Date: 20131223
Docket: T-447-09
Citation: 2013
FC 1283
Ottawa, Ontario,
December 23, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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CANADIAN ARAB
FEDERATION (CAF)
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by the Canadian Arab Federation [CAF] of
a decision by The Minister of Citizenship and Immigration, then Jason Kenney [the
Minister], not to enter into a funding agreement under the Language Instruction
for Newcomers to Canada [LINC] program for the year 2009-2010. This decision
was made by the Minister despite the fact that Citizenship and Immigration
Canada [CIC] had previously entered into similar funding arrangements with CAF
for many years; the most recent of which expired March 30, 2009, just days
after the decision under review was made.
[2]
The
reasons for the Minister’s decision are set out in a letter to CAF dated March
18, 2009, from the Associate Assistant Deputy Minister of CIC to Khaled Mouammar,
President of CAF at that time:
As you are also aware, serious concerns have arisen
with respect to certain public statements that have been made by yourself or
other officials of the CAF. These statements have included the promotion of
hatred, anti-semitism [sic] and support for the banned terrorist
organizations Hamas and Hezbollah.
The objectionable nature of these public statements
– in that they appear to reflect the CAF’s evident support for terrorist
organizations and positions on its part which are arguably anti-Semitic –
raises serious questions about the integrity of your organization and has
undermined the Government’s confidence in the CAF as an appropriate partner for
the delivery of settlement services to newcomers.
Background
Nature of CAF
[3]
CAF’s
objectives as set out in its Letters Patent, relate to advancing the interests
of Arabs and Arab communities in Canada in various ways, including “[t]o
promote ties and mutual understanding between Arab societies, organizations and
communities in Canada and the Arab homeland … to provide assistance to new
immigrants to Canada from the Arab homeland … [and] to disseminate information
about and encourage support for Arab causes in Canada and the Arab homeland,
particularly the cause of the suffering Palestinian people.”
[4]
CAF’s
operation had two branches: Settlement Services and Immigrant Support, and Community
Engagement. Settlement Services and Immigrant Support was directed towards
assisting both Arab and non-Arab newcomers integrate into the community.
Community Engagement was directed towards capacity building, advocacy, and
community services.
[5]
CAF
delivered two main programs under its Settlement Services branch: LINC, which
provided English as a second language training to newcomers, and Job Search
Workshops [JSW]. Most of the newcomers attending these programs were
originally from non-Arab countries. CAF received funding for both of these
programs from CIC by way of contribution agreement arrangements.
CIC Contribution
Agreements
[6]
CIC
contracted with CAF and others as private service provider organizations for
the provision of settlement services to newcomers to Canada. The contracts
provided for an amount of funding allocated to the service provider for
reimbursable expenses. An expense unrelated to the LINC or JSW programs cannot
be recovered from the funds earmarked in the contribution agreement. As was
noted by the Minister in his memoranda, a party to a contribution agreement
does not financially benefit from the agreement; however, there may be indirect
benefits:
None of the funds provided by Canada through the contribution agreement was [sic] intended to benefit the CAF. An
organization may attain incidental advantages as a result of settlement funding;
for example, there may be legitimacy attached to organizations who receive
government funds and there may be an opportunity to share infrastructure costs
with the settlement program. The full amount of the contribution agreement, however,
is intended to directly benefit newcomers taking LINC classes.
[7]
It
is also relevant to this application and it is the Minister’s position, that
the LINC program offers newcomers more than just language training. The
Minister points out that it is intended that the program will also provide
newcomers with an orientation to the Canadian way of life including “social,
economic, cultural and political integration,” and therefore the suitability of
the program provider in this respect is critical. The CIC Application Package
given to service providers sets out this facet of the program, as follows:
By providing basic language instruction to adult
newcomers in English or French, LINC facilitates the social, cultural[,]
political and economic integration of immigrants and refugees into Canada. In addition, LINC curricula include information that helps newcomers become
oriented to the Canadian way of life. This, in turn, helps them to become
participating members of Canadian society as soon as possible.
[8]
CAF
had most recently negotiated a contribution agreement and signed a contract
with CIC for the period April 1, 2007 to March 31, 2009. On December 2, 2008,
CIC wrote to all parties in receipt of LINC funding at that time, informing
them that a new settlement program would be forthcoming but its implementation
was still underway. As a consequence, “CIC has decided to extend current LINC
contribution agreements to March 31, 2010.” Each service provider was asked to
submit a budget application and propose revised activities to CIC, which
application was subject to an approval process.
[9]
In
the information accompanying this request for applications for amendment, CIC
cautioned CAF and other applicants not to assume approval for the 2009-2010
year, unless and until such approval was received in writing from CIC:
Do not assume that your application for amendment is
approved until you are notified in writing by CIC. Any expenditures incurred
prior to the approved start-up date are your own responsibility and will not be
reimbursed. We also ask you not to hire staff or make any commitments until
you have been informed of CIC’s approval. If your application is approved, it
will then be used to amend your current Contribution Agreement between your
organization and Citizenship and Immigration Canada.
[10]
CAF
submitted a proposal for 2009-2010 on December 9, 2008. On February 12, 2009, a
settlement officer from CIC recommended its approval. He noted in that
recommendation that “[t]he Canadian Arab Federation delivers a good quality
LINC program” and that despite a request for an annual increase to salaries of
2.5%, the proposal for 2009-2010 was $50,000 less than the previous year. The
settlement officer emailed an unexecuted final draft of the further agreement
to CAF; however, given the value of the proposed contract, final approval was
required by the Minister or his delegate.
[11]
There
is nothing in the record, nor was it submitted by CAF, that CIC ever
represented that final approval had been given. In fact, even though contractual
negotiations had been concluded and the proposal endorsed by a settlement
officer, the proposal still had to be approved and endorsed by a review
officer, the local manager, and the regional director before CIC National
Headquarters and the Minister’s office would be notified of it. If the
regional director endorsed the proposal, he had authority to approve and
execute the agreement at that stage; however, CAF’s proposal never made it to
this stage of the process. CAF’s proposal had been approved by a settlement
officer on February 12, 2009 and a review officer on February 16, 2009, but before
it was sent to a local manager, CIC National Headquarters intervened and raised
concerns about continuing to fund CAF.
Events Prior to Minister
Kenney’s Appointment as Minister of CIC
[12]
Jason
Kenney became the Minister of CIC, responsible for the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act] on October 30,
2008. He was preceded in that office by Diane Finley. On August 7, 2008, Minister
Finley issued a Press Release in which she stated that “[t]o help newcomers
settle in the community of Scarborough in the City of Toronto, the Government
is committing more than $10 million over the next two years (through to 2010)
to six agencies that provide settlement services.” The Press Release went on
to list the “six agencies receiving the funding in today’s announcement.” CAF was
one of the listed agencies, and was adjacent to the figure of $2,544,815.
[13]
Mohamed
Boudjenane, National Executive Director of CAF, attests in his affidavit that
this announcement led CAF to believe that it was to be funded for 2009-2010 and
the finalization of the details would be a mere formality:
The funding was originally meant to continue for two
years but in the second year, 2008, there was an announcement that it was to
continue into a third year to 2010. The Minister of Citizenship and
Immigration, Diane Finlay [sic], made a public announcement on August 7,
2008 to this effect… It was certainly the basis upon which CAF operated. Both
myself and Sara Amash, the project and program manager for CAF were led to
believe that the funding for 2009-2010 would continue as previously approved
and that it was merely a formality to finalize the details of the contract for
that year.
[14]
In
contrast, Lee Bartlett, Director of Operations for Settlement Services for the
Toronto and York offices of CIC, attests in his affidavit, sworn September 22,
2009, that the breakdown of the $2,544,815 figure in the Minister’s Press Release
is made up of funding to CAF under both the LINC program and under the
Immigration Settlement and Adaption Program [ISAP], as follows, none of which
relates to LINC funding for 2009-2010:
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FY1
07/08
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FY2
08/09
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FY3
09/10
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TOTAL
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LINC
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$1,045,782
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$1,037,505
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N/A
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$2,083,287
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ISAP
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$
130,804
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$
166,581
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$164,179
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$
461,564
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[15]
The
total of the funding in Mr. Bartlett’s chart is $2,544,851 - $46 greater than
the Minister’s announced funding for CAF. Nevertheless, I find that the Press
Release could not have led CAF to believe that it had secured LINC
funding for 2009-2010, as is alleged by Mr. Boudjenane. The reference to
funding for 2009-2010 in the Press Release referred to ISAP funding. Mr.
Bartlett was cross-examined on his affidavit and his evidence was unshaken that
the figure did not include 2009-2010 LINC funding because no decision had been made
to extend previous LINC agreements, nor had any such announcement been made at
the date of the Press Release:
In August 2008, not even a negotiation or even a call
for proposals around an extension or even decisions around how we would extend
LINC for 2009/10 had been made or announced, and the LINC agreement that was in
place at the time of August for CAF ran for 2007/08 and 2008/09, whereas the
ISAP agreement for CAF ran 2007/08 to 2009/10, inclusive.
…
[T]he Minister would not make an announcement that
agreements had been reached around funding until such an agreement had been put
in place. …[I]t wouldn’t have been possible for the Minister to have made an announcement
around LINC for 2009/10 for CAF if we hadn’t even – or CIC, sorry, hadn’t even
at that point set out the process for entering into further agreements, and
equally hadn’t received any proposal from CAF at that point in relation to the
amounts that it would seek for LINC in 2009/10 for further agreements.
The Minister’s
Position on Government Funding
[16]
Alykhan
Velshi, the Minister’s Communications Director, attests in his affidavit, that since
he began working for the Minister in 2007 (the Minister at that time was the
Secretary of State for Multiculturalism), the Minister has held the view that
the Crown should not be funding certain organizations:
[W]hile private citizens and organisations are free
to express their opinions, no individual or organisation is entitled to a
financial subsidy from taxpayers. To that end, groups that promote hatred,
including anti-Semitism, or excuse terrorism and violence should not receive
any official recognition or subsidy from the state.
[17]
Mr.
Velshi points to a number of public statements by the Minister in support of
this assertion. For example, on February 17, 2009, at a conference in London, England, the Minister gave a speech in which he made the following statement:
There are
organisations in Canada, as in Britain, that receive their share of media
attention and public notoriety, but who, at the same time as expressing hateful
sentiments, expect to be treated as respectable interlocutors in the public
discourse.
…
I think as
well of the leader of the Canadian Arab Federation, who notoriously circulated
an e-mail when my colleague, our shadow Foreign Minister, Bob Rae, was running
for the leadership of his party, calling on people to vote against Mr. Rae
because of Arlene Perly Rae’s involvement in Canada’s Jewish Community. The
same individual, the same organisation, the Canadian Arab Federation, just last
week circulated – including to all parliamentarians – videos which include
propaganda, including the inculcation to hatred, of children by organisations
such as Hamas and Islamic Jihad.
These
and other organisations are free within the confines of our law and consistent
with our traditions of freedom of expression, to speak their mind, but they
should not expect to receive resources from the state, support from taxpayers
or any other form of official respect from the government or the organs of our State. [emphasis added]
[18]
A
week later, on February 24, 2009, during Question Period, the Minister was
asked about funding for certain organizations. The Member asking the question
stated that “the Canadian Arab Federation recently circulated videos from
banned terrorist organizations, such as Hamas and Islamic Jihad, called Israel a ‘racist state’, and attacked a member of the House because of his wife’s involvement
in the Jewish community.” He then asked: “What is the government’s position
on whether such groups should receive taxpayer support?” The Minister
responded: “[T]he Government of Canada should take a zero tolerance approach
to organizations that make excuses for terrorism, for violence, for hatred and
for anti-Semitism. … From our point of view, these groups do not deserve and
have no right to taxpayers’ dollars to promote their kind of extremism.” The
Minister expressed similar sentiments during radio interviews he gave on March
2, 2009, and March 6, 2009.
[19]
On
March 10, 2009, at the Standing Committee on Citizenship and Immigration, the
Minister outlined his reason for refusing to extend funding to CAF for 2009-2010:
The very first day I arrived at Canadian Heritage as
the secretary of state responsible for the multiculturalism program, I received
a briefing on grants and contributions. I indicated to the officials that I
wanted to ensure that we were not providing grants and contributions to organizations
that make excuses for, or apologize for, violence or terrorism, or
organizations that are terrorist or that promote hatred. I mentioned, in
particular, Mr. Mohamed Elmasry of the Canadian Islamic Congress because of his
remarks that Israelis over the age of 18 are legitimate targets for
elimination.
I further mentioned, in particular, Mr. Khaled
Mouammar, president of the Canadian Arab Federation - this was a discussion I
had with my officials in January 2007 - because of his circulation, during the
2006 Liberal leadership convention, of a flyer that attacked Bob Rae, a
respected member of this Parliament, because of his wife's involvement in the
Jewish community. Following the circulation of that flyer, Liberal Senator
Yoine Goldstein referred to this flyer as “racist filth”. It was my view then,
and it's remained my view since, that we ought not to finance organizations
that promote extremism or hatred - in this case, hatred toward Jewish people in
particular - or who publicly support a banned, illegal terrorist organization.
Mr. Mouammar has a long record of public comments
expressing support for Hamas and Hezbollah, which are two banned, illegal, and
essentially anti-Semitic terrorist organizations. He has referred to Israel as a racist state and he has called for the end of Israel as a Jewish state. In my judgment,
these and other comments of his are beyond the pale.
Do I suggest that we should have a test on political
opinions for the office-holders of NGOs that receive grants and contributions?
No, absolutely not. People are free to say what they like within the bounds of
our laws. People are free to criticize cabinet ministers or the government.
But I do not believe we have any obligation to provide subsidies to individuals
who use their organizations as platforms to promote extremism or hatred or to
apologize for terrorism.
That's the view I articulated in January 2007 at
Canadian Heritage. As a result, we provided no funding to these
organizations. That's also the view I articulated recently at the London conference on anti-Semitism. I have also articulated this to my officials. I have
asked my department to find ways in which we can include the promotion of
hatred or apologizing for terrorism as some of the criteria used in considering
applicants for grants or contributions.
The Minister’s
View of CAF
[20]
The
Minister was clearly aware of CAF before he became Minister of CIC; however, he
only became aware that CIC was funding CAF on February 2, 2009. Upon the
Minister becoming aware, he emailed his Chief of Staff expressing his position
on CAF and the funding agreement, as follows:
… I am unclear who in our office has the lead on
settlement funding.
In any event, please ask the Dept to bring forward
complete information on the contribution embarrassingly approved by our
government for the radical and anti-semitic [sic] Canadian Arab
Federation
This is the same group whose President attacked Bob
Rae because his wife is jewish [sic], and who now is calling me a
“professional prostitute” (I guess that’s better than being an amateur!)
I would like to know the status of their
contribution agreement with CIC to see if they are in breach in any possible
respect. I want to pursue all legal means to terminate this shameful funding
arrangement, and to ensure that it is not renewed. [internet references
omitted]
[21]
The
decision under review does not set out the specific conduct or events that the
Minister took into consideration in reaching his decision not to fund CAF.
Alykhan Velshi, the Minister’s Communications Director, testified that the statements
relied on to reach the conclusion that CAF’s statements “have included the
promotion of hatred, anti-semitism [sic] and support of the banned
terrorist organizations Hamas and Hezbollah,” included the following six
matters.
1. The Bob
Rae Flyer
[22]
In
2006, during the Liberal Party Leadership Convention, CAF’s President, Khaled
Mouammar, using his personal email account, forwarded a leaflet that attacked
Bob Rae and his wife for involvement in the Jewish community. The flyer was originally
produced and emailed by a man who was not associated with CAF. The flyer
contains the following text over a picture of Bob Rae:
Bob Rae was a keynote speaker for the [Jewish
National Fund of Canada], a group shown by Israeli scholars to be complicit in
war crimes and ethnic cleaning.
Rae’s wife is a Vice President of the [Canadian
Jewish Congress], a lobby group which supports Israeli Apartheid and Israel’s illegal Apartheid Wall.
President Carter has condemned Israeli Apartheid.
Bob Rae supports Israeli Apartheid.
Don’t elect a leader who supports Apartheid!
[23]
The
distribution of the Bob Rae Flyer to delegates was reported by Canadian Press:
“Bob Rae was the target of
anti-Semitic attacks during the Liberal leadership contest, motivated at least
in part by the fact that his wife is Jewish.” When contacted by Canadian
Press, CAF denied producing or distributing the flyer but later issued a press release
stating: “CAF believes that Canadians have a right to know the factual
information provided” in the flyer.
[24]
Mr.
Velshi testified that the Bob Rae Flyer formed part of the basis for the
Minister’s decision as it attacked Mr. Rae because of his wife’s involvement in
the Jewish community, and specifically the Canadian Jewish Congress. In Mr.
Velshi’s view, the Bob Rae Flyer was anti-Semitic and thus a form of hatred.
2. Rallies
in January 2009
[25]
In
January 2009, CAF in conjunction with other organizations, organized several
rallies where some protestors (who were not related to CAF) held offensive
placards and shouted repugnant slogans. Some participants were seen holding
signs equating Israelis to Nazis, some were screaming vulgarities like “Jewish
child, you are going to fucking die. Hamas is coming for you. Fuck off.”
Hezbollah flags were flying in the background, and some signs likened Zionism
to Nazism and terrorism.
[26]
It
was during one of these rallies that Mr. Mouammar described the Minister, among
others, as a professional whore of war:
We have politicians who are professional whores who
support the war [i.e. the Israel-Palestine conflict] as Norman Finkelstein said
at that lecture at the University of Toronto. These are, these are people like
Peter Kent across the street, like Jason Kenney, like Michael Ignatieff, who
only had to say while Israel was murdering women and children with phosphorous
bombs burning their fleshes, the only thing these, these, professional politicians;
who are whores, whores of war, the only thing they had to say was that Israel
had the right to defend itself by killing women and children with phosphorous
bombs.
The Minister denies that this derogatory name
calling triggered or played a part in his decision. Given that he had made
statements regarding government funding to CAF as early as 2007, there is no
reason to question his assertion.
3. The 2007 Cairo Conference
[27]
Ali
Mullah, Vice President of CAF at the time, attended the Cairo Conference, which
described itself as an “international peace conference.” It was attended by
many people with different backgrounds, including some Jewish participants. The
conference was also attended by delegates from Hamas, Hezbollah, Jemaah
Islamiyya, and the Palestine Liberation Front - four organizations on Canada’s list of terrorist organizations. Although it was reported that CAF had sent Mr.
Mullah as its delegate, it was later confirmed that he attended in his personal
capacity, and not as a representative of CAF.
4. Distribution
of Links from Terrorist Organizations
[28]
On
February 2, 2009, the Minister became aware that CAF, in its Daily Gaza
Bulletin and its webpage, had links to web sites that featured videos with
images of Hamas operatives undergoing training and which depicted flags of
Hamas and Islamic Jihad. CAF asserts that it never endorsed the contents of
the videos in the links it posted and transmitted; rather it simply directed
readers to facts so that they could form their own opinions on the issues.
5. Honouring
Zafar Bangash
[29]
CAF,
at its 40th Anniversary Gala, honoured Zafar Bangash, who is
otherwise not affiliated with CAF. Mr. Bangash has referred to Canadians as
“infidels or non-believers” in the past and reported on the September 11
attacks in a way that was unsympathetic to the victims.
6. Essay
Contest
[30]
CAF sponsored
an essay contest (with two other organizations) on the “ethnic cleansing” of Palestine. The timing of this contest coincided with the 60th anniversary of
the establishment of Israel as a state. The Minister contends that the use of
the term “ethnic cleansing” assumes that Jewish people are engaged in genocide
and constitutes anti-Semitism.
[31]
Collectively,
these six incidents formed the basis for the Minister’s decision.
CAF Requests to
Meet with the Minister
[32]
On
March 2, 2009, the President of CAF wrote to the Minister requesting a meeting:
It is important that CAF’s working relationship with
you and the Ministry of Immigration is based upon mutual respect and proactive
outreach on both sides to the benefit of Arab Canadian communities on the
whole. CAF is therefore requesting a meeting with you in the presence of other
concerned Arab Canadians. This meeting will be a great opportunity to enhance
and strengthen our working relationship.
The Minister did not respond.
[33]
The
letter does not indicate why it was sent at that time; however, it is
noteworthy that it was sent two weeks following the Minister’s speech in London
where he said, with reference to CAF and others, that while they are at liberty
to engage in free speech within the law, “they should not expect to receive
resources from the state, support from taxpayers or any other form of official
respect from the government or the organs of our state.”
[34]
It
is against this backdrop that the following issues arise.
Issues
[35]
The
six issues raised by CAF in its written memorandum can be collapsed and addressed
within a discussion of the following four questions:
a.
Did
the Minister owe CAF a duty of procedural fairness, and if so, was it breached?
b.
Is
the Minister’s decision not to enter into a funding agreement with CAF under
the LINC program tainted by a reasonable apprehension of bias?
c.
Was
CAF’s section 2(b) Charter right to freedom of expression engaged, and
if so, was that right infringed, and, was the infringement justified?
d.
Was
the Minister’s decision reasonable?
1. Did the
Minister owe CAF a duty of procedural fairness?
[36]
CAF
submits that the
Minister owed it a duty of fairness because:
1.
A
duty of fairness is imposed on every public authority making an administrative
decision which is not of a legislative nature and which affects the rights,
privileges or interests of an individual: Cardinal v Kent Institution, [1985]
2 SCR 643 at 653 [Cardinal];
2.
CAF
had received funding for the LINC program without any issues for twelve
consecutive years;
3.
CAF
had a legitimate expectation that funding would be renewed because of its
history with CIC and because the contract for 2009-2010 had been negotiated and
was awaiting final approval; and
4.
Final
approval had historically been a formality after the contract’s terms had been
negotiated and the Minister rarely intervened at any stage.
[37]
The
Minister submits that no duty of fairness was owed to CAF because:
1.
The
relationship between CAF and CIC was purely contractual in nature and no duty
of fairness is owed by the government when it is exercising its contractual
rights in the same manner as an ordinary citizen: Dunsmuir v New Brunswick, 2008 SCC 9 at paras 103-104, [2008] 1 S.C.R. 190 [Dunsmuir];
2.
The
funding period under the last executed agreement between CIC and CAF for the
provision of LINC services expired on March 31, 2009, no new agreement had been
executed, and CAF was specifically advised that approval could not be taken for
granted; and
3.
There
is no obligation on CIC to enter into a new agreement with any party, or to
renew an existing agreement that is set to expire, merely because it is a
government institution.
[38]
The
following provides the reasons for my conclusion that the Minister did not owe
a duty of procedural fairness to CAF. In summary, it is because the nature of
the relationship was strictly commercial. There is no statutory provision that
imposes procedural fairness obligations in relation to contribution agreements,
nor is there any contractual provision set out in the call for proposals or the
contribution agreements themselves that stipulates that service provider
organizations will be treated in a procedurally fair manner. Finally,
according procedural rights in what is essentially a strictly commercial
context would unduly burden the Minister, particularly where the window for
making a decision is short and there are greater public policy considerations
which the Minister must weigh. In such a context, the parties’ rights are best
protected by a reviewing court’s assessment of the reasonableness of the
decision, not by extending procedural rights where none would otherwise exist.
[39]
When
determining whether a duty of procedural fairness applies to the decision under
review, one must first determine
the nature of the relationship between the affected person and the public
authority.
[40]
In
Knight v Indian Head School Division No 19, [1990] 1 S.C.R. 653 at 669, the
Supreme Court, relying upon the decision of Justice LeDain in Cardinal
at 653, stated that whether the duty of fairness exists will be dependant upon
“the consideration of three factors: (i) the nature of the decision
to be made by the administrative body; (ii) the relationship existing between
that body and the individual; and (iii) the effect of that decision on the
individual's rights.”
[41]
In
Dunsmuir at para 114, the Supreme Court noted an exception to this broad
statement of principle [the Dunsmuir exception]. Dunsmuir
involved the dismissal of an employee from his employment with the province:
The
principles expressed in Knight in relation to the general duty of
fairness owed by public authorities when making decisions that affect the
rights, privileges or interests of individuals are valid and important.
However, to the extent that the majority decision in Knight ignored the
important effect of a contract of employment, it should not be followed. Where
a public employee is protected from wrongful dismissal by contract, his or her
remedy should be in private law, not in public law.
[emphasis added]
[42]
CAF
submits that the Dunsmuir exception does not apply to the relationship
between CAF and CIC. CAF relies on the Supreme Court of Canada’s decision in Canada
(Attorney General) v Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504 [Mavi] for
the proposition that the Dunsmuir exception to the duty of fairness was
intended to be narrow and specific to the employment context and therefore does
not apply to this case. In particular, the Supreme Court in Mavi held, at
para 51, that:
The
situation here does not come close to the rather narrow Dunsmuir
employment contract exception from the obligation of procedural fairness. As
the Dunsmuir majority itself emphasized:
This
conclusion does not detract from the general duty of fairness owed by
administrative decision makers. Rather it acknowledges that in the specific
context of dismissal from public employment, disputes should be viewed
through the lens of contract law rather than public law. [Emphasis added;
para. 82.]
Dunsmuir was not intended to and did not
otherwise diminish the requirements of procedural fairness in the exercise of
administrative authority. [emphasis in original]
[43]
In
my view, the Dunsmuir exception is not as narrow as CAF submits. I find
support for this view in the decision of the Federal Court of Appeal in Irving
Shipbuilding Inc v Canada (Attorney General), 2009 FCA 116, [2010] 2 FCR
488 [Irving Shipbuilding], wherein Justice Evans for the Court and with
reference to Dunsmuir, stated at para 60 that the broader point
made in that case “is that when the Crown enters into a contract, its rights
and duties, and the available remedies, are generally to be determined by the
law of contract.” I also agree with Justice Evans’ statement at
para 45 that “[t]he common law duty of fairness is not free-standing but is
imposed in connection with the particular scheme in which the impugned
administrative decision has been taken.”
[44]
In
Mavi, unlike in Irving Shipbuilding, while the parties’
relationship was governed by a contract, it was also inextricably rooted in
statute, as was noted by the Court at para 2:
The present proceedings were initiated by eight sponsors who
denied liability under their undertakings. As will be explained, the
undertakings are valid contracts but they are also structured, controlled
and supplemented by federal legislation. The debts created thereby are not
only contractual but statutory, and as such their enforcement is not
exclusively governed by the private law of contract. The issue raised by
this appeal is the extent to which, if at all, the government is constrained by
considerations of procedural fairness in making enforcement decisions in
relation to these statutory debts. [emphasis added]
In my view, the fact that the
contracts were grounded and rooted in statute distinguishes Mavi from Irving
Shipbuilding and from this case. The undertakings in Mavi were not
of a strictly contractual nature. In fact, the Supreme Court in Mavi distinguished
Dunsmuir on this basis, stating at para 47:
The Attorneys General resist the application of a
duty of procedural fairness in part on a theory that the claims against the
sponsors are essentially contractual in nature. Dunsmuir, they say,
stands for the proposition that procedural fairness does not apply to
situations governed by contract. However, in this case, unlike Dunsmuir,
the governments' cause of action is essentially statutory. [emphasis
added]
[45]
Unlike
in Mavi, one cannot say that the relationship of the parties in this case
is “structured, controlled and supplemented by federal legislation,” or that
the cause of action is essentially statutory. The Settlement Manual—a
guidebook given to settlement officers for evaluating applications for funding—states
that “[w]ith the establishment of the Department of Citizenship and Immigration
in 1950, the federal government made provisions in its Annual Estimates for
payments to not-for-profit organizations in order to provide settlement
services to immigrants in Canada.” These settlement programs fall within the Act’s
objectives in section 3, most particularly the objective “to promote the
successful integration of permanent residents into Canada.” The parties have
not pointed to any other statutory provision relevant to LINC funding.
Accordingly, there is no statutory provision governing procedural fairness in
relation to the possible extension of the term of an existing contribution
agreement.
[46]
In
this case, the parties were in a purely contractual relationship at the time
the Minister made his decision. CAF was a party to a LINC funding contract
with CIC, ending March 31, 2009. There was no provision in that contract for the
automatic renewal or extension of that term. However, as a consequence of that
contractual relationship, CAF was invited to submit a proposal for an amendment
to the contract to extend its term for one year. CAF was informed that its
contract with CIC would be extended to March 31, 2010, subject to an
application being submitted and “approved.” Despite the negotiations for
2009-2010 having been completed, the fact remains that no contract for funding
for 2009-2010 had been approved or executed, and it had been made clear to CAF
in both the Guidelines for Amendments: Language Instruction for Newcomers to
Canada (LINC) 2009-2010, and subsections 4.6 and 12.5 of the
2007-2009 contribution agreement, that it should not expect any additional
funding beyond March 31, 2009, until it was notified in writing that the
application for an amendment to extend the term of the existing contract had been
approved.
[47]
There
was nothing in the documents sent to CAF that committed CIC to amend the
existing contract. The letter from CIC indicating that the contract term of
CAF’s existing contribution agreement could be extended is akin to a request
for the submission of a proposal and, as was held in Irving Shipbuilding,
arguably creates a contract when the recipient responds. In this case, that
contract contains no express promise that parties responding will be treated in
a procedurally fair manner.
[48]
CAF
points out that there was nothing in the document package to indicate that
organizations that were considered by the Minister to be anti-Semitic or
supporters of terrorism would not be granted a contract extension. Equally
there was nothing in the package that indicated that approval by the Minister
would be automatic even if his officials were otherwise satisfied with the
proposal.
[49]
Accordingly,
to the extent that the parties’ relationship was a commercial and contractual
relationship, there is nothing in the record that suggests that there was any
obligation on the Minister to engage with CAF about his concerns prior to
making his decision not to extend the existing contract’s term. There is
neither a statutory or contractual basis on which this Court can impose on a
duty of procedural fairness on the Minister.
Implied Duty of
Fairness
[50]
The
question remains whether there is any implied duty of procedural fairness. I
find that there is no implied duty in this case for many of the reasons the
Court found that there was no implied duty of fairness in Irving
Shipbuilding.
[51]
First,
this is essentially a commercial relationship, notwithstanding the fact that
the service provider makes no profit from the agreement. As Justice Evans
stated at para 46 of Irving Shipbuilding: “It will normally
be inappropriate to import into a predominantly commercial relationship,
governed by contract, a public law duty developed in the context of the
performance of governmental functions pursuant to powers derived solely from statute.”
[52]
Second,
if CAF is awarded procedural rights in this context, it would open the door to
every failed applicant for a contribution agreement being entitled to at least
notification that their proposal was not going to be accepted and an
opportunity to address the reasons why. Such an obligation on the Minister
would unduly delay his decisions in a process when, as in this case, the time
for a decision is short. Further, it opens the door to what Justice Evans
called a “cascading array of potential procedural rights-holders.” Where there
are more persons seeking funding than funds available, any change in decision
by the Minister leads automatically to a subsequent failed applicant. If
procedural fairness is extended to the initial failed applicant, the same
safeguards must be extended to the subsequent failed applicants.
[53]
Third,
as was submitted by the Minister, a decision on funding settlement programs for
newcomers to Canada involves broader public policy considerations; there is
more at stake than just the relationship between the service provider and CIC.
Those who enrol in the LINC program are to be orientated to the Canadian way of
life and therefore the suitability of the program provider is critical. The
question of whether a particular organization is best suited to act as a beacon
of Canadian values in the provision of settlement services (even when its
second-language training program is otherwise fully acceptable), is not
something subject to judicial review on procedural grounds. The Applicant’s
interests - to the extent that they have interests at all - are protected from
capricious decision-making under the reasonableness standard, not by affording it
procedural fairness.
[54]
Even
if the nature of the relationship between CIC and CAF was other than that of a
commercial contract, and even if the Dunsmuir exception was read to
apply as narrowly as CAF submits, I nevertheless would have found that CAF does
not have a right, privilege, or interest that is affected by the decision
sufficient to impose a duty of fairness on the Minister.
[55]
The
Supreme Court held in Cardinal that a duty of fairness is imposed on
every public authority making an administrative decision which is not of a
legislative nature and which affects the rights, privileges or interests
of an individual. This language was tracked in the Supreme Court’s decision in
Knight, when it stated that the effect of the
decision on the individual's rights is a factor to be considered when
determining whether a duty of fairness applies. In Wells v Newfoundland,
[1999] 3 S.C.R. 199 [Wells], the Supreme Court again reaffirmed the concept
that a right, interest, or privilege must be engaged before a duty of fairness
will be imposed, when at 224, it said that “[t]here is no vested interest at
stake causing a duty of fairness to arise (Knight, supra). The
respondent did not show any basis on which he could have formed a reasonable
expectation to be consulted in the process.”
[56]
Although the Court’s comments in Wells were directed
towards the issue of procedural fairness in the context of reappointment of a
public official following lawful termination, the message is still
instructive—there must be some valid interest that stands to be affected by the
decision for there to be a duty of fairness owed. Here, CAF (or any other service
provider organization for that matter) does not have a right to LINC funding.
While the Minister conceded that there may be indirect benefits to CAF as a
result of the contribution agreements such as increased legitimacy of the
organization as a result of its contractual relationship with the government,
or the sharing of infrastructure costs with CAF’s other operations, I find that
these are not sufficient privileges or interests so as to engage an obligation
of fairness.
[57]
If
the added legitimacy resulting from the very act of contracting with the
government is a sufficient interest to impose procedural fairness obligations,
virtually every party that contracts with the government in any fashion will
suddenly acquire procedural rights. Furthermore, part of the reason that the
Minister decided not to continue to fund CAF was because he did not think it
was appropriate for the government to appear to support, endorse, or legitimize
an organization that might be viewed as anti-Semitic or that might support
terrorism.
[58]
The
sharing of infrastructure costs is similarly not a sufficient interest to
impose an overarching duty of fairness on the Minister. In this case, the
actual financial benefit to CAF cannot be significant—it was already renting a
separate building for its other operations and the majority of the LINC staff
played no additional role in CAF’s other operations. Furthermore, funding for the
LINC program was provided on a cost-recovery basis for recoverable expenses
related to the LINC program only. This effectively limited the extent to which
costs unrelated to the program could be reimbursed. On the other hand, as I
have already indicated, imposing a duty of fairness on the Minister would
significantly constrain his ability to expeditiously make broad, policy-based
decisions. Any incidental interest CAF may have had was heavily outweighed by
the public’s interest in a Minister with the discretion to make decisions swiftly,
instead of one who is paralyzed by procedure.
[59]
For
these reasons, I find that CAF was not entitled to procedural fairness in the
Minister’s decision not to accept their proposal and extend the term of its
contribution agreement with CIC under the LINC Program.
Content of the
Duty of Fairness
[60]
Had
I found that it was entitled to procedural fairness, I would have found that
this case attracts no more than minimal procedural protections and that those
requirements were met. The five factors set out in Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, which the Court is to
consider when determining what procedural rights the duty of fairness requires
in a particular context, all point to such a conclusion.
[61]
The
decision not to approve an extension of CAF’s LINC funding is not close to
judicial decision-making. It is discretionary and purely administrative. Although
there is no appeal from such a decision, there is no impediment to CAF applying
in the future for funding and this, in my view, points to a lower duty of fairness.
[62]
Despite
the fact that LINC funding comprised roughly 74 percent of CAF’s annual budget,
the LINC funding was not critical to CAF’s operations as the provision of LINC
training was not within its main mandate nor did the contribution agreements
generate income for CAF’s activities as funding was provided on a cost recovery
flow-through basis. CAF had no legitimate expectation that the contract
extension would be provided. In fact, it was aware from the Minister’s
statements that funding was in jeopardy. Further, CAF had no legitimate
expectations in the process - on the contrary, CAF was explicitly told not to
expect approval until it was notified in writing and similarly, not to incur
any expenses or hire any staff until final approval was received. Despite
approval appearing to be a formality in years past, it does not change the fact
that the Minister always had ultimate discretion.
[63]
Lastly,
the choice of procedure used by CIC and the requirement of the Minister’s
approval given the value of the contract, are left to the Minister. All of
these factors indicate that minimal procedural protections would have been
appropriate in this case.
[64]
Had
it been entitled to fairness, in my view, the following are the procedural
rights CAF would have been entitled to receive: (1) to know the reasons why the
Minister did not approve its proposal, (2) to know the Minister’s concerns
regarding it and the fact that those concerns could lead to it not being
approved for future funding, and (3) to be given an opportunity to respond to
those concerns.
[65]
Here,
a letter was provided to CAF outlining the Minister’s reasons for his
decision. The Minister submits that the other two elements are also
satisfied. He says that CAF was aware of his concerns and it had the
opportunity to respond to them. The notification and response, he says, were
the numerous public statements he and CAF officials made.
[66]
The
Minister made many public statements detailing the specific statements and
activities of CAF that he says he considered when making the decision. He also made
it clear that CAF’s LINC funding was in jeopardy as a result of those
statements and activities. Further, CAF was aware of the Minister’s specific
concerns, it addressed them, and offered its response in various statements and
press releases. In a radio interview on February 17, 2009, nearly a month
before the decision, the interviewer put directly to Mr. Mouammar that the
Minister was “poised to slash federal funding to Canada’s largest Arabic group”
because “groups whose leaders say intolerant or hateful things should not get
taxpayers’ funding.” Mr. Mouammar responded:
It
does not belong to Jason Kenny [sic], and it’s up to Canadian taxpayers
to decide who gets this money to provide such settlement services, not Jason
Kenny [sic]. His approach is really a fascist approach. He is
threatening people that you cannot criticize government policies, and if you
do, you are therefore banned from receiving funding from settlement services,
which are not under his jurisdiction, because as I said, this is taxpayers’
money.
[67]
No
authority was provided for the proposition that public statements provide notice
of the sort required to satisfy the duty of procedural fairness. However, I
can see no principled basis to reject the adequacy of notice through public
statements provided they are sufficiently detailed, the receiving party is made
aware of them, and the receiving party provides a response. In this case, I
find all of the requirements were satisfied and the notice was adequate.
[68]
I
cannot see how the fairness of the decision-making process would have been
enhanced had the Minister sent a formal notice to CAF detailing the very
statements and concerns he had publicly expressed, and given it an opportunity
to respond. The function of notice had clearly been served as evidenced by Mr.
Mouammar’s response during the February 17, 2009 interview. Further, it is not
suggested by CAF that it could have or would have offered a response that
differed from the public response it had given.
[69]
In
my view, CAF was aware of the Minister’s concerns and the possible result. CAF
responded publicly to those concerns. The Minister had CAF’s public responses
before him when he made his decision. The three elements required by the duty
of fairness were therefore satisfied in these unique circumstances. Had I
found otherwise, on these facts, I would have found the breach to have been a
technical, inconsequential breach, and the result unlikely to have been
different in light of the parties’ public discourse. For those reasons, I
would not have exercised my discretion to award CAF a remedy.
2. Was the
Minister’s Decision Tainted by a Reasonable Apprehension of Bias?
[70]
Regardless
of whatever else the duty of fairness may require in terms of procedural
protections, where fairness applies, the decision maker must in all cases be
impartial and free from a reasonable apprehension of bias. Because I have
found that no duty of fairness applied here, I need not explore whether the
decision was tainted by a reasonable apprehension of bias. However, should a
reviewing court determine that fairness did apply, I shall provide my
assessment of CAF’s allegations of bias.
[71]
The
test to be applied in determining whether an administrative decision-maker is
biased will vary depending on the nature of the decision-making body: Newfoundland
Telephone Co v Newfoundland (Board of Commissioners of Public Utilities,
[1992] 1 S.C.R. 623 at 637-640 [Newfoundland Telephone].
[72]
The
Ontario Court of Appeal in Davis v Guelph (City), 2011 ONCA 761 at
para 71, 345 DLR (4th) 1, summarized how to determine the appropriate test for
bias:
At
the adjudicative end of the spectrum, the traditional "reasonable
apprehension of bias" test will apply in full force. At the other end of
the spectrum, however - where the nature of the decision is more of an
administrative, policy or legislative nature - the courts have held that a more
lenient test, known as the "closed mind" test is applicable. [references
omitted]
[73]
Additionally,
the Supreme Court of Canada stated in Imperial Oil Ltd v Quebec (Minister of
the Environment), [2003] 2 S.C.R. 624 at 646-647 that:
The
appellant's reasoning thus treats the Minister, for all intents and purposes,
like a member of the judiciary, whose personal interest in a case would make
him apparently biased in the eyes of an objective and properly informed third
party. This line of argument overlooks the contextual nature of the content
of the duty of impartiality which, like that of all of the rules of procedural
fairness, may vary in order to reflect the context of a decision-maker's
activities and the nature of its functions. [emphasis added]
[74]
CAF
submits, without analysis, that the appropriate standard is a reasonable
apprehension of bias and not the closed mind test. The Minister says that this
was a policy driven decision - he exercised a broad discretion, weighed
competing interests, and made a decision respecting a commercial relationship -
and therefore the higher standard of a closed mind is appropriate.
[75]
I
agree with the Minister that the closed mind test is the appropriate standard
by which to judge his decision because the Minister is a democratically elected
official and this particular decision comes in the context of the administration
of the Act. The question to be asked is whether the Minister had
prejudged the matter “to the extent that any representations at variance with
the view, which has been adopted, would be futile:” Old St Boniface
Residents Assn Inc v Winnipeg (City), [1990] 3 S.C.R. 1170 at 1197. For the
following reasons, I find that the Minister’s mind was closed.
[76]
The
Minister says that he did not make up his mind until March 18, 2010, and he was
impartial when he rendered his decision. The Court was pointed to comments he
made in numerous radio interviews leading up to the decision, including the
following:
a. In an interview
on March 2, 2009 the Minister made clear to the host that he had not yet made a
decision; and
b. The Minister
stated in an interview on March 14, 2009 that if the character of CAF were to
change and there was to be new leadership that was more in keeping with
Canadian values, he would be “…entirely comfortable with [CAF] being a service
delivery partner.”
[77]
The
Minister submits that while he expressed strong opinions prior to the decision,
these statements did not indicate that his position could not be dislodged. He
reminds the Court that in Newfoundland Telephone, the Supreme Court of
Canada stated at 639 that “a member of a board which performs a policy formation
function should not be susceptible to a charge of bias simply because of the
expression of strong opinions prior to the hearing.”
[78]
However,
the Minister’s public statements are only part of the evidence that must be
examined to determine whether he had a closed mind regarding CAF. Private
statements are often more indicative of a person’s true state of mind, than
public statements. This may be especially true of political figures.
[79]
I
agree with CAF that particularly telling is the Minister’s February 2, 2009
email in which he requests “information on the contribution agreement embarrassingly
approved by our government for the radical and anti-semitic [sic]
Canadian Arab Federation.” He goes on to say that he wants “to pursue
all legal means to terminate this shameful funding arrangement, and to ensure
that it is not renewed.” [emphasis added]
[80]
Any
reasonable person reading this would conclude that the Minister had made up his
mind about the issue of future funding for CAF; his only interest was in pursuing
the means to reach his end goal of terminating the relationship CIC had with
CAF.
[81]
I
conclude, despite the Minister’s public statements and assertions to the
contrary, that his private actions revealed that he would not truly consider
CAF’s submissions - that any efforts by CAF short of changing its leadership
were futile. His mind was closed.
3. Was CAF’s
Freedom of Expression Infringed?
[82]
There
is no doubt, and it was undisputed by the Minister, that CAF’s advocacy
activities are protected expression. Additionally, the expression surrounding
the LINC program is also protected. Nevertheless, I find that CAF’s freedom of
expression was not infringed.
[83]
The
Supreme Court of Canada in Baier v Alberta, 2007 SCC 31, [2007] 2 SCR
673 [Baier], set out how one determines whether a right claimed is a
positive entitlement to a particular platform or benefit, or a negative right
to be free from government restraint. The claim is a positive entitlement
claim if the government has to legislate or otherwise act to support or enable
an expressive activity; the claim is a negative rights claim if what is being
sought is freedom from government restriction on activity that people would
otherwise be free to engage without any need for government support or enablement.
[84]
CAF
contends that by cancelling its LINC funding, the Minister restricted its
expression surrounding the Israel-Palestine conflict and therefore, that this
is a standard negative rights freedom of expression claim. CAF is asking that
the Minister be restrained from restricting expression in which it would
otherwise be free to engage. The Minister contends that this is a positive
rights claim because CAF is seeking positive entitlement to funds for its LINC
program and by extension, its expression.
[85]
I
agree with the Minister that this is a positive rights claim for three reasons.
[86]
First,
only the expression through the LINC program is engaged by the decision to cut
funding. There is no link between the discontinuation of funding for LINC
training and CAF continuing its advocacy surrounding the Israel-Palestine
conflict. The funding provided by the contribution agreement was intended only
for expenses related to the LINC program, and for no other purpose. CAF was
reimbursed only for eligible costs actually incurred in carrying out the
services during the term of the contract - the funds were not provided to be
used at CAF’s discretion. It is notable that CAF’s LINC contract was not
terminated as a consequence of its speech, it was merely not extended.
Further, CAF’s other contribution agreement for ISAP continued. In addition, the
LINC program was run by CAF’s Settlement Services branch which is
entirely separate from its advocacy branch. The two were essentially wholly
independent, even operating out of entirely separate geographic locations.
These factors demonstrate the separation between CAF’s LINC operation and its
advocacy operation.
[87]
Second,
the
LINC program is a platform that the government created. Since access to the
LINC program requires enablement by the government, this points to a positive
rights claim.
[88]
Third,
Baier makes clear that a claim does not become a negative rights claim
simply because the applicant historically had access to the platform of
expression prior to the legislation or decision to disentitle the applicant.
In this case, CAF’s access to the LINC program for 12 years prior to the
Minister’s decision does not automatically convert the claim into a negative
one. The Court in Baier said that “to hold otherwise would mean that
once a government had created a statutory platform, it could never change or
repeal it without infringing s. 2(b) and justifying such changes under s. 1.”
[89]
Baier
held
that an applicant must establish the following factors to successfully claim a
positive entitlement under s. 2(b) of the Charter:
1. The claim is
grounded in a fundamental freedom of expression rather than in access to a
particular statutory regime;
2. The claimant has
demonstrated that exclusion from a statutory regime has the effect of a
substantial interference with s. 2(b) freedom of expression, or has the purpose
of infringing freedom of expression under s. 2(b); and
3. The government
is responsible for the inability to exercise the fundamental freedom.
[90]
In
Baier, legislation was passed that disqualified school employees from
running for positions as school trustees of any school board unless they went
on a leave of absence and resigned from their positions as teachers if
elected. The Alberta Teachers Association alleged that this was an
infringement of the employees’ freedom of expression. It argued that the role
of a school trustee was a unique platform for advocacy surrounding educational
issues and therefore constituted a fundamental freedom.
[91]
The
Court rejected this characterization saying that “claiming a unique role is not
the same as claiming a fundamental freedom. The appellants' claim, as they
have articulated it, is grounded in access to the particular statutory regime
of school trusteeship” (at para 44). Similarly, CAF’s access to LINC funding
is a particular platform created by the government, not a fundamental freedom.
[92]
The
Court in Baier also stated that even if eligibility for
trusteeship was a fundamental freedom, removing eligibility was not a
substantial interference with freedom of expression because even without the
position, teachers could still engage in advocacy surrounding educational
issues. This is analogous to CAF’s situation: even without access to
the LINC program, CAF can still engage in, and has still engaged in, its
advocacy surrounding the Israel-Palestine conflict. Discontinuing LINC funding
has not created an “inability” to engage in expression or substantially
interfered with CAF’s expression.
[93]
In
summary, there is no positive entitlement to funding because the right to
administer the LINC program is not grounded in a fundamental freedom. There is
also no substantial interference with CAF’s advocacy efforts because CAF has
continued to express its ideas surrounding the Israel-Palestine conflict despite
not receiving funding for LINC training.
[94]
Having
found that there is no breach of s. 2(b) of the Charter, it is
unnecessary for me to conduct a section 1 analysis.
4. Was the
Minister’s Decision Reasonable?
[95]
There
is no jurisprudence on the applicable standard for reviewing a decision
(Ministerial or not) to reject a funding request under the LINC program. After
undertaking the analysis set out in Dunsmuir, I determine the applicable
standard of review to be reasonableness. The factors to be considered
are: (i) the existence of a privative clause, (ii) any special expertise of the
decision- maker, and (iii) the nature of the question being decided.
[96]
First,
there is no privative clause at play and thus there is no reason to extend to
the Minister any added deference.
[97]
Second,
one could argue that the Minister has no particular expertise that is relevant
to the determination of whether or not funding should be granted to CAF for
administering the LINC program, and therefore little deference is required.
However, the Minister is an elected official making a decision in the
administration of the Act that involves broader policy considerations
and therefore he should be granted deference by virtue of his position. This
factor points to a reasonableness standard of review.
[98]
Third,
the nature of the question being decided also points to reasonableness. In
this case, this is a policy-driven commercial decision made with the intent of
giving effect to the broad purposes of the Act. There is no question of
law central to the importance of the legal system. Therefore, much deference
is owed.
[99]
Accordingly,
the applicable standard in this case is the reasonableness standard. The fact
that this is a broad policy-based decision by an elected official warrants a
high degree of deference for his decision.
[100] The
reasonableness standard of review requires only that the Minister’s decision
fall within a range of reasonable outcomes to avoid being overturned.
[101] In assessing
whether the decision falls within that range, one must first correctly
determine what is being assessed. The parties differ in their characterization
of the Minister’s decision. CAF submits that the Minister’s decision is that
CAF is anti-Semitic and supports terrorist organizations and it is that
decision which is unreasonable. The Minister submits that he decided not to
distribute finite resources to fund CAF because it is not an appropriate
service provider organization as it appears to be engaged in extremism
contrary to Canadian values, and that decision was reasonable.
[102] In the March 18,
2009 letter, it is stated that the Minister decided not to renew CAF’s funding,
because:
Serious
concerns have arisen with respect to certain public statements that have been
made by yourself or other officials of the CAF. These statements have included
the promotion of hatred, anti-semitism [sic] and support for the banned
terrorist organizations Hamas and Hezbollah.
The
objectionable nature of these public statements – in that they appear to
reflect the CAF’s evident support for terrorist organizations and positions
on its part which are arguably anti-Semitic – raises serious questions about
the integrity of your organization and has undermined the Government’s
confidence in the CAF as an appropriate partner for the delivery of settlement
services to newcomers. [emphasis added]
[103] Based on the
express wording of the decision letter, I agree with the Minister’s characterization
of the decision. The question that must be addressed is whether or not it was reasonable
to not continue funding CAF’s LINC program because it is an organization that appears
to be anti-Semitic and support terrorist organizations. I find that the
Minister’s decision in this case falls within the range of reasonable outcomes.
[104] CAF filed many
affidavits from academic scholars, legal professors, Jewish advocacy groups,
and people who have worked closely with CAF, stating that they have never
witnessed anti-Semitism, promotion of hatred, or support for terrorism from
CAF. While this evidence is compelling, it must be considered in light of the
conflicting opinion and evidence in the record on the question of what
constitutes anti-Semitism and evidence of how other Canadians have perceived
CAF’s actions. The only thing that is clear from the record is that there is
no consensus.
[105] The Court is not
required to resolve the question of what constitutes anti-Semitism because the
Minister did not say that CAF is anti-Semitic, rather he said that
public statements made “appear to reflect the CAF’s evident support for
terrorist organizations and positions on its part which are arguably
anti-Semitic.” The Minister does not have to prove that CAF is anti-Semitic,
only that they could appear to be anti-Semitic. There is an abundance of
evidence in the record to show that, although many do not consider CAF’s
actions to be anti-Semitic, including people of Jewish ethnicity, there are
many others that hold the opposite view, including a former CAF president. In
this context, it is especially important to be deferential to the Minister’s
decision.
[106] With respect to
the six specific matters relied on by the Minister, it is submitted by CAF that
it did not authorize them, the persons involved were not officially
representing CAF at the time, or the actions and content were not endorsed or
approved of by CAF. In many cases, this defense ignores the maxim that “one is
known by the company one keeps.” Quite simply, CAF cannot completely
disassociate itself from the content of web links it includes in its materials,
or from comments, distribution of materials, or attendances at meetings and
conferences by its executive.
[107] All of the
statements and actions raised by the Minister can, in my view, reasonably lead
one to the view that CAF appears to support organizations that Canada
has declared to be terrorist organizations and which are arguably
anti-Semitic. Aside from the Minister himself reaching this view, the record
is replete with news articles and statements of others to the same effect, all
of which support that it was not unreasonable for the Minister to reach that
conclusion.
[108] The decision,
for these reasons, falls within the scope of reasonableness, as described in Dunsmuir
at para 47.
Costs
[109] The Minister is
entitled to his costs. If the parties cannot reach an agreement on quantum,
they are to advise the Court within 30 days of this decision. The Minister
shall provide his written submissions on costs, not exceeding ten (10) pages,
within ten (10) days thereafter, and CAF shall have twenty (20) days from
receipt of the Minister’s submissions to provide its written response.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The
application is dismissed; and
2.
Costs are
awarded to The Minister of Citizenship and Immigration.
“Russel W. Zinn”
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