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<< back to all ArticlesA Reasonableness Reminder in Mason v Canada
A recent Supreme Court of Canada decision provides a welcome update on the application of the reasonableness standard of review. Mason v Canada (Citizenship and Immigration) is the Supreme Court’s first application of the reasonableness standard since its foundational Vavilov decision in 2019. Mason is a helpful reminder for administrative decision-makers. It makes clear their obligation to give intelligible and thorough reasons for their decision and their obligation to respond to the key arguments made by parties before them.
Background
Mason is an immigration decision. It is about when permanent residents and foreign nationals are inadmissible to Canada on “security grounds”. Under the Immigration and Refugee Protection Act (the “Act”), permanent residents and foreign nationals are inadmissible to Canada if they have engaged “in acts of violence that would or might endanger the lives or safety of persons in Canada.” Courts and immigration decision-makers disagreed about what this meant. Did the “acts of violence” require a connection to Canadian national security, or did any “acts of violence” bar admission?
This was important for the two individuals at the heart of the case: Earl Mason and Seifeslam Dleiow. Both were foreign nationals. Both wanted to be admitted to Canada. Neither Mr. Mason nor Mr. Dleiow were alleged to have committed any violence with a connection to national security. Both had, however, been accused of committing violence. Mr. Mason was charged after firing a gun after being assaulted in a bar—though the charges were stayed. Mr. Dleiow was convicted of mischief and uttering threats following conflict with his intimate partners. Immigration Boards for both men decided that “acts of violence” meant any act of violence that threatened the safety of people in Canada—the violence did not need to have a connection to national security. This meant that both men were inadmissible to Canada. Practically speaking, this meant they would be deported.
The Decision
The Supreme Court’s decision helpfully clarifies both the process of selecting the standard of review and applying the reasonableness standard of review.
Following its paradigm-shifting decision in Vavilov in 2019, the Supreme Court in Mason applied the presumption of reasonableness review. Under this framework, unless one of the few prescribed exceptions apply, a reviewing court will apply the reasonableness standard of review. None of the existing exceptions applied to Mr. Mason or Mr. Dlieow, and the Supreme Court refused to recognize a new exception here. The framework established in Vavilov was intended to simplify the identification of the standard of review. Adding further exceptions would reintroduce the contextual confusion that existed pre-Vavilov.
The Supreme Court next described what reasonableness review entails. This is a helpful reminder, as the Supreme Court had not applied the reasonableness standard of review since Vavilov. In detail, the Supreme Court repeated the key points of reasonableness review.
The starting point of reasonableness review is the reasons provided by the administrative decision-maker. Reviewing courts should start with the actual reasons given by the administrative decision-maker, not their own assessment. The reasons provided must be justifiable, transparent, and intelligible. If they fail to provide a transparent and intelligible justification for the decision, they are unreasonable. This is one area where the Supreme Court criticized a lower court: it had started with its own review of the Act before reviewing the Immigration Boards’ decisions.
An administrative decision will be unreasonable if it suffers from one (or both!) of two types of “fundamental flaw”: a reasoning failure or a justification failure. Reasoning failures occur when the reasoning process is irrational or illogical. Justification failures occur when the decision conflicts with the applicable factual or legal context. Administrative decision-makers must consider all of the facts and law relevant to their decision. Just which contextual factors are relevant to each decision will depend on the decision at issue, but common factors include the governing statutory scheme; the principles of statutory interpretation; any relevant statutory law, common law, or international law; the evidence and facts before the decision-maker; the parties’ submissions before the decision-maker; the past practices and decisions of the decision-maker; and the potential impact of the decision on the parties.
After selecting the reasonableness standard of review and describing how to apply it properly, the Supreme Court assessed whether the Immigration Boards’ decisions that “acts of violence” do not require a connection to national security were reasonable. It found that the Immigration Boards’ decisions fell short. The decisions were unreasonable.
The Immigration Boards’ decisions were unreasonable because they had justification failures. The decisions did not address certain important arguments raised by Mr. Mason and Mr. Dlieow. One key argument Mr. Mason raised related to other sections of the Act. He argued that the Act as a whole suggested that “acts of violence” only referred to violence with a connection to national security. Another key argument was that interpreting “acts of violence” to include any violence would lead to absurd consequences—did lawmakers really intend for any moderately plausible allegation of violence to render someone inadmissible to Canada?
These arguments were “core planks supporting his position” (para 97). The Immigration Boards did not address these arguments. Without responding to these arguments, Mr. Mason could not know whether the Immigration Board considered his submissions and dismissed them or simply ignored him. To be reasonable, the decisions needed to address these arguments and explain why they did not accept them.
The decisions also failed to address legal constraints imposed by international law. The Refugee Convention imposes limits on how Canada can deport foreign nationals. The Immigration Boards’ decisions did not address the impact its decisions may have on these obligations. This too made the Immigration Boards’ decisions unreasonable.
Normally, courts conducting judicial review will allow administrative decision-makers to interpret statutes as they see fit, so long as they do so reasonably. This might mean that different administrative decision-makers will adopt slightly different interpretations of a statute. In this case, however, the Supreme Court held that there was only one reasonable way to interpret the “acts of violence” section: the “acts of violence” must have a connection to national security. That is the only reasonable way to read the Act.
As a result, the Supreme Court found that the Immigration Boards’ decisions were unreasonable and quashed them. Mr. Mason and Mr. Dlieow are not inadmissible to Canada based on their “acts of violence”.
Takeaway
Mason is a helpful confirmation. It confirms that the “reasons first” approach from Vavilov reigns supreme. Administrative decision-makers need to ensure their decisions are justified and explained. Courts will be on the lookout for administrative decisions that inadequately grapple with the submissions of the parties—or ignore them outright. Both could lead to a reviewing court finding the decision unreasonable. It also confirms that Vavilov’s presumption of reasonableness review is strong. A majority of the Court refused to recognize a new category of correctness review. Reviewing courts should hesitate before identifying a new category of correctness review.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
