence of remorse and his prospects for rehabilitation depended on an assessment of his evidence in light of all the circumstances of the case.  The IAD has a mandate different from that of the criminal courts.  Khosa did not testify at his criminal trial, but he did before the IAD.  The issue before the IAD was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other factors, they warranted special relief from a valid removal order.  The IAD was required to reach its own conclusions based on its own appreciation of the evidence.  It did so.
[67] As mentioned, the courts below recognized some merit in Khosa’s complaint.  Lutfy C.J. recognized that the majority “chose to place greater weight on his denial that he participated in a race than others might have” (para. 36).  Décary J.A. described the majority’s preoccupation with street racing as “some kind of fixation” (para. 18).  My colleague Fish J. also decries the weight put on this factor by the majority (para. 141).  However, as emphasized in Dunsmuir, “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.  Instead, they may give rise to a number of possible, reasonable conclusions.  Tribunals have a margin of appreciation within the range of acceptable and rational solutions” (para. 47).  In light of the deference properly owed to the IAD under s. 67(1) (c) of the IRPA ,  I cannot, with respect, agree with my colleague Fish J. that the decision reached by the majority in this case to deny special discretionary relief against a valid removal order fell outside the range of reasonable outcomes.

1. Disposition

[68] The appeal is allowed and the decision of the IAD is restored.
The following are the reasons delivered by
[69] ROTHSTEIN J. — I have had the benefit of reading the reasons of my colleague Justice Binnie allowing this appeal.  While I concur with this outcome, I respectfully disagree with the majority’s approach to the application of the Dunsmuir standard of review analysis under s. 18.1 of the Federal Courts Act, R.S.C. 1985, c.  F-7 (“FCA ”).

1. Introduction

[70] The central issue in this case is whether the FCA expressly, or by necessary implication, provides the standards of review to be applied on judicial review, and if so, whether this displaces the common law standard of review analysis recently articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.  The majority is of the view that the Dunsmuir standard of review analysis is to be read into s. 18.1(4) of the FCA .  In my view, courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis.  Where the legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge.
[71] Section 18.1(4) of the FCA states:
(4) [Grounds of review] The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a)    acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b)    failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c)    erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(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;
(e)    acted, or failed to act, by reason of fraud or perjured evidence; or
(f)    acted in any other way that was contrary to law.
[72] The language of s. 18.1(4) (d) makes clear that findings of fact are to be reviewed on a highly deferential standard.  Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”.  By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4) .  Where Parliament intended a deferential standard of review in s. 18.1(4) , it used clear and unambiguous language.  The necessary implication is that where Parliament did not provide for a deferential standard, its intent was that no deference be shown.  As I will explain, the language and context of s. 18.1(4) , and in particular the absence of deferential wording, demonstrates that a correctness standard is to be applied to questions of jurisdiction, natural justice, law and fraud.  The  language of s. 18.1(4) (d) indicates that deference is only to be applied to questions of fact.
[73] Dunsmuir reaffirmed that “determining the applicable standard of review is accomplished by establishing legislative intent” (para. 30).  The present majority’s insistence that Dunsmuir applies even where Parliament specifies a standard of review is inconsistent with that search for legislative intent, in my respectful view.
[74] Standard of review developed as a means to reconcile the tension that privative clauses create between the rule of law and legislative supremacy:  see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048.  “Full” or “strong” privative clauses that purport to preclude the judicial review of a question brought before a reviewing court give rise to this judicial-legislative tension, which deference and standard of review were developed to resolve: see Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 17, for a discussion of the nature of privative clauses.  In my opinion, the application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis.
[75] In my view, the question of whether the Dunsmuir standard of review analysis applies to judicial review under s. 18.1 of the FCA becomes clear when one examines the conceptual basis for the common law standard of review analysis.  As explained in part II, standard of review emerged as a means to reconcile the judicial-legislative tension to which privative clauses gave rise.  The legislature’s desire to immunize certain administrative decisions from judicial scrutiny conflicted with the constitutional supervisory role of the courts and, as such, required a juridical response that could reconcile these competing requirements.  Deference and standard of review was the result.  It was the departure from this conceptual origin that blurred the role of the privative clause as the legislature’s communicative signal of relative expertise, and in doing so, the Court moved away from the search for legislative intent that governs this area.  In part III, I refer to this Court’s jurisprudence on the judicial recognition of legislated standards of review.  That jurisprudence is clear that courts must give effect to legislated standards of review, subject to any constitutional challenges.  In part IV, I explain that having regard to the conceptual origin of standard of review and the jurisprudence on legislated standards of review, s. 18.1(4) of the FCA occupies the field of standard of review and therefore ousts the common law on that question, excepting in cases of a strong privative clause.   In part V, I conclude by briefly considering the Immigration Appeal Division (“IAD”) decision in this case.  Like the majority, I would allow the appeal.

1. The Place of Standard of Review: Reconciling the Judicial-Legislative Tension of the Privative Clause

1. The Judicial-Legislative Tension

[76] Absent a privative clause, courts have always retained a supervisory judicial review role.  In the provinces, provincial superior courts have inherent jurisdiction and in most, if not all, cases statutory judicial review jurisdiction.  In the federal context, the FCA transferred this inherent jurisdiction from the provincial superior courts to the Federal Courts.  Where applicable, statutory rights of appeal also grant affected parties the right to appeal an administrative decision to court.  This residual judicial review jurisdiction means that courts retained authority to ensure the rule of law even as delegated administrative decision making emerged.  La Forest and Iacobucci JJ. acknowledged this in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, when La Forest J. wrote that
[i]n the absence of other provisions indicating a disposition to limit judicial review, the normal supervisory role of the courts remains.  The administrative tribunal, of course, is authorized to make determinations on these questions, but they are not to be insulated from the general supervisory role of the courts. [p. 584]
The legislature was well aware that parties who perceived an administrative injustice would still have recourse to the courts.
[77]               The question is, however, whether the creation of expert tribunals automatically meant that there was to be some limitation on the judicial review role of the courts, in particular on questions of law.  Where the legislature enacted strong privative clauses precluding review for legal error, there is no doubt that this was the legislative intent.  In my opinion, the same limit on judicial review cannot be inferred merely from the establishment of a tribunal when the legislature did not seek to immunize the tribunal’s decisions from judicial review.  In those cases, the creation of an administrative decision-maker did not by itself give rise to a tension with the supervisory role of the courts.[78] In contrast, the majority appears to understand the judicial review of administrative decisions as automatically engaging a judicial-legislative tension, which the standard of review analysis seeks to resolve.  In Dunsmuir, Bastarache and LeBel JJ., writing for the majority, described this as follows:
Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers.Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [Emphasis added; para. 27.]
As I understand this reasoning, the legislature displaced (or attempted to displace) judicial decision making in some areas by creating administrative bodies.  From this viewpoint, the standard of review functions as a necessary balancing exercise between the courts’ constitutional exercise of judicial review and the legislative desire to delegate certain powers to administrative bodies.
[79] In my opinion, in the absence of a strong privative clause such as existed in Dunsmuir, there are important reasons to question whether this view is applicable.  Broadly speaking, it is true of course that the creation of expert administrative decision-makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas.  As Professor W. A. Bogart notes, “[t]he core idea was that the legislature wanted to regulate some area but wished someone else, an administrative actor, to carry out the regulation for reasons of expertise, expediency, access, independence from the political process, and so forth” (“The Tools of the Administrative State and the Regulatory Mix”, in C. M. Flood and L. Sossin, eds., Administrative Law in Context (2008), 25, at p. 31).  It was only with the enactment of privative clauses, however, that the legislature evidenced an intent to oust, or at the very least restrict, the court’s review role.
[80] The most obvious case was labour relations.  Labour relations boards were created during the First and Second World Wars, in part to stave off labour unrest: see R. J. Charney and T. E. F. Brady, Judicial Review in Labour Law (loose-leaf), at pp. 2-1 to 2-17.  In order to protect the boards from judicial intervention, the legislature enacted strong privative clauses.  Professor Audrey Macklin notes that “[f]rustrated with judicial hostility toward the objectives of labour relations legislation, the government not only established a parallel administrative regime of labour relations boards, but also enacted statutory provisions that purported to preclude entirely judicial review of the legality of administrative action”: “Standard of Review: The Pragmatic and Functional Test”, in Administrative Law in Context, 197, at p. 199.  While there are different types of privative clauses, the labour relations context gave rise to strong privative clauses that typically purported to preclude review not only of factual findings, but also legal and jurisdictional decisions of the tribunal: see Pasiechnyk, at para. 17 (discussing what constitutes a “full” or “true” privative clause).
[81] In attempting to preclude judicial review, privative clauses gave rise to a tension between the two core pillars of the public law system: legislative supremacy and the judicial enforcement of law: see D. Dyzenhaus, “Disobeying Parliament? Privative Clauses and the Rule of Law”, in R. W. Bauman and T.  Kahana, eds., The Least Examined Branch: The Role of Legislatures in the Constitutional State (2006), 499, at p. 500.  Strong privative clauses reflected the legislature’s intent to make administrative decisions final and thereby beyond the purview of judicial scrutiny.  This  conflicts with the rule of law principle of accountability, for which access to courts is necessary.  As Professor Mary Liston notes:
The risk to the accountability function of the rule of law was that these officials could behave as a law unto themselves because they would be the sole judges of the substantive validity of their own acts.  The institutional result of privative clauses was a system of competing and irreconcilable supremacies between the legislative and judicial branches of government.
(“Governments in Miniature: The Rule of Law in the Administrative State”, in Administrative Law in Context, 77, at p. 104)
Faced with these competing “supremacies”, courts were forced to develop a juridical approach that would reconcile, or at least alleviate, this tension.  In Canada, courts opted for the deference approach.

1. The Origins of the Standard of Review Analysis: Resolving the Privative Clause Tension

[82] The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system.  This approach originated with Canadian Union of Public Employees, Local 963 v.  New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“C.U.P.E.”).  In reviewing a labour tribunal decision, Dickson J., as he then was, wrote that the privative clause “constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the [Public Service Labour Relations] Board” (p. 235).  The decision of the Board was protected so long as it was not “so patently unreasonable that the Board . . . did ‘something which takes the exercise of its powers outside the protection of the privative or preclusive clause’” (p. 237).
[83] The deference approach sought to give effect to the legislature’s recognition that the administrative decision-maker had relative expertise on some or all questions.  The privative clause indicated the area of tribunal expertise that the legislature was satisfied warranted deference.  As Professor Dyzenhaus explains:
. . . CUPE involves more than concession.  Right at the outset of the development of the idea of deference, it was clear that there was a judicial cession of interpretative authority to the tribunal, within the scope of its expertise — the area of jurisdiction protected by the privative clause.  The cession was not total — the tribunal could not be patently unreasonable.  But it was significant because it required that judges defer to the administration’s interpretations of the law, except on jurisdictional, constitutional, or constitution like issues. [Emphasis added; p. 512.]
[84] It is clear in C.U.P.E. that the deferential approach was contingent upon and shaped by the relevant privative clause.  Interpretive authority was only ceded to tribunals in the area  “within the scope of its expertise — the area of jurisdiction protected by the privative clause”.  A strong privative clause that protected legal as well as factual and discretionary decisions meant that the legislature recognized the tribunal as having relative expertise with respect to all these questions.  Dickson J. emphasized that the legislature’s frequent use of privative clauses in the labour relations context was intimately connected to tribunal expertise.  He wrote that “[t]he rationale for protection of a labour board’s decisions within jurisdiction is straightforward and compelling.  The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations” (p. 235).  In other words, tribunal expertise was a compelling rationale for imposing a privative clause.  It was not, however, a free-standing basis for deference.
[85] A further step in the development of the deference approach was Bibeault, when this Court introduced the pragmatic and functional approach for determining the appropriate standard of review.  The pragmatic and functional approach, now known simply as the standard of review analysis, was intended to focus “the Court’s inquiry directly on the intent of the legislator rather than on interpretation of an isolated provision” (p. 1089).  In reviewing a decision-maker protected by a strong privative clause, this more expansive analysis examined “not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal” (p. 1088).  Beetz J. emphasized the overarching objective of giving effect to legislative intent while upholding courts’ supervisory role in a rule of law system (see p. 1090).
[86] The reasoning of Gonthier J. in Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission),  [1989] 1 S.C.R. 1722, further reflected this understanding that it is the privative clause that signals when deference is owed and that demarcates the area of relative expertise.  Gonthier J. made clear that:
Where the legislator has clearly stated that the decision of an administrative tribunal is final and binding, courts of original jurisdiction cannot interfere with such decisions unless the tribunal has committed an error which goes to its jurisdiction. . . .  Decisions which are so protected are, in that sense, entitled to a non‑discretionary form of deference because the legislator intended them to be final and conclusive and, in turn, this intention arises out of the desire to leave the resolution of some issues in the hands of a specialized tribunal.  [Emphasis added; p. 1744.]
Gonthier J.’s statement captured the essential role of the privative clause. Privative clauses indicate the legislature’s intent that administrative decisions made within “the hands of a specialized tribunal” be deemed final and conclusive.  It is in these cases that courts must balance their constitutional role to preserve the rule of law with the legislature’s intent to oust the courts’ jurisdiction.  Gonthier J.’s reasoning understood expertise as the underlying rationale for enacting the privative clause.  Expertise alone was not interpreted as indicating a legislative intent for finality.  If the legislature intended to protect expert decision-makers from review, it did so through a privative clause.

1. Departure From the Origins of Standard of Review: Expertise as a Stand-Alone Basis for Deference

[87] However, with Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, there was a departure from the conceptual origin of standard of review I have described.  That case involved the judicial review of a tribunal decision that was not protected by a privative clause and in fact was subject to a statutory right of appeal.  Relying on the language of “specialization of duties” from Bell Canada, the Court in Pezim imputed relative expertise to the tribunal, including on questions of law, based on its statutory mandates.  In Pezim, the Court reviewed the constating statute of the British Columbia Securities Commission and found that “[t]he breadth of the Commission’s expertise and specialisation is reflected in the provisions of the [B.C. Securities Act]” (p. 593).  This approach of judicially imputing expertise, even on questions of law,  was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise.
[88] My colleague Binnie J. writes at para. 26 of his reasons that “Pezim has been cited and applied in numerous cases over the last 15 years.”   In light of this, he rejects what he sees  as my effort “to roll back the Dunsmuir clock”.  With respect, I do not believe that the longevity of Pezim should stand in the way of this Court’s recent attempts to return conceptual clarity to the application of standard of review.  The fact that Pezim has been cited in other cases does not preclude this Court from revisiting its reasoning where there are compelling reasons to do so: R. v. Robinson, [1996] 1 S.C.R. 683, at para. 46.  In my view, Pezim’s departure from the conceptual basis for standard of review constitutes such a compelling reason.  In Dunsmuir, this Court recognized that the time had “arrived for a reassessment” of “the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals” (para. 1).  Such reassessment should include a return to the conceptual basis for standard of review.
[89] I do not dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision-makers on questions of fact: see Deschamps J. in concurrence in Dunsmuir at para. 161.  The principled bases articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 13, for deference to judicial triers of fact are also relevant in the administrative review context.  Just as judicial triers of fact are better situated to make findings of fact at first instance, so too are tribunals, especially in the area of policy making.  In cases involving mixed fact and law, where the legal question cannot be extricated from a factual or policy finding, deference should be shown.
[90] However, where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause.  The basic rule in the appellate context is that questions of law are to be reviewed on a correctness standard: Housen, at para. 8.  The reasons for this are twofold.  First, “the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations”: Housen, at para. 9.  Divergent applications of legal rules undermine the integrity of the rule of law.  Dating back to the time of Dicey’s theory of British constitutionalism, almost all rule of law theories include a requirement that each person in the political community be subject to or guided by the same general law:  see A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1959),  at p. 193; L. L. Fuller, The Morality of Law (rev. ed. 1969), at pp. 81-91 (advocating the principle of congruence between official action and declared rule); J. Raz, The Authority of Law: Essays on Law and Morality (1979), at pp. 215-17 (“[s]ince the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly”).  A correctness standard on questions of law is meant, in part, to ensure this universality.  Second, appellate and reviewing courts have greater law-making expertise relative to trial judges and administrative decision-makers.  As this Court emphasized in Housen:
[W]hile the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill the above functions, appellate courts require a broad scope of review with respect to matters of law. [para. 9]
[91] In the administrative context, unlike the appellate context, the legislature may decide that an administrative decision-maker has superior expertise relative to a reviewing court, including on legal questions.  It signals this recognition by enacting a strong privative clause.  It is in these cases that the court must undertake a standard of review analysis to determine the appropriate level of deference that is owed to the tribunal.  It is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed.
[92] The distinction between the judicial and legislative roles was further blurred when the privative clause was incorporated into the pragmatic and functional approach in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R.  982.   Pushpanathan set out the four relevant factors for the standard of review analysis:  privative clause, expertise, purpose of the act as a whole and of the provision in particular, and the nature of the problem.  Rather than being viewed as the express manifestation of legislative intent regarding deference, the privative clause was now treated simply as one of several factors in the calibration of deference (standard of review).  As Professor Macklin notes, “[i]f the privative clause was an exercise in communicating legislative intent about the role of the courts, suffice to say that the message was, if not lost, then at least reformulated in translation” (p. 225).

1. Legislative Intent

[93] In my opinion, recognizing expertise as a free-standing basis for deference on questions that reviewing courts are normally considered to be expert on (law, jurisdiction, fraud, natural justice, etc.)  departs from the search for legislative intent that governs this area. As Dunsmuir reaffirmed, the rationale behind the common law standard of review analysis is to give effect to legislative intent (Bastarache and LeBel JJ., at para. 30):see also Pushpanathan, at para. 26(“[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed”); C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149 (standard of review as “seeking the polar star of legislative intent”).
[94] Where the recognition of relative expertise was grounded in the privative clause, the legislature’s intent was clear.  Departures from that conceptual basis  have led courts to undertake what are often artificial judicial determinations of relative expertise.  It seems quite arbitrary, for example, that courts may look at the nature of a tribunal as defined by its enabling statute, but not always conduct a full review of its actual expertise.  Should a reviewing court be required to consider the qualifications of administrative decision-makers on questions that courts are normally considered to have superior expertise?  For example, should it matter whether or not decision-makers have legal training?  In the specific context of statutory interpretation, should the reviewing court scrutinize whether or not the tribunal regularly reviews and interprets particular provisions in its home statute such that it possesses relative expertise with respect to such provisions?  See L. Sossin, “Empty Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review in Administrative Law” (2003), 27 Advocates’ Q. 478, at p. 491 (for a discussion of the judicial determination of expertise).
[95] Far from subscribing to the view that courts should be reviewing the actual expertise of administrative decision-makers, it is my position that this is the function of the legislature.  In my view, the discordance between imputed versus actual expertise is simply one manifestation of the larger conceptual unhinging of tribunal expertise from the privative clause.  The legislatures that create administrative decision-makers are better able to consider the relative qualifications, specialization and day-to-day workings of tribunals, boards and other decision-makers which they themselves have constituted.  Where the legislature believes that an administrative decision-maker possesses superior expertise on questions that are normally within the traditional bailiwick of courts (law, jurisdiction, fraud, natural justice, etc.), it can express this by enacting a privative clause.
[96] In my respectful view, the majority’s common law standard of review approach seeks two polar stars — express legislative intent and judicially determined expertise — that may or may not align.  While there was some attempt by the majority in Dunsmuir to reconnect these inquiries, the move has been incomplete.  Professor David Mullan notes that “expertise is no longer described as the single most important factor” in Dunsmuir and the privative clause is seen as a “strong indication” of a requirement of deference: “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, at pp. 125-26.  In my view, it is time for the courts to acknowledge that privative clauses and tribunal expertise are two sides of the same coin.

1. Recognizing the Limitation of Common Law Standard of Review Analysis

[97] Standard of review has dominated so much of administrative law jurisprudence and academic writing to date that one might hope it would, by now, provide a cogent and predictable analysis of when courts should adopt a deferential approach to an administrative decision.  Dunsmuir demonstrates that this is still not the case.  In Dunsmuir, six judges of this Court said that the standard of review applicable to the adjudicator’s legal determination was reasonableness.  Three judges found that the standard was correctness.  Each group focused on different aspects of the adjudicator’s decision-making process.  The majority gave weight to the presence of a strong privative clause, that the adjudicator was imputed to have expertise in interpreting his home statute, that the purpose of the legislation was the timely and binding settlement of disputes, and that the legal question was not outside the specialized expertise of the adjudicator.  The minority focused on the relationship between the common law rules relating to dismissal and those under the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25.  Because their starting point was the common law, over which the adjudicator was not imputed to have expertise, the minority was of the view that the correctness standard applied.
[98] What this demonstrates is that the common law standard of review analysis continues to provide little certainty about which standard will apply in a particular case.  How a court will weigh and balance the four standard of review factors remains difficult to predict and therefore more costly to litigate.  In my view, it must be recognized that the common law standard of review analysis does not provide for a panacea of rigorous and objective decision making regarding the intensity with which courts should review tribunal decisions. In attempting to reconcile the court’s constitutional role in the face of a strong privative clause, it may be the best that we have at this point.  But its application outside the privative clause context is, in my view, of highly questionable efficacy.
III.     Judicial Recognition of Legislated Standards of Review

1. Giving Effect to Legislative Intent

[99] This Court has considered legislative language similar to that in s. 18.1(4) in previous cases and has held that a common law standard of review analysis is not necessary where the legislature has provided for standards of review.  This Court held in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, that legislative rules specifying standards of review must be given effect by courts, subject to constitutional limits.
[100]             The majority now attempts to qualify that holding in Owen.  In my respectful view, that is ignoring the obvious.   The majority insists that although not stated, the “common law of judicial review” was still in play in Owen.  Binnie J. writes that “even in the context of a precisely targeted proceeding related to a named adjudicative board, the standard of review was evaluated by reference to the common law of judicial review” (para. 31).  In my respectful opinion, to say (or imply) that a Dunsmuir standard of review analysis applies even where the legislature has articulated the applicable standard of review directly contradicts Owen.
[101]             The majority nevertheless implies that even if the Dunsmuir standard of review analysis did not apply in Owen, this was only because of the specificity of s. 672.38 of the Criminal Code, R.S.C. 1985, c. C-46 (see para. 29).  That section sets out the standard of review to be applied on judicial review of decisions from Review Boards regarding the liberty of persons found not criminally responsible.  The majority contrasts this with s. 18.1 of the FCA , stating that “[r]esort to the general law of judicial review is all the more essential in the case of a provision like s. 18.1 of the [FCA ] which, unlike s. 672 of the Criminal Code , is not limited to particular issues before a particular adjudicative tribunal” (para. 33).  Thus, even if one rejects the view that a common law standard of review analysis was present in Owen, the majority still says that the generality of s. 18.1 of the FCA makes it applicable in the present case.
[102]             The problem with this reasoning is that such qualification would seriously undermine the legislature’s ability to introduce greater certainty and predictability into the standard of review process.  Drawn to its logical conclusion, in order to displace the Dunsmuir standard of review analysis, the majority’s approach would require legislatures to enact standard of review legislation with respect to every single administrative tribunal or decision-maker and perhaps in relation to every type of decision they make.  With respect, this amounts to a serious overreaching of this Court’s role.  It fails to respect the legislature’s prerogative to articulate, within constitutional limits, what standard of review should apply to decision-makers that are wholly the products of legislation.
[103]             In discussing British Columbia’s Administrative Tribunals Act, S.B.C. 2004, c. 45 (“B.C. ATA”), Binnie J. notes that “most if not all judicial review statutes are drafted against the background of the common law of judicial review” (para. 19).  While I agree with this observation, I disagree with him as to the conclusions that should flow from it.  The majority views the common law background as providing an opening for the continued relevance of a common law standard of review analysis. In reference to s. 58(2)(a) of the B.C. ATA, Binnie J. writes:
Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but the contentof 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. [Underlining added; para. 19.]
[104]             The majority would allow for recourse to the common law on several fronts.  First, Binnie J. states that the common law jurisprudence on the “content” of “patently unreasonable” will be relevant.  I agree that the common law will be a necessary interpretive tool where common law expressions are employed by the legislator and are not adequately defined: see R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 434-36; R. v. Holmes, [1988] 1 S.C.R. 914; Waldick v. Malcolm, [1991] 2 S.C.R. 456.
[105]             However, the majority would also allow for recourse on a second front.  Binnie J. says that “the precise degree of deference [patently unreasonable] commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (para. 19).  It is unclear exactly which principles of administrative law are being referred to.  If the reference to general principles of administrative law means there is some sort of spectrum along which patent unreasonableness is to be calibrated, that would be at odds with the B.C. legislature’s codification of discrete standards of review.
[106]             With the ATA, the B.C. legislature expressly codified the standards of review.  However, in order for legislation to be exhaustive on a particular question, legislatures are not required to expressly oust the common law by statute.  In Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, this Court considered whether recourse to the common law duty of fair representation was appropriate where the legislature had created a statutory duty.  L’Heureux‑Dubé J., writing for a unanimous Court, emphasized that because the content of the statutory remedy was “identical to the duty at common law”, the “common law duty is therefore not in any sense additive; it is merely duplicative” (p. 1316).  The Court went on to hold that
the common law duty of fair representation is neither “necessary [nor] appropriate” in circumstances where the statutory duty applies. Parliament has codified the common law duty and provided a new and superior method of remedying a breach.  It is therefore reasonable to conclude that while the legislation does not expressly oust the common law duty of fair representation, it does however effect this end by necessary implication  . . . .  [Emphasis in original; p. 1319.]
Thus, while recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the FCA .

1. The Majority’s Concern With the Rigidity of Legislated Standards Is Misplaced

[107]             The majority expresses concern with the rigidity of general legislative schemes in the judicial review context.  With respect to the B.C. ATA, Binnie J. writes of the need for a common law analysis that would account for the “diverse circumstances of a large provincial administration” (para. 19).  In the federal context, he writes: “It cannot have been Parliament’s intent to create . . . a single, rigid Procrustean standard of decontextualized review . . .” (para. 28).  By focussing on the diversity of decision-makers covered by the FCA and the B.C. ATA, the majority’s reasons make prescribed standards appear overly rigid, even arbitrary.
[108]             With respect, the image of the Procrustean bed is misplaced in the judicial review context.  The invocation of the Procrustean image with respect to legislated rules creates the impression that the contrasting common law standard of review is operating in a fluid, fully contextualized paradigm.  This is not the case.  This is not an area where Parliament is imposing rigid conformity against the backdrop of a panoply of common law standards.  The potential flexibility of a contextual common law analysis is already limited in the post-Dunsmuir world of two standards.  Regardless of what type of decision-maker is involved, whether a Cabinet minister or an entry‑level fonctionnaire (para. 28),  the Dunsmuir analysis can only lead to one of two possible outcomes:  reasonableness or correctness.  And, as the present majority makes clear, these are single standards, not moving points along a spectrum (para. 59).
[109]             Moreover, the majority’s concerns regarding legislative rigidity are only realized if one accepts that the focus of the analysis should or must be on the type of administrative decision-maker.  The majority’s argument is that it cannot have been intended for a range of decision-makers to be subject to the same standards of review.  A review of the FCA and the B.C. ATA makes clear, however, that the respective legislatures believed the focus should be on the nature of the question under review (e.g., fact, law, etc.), rather than the nature of the decision-maker.  So there is a diversity in these schemes.  It just operates according to the type of question being reviewed.
[110]             Even given this legislative focus on the type of question under review, it is still not the case that all administrative decision-makers are subject to the same standards of review.  Where a decision-maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted.  This is precisely how Parliament has legislated in the FCA context when it intends for greater deference to be shown to certain decision-makers.
[111]             The Canada Labour Code, R.S.C. 1985, c. L-2 , for example, includes a strong privative clause protecting the Canadian Industrial Relations Board from judicial review under the FCA on questions of law and fact.  Section 22(1) states:

22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with theFederal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the FCA .  Where the privative clause applies, i.e. with respect to s. 18.1(4) (c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy.  In such cases, the Dunsmuir analysis applies.  There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud.  Correctness review applies in these cases.
[112]             In contrast, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 — the underlying legislation in the present case — does not contain this type of privative clause.  Section 162(1) only provides that “[e]ach Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.”  Contrary to the implication of the majority reasons, I think it is plain that this privative clause is intended only to differentiate between different levels and tribunals within the immigration regime and provide each with exclusive jurisdiction to hear legal and factual questions.  It is not a  privative clause that seeks to restrict or preclude judicial review.
[113]             These examples indicate that Parliament has not been unmindful of the issue of standard of review in s. 18.1(4) .  Where it intends that a tribunal decision reviewed under s. 18.1 be shown deference, Parliament expressly indicates this either in s. 18.1(4) itself, as it has in para. (d) with respect to facts, or in the underlying legislation such as the Canada Labour Code .  Where it does not, the courts should undertake their review according to the standards of correctness.
[114]             I would note that the B.C. legislature has also turned its mind to these concerns.  The B.C. ATA provides for more deferential standards of review where the underlying statute contains a privative clause.  By imposing different standards of review depending on whether or not the administrative decision is protected by a privative clause, the legislature differentiates between those expert decisions it wished to protect and those it did not (ss. 58 and 59).  The Honourable Geoff Plant indicated this when introducing the B.C. ATA on second reading:
For tribunals with specialized expertise, like the Farm Industry Review Board and the Employment Standards Tribunal, this bill generally provides that a court must defer to a tribunal’s decision unless the decision is patently unreasonable or the tribunal has acted unfairly. For other tribunals — including, for example, the mental health review panels — the bill provides that with limited exceptions, a court must adopt a standard of correctness in reviewing the tribunal’s decisions.
(Debates of the Legislative Assembly, 5th Sess., 37th Parl., May 18, 2004, at p. 11193)
[115]             The record of the proceedings of the B.C. legislature also makes clear the legislature’s intent to codify standards of review that would oust a duplicative common law standard of review analysis.  The policy rationale for this move was clear.  The legislation was aimed at refocussing judicial review litigation on the merits of the case, rather than on the convoluted process of determining and applying the standard of review.
The question of what the standard of review should be on a case‑by‑case basis is often interpreted by the courts as a search for legislative intent. . . . Accordingly, searching for that intent tends to be a time‑consuming, expensive and sometimes disruptive exercise.
. . .
. . . The provisions in this bill that codify the standards of review will shift the focus from what has been largely a scholarly debate about fine points of law to matters of greater immediate concern to the parties in tribunal proceedings. [Emphasis added.]
(Debates of the Legislative Assembly, at p. 11193)
[116]             It would be troubling, I believe, to the B.C. legislature to think that, despite its effort to codify standard of review and shift the focus of judicial review to the merits of the case, this Court would re-impose a duplicative Dunsmuir-type analysis in cases arising under the B.C. ATA.

1. Statutory Interpretation of the Federal Courts Act

18. Section 18.1(4)

[117]             Section 18.1(4) appears at para. 71 above.  On my reading, where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language.  The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context.
[118]             In my opinion, it is useful to analyse s. 18.1(4) by first examining para. (d), which  provides for judicial review where the 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;
In this paragraph, Parliament has expressly instructed courts to show significant deference to the original decision-maker.  The words “in a perverse or capricious manner or without regard for the material before it” are clear and unambiguous.  They indicate that on questions of fact, courts are only to interfere in the most egregious cases of erroneous fact finding.
[119]             Binnie J. also finds that “it is clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference” (para. 46).  It would seem that in recognizing that the legislature intended a high degree of deference, one would conclude that this provision speaks for itself and ousts a common law standard of review analysis.  Yet, Binnie J. still suggests that the provision is merely complementary of the common law, rather than dispositive of the standard of review issue.  He writes that s. 18.1(4)(d) “provides legislative precision to the reasonableness standard of review of factual issues” and is “quite consistent with Dunsmuir” (para. 46).  By superimposing Dunsmuir, the majority signals that factual decisions are to be reviewed on a reasonableness standard.  The question then is whether reasonableness implies the same level of deference as “capricious” and “perverse”.  Arguably, a reasonableness review might be less deferential than that intended by the words Parliament used.  Regardless of whether that is true or not, there is no justification for imposing a duplicative common law analysis where the statute expressly provides for the standard of review: see Gendron.
[120]             By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4).  Parliament recognized that with respect to factual determinations, a federal board, commission or other tribunal is better situated than a reviewing court.  With respect to questions of law, jurisdiction, natural justice, fraud or perjured evidence, the legislation deems courts to have greater expertise than administrative decision-makers.
[121]             There is no suggestion in the FCA that reviewing courts should defer on questions of law.  Section 18.1(4) (c) provides for review where the 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;
I can see no meaningful difference between the terms “the decision is based on a wrong decision on a question of law” which, in Owen, was considered to be sufficient by this Court to determine that a correctness standard of review applied, and “erred in law in making a decision or an order, whether or not the error appears on the face of the record” in s. 18.1(4)(c).  Indeed, in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100,  a unanimous Court thought that the words of s. 18.1(4) were sufficiently clear that “[u]nder these provisions, questions of law are reviewable on a standard of correctness” (para. 37).  Mugesera, like this case, was a judicial review of a decision of the IAD.
[122]             The majority now attempts to qualify Mugesera by writing that “[e]rrors of law are generally governed by a correctness standard” (para. 44  (emphasis added)).  With respect, Mugesera did not qualify its application of the correctness standard of review in interpreting s. 18.1(4)(c).  Paragraph 37 of Mugesera states:
Applications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act .  Paragraphs (c) and (d) of s. 18.1(4) , in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact.  Under these provisions, questions of law are reviewable on a standard of correctness.
Moreover, contrary to what the present majority implies, the Court in Mugesera did not limit the application of the correctness standard to “the general questions of international law and criminal law at issue in that case” (para. 44 of majority).  It is clear that as a matter of statutory interpretation, the Court understood s. 18.1(4)(c) as requiring a correctness review on questions of law.  The Court saw no need to impose the common law over what the statute itself dictated.
[123]             The majority nevertheless insists that “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” (para. 44 (emphasis in original)).  With respect, there is no authority for this in the legislation.  The majority finds their opening in the remedial discretion of s. 18.1(4).  Binnie J. writes: “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” (para. 44).  As I will explain, the remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself.  The bases upon which the remedial discretion is to be exercised are wholly distinct from the common law of standard of review analysis.
[124]             Paragraphs (a), (b) and (e) of s. 18.1(4) provide for relief where a federal board, commission or other tribunal
(a)   acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b)   failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
. . .
(e)   acted, or failed to act, by reason of fraud or perjured evidence;
There is no indication in any of these provisions that the legislature intended for the reviewing court to show any deference to administrative decision-makers in determining questions of jurisdiction, natural justice, procedural fairness and fraud or perjured evidence.
[125]             Section 18.1(4)(f) contemplates judicial intervention where the federal board, commission or other tribunal
(f)   acted in any other way that was contrary to law.
The majority  writes that s. 18.1(4)(f) “necessarily includes ‘law’ outside the [FCA ]” (para. 48) and therefore demonstrates 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” (para. 48).  The majority relies on the statement by the authors of Federal Courts Practice 2009 (2008), B. J. Saunders et al., that “[s]ection 18.1(4)(f) ensures that the Court will not be hindered in developing new grounds for review” (para. 49 (emphasis added by Binnie J.)).
[126]             It is not in dispute that s. 18.1(4) is not intended to operate as a self-contained code.  In judicial review of any administrative decision where a legal error is alleged, the court is required to consider whether the decision-maker was in breach of any statutory provision or common law rule that might be relevant.  In this regard, I agree that s. 18.1(4)(f) provides for potentially expanded grounds of review.  However, that is not the issue in this case.  The issue in this case is whether Parliament has legislated exhaustively on the standard of review, so as to oust the Dunsmuir standard of review analysis.  Binnie J.’s reliance on Saunders et al.’s discussion of the “grounds of review” under s. 18.1(4) does not address whether the section also provides for standards of review.  This is troubling, given that those same commentators find that s. 18.1(4) does provide for standards of review on questions of fact and law.  At p. 145 of their text under the title “Grounds for Review — Standard of Review — Generally” in commenting on Mugesera, they write:
Under section 18.1(4)(c) and (d) of the Federal Courts Act , questions of law are reviewable on a standard of correctness.  On questions of fact, the reviewing court can intervene under section 18.1(4) (d) only if it considers that the tribunal “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”.
[127]             All that s. 18.1(4)(f) provides for is review of legal errors committed by a federal board, commission or other tribunal other than those “in making a decision or an order”, which are already captured under s. 18.1(4)(c): see Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), at para. 44 (“the intent of the paragraph appears to have been to afford a ground that was not otherwise specifically mentioned in subsection 18.1(4)”).  A tribunal’s refusal to make a decision or an order, for example, would not come under para. (c).  The reference to “acted in any other way that was contrary to law” refers, then, to legal errors that are not captured by s. 18.1(4)(c).  It does not provide an opening for a Dunsmuir standard of review analysis.  With respect, the majority’s view of s. 18.1(4) ignores the obvious interpretation in search of something that is not there.

1. Section 18 and the Origins of the Federal Courts Act

[128]             The majority is of the view that when s. 18.1 was added to the FCA , it “did not have the effect of excluding the common law” (para. 34).  It appears that this proposition is intended to act as a platform for the applicability of the common law standard of review analysis.  With respect, it is overly broad to suggest that all elements of the common law continued to apply to s. 18.1(4) simply because there were some gaps — for example, criteria in exercising the discretion to withhold relief — which the common law continued to fill.  For the reasons I have explained, the FCA occupies the area of standard of review and therefore ousts the application of the common law on this question.
[129]             The genesis of the FCA and its amendments is not in dispute. Section 18 was enacted to transfer jurisdiction from the provincial superior courts to the federal courts for judicial review of federal tribunals, subject to provincial courts retaining a residual jurisdiction to determine the constitutionality and applicability of legislation.  Section 18 , which refers to the prerogative writs, survives, but no application for judicial review can be made under it.  Subsection (3) provides:
The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1 .
Section 18.1 contains the statutory process under which judicial review may be applied for and under which the court exercises its jurisdiction.
[130]             The 1990 amendments were intended to clarify pre-existing procedural confusion about whether the trial or appeal divisions had jurisdiction with regard to particular applications for judicial review.  The amendments also aimed to simplify the procedure for obtaining a remedy by requiring that it be sought by way of application for judicial review, rather than by way of statement of claim or originating notice of motion as had been the prior practice: D. Sgayias et al., Federal Court Practice 1998 (1997), at pp. 69-70.  As reform legislation, the amendments did not concern the standard of review.

18.     The Implications of Section 18.1(4) Remedial Discretion

[131]             I agree with Binnie J.’s bilingual analysis and conclusion 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” (para. 40).  The pertinent question is what should form the basis for the exercise of that judicial discretion.    Relief on judicial review is equitable.  The discretion in s. 18.1(4) recognizes that it may be inappropriate to grant equitable relief in some cases.  This remedial discretion allows a reviewing judge to withhold relief in certain cases.  It does not concern the review itself, however.
[132]             The majority says that the FCA does not “indicate in what circumstances . . . relief may properly be withheld” (para. 42).  It is true that the legislation does not provide for criteria according to which reviewing courts should exercise their discretion to withhold relief.  In the context of this specific gap, I agree with the majority that “resort will have to be had to the common law” (para. 42).  The pertinent question is which part of the common law is relevant to the withholding of relief by the court on judicial review.
[133]             Binnie J. attempts to  ground the court’s remedial discretion to withhold relief in general judicial review principles.    He states at para. 36 that the court’s exercise of the s. 18.1(4) discretion “will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the ‘circumstances of each case’: see Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575.”   He cites Brown and Evans’ observation that “whenever the court exercises its discretion to deny relief, balance of convenience considerations are involved” (para. 36); D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-99.  While “the discretion must be exercised judicially”, Binnie J. finds that “the general principles of judicial review dealt with in Dunsmuir provide elements of the  appropriate judicial basis for its exercise” (para. 36).
[134]             By linking remedial discretion to Dunsmuir “general principles of judicial review”, Binnie J. conflates standard of review (deference) with the granting of relief.  In doing so, he effectively reads in an opening for recourse to the common law standard of review analysis.  He relies on the specific gap regarding the discretion to grant relief to impute a wider gap regarding standard of review.
[135]             With respect, this is not the nature of the discretion under s. 18.1(4).  The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies: Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 364.  As Harelkin  affirmed, at p. 575, courts may exercise their discretion to refuse relief to applicants “if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty”.  As in the case of interlocutory injunctions, courts exercising discretion to grant relief on judicial review will take into account the public interest, any disproportionate impact on the parties and the interests of third parties.  This is the type of “balance of convenience” analysis to which Brown and Evans were referring.
[136]             Thus, the discretion contained in s. 18.1(4) speaks to  the withholding of relief in appropriate cases;  it does not engage the question of standard of review.  Reliance upon it by the majority to support the view that it opens the door to the Dunsmuir standard of review analysis is, with respect, misplaced.  In my view, the Dunsmuir standard of review should be confined to cases in which there is a strong privative clause.  Excepting such cases, it does not apply to s. 18.1(4) of the FCA .

1. Decision in This Case

[137]             In determining whether the respondent was eligible for the special relief available under s. 67(1) (c) of the  Immigration and Refugee Protection Act , the IAD acknowledged that its discretion should be exercised with consideration for the criteria set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) (endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84).  The majority of the IAD expressly referred to the Ribic factors and, in my view, had regard to those it considered relevant in exercising its discretion.  The actual application of the Ribic factors to the case before it and its exercise of discretion is fact-based.  I do not find that the factual findings of the IAD were perverse or capricious or were made without regard to the evidence.  I would allow the appeal.
The following are the reasons delivered by
[138]             DESCHAMPS J. — I agree with Rothstein J. that since s. 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7 , sets legislated standards of review, those standards oust the common law.  Consequently, I agree with Parts III, IV and V of his reasons and would also allow the appeal.
The following are the reasons delivered by
FISH J. (dissenting) —
I
[139]             This appeal raises two issues. The first concerns the standard of review with respect to decisions of the Immigration Appeal Division (“IAD”). In that regard, I agree with Justice Binnie that the standard of review is “reasonableness”.
[140]             The second issue is whether the majority decision of the IAD in this case survives judicial scrutiny under that standard. Unlike Justice Binnie, and with the greatest of respect, I have concluded that it does not.
[141]             Essentially, I find that the decision of the IAD rests on what the Court of Appeal has aptly described as a “fixation” that collides with the overwhelming weight of the uncontradicted evidence in the record before it.  I agree with the majority below that the decision, for this reason, cannot stand.
[142]             Accordingly, I would dismiss the appeal.
II
[143]             In 2000, when he was 18 years old, Sukhvir Singh Khosa caused the death of Irene Thorpe by driving recklessly at more than twice the speed limit, losing control of his automobile and running it off the roadway.  He had by then been living in Canada for four years.  When his appeal to the IAD was decided in 2004, he was 22 and married.  Four more years have elapsed since then.
[144]             To order Mr. Khosa’s removal would separate him from his wife and immediate family.  It would return him to a country he has visited only once since emigrating at the age of 14  and where he appears to have few relatives.
[145]             The IAD’s task in this case is to look to “all the circumstances of the case” in order to determine whether “sufficient humanitarian and compassionate considerations” existed to warrant relief from a removal order:  Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 67(1) (c).  The IAD is bound in performing that function to consider the various factors set out  in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in  Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 90.  The IAD in this case placed the greatest emphasis on the factors of remorse, rehabilitation, and likelihood of reoffence.
[146]             With respect to these factors, the record before the IAD consisted essentially of the following uncontested and uncontradicted evidence:

• The sentencing judge found that “by his actions immediately after learning of Ms. Thorpe’s death and since the accident . . . he has expressed remorse” (R. v. Khosa, 2003 BCSC 221, [2003] B.C.J. No. 280 (QL), at para. 56).

• Mr. Khosa took responsibility for his crime early, expressing a desire to attend the funeral of the woman he had killed and offering — before any arraignment or preliminary inquiry — to plead guilty to dangerous driving causing death.

• The sentencing judge found that “[i]n the more than two years that have passed since the accident, Mr. Khosa has not left the house except to go to work, to school, or the Sikh temple.  He normally does not drink.  He does not take drugs.  He has no criminal record.  He has no driving record.  He has complied with all of his bail conditions andis not likely to re-offend” (para. 55 (emphasis added)).

• Mr. Khosa had not driven a car since the accident, even though he was permitted to do so for some months thereafter.

• Mr. Khosa’s probation officer concluded from close and extensive contact with Mr. Khosa that he “appears to be making a sincere effort to maintain a stable and responsible life style in which he is a contributing member of the community”.  The probation officer also reported that he has “demonstrated a very positive attitude towards community supervision [and] willingly conforms to the expectations, requirements, and restrictions of the Conditional Sentence”.  With respect to his character, the probation officer was of the view that Mr. Khosa “presents as a pro‑social young man who values work, family, community and religion”  (Appellant’s Record, at p. 355).

• Mr. Khosa had no previous criminal or driving convictions whatever.

• Mr. Khosa had complied with all provisions of his conditional sentence.

• Several employers wrote letters describing Mr. Khosa as conscientious and reliable.

[147]             Despite all of this evidence indicating that Mr. Khosa was extremely unlikely to reoffend and had taken responsibility for his actions, the majority at the IAD seized upon one consideration:  Mr. Khosa’s denial that he was “street-racing” at the time the accident occurred.  Apart from a brief mention of Mr. Khosa’s “show of relative remorse at [the] hearing” ([2004] I.A.D.D. No. 1268 (QL), at para. 15), and a passing allusion to the judgments of the criminal courts to his culpability (para. 14), Mr. Khosa’s denial was the only consideration that the IAD majority considered with respect to these issues.  Manifestly, this solitary fact was the decisive element — if not the sole basis — upon which the majority of the IAD denied Mr. Khosa’s basis for all humanitarian and compassionate relief.
[148]             So much cannot reasonably be made out of so little.
III
[149]             While Mr. Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities  — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence.
[150]             The IAD’s cursory treatment of the sentencing judge’s findings on remorse and the risk of recidivism are particularly troubling.  While findings of the criminal courts are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the decision of the sentencing judge.  The majority decision at the IAD mentions only in passing the favourable findings of the criminal courts and does not explain at all its disagreement with them.
[151]             Moreover, Mr. Khosa’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence.  In light, particularly, of the extensive, uncontradicted and unexplained evidence to the contrary, Mr. Khosa’s denial of street racing cannot reasonably support the inference drawn from it by the majority in the IAD.
[152]             It is also important to note that street racing was not a necessary element of  Mr. Khosa’s crime of criminal negligence causing death (R. v.  Khosa, 2003 BCCA 644, 190 B.C.A.C. 23, at para. 85).  It appears that Mr. Khosa’s refusal to accept his guilty verdict on this charge — in contrast with  his willingness to plead guilty to the less serious charge of dangerous driving causing death — is due solely to his mistaken impression that the former requires a finding that he was racing (Appellant’s Record, at p. 145).  This is therefore not a case where a person in deportation proceedings maintains his innocence, as suggested by the majority of the IAD (at para. 14), but rather a case where the immigrant simply disputes an ancillary finding of the criminal court.
[153]             Whatever the correct interpretation of Mr. Khosa’s denial that he was street-racing, it is clear that the majority at the IAD had “some kind of fixation” — to again borrow the phrase of the majority below — with this piece of evidence, and based its refusal to grant humanitarian and compassionate relief largely on this single fact.
[154]             The majority at the IAD made repeated reference to the denial.  Toward the end of its decision, it stated that in light of Mr. Khosa’s “failure . . . to acknowledge his conduct and accept responsibility for . . . street-racing . . ., there is insufficient evidence upon which I can make a determination that [Mr. Khosa] does not represent a present risk to the public” (para. 23 (emphasis added)).  I find that this conclusion is not only incorrect, but unreasonable.  There was ample evidence suggesting that he posed no risk.  The majority decision of the  IAD simply disregarded virtually all of that evidence.
[155]             Later, in justifying its decision to deny all relief rather than order a stay of removal, the majority wrote that Mr. Khosa’s “failure to acknowledge or take responsibility for his specific reckless conduct does not suggest that any purpose would be served by staying the present removal order” (para. 24).  Here, again, the decision of the IAD majority transforms a limited, specific and ancillary denial into a general failure to take responsibility.
[156]             The majority’s inordinate focus on racing and its failure to consider contrary evidence do not “fit comfortably with the principles of justification, transparency and intelligibility” that are required in order to withstand reasonableness review (reasons of Binnie J., at para. 59).
[157]             With respect, I thus feel bound to conclude that the IAD was unreasonable in its evaluation of Mr. Khosa’s rehabilitation, remorse and likelihood of reoffence.
IV
[158]             Because the IAD’s finding on these specific factors was central to its ultimate decision to deny any and all humanitarian and compassionate relief, the IAD’s determination cannot be sustained.
[159]             To be sure, the majority at the IAD stated that even if it were to have found that Mr. Khosa did not present a risk to the public “in balancing all the relevant factors, I determine the scale does not tip in [Mr. Khosa’s] favour and decline to exercise favourable discretion” (para. 23).  This sort of conclusory statement, however,  cannot insulate the IAD’s decision from review when the rest of its reasons demonstrate that its decision rests on an unreasonable determination of central importance, as in this case.
[160]             I agree that decisions of the IAD are entitled to deference.  In my respectful view, however, deference ends where unreasonableness begins.
V
[161]             For all these reasons, as stated at the outset, I would dismiss the appeal and affirm the judgment of the Court of Appeal returning this matter to the IAD for reconsideration before a differently constituted panel.
Appeal allowed, FISH J. dissenting.
Solicitor for the appellant:  Attorney General of Canada, Vancouver.
Solicitor for the respondent:  Garth Barriere, Vancouver.
Solicitors for the intervener:  Arvay Finlay, Vancouver.
* Bastarache J. took no part in the judgment.
1 See, e.g., federally, the Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 147(1) , Canada Agricultural Products Act, R.S.C. 1985, c. 20 (4th Supp .), s. 10(1.1) , and Employment Insurance Act, S.C. 1996, c. 23, s. 115(2) ; in Newfoundland and Labrador, Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8, s. 46(1); in New Brunswick, Occupational Health and Safety Act, S.N.B. 1983, c. O-0.2, s. 26(5), and The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, s. 27(1); in P.E.I., Judicial Review Act, R.S.P.E.I. 1988, c. J-3, s. 4(1); in Quebec, Code of Civil Procedure, R.S.Q., c. C-25, s. 846, and Youth Protection Act, R.S.Q., c. P-34.1, s. 74.2; in Ontario, Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2; in Manitoba, The Certified General Accountants Act, C.C.S.M., c. C46, s. 22(2), The Gaming Control Act, C.C.S.M., c. G5, s. 45(2), and The Human Rights Code, C.C.S.M., c. H175, s. 50(1); and in the Yukon Territory, Education Labour Relations Act, R.S.Y. 2002, c. 62, s. 95(1); Liquor Act, R.S.Y. 2002,  c. 140, s. 118(1), and Rehabilitation Services Act, R.S.Y. 2002, c. 196, s. 7.
2 See, e.g., Traffic Safety Act, R.S.A. 2000, c. T-6, s. 47.1(3); Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 58; Health Professions Act, S.Y. 2003, c. 24, s. 29, or “correctness”, e.g., Back to School Act, 1998, S.O. 1998, c. 13, s. 18(3).

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