Date: 20111026
Dockets: A-376-10
A-374-10
A-375-10
A-377-10
A-378-10
A-382-10
Citation:
2011 FCA 299
CORAM: NOËL
J.A.
TRUDEL
J.A.
STRATAS
J.A.
BETWEEN:
Docket:
A-376-10
STEMIJON INVESTMENTS
LTD.
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-374-10
BETWEEN:
CANWEST
COMMUNICATIONS CORPORATION
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-375-10
BETWEEN:
CANWEST
DIRECTION LTD.
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-377-10
BETWEEN:
LEONARD ASPER
HOLDINGS INC.
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-378-10
BETWEEN:
LENVEST
ENTERPRISES INC.
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-382-10
BETWEEN:
SENSIBLE
SHOES LTD.
Appellant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
A. Introduction
[1]
Before
this Court are six appeals from six judgments of the Federal Court (per Justice
Mandamin): 2010 FC 892, 2010 FC 893, 2010 FC 894, 2010 FC 895, 2010 FC 897,
2010 FC 898. In each, the Federal Court dismissed an application for judicial
review brought by the taxpayer concerning a decision by the Minister of
National Revenue. In each, for identical reasons, the Minister refused the
taxpayer relief from penalties and interest under subsection 220(3.1) of the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.).
[2]
Since
the facts and the law are substantially the same in each matter, this Court
consolidated the appeals, the appeal in file A-376-10 being designated as the
lead appeal. A copy of these reasons for judgment will be filed in each of files
A-374-10, A-375-10, A-376-10, A-377-10, A-378-10 and A-382-10, and shall serve
as this Court’s reasons for judgment in each appeal. Given the identical nature
of the appellant’s submissions, the Minister’s decision for each appellant, and
the Federal Court’s decision, these reasons will speak of one decision, one
decision letter and one Federal Court decision.
[3]
In
my view, for the reasons set out below, the Minister’s decision falls outside
the range of defensibility and acceptability and, thus, is unreasonable.
However, the relief is discretionary. In these particular circumstances, no
practical end would be accomplished by setting aside the Minister’s decision
and returning the matter back to him for redetermination: the Minister could
not reasonably grant relief on these facts. Therefore, I would dismiss the
appeals.
B. The basic
facts
(1)
Background
information
[4]
The
Act requires persons to file certain forms in certain circumstances. These
forms convey information to the Canada Revenue Agency. The Canada Revenue
Agency uses this information to discharge its responsibilities under the Act.
[5]
Form
T1135 is one such form. This form must be filed by taxpayers who own specified
foreign property, the total cost amount of which is over $100,000: subsection
233.3(3) of the Act.
[6]
The
appellants were obligated to file this form for each of the 2000 to 2003
taxation years. They did so, but were late. Due to their lateness, the Minister
assessed penalties and interest against the appellants.
[7]
The
appellants sought relief from the penalties and interest from the Minister. The
Minister can grant such relief under subsection 220(3.1) of the Act. Broadly
speaking, the appellants alleged that they had made an innocent mistake and
that it would be unfair to levy penalties and interest in the amounts assessed.
(2) How
the late filings happened
[8]
The
appellants employed a common financial representative to make all tax filings on
their behalf.
[9]
For
the 1998 and 1999 taxation years, the appellants’ representative filed the
appellants’ Forms T1135 on time. However, for the 2000 to 2003 taxation years,
the appellants’ representative formed the view, contrary to the wording of
subsection 233.3(3) of the Act, that it was unnecessary to file the forms. The
appellants’ representative felt that the Canada Revenue Agency was getting all the
information it needed from other filings made by the appellants’ Canadian
investment managers.
[10]
Specifically,
the appellants’ representative believed that Form T1135 did not need to be
filed where a foreign investment portfolio was managed by a Canadian investment
manager subject to Canadian tax reporting requirements. In his view, that was
the case with each of the appellants. However, as the appellants’
representative conceded in a letter dated June 2, 2005, that logic did not
apply to the appellant Canwest Communications Corporation, which had U.S. investments
administered by U.S. fund managers.
[11]
Somewhat
later, the Canada Revenue Agency alerted the appellants to the fact that they
had not filed their forms for some time. The appellants complied, filing their
forms late and explaining their misunderstanding.
(3) The appellants’
request for relief from interest and penalties and the first level administrative
decision
[12]
The
appellants’ financial representative wrote on behalf of the appellants to the
Fairness Committee of the Canada Revenue Agency, requesting relief under
subsection 220(3.1) of the Act against the penalties and interest assessed
against the appellants for their late filings of the forms. The representative conceded
that the delay in filing was “a conscious decision” but was done in the mistaken
belief, described above, that the forms did not need to be filed. The
representative explained that it was guilty of “administrative oversight.”
[13]
In
its first level administrative decision, the Canada Revenue Agency denied the
appellants’ request for relief. It found that the appellants did not fall
within one of the three specific scenarios set out in Information Circular (IC)
07-01 (“Taxpayer Relief Provisions”), a policy statement
issued by the Minister. These three specific scenarios are extraordinary
circumstances beyond the taxpayer’s control, actions of the Canada Revenue
Agency, and inability to pay. The Canada Revenue Agency also denied the
appellants’ request for relief under a “one chance policy” that existed at the
time. The appellants failed to qualify under that policy because they filed the
forms only as a result of an inquiry made by the Canada Revenue Agency.
(4) The appellants’
further request for relief from interest and penalties and the Minister’s
decision
[14]
Dissatisfied,
the appellants made a second level request for relief to a delegate of the
Minister (hereafter, the “Minister”). They explained that their representative
had engaged in an “administrative oversight.” They enclosed their previous
correspondence that explained that the representative believed that the forms
did not need to be filed because the Canada Revenue Agency was getting
information about the appellants’ foreign holdings from other filings. They
suggested that the delay of the Canada Revenue Agency should result in some
relaxation in the interest charges. Finally, they also argued that there was an
“error of omission common to all entities” and so the penalty, levied for each
of the six appellants, should be substantially reduced.
[15]
The
Minister set out his reasons in a decision letter. In his decision letter, the Minister
partly granted the appellants’ request for relief. He was prepared to reduce
the interest charged during six months due to the Canada Revenue Agency’s delay
in replying to the appellants. The Minister denied the remainder of the appellants’
request for relief.
(5) The
applications to the Federal Court for judicial review
[16]
The
appellants applied to the Federal Court for judicial review of the Minister’s
denial of relief.
[17]
In
the Federal Court, and also in this Court, the appellants focused on the reasons
set out in the Minister’s decision letter. They submitted that the Minister improperly
narrowed the scope of discretion permitted to him under subsection 220(3.1) of
the Act. In their view, the Minister had regard only to the three scenarios of
relief specifically set out in the Information Circular rather
than the general concept of fairness under subsection 220(3.1) of the Act. In
other words, the Minister improperly fettered his discretion.
[18]
The appellants also submitted that the Minister’s refusals of
relief on the facts of this case could not be sustained under the standard of
review of reasonableness.
(6) The
Federal Court’s decision
[19]
The
Federal Court rejected the appellants’ submissions. It found that the Minister
had not fettered his discretion. Instead, he was aware of the full extent of
his discretion and decided against granting relief. The Federal Court based
this conclusion on the fact that the Minister had before him an array of material
that went beyond the three scenarios set out in the Information Circular, such
as the submissions of the appellant and a wide-ranging Taxpayer Relief Report.
The Federal Court also found that the Minister fully addressed the appellants’
requests for relief and reached a conclusion that passed muster under the
standard of review of reasonableness.
C. Analysis
(1) The
standard of review to be applied
[20]
The
Federal Court held that the standard of review of the Minister’s decision is
reasonableness. In this Court, the parties accept this. This Court can
interfere only if the Minister reached an outcome that is indefensible and unacceptable
on the facts and the law: Canada Revenue Agency v. Telfer, 2009 FCA 23
at paragraphs 24-28; Canada Revenue Agency v. Slau Ltd., 2009 FCA 270 at
paragraph 27; Dunsmuir
v. New
Brunswick, 2008
SCC 9 at paragraph 47, [2008] 1 S.C.R. 190.
[21]
The
appellants’ submissions, while based on reasonableness, seem to articulate
“fettering of discretion” outside of the Dunsmuir reasonableness
analysis. They seem to suggest that “fettering of discretion” is an automatic
ground for setting aside administrative decisions and we need not engage in a Dunsmuir-type
reasonableness review.
[22]
On
this, there is authority on the appellants’ side. For many decades now,
“fettering of discretion” has been an automatic or nominate ground for setting
aside administrative decision-making: see, for example, Maple
Lodge Farms Ltd. v. Government of Canada, [1982] 2
S.C.R. 2 at page 6. The reasoning goes like this. Decision-makers must follow
the law. If the law gives them discretion of a certain scope, they cannot, in a
binding way, cut down that scope. To allow that is to allow them to rewrite the
law. Only Parliament or its validly authorized delegates can write or rewrite
law.
[23]
This
sits uncomfortably with Dunsmuir, in which the Supreme Court’s stated
aim was to simplify judicial review of the substance of decision-making by encouraging
courts to conduct one, single methodology of review using only two standards of
review, correctness and reasonableness. In Dunsmuir, the Supreme Court
did not discuss how automatic or nominate grounds for setting aside the
substance of decision-making, such as “fettering of discretion,” fit into the
scheme of things. Might the automatic or nominate grounds now be subsumed
within the rubric of reasonableness review? On this question, this Court
recently had a difference of opinion: Kane v. Canada (Attorney
General),
2011 FCA 19. But, in my view, this debate is of no moment where we are dealing
with decisions that are the product of “fettered discretions.” The result is
the same.
[24]
Dunsmuir
reaffirms
a longstanding, cardinal principle: “all exercises of public authority must find their source in
law” (paragraphs 27-28). Any decision that draws upon something other than the
law – for example a decision based solely upon an informal policy statement
without regard or cognizance of law, cannot fall within the range of what is
acceptable and defensible and, thus, be reasonable as that is defined in Dunsmuir
at paragraph 47. A decision that is the product of a fettered discretion must per
se be unreasonable.
[25]
In the
circumstances of this case, if the Minister did not draw upon the law that was
the source of his authority, namely subsection 220(3.1) of the Act, and
instead fettered his discretion by having regard only to the three specific
scenarios set out in the Information Circular, his decisions cannot be regarded
as reasonable under Dunsmuir.
(2) Subsection
220(3.1) of the Act
[26]
Subsection
220(3.1) of the Act provides that if an application for relief is made in time,
the Minister has discretion to grant relief against penalties and interest. Subsection
220(3.1) reads as follows:
|
220.
(3.1) The Minister may, on or before the day that is ten calendar years
after the end of a taxation year of a taxpayer (or in the case of a
partnership, a fiscal period of the partnership) or on application by the
taxpayer or partnership on or before that day, waive or cancel all or any
portion of any penalty or interest otherwise payable under this Act by the
taxpayer or partnership in respect of that taxation year or fiscal period,
and notwithstanding subsections 152(4) to (5), any assessment of the interest
and penalties payable by the taxpayer or partnership shall be made that is
necessary to take into account the cancellation of the penalty or interest.
|
220. (3.1) Le ministre peut, au plus tard le jour qui
suit de dix années civiles la fin de l’année d’imposition d’un contribuable ou de l’exercice d’une société de personnes ou
sur demande du contribuable ou de la société de personnes faite au plus tard
ce jour-là, renoncer à tout ou partie d’un montant de pénalité ou d’intérêts
payable par ailleurs par le contribuable ou la société de personnes en application
de la présente loi pour cette année d’imposition ou cet exercice, ou
l’annuler en tout ou en partie. Malgré les paragraphes 152(4) à (5), le
ministre établit les cotisations voulues concernant les intérêts et pénalités
payables par le contribuable ou la société de personnes pour tenir compte de
pareille annulation.
|
[27]
The
scope of the Minister’s discretion under this subsection is determined, like
any other matters of statutory interpretation, by examining the statutory words
setting out the discretion (here unqualified), the other sections of the Act
which may provide context, and the purposes underlying the section and the Act
itself. When that examination is conducted, it is fair to say that the scope of
the Minister’s discretion is broader than the three specific scenarios set out
in the Information Circular.
(3) Does the Minister’s
decision pass muster under the standard of review of reasonableness?
[28]
In
my view, the Minister fettered his discretion, and thereby made an unreasonable
decision. He did not draw upon subsection 220(3.1) of the Act to guide his
discretion. He looked exclusively to the Information Circular. This is seen
from the Minister’s reasons for decision.
(a) The
Minister’s reasons for decision, as evidenced by his decision letter
[29]
In
his decision letter, the Minister sets out reasons for his decision. At the
beginning of the decision letter, the Minister mentions that his decision falls
under “Taxpayer Relief Legislation.” He explains that this legislation “gives
the Minister the discretion to waive or cancel all or part of any penalty or
interest payable.” At this point, he says nothing about the scope of his
discretion under this legislation. He never does.
[30]
In
the next sentence in his decision letter, the Minister defines the scope of his
discretion, limiting it somewhat. He does this by reference to the Information
Circular, not subsection 220(3.1). Specifically, he states that his discretion
is to be guided by “whether the penalty or interest resulted from extraordinary
circumstances, is due mainly to actions of the Canada Revenue Agency (CRA), or…[is
due to an] inability to pay.” As we have seen in paragraph 13 above, these are
the three specific scenarios set out in the Information Circular for the
granting of relief. These words show that the Minister was limiting his
consideration to the three circumstances set out in the Information Circular, and
was not considering the broad terms of subsection 220(3.1) of the Act.
[31]
Alone,
reference to a policy statement, such as the Information Circular, is not
necessarily a cause for concern. Often administrative decision-makers use policy
statements to guide their decision-making. As I mention at the end of these
reasons, such use is acceptable and helpful, within limits. But many
administrative decision-makers are careful to note those limits – policy
statements can only be a guide, and, in the end, it is the governing law that
must be interpreted and applied. In his decision letter, however, the Minister
did not note any limits on his use of the Information Circular.
[32]
In
the next portion of his decision letter, the Minister stated that the
appellants sought relief on the basis of “administrative oversight.” This was
incomplete: as mentioned in paragraph 14, above, the appellants offered other
explanations and justifications. The Minister never addressed these in his
decision letter. The Minister responded to the appellants’ explanation of
“administrative oversight” by reminding them about their responsibility to
determine and follow the deadlines set out in the Act.
[33]
Next,
the Minister turned to the appellants’ request for interest relief due to the
Canada Revenue Agency’s delay. Here, as mentioned in paragraph 15 above, he granted
limited relief. In granting that relief, the Minister did not refer to the
Information Circular. However, delay by the Canada Revenue Agency does fit
within the second scenario set out in the Information Circular for the granting
of relief, namely conduct by the Agency.
[34]
At
the end of his decision letter, the Minister refused the rest of the relief sought
by the appellants. In support of this, he offered the following explanation:
While I can sympathize with your
position, the Taxpayer Relief Provisions do not allow for cancellation of
penalties and interest when a Taxpayer, or their representative, lacks
knowledge or fails to meet filing deadlines. I trust this explains the Agency’s
position in this matter.
[35]
This
passage offers further evidence that the Minister was restricting his
consideration to the three scenarios set out in the Information Circular and
was not drawing upon subsection 220(3.1) of the Act as the source of his
decision-making power. This is seen from the Minister’s reference to the “Taxpayer
Relief Provisions” – the title of the Information Circular – as the source of
his decision-making power, not subsection 220(3.1) of the Act. On a fair
reading of this passage, the Minister denied the appellants relief because
their claims for relief did not fit within the scenarios set out in the Information
Circular.
(b) Does the record
before the Minister shed any further light on the Minister’s decision?
[36]
The
respondent urges us to go beyond the stated reasons in the Minister’s decision
letter. It points to the record that was placed before the Minister, and an
affidavit filed with the Federal Court. The respondent submits that these
materials demonstrate that the Minister drew upon more than the Information
Circular as the source of his authority.
[37]
I
agree that the reasons in a decision letter should not be examined in
isolation. Reasons can sometimes be understood by appreciating the record that
was placed before the administrative decision-maker: Vancouver International
Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158 at paragraph
17.
[38]
But
sometimes the record is of no assistance. That is the case here. While the
Minister had a broad record before him, his decision letter shows no awareness
that he could go beyond the Information Circular. To the contrary, his decision
letter shows an understanding – faulty – that he was governed exclusively by
the Information Circular. Further, as explained in paragraph 32, above, the
Minister did not seem to have full and accurate regard to key portions of the
record before him, namely the explanations and justifications in letters sent
by the appellants. In such circumstances, resort to the record to explain why
the Minister decided in the way that he did is not possible.
[39]
The
Federal Court was willing to assume that the Minister considered the record
before him. In my view, that assumption was not open to it given the reasons in
the preceding paragraph.
(c) Does an affidavit
filed in the Federal Court shed any further light on the Minister’s decision?
[40]
During
argument of this appeal, the respondent referred us to an affidavit that was
filed with the Federal Court. The affidavit is from the delegate of the
Minister who made the decision that is the subject of judicial review in these
proceedings. In that affidavit, and also in cross-examination on that affidavit,
the delegate testified that he relied on other matters when he made his
decision, including “the relevant sections of the Income Tax Act.” The
respondent points to this affidavit as evidence that the Minister had regard to
the full extent of his discretion under subsection 220(3.1) of the Act and drew
upon that section as the source of his authority.
[41]
The
Federal Court appears to have placed no weight on this evidence. I also place
no weight on it. This sort of evidence is not admissible on judicial review: Keeprite Workers'
Independent Workers Union et al. and Keeprite Products Ltd. (1980), 114
D.L.R. (3d) 162 (Ont. C.A.).
The decision-maker had made his decision and he was functus: Chandler v. Alberta Association
of Architects,
[1989] 2 S.C.R. 848. After that time, he had no right, especially
after a judicial review challenging his decision had been brought, to file an
affidavit that supplements the bases for decision set out in the decision
letter. His affidavit smacks of an after-the-fact attempt to bootstrap his
decision, something that is not permitted: United Brotherhood of Carpenters and
Joiners of America v. Bransen Construction Ltd., 2002 NBCA 27 at paragraph 33. As a
matter of common sense, any new reasons offered by a decision-maker after
a challenge to a decision has been launched must be viewed with deep suspicion:
R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R.
267.
[42]
In this
case, the Minister was obligated to disclose the full and true bases for his decision
at the time of decision. The decision letter, viewed alongside the proper record
of the case, is where the bases for decision must be found. In this case, the
proper record sheds no light on the bases for the Minister’s decision, and so
the bases set out in the Minister’s decision letter must speak for themselves.
(d) Conclusion: the Minister’s decision
was unreasonable
[43]
I conclude
that in making his decision the Minister did not draw upon the law that
was the source of his authority, namely subsection 220(3.1) of the Act.
Instead, he drew upon the Information
Circular, and nothing else. His decision thereby became unreasonable.
(4) Should the decision
be set aside and the matter returned to the Minister for redetermination?
[44]
Just
because a decision is unreasonable does not mean that it must automatically be
set aside and returned to the decision-maker for redetermination. Relief on an
application for judicial review is discretionary.
[45]
In
particular, this Court may decline to grant relief for an unreasonable decision
where, for example, there is no substantial miscarriage of justice or the
granting of relief would serve no practical end: MiningWatch
Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1
S.C.R. 6; Community Panel of the Adams Lake Indian
Band v. Adams Lake Band, 2011 FCA 37.
[46]
In
this case, there would be no practical end served in setting aside the Minister’s
decision and returning the matter to him for redetermination. The excuses and
justifications offered by the appellants for the delay in filing and the
grounds offered in support of relief have no merit. The Minister could not
reasonably accept them and grant relief under subsection 230(3.1) of the Act.
Returning the matter back to the Minister would be an exercise in futility.
[47]
The
appellants say that their financial representative had a reasonable but
mistaken belief that filing the form was not obligatory. This is belied by the
fact that it did file the forms for the 1998 and 1999 taxation years. It knew
that the Act required that the forms be filed and filed them.
[48]
After
the 1999 taxation year, the appellants’ representative consciously chose not to
comply with the Act. It did so on the basis that the Canada Revenue Agency was
getting information from other sources, such as the appellants’ Canadian money
managers. As it turned out, this basis did not apply to the appellant Canwest
Communications Corporation.
[49]
Even
if the Canada Revenue Agency was getting the information from other sources,
this cannot be an acceptable excuse or mitigating factor for non-compliance in
the circumstances of this case, especially where we are dealing with the
appellants’ representative, a professional firm that deals with tax matters. It
is notorious that in various provisions of the Act, the Canada Revenue Agency is
allowed to obtain the same type of information from different sources. This allows
it to verify compliance with the Act. For example, an employer is obligated to
file T-4 slips reporting the income it has paid to its employees. At the same
time, the employees disclose their income from employment. The employers’ and
employees’ figures should match. What if the employer, after filing T-4 forms
for a period of years, consciously declined to file the T-4 slips and then
argued that it should avoid penalties because the Canada Revenue Agency would
get information about the employees’ income from the employees? In those
circumstances, would there be any case for relief? Of course not.
[50]
In
this case, compliance was fully within the appellants’ control. Compliance
happened in the 1998 and 1999 taxation years and there were no new extenuating circumstances
that might explain the later non-compliance. These facts fall outside of what
this Court has identified as being a focus of subsection 220(3.1), namely the
granting of relief where there are extenuating circumstances beyond the control
of the person seeking relief: Bozzer v. Canada,
2011 FCA 186 at paragraph 22.
[51]
The
appellants also argued that it is unfair for the Minister to levy six separate,
sizeable penalties against the six appellants when there was really only one
mistake made by their one common representative. The appellants contended that the
penalties should be substantially reduced for that reason. This argument, smacking
of a plea for a “volume discount,” has no merit. Each of the appellants is a
separate legal entity and a separate taxpayer, potentially subject to penalties
and interest for its own non-compliance. Each is capable of independent
decision-making concerning the forms that are to be filed. Each, accepting the
risk, chose instead to have a representative look after the filings. That risk
materialized: their representative made a conscious decision not to file the
forms, a decision made without reasonable excuse or justification, as explained
above. Granting relief under subsection 220(3.1) on the basis of this argument
would be an unreasonable exercise of discretion.
[52]
I
accept that the normal remedy for an unreasonable decision is to set it aside
and return the matter back to the decision-maker for redetermination. I also accept
that this Court should be reluctant to wade into the merits of administrative
decision-making. But there are cases, perhaps rare, where no practical end
would be served by returning the matter back to the decision-maker. This is
just such a case.
[53]
In
these circumstances, the appellants’ explanations and justifications are
entirely without merit. The appellants could not succeed on them if we returned
the matter to the Minister for redetermination. Similar to what happened in MiningWatch
Canada, supra, the Minister made an unreasonable decision but no
practical end would be served in returning the matter back to him for
redetermination. Therefore, in this case, I would decline to do so.
D. Postscript
[54]
So
that these reasons provide proper guidance and are not misunderstood and
misapplied in future cases, I wish to make three brief observations.
- I -
[55]
Portions
of the language used in the decision letter in this case are identical to that
used in other decision letters: see, for example, Spence v. Canada Revenue
Agency, 2010 FC 52. In itself, there is nothing wrong with using form
letters or stock language taken from other decision letters. The reasons
offered in one case can be appropriate for other cases, and the repeat use of
those reasons is efficient. However, as this case shows, a blind use of form
letters or stock language can sometimes lead to trouble.
[56]
Whether
the reasons are cut and pasted from a previous letter, are slightly modified
from a previous letter or have to be drafted from scratch, the final product
issued to the applicant for relief under subsection 220(3.1) of the Act should show
an awareness of the scope of the available discretion under the Act, offer
brief reasons why relief could or could not be given in the particular
circumstances, and meaningfully address the arguments made that have a chance
of success. If the reasons do not deal with one or more of these matters –
something that can happen through careless or unthinking use of a form letter
or stock language – the decision may not pass muster under the standard of
review of reasonableness.
- II -
[57]
The
foregoing comment and these reasons should not be taken to impose onerous new reasons-giving
requirements upon the Minister. In this case, all that was required was perhaps
a few additional lines in a letter that was just 33 lines long: Vancouver
International Airport Authority, supra at paragraphs 16 and 17.
- III -
[58]
Finally,
these reasons should not be taken to cast any doubt on the ability of administrative
decision-makers, such as the Minister, to use policy statements, such as the Information
Circular in this case, as an aid or guide to their decision-making.
[59]
Policy statements play a useful and important role in administration:
Thamotharem
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385. For
example, by encouraging the application of consistent principle in decisions, policy
statements allow those subject to administrative decision-making to understand
how discretions are likely to be exercised. With that understanding, they can better
plan their affairs.
[60]
However, as explained in paragraphs 20-25 above, decision-makers
who have a broad discretion under a law cannot fetter the exercise of their discretion
by relying exclusively on an administrative policy: Thamotharem, supra
at paragraph 59; Maple Lodge Farms, supra
at page 6; Dunsmuir, supra (as explained in
paragraph 24 above). An administrative policy is not law. It cannot cut down
the discretion that the law gives to a decision-maker. It cannot amend the
legislator’s law. A policy can aid or guide the exercise of discretion under a law,
but it cannot dictate in a binding way how that discretion is to be exercised.
[61]
In
this case, the Minister ran afoul of these principles. Fortunately for him,
however, he reached the only reasonable outcome on these facts.
E. Proposed
disposition
[62]
For
the foregoing reasons, I would dismiss the appeals. However, in light of the
unreasonableness of the Minister’s decisions, I would not award the respondent in
each appeal its costs of the appeal.
"David Stratas"
“I agree
Marc Noël J.A.”
“I agree
Johanne Trudel J.A.”
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